Legislative Consent Motion
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A Legislative Consent Motion (also known as a Sewel motion) is a motion passed by either the Scottish Parliament, Welsh Assembly, or Northern Ireland Assembly, in which it agrees that the Parliament of the United Kingdom may pass legislation on a devolved issue over which the devolved body has regular legislative authority.
The Scotland Act 1998 devolved many issues relating to legislation for Scotland to the Scottish Parliament. The UK Parliament maintains Parliamentary sovereignty and may legislate on any issue relating to the United Kingdom, with or without the permission of the devolved assemblies and parliaments.
The motions were named after Lord Sewel, then Parliamentary Under-Secretary of State for Scotland who announced the policy in the House of Lords during the passage of the Scotland Act 1998. Noting that the Act recognised the Parliamentary sovereignty of the British Parliament, he said that HM Government "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".
The devolved governments have no formal say in how the British Parliament legislates on reserved matters.
Use and application
There are two uses for a Legislative Consent motion:
- When the UK Parliament is considering legislation extending only (or having provisions extending only) to England and Wales, and the Scottish Parliament, being in agreement with those provisions, wishes for the UK Parliament to extend them to Scotland. This saves the need for separate, similar legislation to be passed by the Scottish Parliament.
- When Westminster is considering legislation applying to Scotland but which relates to both devolved and reserved matters, where it would otherwise be necessary for the Scottish Parliament to legislate to complete the jigsaw.
As well as legislation about devolved matters, the convention extends to cases where UK bills give executive powers to Scottish Ministers, including in reserved areas, or which seek to change the boundary between reserved and devolved matters.
The intention was for the motions to be used for non-controversial matters, for the purposes of legislative economy and for clarity. It has been used for more controversial matters, where the Scottish Government does not wish to have the Scottish Parliament consider the issue in detail, to avoid the political consequences, and to keep the legislative bickering to Westminster only.
Guidance on the use of Legislative Consent Motions for Whitehall Departments is set out in Devolution Guidance Note 10.
Chapter 9B of the Scottish Parliament's Standing Orders specify the procedure for considering Sewel motions.
The convention under which the UK Government uses Legislative Consent Motions is not legally binding. It is contained in a "Memorandum of Understanding" between the UK Government and the devolved administrations. That document states in an Explanatory Note that it is not intended to be legally binding, and the paragraph dealing with the convention makes clear that the UK Parliament retains authority to legislate on any issue, whether devolved or not.
14. The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.— Memorandum of Understanding (October 2013)
Current situation and review
In 2005 the Procedures Committee undertook an inquiry into the use of Sewel motions, and heard evidence from Lord Sewel, Henry McLeish (the former First Minister of Scotland), and Anne McGuire, MP (the Parliamentary Under-Secretary of State for Scotland). Following the review, the motions were retitled Legislative Consent Motions and the procedures enshrined in the Parliament's Standing Orders.
As of 7 October 2013[update], 131 Legislative Consent motions had been passed by the Scottish Parliament, 39 in the first session (1999–2003), 38 in the second (2003–2007), 30 in the third (2007–11) and 24 so far in the fourth (2011–16).
- Neil MacCormick, who has argued that parliamentary sovereignty is an "exclusively English doctrine".
- "Memorandum of Understanding and Supplementary Agreements Between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee" (PDF). www.gov.uk. October 2013. Retrieved 8 November 2016.
- "Legislative and Public Bodies Act Consent Memorandums and Motions statistics". 15 October 2010.