In those heady pre-election days, when polls were king and a hung parliament seemed inevitable (a week, it seems, really is a long time in politics), there was much excited/exasperated (delete as appropriate) talk of a ‘progressive alliance’ of SNP, Green and Plaid Cymru MPs joining forces to support or to form a government with the Labour Party. Depending on one’s vantage point, this alliance of small parties would either “make Labour bolder”, as Nicola Sturgeon put it, or “hold Labour to ransom” in a “coalition of chaos” (the latter view, it would seem, proving grimly persuasive on the door-steps of middle-England). The point, however, was that should such an arrangement come to pass, smaller parties would have an opportunity – for better or for worse – to make a meaningful impact on the business of government. Alas! With the Conservative Party forming a single party majority government much has been made of the limited opportunities that even the SNP’s 56 (of 59 Scottish) MPs will have to make their voices heard. This may be so (though we should not readily dismiss the significance of increased Short money, committee representation and the scope to ask political questions, even if the legislative arithmetic is stacked against them); nevertheless, the force of the SNP’s unprecedented, near clean sweep of Scottish seats might still be felt on the Conservative Party’s legislative agenda, its majority notwithstanding, not (counter-intuitive though it may sound) at Westminster, but back at Holyrood, where significant aspects of that agenda will require the consent of the Scottish Parliament. Allow me to explain.

The Sewel Convention

Nothing in the Scotland Act, and its devolution of primary law making power from Westminster to Holyrood, affects the right of the UK Parliament, as a sovereign legislature, to make or unmake any law for Scotland whatever (s 28(7)). By convention, however, the UK Parliament will only legislate in devolved areas where it has secured the consent of the Scottish Parliament to do so. The Sewel Convention, as it came to be known (or the Legislative Consent Motion, to use its Sunday name), was first articulated by Lord Sewel, the Minister of State in the Scottish Office during the passage of the Scotland Bill, and is given form (as a political as opposed to a legally binding undertaking) in the Memorandum of Understanding between the UK Government and the devolved executives (at para 14). In practice this involves officials within United Kingdom government departments consulting with counterparts at the Scottish Government on all policy proposals that affect devolved areas, and approaching the Scottish Government to gain consent for legislation from the Scottish Parliament where this is deemed to be necessary (i.e. where legislative solutions are sought, and where their provisions are specifically for a devolved purpose). So, whilst we talk loosely of legislative consent, this is very much an executive led process, with limited (though not insignificant, and improving) opportunities for parliamentary input.

The constitutional function of the Sewel Convention is two-fold. First, to provide a pragmatic balance between the diversity of the union state that underpins the devolution settlement(s) and the desirability on occasion (whether expressed by the Scottish Government, the UK Government, or by both together) for a uniform approach to policy and law-making across the United Kingdom. Secondly, in so doing, to restrain Westminster in the exercise of its law-making power in devolved areas by creating a space for (in Lord Sewel’s words) “political dialogue” between the respective governments (HL Deb 21 July 1998, c791). The avoidance of conflict between legislatures, through mechanisms of co-operation and consultation, has therefore been the dynamic driving the operation of the convention.

An evolving convention

Since its inception the Sewel Convention has evolved in at least four interesting ways. First has been the sheer frequency of its use. During the passage of the Scotland Bill it seems generally to have been accepted (though this view is not without challenge – see evidence made out to the contrary offered to the Scottish Parliament’s Procedures Committee in its 7^th report of 2005: The Sewel Convention, SP Paper 428) that resort to the convention would be the exception rather than the rule; a mechanism to be dusted off on those relatively rare occasions when legislative overlap might have been thought to be desirable. In fact, thirty-nine Sewel motions were passed during the course of the first Scottish Parliament and this trend has continued in the parliaments that have followed. The use of the convention has cut across the full ambit of devolved policy areas and has been motivated by a variety of factors including, inter alia, electoral expectation (that Scotland will be treated fairly in relation to the rest of the UK); reliance on UK administrative bodies; the need to avoid ‘regulatory arbitrage’; and the presence of international obligations (for more on this see A Batey and A Page, ‘Scotland’s other Parliament: Westminster legislation about devolved matters in Scotland since devolution’ (2002) Public Law 501). Secondly, there has been an evolution in the procedure by which consent is sought. What began as an informal process (with, at best, haphazard committee input) has now been formalised and strengthened by way of Standing Order 9B, whereby the Scottish Government, within two weeks of a ‘Sewel bill’ being introduced at Westminster, is expected to submit a ‘legislative consent memorandum’ to the relevant committee(s), who in turn will consider and report on that memorandum ahead of a debate in plenary (consent then being granted or withheld on a straight up and down vote). Indeed, the direction of travel appears to be towards greater formality still, with the Smith Commission Report recommending that the Sewel Convention be placed on a statutory footing (at [22]), even if the resulting draft clauses seem to fall some way short of achieving this (see reports by the Political and Constitutional Reform Committee (at [45]-[70]), and by the House of Lords Constitution Committee (at [66]-[77])). Thirdly, the scope of the convention has evolved so as to require the consent of the Scottish Parliament not only where the UK Parliament seeks to legislate in devolved policy areas, but beyond that where a UK bill seeks to vary the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers. This has not been uncontroversial. Calling the use of the convention for these purposes “constitutionally confusing and questionable”, Lord Sewel himself has said, in evidence given to the Scottish Parliament Procedures Committee (7^th report of 2005, The Sewel Convention, SP Paper 428, Annexe C, 5 October 2005, paras 8-9), that:

A proposal to give Scottish ministers powers in relation to a reserved matter is itself a reserved decision. Although there may well be a strong case for seeking the view of the Scottish Parliament on such a proposal, it is difficult to reconcile the present practice with original purpose of the Sewel Convention.

Nevertheless, this has been the procedure that has been followed, notably with regard to the transfer of significant tax raising and borrowing powers (amongst other less headline grabbing competences) made by the Scotland Act 2012, and it seems safe to say that (whether justifiable or not) this type of legislation has been brought firmly within the fold of the convention. Finally, and related to the passage of the 2012 Act, is the evolving bite of the convention. The overwhelming trend has been for consent to be granted by Holyrood, and this is not surprising given the uncontroversial and/or mutually beneficial nature of most Sewel motions. Indeed, consent has been withheld on only two, nevertheless highly illustrative, occasions. First, and perhaps most interestingly for these purposes, in Session 3 (2007-2011, led by an SNP minority administration) the consent motion relating to the passage of the Scotland Bill (no. 114) was – contrary to the traditional form of consent - worded in conditional terms, inviting the UK Government first to consider the amendments and proposals made by the Scotland Bill Committee at Holyrood and then later to return with an amended bill for further debate in a second legislative consent motion. Despite a hint by the (then) Secretary of State for Scotland, Michael Moore, that the UK government might in such circumstances press ahead with the bill in its preferred form (on this, see Alan Trench, ‘The Scotland bill and the Sewel convention: Michael Moore changes his position’ Devolution Matters blog 18 Feb 2011) the result was a more considered approach which sought conciliation between the two positions. As a result legislative consent was duly granted to an amended bill brought during the next parliament (no. 127). Secondly, during Session 4 (2011-2016, led by an SNP majority government), the Scottish Parliament took the unprecedented step of refusing legislative consent, here to aspects of the UK government’s Welfare Reform Bill and the vexed introduction of Universal Credit, preferring to introduce its own legislation in so far as this affected devolved policies (such as free school meals) and services (such as social care). Uniformity, it seems, need not mean unilateralism: in each case, the application of the convention gave the Scottish Parliament a voice as well as a vote.

Conclusion

The experience of the Scotland and the Welfare Reform Bills demonstrates that as well as pragmatic conciliation the Sewel Convention can also provide a site of productive conflict between the two legislatures, to be resolved by way of political dialogue either in anticipation of the need for legislative consent, or as a result of the process as it unfolds. With disparate mandates being held by the SNP and by the Conservative Party both between Westminster and Holyrood and now within Westminster itself one might expect the convention to continue to be tested in this way. Key planks of the Conservative Party’s agenda either will (further devolution, or the introduction of a British Bill of Rights – on which, see Mark Elliott’s thorough analysis) or might well come to (withdrawal from the ECHR or from the EU, both of which place limits on the legislative and executive competences of the devolved institutions) require the consent of the Scottish Parliament. Indeed, it would appear that the lines are already being drawn for a conflict over the future of the Human Rights Act in Scotland, beginning with a very public disagreement between the First Minister and the newly appointed Secretary of State. The result of the 2015 UK general election, which gives the Conservative Party a majority at Westminster but no mandate in Scotland (with just one of 59 seats, and 14.9% of the vote), and the SNP (with 50% of the vote) a mandate to “stand up for Scotland” at Westminster but an arithmetical mountain to climb in order to exert influence, will require of our politicians no little savvy. In the long term, that might mean the managed transformation from a union to (some form of) a federal state. In the short to medium term, however, and to the limited (but as we can see, hugely significant) extent to which there is an overlap between UK policy and devolved competences, the Conservative Party will see in the Sewel Convention an opportunity to elicit co-operation (perhaps even co-option) in its northern hinterland. For the SNP, meanwhile, the requirement for legislative consent, seen in light of the party’s dual mandate at Holyrood and now at Westminster, will present opportunities to engage in a productive conflict with the centre: not only to be seen, but – as was the case with regards to the passage of the Scotland Bill – meaningfully to be heard. We live in interesting times, and it is only just getting started. 

Chris McCorkindale is a lecturer in law at the University of Strathclyde