The Sewel Convention: Procedural and Practical Issues
A Memorandum by the Scottish Executive
Introduction
1. The Sewel convention is part of the devolution settlement, and is reflected in the Memorandum of Understanding between the UK Government and the Devolved Administrations. The convention is that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. Where the Executive considers it appropriate that provisions on devolved matters should be included in a Westminster Bill, it will invite the Scottish Parliament to signify its consent to this by means of a Sewel motion, having explained the purpose and effect of the provisions in question in an Executive memorandum. If the Parliament approves a Sewel motion, the Minister for Parliamentary Business will write to the Leader of the House of Commons conveying the Parliament's agreement and informing him of the terms of the Parliament's resolution.
2. The memorandum prepared by the Clerking and Reporting Directorate raised a number of procedural and practical issues relating to the operation of the Sewel convention. The Executive's comments on the various issues raised in that paper are set out below.
Role of the Executive
3. Proposals for the inclusion of provisions relating to devolved matters in a UK Bill, and therefore the need for a Sewel motion, arise at the initiative of either the UK Government or the Executive, but in every case require a process of discussion and agreement between the two administrations. That process will normally involve an exchange of correspondence between the UK Minister who is in charge of the Bill and the First Minister, or the relevant portfolio Minister. In the Executive's view, it is both necessary and appropriate for these initial discussions to take place between the administrations in the first instance. It is for the Executive to determine, on the basis of discussions with the UK Government, whether or not to seek the Parliament's consent to a Sewel motion, and then for the Parliament to decide whether or not to give its consent.
When should the Parliament's consent be sought?
4. In relation to public Bills, the Executive will normally seek the Parliament's consent before the UK Bill is given its Second Reading in the House in which it is introduced. This is to enable the Parliament to decide whether or not to give its consent before the principles of the Bill are debated by the UK Parliament, and to ensure that if the Parliament refused its consent appropriate amendments could be brought forward by the UK Government at Committee Stage. However, there is frequently only a very short interval between the introduction of a UK Bill and its Second Reading, which means that under present arrangements the Parliament has only a limited opportunity to consider the background to the UK Bill and the Executive's proposals for a Sewel motion in relation to it.
5. It would not of course be possible to seek the Parliament's consent before a UK Bill is introduced, as the Executive could not provide the Parliament with any information about the content of a UK Bill prior to its introduction and publication. However, if the Procedures Committee thought it would be helpful to the Parliament, and subject to the Parliamentary Bureau's agreement, a practice could be established of tabling Sewel motions for consideration by the Parliament after Introduction but before the last amending Stage in the first House at Westminster. The Executive would continue to signify its intention to seek a Sewel motion in relation to the Bill, and to make available an Executive Memorandum about the scope and content of the Sewel motion, as soon as possible after the UK Bill is introduced. The arrangement proposed would however allow more time for the Parliament to consider the Executive's proposals for a Sewel motion, while still ensuring that the relevant provisions could be removed from the UK Bill while it was before the first House in the event that the Parliament withheld its consent.
6. In relation to Private Member's Bills at Westminster, the Executive does not consider it appropriate to table a Sewel motion for consideration by the Parliament until it seems likely that the Bill has a reasonable chance of making progress.
Motion Procedure
7. The Executive does not believe that a case has been made out for Sewel motions to be subject to different Rules from other motions, such as a requirement for more than a simple majority for their agreement. Since provisions in Scottish Bills are passed by a simple majority at all Stages, both in Committee and in the Chamber, it is not clear why Sewel motions should be subject to any higher threshold.
Role of Committees
8. We think it should be for the Executive to propose to the Parliamentary Bureau whether a debate should take place in the chamber or if the appropriate Committee should be invited to consider the Executive's memorandum setting out the purpose and effect of the devolved provisions in a UK Bill before a Sewel motion is tabled for approval by the Parliament as a whole. The Executive sees no difficulty about establishing a practice whereby proposals for Sewel motions are normally considered by the relevant Committee, with a debate in the Chamber (as opposed to a motion taken formally) only if the Committee so recommends and along the lines of the current procedures for Scottish Statutory Instruments. The arrangements proposed at paragraph 5 above, which envisage a Sewel motion being tabled after Introduction and before the last amending Stage in the first House at Westminster, would allow more time for the relevant Committee of the Scottish Parliament to consider the Executive's memorandum and to recommend whether or not the Parliament should approve a Sewel motion. In the event that a Sewel motion was considered by a Committee of the Scottish Parliament, we would not envisage that there would be a further debate in the Chamber (as opposed to a formal motion) unless the Committee advised against approving a Sewel motion in relation to the Bill in question.
Interpretation of Sewel motions
9. Sewel motions represent the formal expression of the Parliament's consent, as required under the Sewel convention, that Westminster should legislate for Scotland in relation to the devolved matters in question. By definition, the Parliament's consent extends only to such matters as are covered by the terms of the Sewel motions. If, for any reason, the Executive and the UK Government decide during the passage of the Bill that further provisions on devolved matters should extent to Scotland which were not covered by the terms of the original Sewel motion, then the Executive will seek the Parliament's consent by means of a fresh Sewel motion (as it did, for example, in relation to the Adoption and Children Bill).
10. If the Parliament refused to give its consent to a Sewel motion, then under the Sewel convention the expectation is that Westminster would not normally legislate for Scotland in relation to the devolved matters in question. The detailed implications of this, for example in terms of what amendments should be made to the Bill as a result, would be a matter for the UK Government and Parliament.
Duration of consent given
11. Circumstances may arise where a UK Bill which has been the subject of a Sewel motion falls, for example because of the dissolution of Parliament, and is subsequently re-introduced. If the Bill, as re-introduced by the UK Parliament, contains provisions on devolved matters which are significantly different to those to which the Parliament gave its consent, then a fresh Sewel motion would of course be required. However, if a Bill is subsequently re-introduced and no significant modifications have been made to the provisions to which the Parliament gave its consent, in the Executive's view there would be no need for a fresh Sewel motion. A similar procedure would be followed in the case of any public Bill carried over from one session to the next. As a matter of courtesy, the Executive would, however, write to the Presiding Officer, the Business Managers and the Convener of the relevant Committee advising them accordingly.
Implications of amendments to UK Bills
12. If a Bill to which the Parliament has given its consent is amended during its passage, the question is whether the amendments in question require the Parliament's further consent by means of another Sewel motion. That in turn depends on the terms of the original Sewel motion. The Executive will always inform the Parliament by means of a Supplementary Memorandum if significant amendments are made to provisions in a UK Bill in respect of devolved matters, but a fresh Sewel motion would be required only if the effect of these amendments would be to introduce provisions into the Bill which went beyond, or were incompatible with, those to which the Parliament had given its consent.
13. If a further Sewel motion is required in relation to amendments which are made to a UK Bill during its passage, the Executive will always seek to ensure either that the Sewel motion is brought before the Parliament at a time which would allow further consequential amendments to be made in the event that the Parliament withheld its consent, or alternatively that the Parliament's consent is sought before the amendments in question are made by the UK Parliament.
Executive Memorandum about the UK Bill
14. The Executive sees no difficulty about either its original or a supplementary memorandum being placed on the Parliament's website to provide a permanent record of the purpose and effect of a particular Sewel motion. The Executive's own practice will be to post all such memoranda on its own website, as well as making copies available to the Scottish Parliament Information Centre and in response to enquiries from MSPs or other interested parties.
Further Motions in Relation to UK Bills
15. The Executive agrees with the proposition in the Committee's paper that at any time during the passage of a UK Bill, it is open to the Parliament to pass a further motion in effect withdrawing in part or in full the consent which it has previously given by means of a Sewel motion to the UK Parliament legislating for Scotland in relation to devolved matters. In practical terms, this would obviously have to be done while the bill was still before the UK Parliament and capable of being amended to reflect the Parliament's resolution.
Scottish Executive
January 2003