The Scottish Parliament and law making
The Scottish Parliament and law making

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4 Legislative consent – or ‘Sewel’ motions

During the debates of the Scotland Act 1998 in the House of Lords (UK Parliament), Lord Sewel, the then Parliamentary Under-Secretary of State for Scotland, stated that they ‘would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament’. It was important that this convention was established as there were no provisions in the Scotland Act 1998 (original unamended) which prevented the UK Parliament from legislating on devolved matters.

The Scottish Parliament is able to agree the incorporation of legislative provisions affecting Scotland in devolved areas. This enables the Scottish Parliament to consent to the UK Parliament legislating for Scotland on devolved matters in certain circumstances where, for example, it is considered sensible and appropriate to put in place a single, UK-wide regime, or where the Scottish Parliament supports the proposed legislation but there is no parliamentary time available because of separate Scottish priorities.

These agreements, initially known as Sewel motions, were renamed in 2005 as legislative consent motions. The procedures for legislative consent motions are stated in the Scottish Parliament’s Standing Orders. Such motions can save time and the need for separate and similar legislation in both the Scottish and UK Parliaments. They can also be used to confine legislative discussions to the UK Parliament only. Such a motion was used in respect of civil partnerships legislation which eventually became the Civil Partnerships Act 2004.

Box 7 Legislative consent motions

A legislative consent motion is the means by which a devolved body grants permission to the UK Parliament to pass a law on something that is a devolved matter. Sometimes referred to as Sewel motions, they arise out of the convention that the UK Parliament would not normally legislate on a devolved matter without the consent of the relevant devolved institution.

In practice five uses have emerged:

  1. Where it would be more effective to legislate on a UK basis in order to put in place a single UK-wide regime (for example, powers for the courts to confiscate the assets of serious offenders).
  2. Where there is a complex inter-relationship between reserved and devolved matters that can most effectively and efficiently be dealt with in a single Westminster Bill (for example, the introduction of civil partnerships).
  3. Where the UK Parliament is considering legislation for England and Wales which the Scottish Government believes should also be brought into effect in Scotland, but no Parliamentary time is available at Holyrood (for example, to strengthen protection against sex offenders).
  4. Where the provisions in question, although they relate to devolved matters, are minor or technical and uncontroversial (for example, powers for Scottish Ministers to vary the functions of the Central Council for Education and Training in Social Work).
  5. Where the breadth of the powers of the Scottish Parliament and/or Scottish Ministers would be enhanced in a manner that could not be achieved unilaterally through an Act of the Scottish Parliament (for example, conferral of functions in relation to railways).

Box 8 Legislative and Public Bodies Act consent memorandums and motions statistics

Current session statistics
Parliamentary SessionSewel/ Legislative consent memorandums lodgedSupplementary memorandums published or lodgedLegislative consent motions lodged/Sewel Motions lodgedLegislative consent/Sewel Motions passed
Current 12 May 2016 to ……….. 921010
Session 4 1 May 2011 to 23 March 201640124611
Session 3: 9 May 2007 – 22 March 20113463030
Session 2 7 May 2003 to 2 April 2007 4133838
Session 1 12 Mat 1999 to 31 March 2003 3813939

Since 2011 consent motions to Public Bodies Acts are also recorded. In Session 4 these totalled 11, at the time of writing there had been none in Session 5.

(The Scottish Parliament, n.d.)

Activity 2 Reserved matters

Timing: Allow about 15 minutes

Take a moment to think about what you have read so far. The Scottish Parliament has devolved powers and there are reserved matters on which only the UK Parliament can legislate. It has been established that the UK Parliament would not normally legislate in a devolved matter in Scotland without the agreement of the Scottish Parliament. What might be the benefit to the Scottish Parliament in having some matters reserved to the UK Parliament?

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Comment

There are a number of reserved matters. These include constitutional issues, foreign policy, defence and national security, data protection, and ordnance survey. There are a number of benefits to having reserved matters, including:

  • the Scottish Parliament has more time to devote to Scottish issues
  • the Scottish Parliament is able to consult more widely on issues which affect Scotland
  • it allows the UK Parliament to legislate in areas where there is likely to be common agreement (Scottish MPs still sit in the UK Parliament)
  • it could be seen to prevent duplication of debate in both Parliaments.

This list is not exhaustive and you may have thought of other benefits. The relationship between the Scottish and UK Parliaments continues to develop. It can suit the Scottish Parliament to allow the UK Parliament to legislate in a devolved matter. Remember, however, that the Parliaments and Government are separate and serve different functions. Protocols have therefore emerged for the use of these powers and you will now explore these.

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