The Sewel Convention

Parliamentary sovereignty is the principal feature upon which all of the UK’s constitutional arrangements are based. However, where the devolved institutions of Scotland, Wales and Northern Ireland are concerned, Westminster’s sovereignty is offset by a convention – the Sewel Convention – that ensures the UK government will not interfere in areas of devolved competence. In April 2023, the Scottish government announced that it was a seeking a judicial review of the Secretary of State for Scotland’s decision to make an Order under Section 35 of the Scotland Act to prevent the Gender Recognition Reform (Scotland) Bill from proceeding to royal assent. The Sewel Convention’s ‘last resort’ of a UK government veto to block legislation it disagreed with appeared to members of the Scottish government as a deeply concerning development, since they argued that the UK government had made ‘no representations throughout the 9-month passage of the bill’.

The Sewel Convention applies when the UK Parliament wants to legislate on a matter within the devolved competence of the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly. Under the terms of the Convention, the UK Parliament will “not normally” do so without the relevant devolved institution having passed a legislative consent motion. That convention, commonly known as the Sewel convention, has become an important principle underpinning UK devolution. It represents a tacit understanding that the devolved institutions, each of which was founded on popular consent in a referendum, have primary democratic and political authority over laws within their areas of competence. This has given the devolved institutions some leverage in seeking to influence UK legislation and has reduced calls for a separate process of law making for laws which apply differently across devolved parts of the UK e.g EVEL English Votes for English Laws 

The passing of the EU (Withdrawal) Act 2018 without the Scottish Parliament’s consent marked the first time that the convention had been set aside by the UK Parliament.  Defending the decision to proceed without the consent of any of the devolved legislatures, the Chancellor of the Duchy of Lancaster, Michael Gove, acknowledged that it was:

“a significant decision and it is one that we have not taken lightly. However, it is in line with the Sewel convention… The Sewel convention—to which the government remain committed— states that the UK Parliament ‘will not normally legislate with regard to devolved matters without the consent’ of the relevant devolved legislatures. The circumstances of our departure from the EU, following the 2016 referendum, are not normal; they are unique.”

In September 2021 the Welsh Government refused to provide legislative consent for the UK Elections Bill that made photo identification compulsory when voting in general elections in Wales, yet the Act passed anyway.

The significance of this convection and how it is applied shed light on