By stewartb

The Institute for Government (IfG) – the London-based think tank close to the Westminster/Whitehall establishment – has published an assessment of the operation of the Sewel Convention. It explains the convention is ‘designed to give the devolved institutions a degree of certainty that their powers will not be overridden, and enables the UK and devolved governments to work together on legislation where their policy objectives are aligned.’

Source: Allen et al (November 7, 2024) The Sewel convention in practice – five case studies from the 2019–24 parliament. Institute for Government, London (https://www.instituteforgovernment.org.uk/sites/default/files/2024-11/Sewel-convention-in-practice.pdf )

The IfG reports that the Scottish parliament, Senedd Cymru and Northern Ireland assembly in the five year period voted to withhold consent from UK legislation on 28 occasions, in relation to 19 separate bills. It identifies a growing divergence between the UK and devolved governments. It provides case studies which demonstrate the powerlessness of devolved governments and parliaments to reject or to have amended legislation that the government in Westminster is intent in passing into law regardless of impact on the devolution settlements.

United Kingdom Internal Market Act 2020

Post Brexit, the UK Internal Market (UKIM) bill ‘aimed to ensure continuity for businesses and citizens by preventing new barriers to intra-UK trade arising, as well as to boost competitiveness and support the business environment across the UK’.

According to the IfG, the bill had provisions covering both reserved and devolved areas. It also amended the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006. And it made explicit that regulation of the provision of subsidies (‘state aid’) is a reserved matter. Moreover, it protected UKIM from modification by devolved legislatures. This was regarded by both the Senedd and Scottish parliament as modifying legislative competence by adding a category of legislation they could not amend.

The bill also empowered UK ministers to spend money across the UK for the objective of economic growth, including on devolved functions such as local transport, infrastructure and training schemes.

The IfG explains: ‘Both the Scottish and Welsh parliaments voted to withhold legislative consent, … The bill was nonetheless passed at Westminster and received royal assent on 17 December 2020.’

The IfG reports that the Scottish government expressed the view that there had been little consultation with devolved administrations before the bill was introduced. It claimed that the bill was shared for the first time with the devolved administrations only the evening before its publication.

Westminster unconstrained

The IfG report draws the following lessons: ‘This case serves as a reminder of the unconstrained ability of Westminster to pass legislation that constrains and amends the powers of the devolved institutions, whether or not consent is given. It also highlights that the UK government does not always consult the devolved institutions during the pre-legislative phase even when it recognises the impact of its legislative proposals on devolved matters.’ (my emphasis)

Genetic Technology (Precision Breeding) Act 2023

Again enabled by Brexit, the purpose of the act is to remove ‘precision’ (gene edited) bred plants and vertebrate animals from the regulatory system for genetically modified organisms, which the UK government said would ‘enable these products to be authorised and brought to market more easily’.

The IfG explains that the ‘regulation of the production, release into the environment, and marketing of precision-bred plants and animals (and any food or feed derived from them) are devolved matters.’ Despite the fact that the provisions of the act largely apply in relation to England only, and as such should not encroach on devolved competence, it has consequences for Scotland and Wales directly because of the aforementioned UKIM.

The latter means that precision-bred products that are legally produced in, or imported into, England can be legally placed on the market in Scotland and Wales (although not Northern Ireland because of its position with respect to the European single market).

The IfG explains that the UK government appealed to the market access principles provided by UKIM, which had already been enacted, to argue that legislative consent was not required for the bill. The bill was introduced in the Commons on 25 May 2022: the UK government did not request legislative consent from the devolved legislatures.

The IfG reveals a pattern: it reports that during the second reading in the Commons, Deidre Brock MP (SNP) set out that although there would be significant impact on devolved areas, ‘devolved governments were only informed one day before the bill was introduced by a letter from the environment secretary encouraging them to adopt the bill’s principles.’

We learn from this case that both the Scottish and Welsh governments submitted legislative consent memoranda recommending against consent. The Scottish Government made clear that consent was not recommended as the bill ‘undermines devolution’ by allowing UK ministers to legislate in devolved areas through secondary legislation with no requirement for Scottish ministers to consent.  The Welsh government argued that the bill rendered ‘irrelevant’ its own regulations; clashed with its ‘precautionary and restrictive approach’ to regulating genetic modifications; would restrict Welsh trade with the EU; and diminished consumer choice due to the lack of labelling requirements.

Both the Scottish and Welsh parliaments voted against granting consent to the bill, to no avail. In the third reading in the Lords, when asked about the withholding of devolved consent, Lord Benyon’s response for the Westminster government was that he hoped “in time they will see what we are doing”.

UK Internal Market Act and its longer term, insidious significance

The lessons drawn by the IfG in this instance are more nuanced and arguably point up  something more insidious and long lasting: ‘This case illustrates a new form of complexity in determining whether UK legislation affects devolved matters that was created by the passage of the UKIM Act.’

The IfG view is that it demonstrates how UK ministers can argue that a bill does not invoke the Sewel convention when its direct application is only in England, even if it has important secondary implications for devolved matters and consent processes relating to future secondary legislation. The IfG notes: ‘On this bill, there were opportunities for amendments that might have helped secure consent, but having decided that consent was not required, the UK government ruled these out.’  Westminster as judge and jury!

End note

These two cases demonstrate according to the IfG that: (i) ‘there is no easy mechanism to

resolve disputes over whether Sewel applies’ – Westminster rules; (ii) ‘the UK government does not always consult its devolved counterparts fully during the process of developing legislation’; and (iii) ‘the sovereignty of parliament means that Westminster can override the absence of consent for political reasons without providing clear justification for why this is necessary’.

Finally, it’s worth reflecting that these cases of over-arching Westminster power in action are associated with matters that have come about due to Brexit. And Brexit came about despite a substantial majority in Scotland voting against it. Step by step, protections for Scotland’s democratic choices that may have been thought to be secured by the devolution settlement are being dismantled.