Reviving Sewel – or killing devo?

Today (24 September) the UK Chancellor presented a pandemic-related package of measures to see the British economy through the bitter winter ahead. This was instead of the promised Budget he scrapped – without telling the Scottish Government or the other devolved administrations.

Par for the course as we learned this week via two excellent webinars: on the Internal Market Bill and devolution at the Centre on Constitutional Change and on the Sewel Convention at the Institute for Government. which issued a report on this last week.

Two key messages (at least!): None of the DAs, and even Karen Bradley, Conservative MP and ex-Northern Ireland Secretary, trusts the UK Government and its “aggressive unionism” (Pete Wishart MP) – and the SNP and Welsh Labour (unlike its Scottish cousin) are singing from virtually the same hymn-sheet.

With much of Sewel and devolution prompted by (now sadly lapsed) EU membership, Bradley said the Bill (IMB) is “the biggest challenge to Sewel we have seen” and is “trying to fix the roof while there’s a massive thunder storm going on.” She thinks it may well be blocked at Third Reading by cross-bench and Tory peers in the House of Lords….triggering another parliamentary crisis. She chairs the Commons procedure committee which is about to investigate the entire issue.

Mick Antoniw (Lab), who chairs the Senedd Legislation, Constitution and Justice Committee which unanimously rejected the IMB, as undermining devolution and re-centralising power at Westminster, spoke of a “dysfunctional” system of goverment and a “constitutional crisis.”

Wishart, who chairs the Commons Scottish Affairs Committee, went even further: Devo/Sewel is “broken almost beyond repair”, the 20-year0old settlement is “in tatters,” Sewel is “barely worth the vellum it’s written on” and, like Antoniw, he insisted: “There’s no way a legislative consent motion (for the Bill) would ever be given by Scotland”.

Perhaps his killer remark was: “We would accept the authority of the EU any day before we would that of the UK.”


UK Supreme Court that made Sewel non-binding

The future of the Union could be put at risk without reforms to the principle of legislative consent which lies at the heart of the devolution settlement, the report from the IfG warns.

This report warns that passing UK-wide legislation in Westminster without the consent of the devolved nations risks undermining the stability of devolution, power-sharing in Northern Ireland, and even the Union itself. It recommends ways to repair this breakdown in trust, to hold UK ministers more accountable for decisions relating to devolution, and to reassure Scotland, Wales and Northern Ireland that Westminster does not intend to undermine the devolution settlements.

The UK government insists that it will uphold the Sewel convention, under which Westminster does not normally pass laws in devolved areas without devolved consent, but the devolved administrations believe that Brexit has exposed the convention’s limitations and left devolution vulnerable to unilateral actions taken at Westminster. The UK government has already forced through two key pieces of Brexit legislation without the approval of all the devolved nations.

The controversial UK Internal Market Bill is causing further tension over Westminster’s approach to legislating in devolved areas, and other Brexit-related bills mean further disputes are likely ahead of the 2021 Scottish and Welsh elections – at which Scottish independence will be one battleground.

Both the UK and devolved governments are committed to making the consent process work, and committees of all five legislative chambers of the UK recognise the need to reform Sewel.

The report says the governments of the UK should work together to reform and strengthen the convention. It recommends:

  • Formal recognition by the UK government that consent is required for legislation that amends the powers of the devolved bodies as well as for legislation in already devolved areas such as education or housing
  • The UK and devolved governments should reach agreement on the limited circumstances in which consent need not be sought for legislation in devolved areas
  • An agreed minimum period for Whitehall departments to share draft legislation with their devolved counterparts before introduction into the UK parliament
  • Ministerial ‘devolution statements’ at the introduction of a bill to set out why consent is required and then again if the UK government has chosen to proceed without consent
  • A greater role for parliamentary committees – such as a new devolution committee – in scrutinising the devolution implications of all legislation and considering how the UK and devolved governments could resolve disputes over consent.
UK Govt Hub in Edinburgh refuses to accept handed-in letter

That Bill

At the CCC webinar, Nicola McEwen, Professor of Territorial Politics at Edinburgh University, summed it up: “There’s nothing to stop the devolved administrations from passing laws in devolved areas but the bill limits their scope…The Scottish Government, for example, can pass legislation to reduce sugar, say, in food and drink but cannot impose this non goods which cross the border into England…This limits one of the central purposes of devolution…”

She has written: “As we have seen in other Brexit-related legislation, the UK Parliament has barely blinked as it passed laws that affect devolved matters or alter devolved competence despite the consent of one or more devolved institutions being withheld.” It has, as Aileen McHarg, Professor of Public Law and Human Rights at Durham University, put it, asserted its right to over-ride Holyrood (and Cardiff and Stormont) through “parliamentary sovereignty” – or its absolutist version of that. Holyrood’s powers to set competitive regulations, for instance, are severely limited.

Here’s a video of the whole event: