SPICe has developed two tools that can be used to track legislative consent at the Scottish Parliament. This blog provides background information on legislative consent, introduces the new tools, and provides analysis of the data.
As this blog is slightly longer than usual, the clickable headings below might be helpful for navigation.
What is legislative consent?
The Scottish Parliament and the UK Parliament can both consider Bills which affect Scotland. Bills are proposals to make new law or to change existing law. The Scottish Parliament has legislative competence – that is the power to make laws – in only some areas like health, housing and the environment. The UK Parliament can make laws on anything, including matters within the legislative competence of the Scottish Parliament.
Where the UK Parliament wants to consider a Bill which is within the legislative competence of the Scottish Parliament, or which changes the powers of the Scottish Parliament or Scottish Ministers, it asks the Scottish Parliament for its consent (meaning its agreement). This process is called ‘legislative consent’.
A political convention, called the ‘Sewel Convention’ governs the process of legislative consent. According to the Sewel Convention, the UK Parliament should not normally make a law within the legislative competence of the Scottish Parliament unless the Scottish Parliament agrees. The Sewel Convention is written into the Scotland Act 1998 but it is not legally enforceable. This means that if the Scottish Parliament does not give its consent, the UK Parliament can still consider the Bill in question and make a new law or change the law.
SPICe has published a fact sheet on legislative consent processes in the Scottish Parliament, which provides background information on legislative consent processes in the Scottish Parliament.
How is legislative consent considered at the Scottish Parliament?
When the Sewel Convention applies to a Bill, a member of the Scottish Government has to lodge a document called a ‘legislative consent memorandum’. This should happen within two weeks of a Bill being introduced in the UK Parliament. Additional memorandums can be lodged if, for example, changes are made to the Bill at the UK Parliament.
A legislative consent memorandum should explain what a Bill does and what it aims to achieve. A memorandum can also include a draft motion on legislative consent. A motion on legislative consent is a way for the Parliament to vote on whether it agrees to consent or does not agree to consent to the UK Parliament considering a Bill.
Before the Parliament votes on a motion on legislative consent, a lead committee considers the memorandum and produces a report on it. This helps the Parliament to decide whether or not it should consent to the Bill. After the Scottish Parliament has voted on a motion on legislative consent, the Clerk writes to the Clerks of the two Houses of the UK Parliament to inform them of the Scottish Parliament’s decision.
Legislative consent trackers
SPICe has developed two tools, the Consent Compass and the Consent Lens, that can be used to track legislative consent at the Scottish Parliament. The trackers provide information on Bills considered in the UK Parliament for which at least one legislative consent memorandum was lodged in the Scottish Parliament during Session 5 and Session 6. The trackers were last updated on 19 November 2024.
The Consent Compass includes a list of Bills and provides information on whether consent was recommended and provided for each.
The Consent Lens provides more detailed information on individual Bills, for example whether the UK Government and Scottish Government agreed on which provisions in a Bill required legislative consent and consideration by committees in the Scottish Parliament.
You can find out more about how SPICe collates this information on the SPICe Intergovernmental Activity Hub legislative consent page.
What does the data tell us?
How often did the UK Government and Scottish Government agree on which provisions required consent?
When a Bill is introduced in the UK Parliament by the UK Government, Explanatory Notes are published. These set out which if any provisions in the Bill the UK Government considers to require legislative consent from the devolved legislatures. Legislative consent memorandums lodged by the Scottish Government set out which provisions in the Bill the Scottish Government considers to require the legislative consent of the Scottish Parliament.
Out of 81 Bills passed by the UK Parliament and enacted during sessions 5 and 6 for which legislative consent memorandums were lodged at the Scottish Parliament:
- The UK Government and the Scottish Government agreed on which provisions required legislative consent from the Scottish Parliament in relation to 55 Bills (68%).
- The UK Government and the Scottish Government did not agree on which provisions required consent in relation to 26 Bills (32%). This includes cases in which there was disagreement on whether any provisions required consent as well as where the governments agreed in relation to some provisions but not others.
How often was consent provided by the Scottish Parliament?
The legislative consent trackers include information on whether the Scottish Parliament provided consent for Bills to be considered by the UK Parliament by voting on one or several motions.
Our trackers include information on all motions associated with the listed Bills, whether the motion seeks consent to one or more provisions, refusal of consent to one or more provisions, neither, or both. Find out more about a recent change to the rules governing motions on legislative consent in a SPICe fact sheet.
To understand how often legislative consent has been provided, it is important to understand how we have classified data on motions (for more detail, see our legislative consent page on the SPICe intergovernmental activity hub):
- Where consent was provided for all provisions considered to require consent by the Scottish Government, this is classed as ‘Consent provided’.
- Where consent was provided for some but not all provisions considered to require consent by the Scottish Government, this is classed as ‘Partial consent provided’.
- Where consent was not provided for any provisions considered to require consent by the Scottish Government, this is classed as ‘Consent not provided’. This includes cases in which motions refusing consent were approved, cases in which no associated motions were approved, and cases in which motions that made no specific consent recommendations were approved.
Based on this classification, out of 81 Bills passed by the UK Parliament during Sessions 5 and 6 for which legislative consent memorandums were lodged at the Scottish Parliament:
- Full consent was provided for 62 Bills (77%).
- Partial consent was provided for 6 Bills (7%).
- No consent was provided for 13 Bills (16%).
Please note that our trackers do not capture information on changes made to Bills after they have been considered at the Scottish Parliament. This means that Bills listed as passed may not have been passed in the version considered by the Scottish Parliament.
The number of Bills passed without the legislative consent of the Scottish Parliament has been a notable development in recent years. According to a 2020 report by Akash Paun and Kelly Shuttleworth from the Institute for Government:
Before 2018, consent had been withheld by one or other of the devolved legislatures on just nine occasions. The Northern Ireland assembly and Scottish parliament had each withheld consent only once, for the Enterprise Bill (2015–16) and the Welfare Reform Bill (2011–12) respectively. On both these occasions, as the House of Commons Library details, the UK government agreed to amend the legislation so that the provisions to which the devolved institutions objected no longer applied in that part of the UK. On other occasions, for instance in relation to the Public Service Pensions Bill (2011–12), an impending denial of consent by the Scottish parliament led to pre-emptive amendments that took the contested provisions out of the legislation, averting the need for a consent vote.
Briony Allen, Akash Paun and Gabriel Byrne from the Institute for Government have published a report on five case studies from the 2019–24 UK Parliament and a blog reflecting on the strengths and weaknesses of the consent process on 7 November 2024 which may be of interest to Members. The report on case studies provides examples of the legislative consent process operating consensually as well as examples of disputes and considers what lessons may be drawn from these.
The Constitution, Europe, External Affairs and Culture Committee has considered the operation of the Sewel Convention since EU-exit. In its 2022 report ‘The Impact of Brexit on Devolution’ the Committee found that the Sewel Convention was ‘under strain’. In its subsequent 2023 report ‘How Devolution is Changing Post-EU’, the Committee noted that:
there is clearly a fundamental difference of viewpoint between the UK Government and all the devolved governments with regards to how the Sewel Convention has been operating since EU-exit. It is also clear that this has led to a deterioration in relations between the UK Government and all the devolved Governments.
The Labour Party manifesto included a commitment to “strengthen[…] the Sewel Convention by setting out a new Memorandum of Understanding outlining how the nations will work together for the common good.” Following the formation of the new UK Government, the Constitution, Europe, External Affairs and Culture Committee wrote to the Minister for the Constitution and European Union Relations, the Rt Hon Nick Thomas–Symonds MP, asking for a response to its work on the operation of the Sewel Convention. In a letter to the Committee dated 19 August 2024, the Minister stated:
As we set out in the King’s Speech, we intend to work closely with the devolved governments to deliver for people across the whole of the UK. I note your letter of 16 July – the Sewel Convention and the way the UK Government legislates is certainly a priority area and we are intending to strengthen the Sewel Convention with a new memorandum of understanding. We will be able to send you a fuller response soon.
Annie Bosse, SPICe Research