In the event of Brexit, there will be pressing devolutionary matters to be addressed. One of these concerns the issue of the legislative consent of the devolved nations to the amendment of devolution legislation in order to remove references to EU law. If such consent is not forthcoming, this could prompt a constitutional crisis. In this post Sionaidh Douglas-Scott discusses this. For the sake of simplicity and space this blog restricts discussion to Scotland, although similar issues will pertain to legislative consent in Wales and Northern Ireland.

If there is a vote to leave the EU in the referendum on June 23, then the UK would need to commence proceedings to withdraw from the EU under Article 50 TEU. Art 50(3) states that after expiry of certain time periods the Treaties ‘shall cease to apply to the State in question.’ However, this would not be enough to remove the impact of EU law in the UK. It would also be necessary to repeal or amend the European Communities Act (ECA) 1972, which is the statute giving domestic effect to EU law in the UK.

Nor would this be an end to matters. EU law is incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. For example, section 29(2)(d) of the Scotland Act 1998 provides that acts of the Scottish Parliament that are incompatible with EU law are ‘not law’. Therefore, although the Westminster parliament may repeal the ECA 1972, this would not bring an end to the domestic incorporation of EU law in devolved nations. It would still be necessary to amend the relevant parts of devolution legislation. But this would be no simple matter and could lead to a constitutional crisis.

Legislative consent (the Sewel convention)

Although the UK parliament may, as a sovereign parliament, amend the devolution statutes, the UK government has stated that it will not normally legislate on a devolved matter without the consent of the devolved legislature. This requires a legislative consent motion under the Sewel convention. As a constitutional convention it takes the form of a political as opposed to a legally binding undertaking. However, section 2 of the Scotland Act 2016 inserts a new subsection (8) into s. 28 of the 1998 Act giving statutory recognition to the convention:

The Sewel convention In section 28 of the Scotland Act 1998 (Acts of the Scottish Parliament) at the end add – “(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

Notwithstanding the amended wording of s. 28 of Scotland Act 1998, the Sewel convention seems to have evolved over time to cover two matters:

1) It requires the consent of the Scottish Parliament when the UK parliament seeks to legislate in devolved policy areas, and

2) It requires the consent of the Scottish Parliament when a UK bill seeks to vary the legislative competence of the Scottish Parliament or the executive competence of the Scottish government.

This second use was not included in the Scotland Act 2016. However, it has operated in practice, and been applied by successive UK governments. The UK government’s Devolution Guidance Note 10 states that a bill requiring Scottish parliamentary consent under the Sewel convention is one which ‘contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers’. This guidance note is referred to in the HM Government Command Paper that preceded the Scotland Act 2016 as follows: ‘It is expected that the practice developed under Devolution Guidance Note 10 (DGN10) will continue.’

Triggering the need for legislative consent

As stated, the Scotland Act 1998 stipulates that acts of the Scottish Parliament that are incompatible with EU law are outside the legislative competence of the Scottish Parliament. ‘EU law’ is defined in s. 126(9) of the Scotland Act 1998, which notably makes no reference to the ECA. This means that ‘EU law’, and obligations deriving from it, have an autonomous meaning for the (non-ECA dependent sections of) the Scotland Act. So s. 29(2)(d) of the Scotland Act 1998 would need to be amended or repealed to bring an end to the impact of EU law in Scotland. Legislation amending the Scotland Act 1998 in this way would have the aim of removing the devolved institutions’ obligation to respect EU law. Effectively, this would increase the competences of the devolved institutions, thus giving rise to the second limb of the Sewel convention, given that it would be a considerable varying of the legislative competence of the Scottish Parliament and government. Therefore, amending the Scotland Act would require a legislative consent motion under the Sewel convention.

There are precedents for the refusal of legislative consent. In Scotland, consent was refused for parts of the UK Welfare Reform Bill in 2011. There is no expectation that legislative consent will always be given, nor can it be said that any legitimate expectation has arisen that devolved institutions will consent.

Are conventions enforceable?

The need for legislative consent from the devolved nations has taken the form of a constitutional convention, although there is the question of what effect, if any, embedding its status in the Scotland Act 2016 may have had. What would happen if the Scottish Parliament refused consent? Could they insist that the convention be enforced, effectively requiring Westminster to desist from action?

First, it may be argued that the express inclusion of the Sewel convention in the Scotland Act 2016 makes it impossible to ignore, giving it legal force. Does this mean that heretofore it will cease to be a convention and it will be part of statute? Some commentators have argued that s. 2 Scotland Act does not have this significant legal effect. For example, during scrutiny of clause 2 in the Scotland Bill, Professor Aileen McHarg argued that:

‘Section 28(7) remains a problem. It basically restates in statutory form that the unlimited sovereignty of the Westminster Parliament is unchanged. Until that is changed, until that is qualified, then Sewel, the requirement to get the consent of the Scottish Parliament, cannot have any legal effect.’

On the other hand, the House of Lords Constitution Committee, in its report on the Scotland Bill in 2015 (para 39), stated that ‘Clause 2 risks creating a route through which the courts might be drawn inappropriately into an area that has previously been within the jurisdiction of Parliament alone, namely its competence to make law’.

In any case, s. 2 of the Scotland Act only applies to the first limb of the Sewel convention which is not the relevant limb for our discussion of Brexit, and of course does not apply to Wales and Northern Ireland at all, so we still need to examine the effect of the Sewel convention qua convention to investigate its efficacy.

Constitutional conventions were seminally defined by Wheare in the 1951 text, Modern Constitutions, as ‘a rule of behaviour accepted as obligatory by those concerned in the working of the constitution.’ They are binding. It is clearly unconstitutional to disregard conventions, and actions that violate them can have considerable political and constitutional consequences. For example, in 1982, then Canadian Prime Minister, Pierre Trudeau, ‘patriated’ the Canadian Constitution across the entirety of the country against the wishes of the Quebec government, (which claimed the existence of a convention requiring their consent), destabilising relations between Canada and Quebec for many years, and triggering independence referenda in Quebec. A comparable convention applying in the context of the UK parliament and the Southern Rhodesian Legislative Assembly was acknowledged in the 1969 Privy Council case of Madzimbamuto v Lardner-Burke, where a breach of the convention would have been considered unconstitutional.

In the UK, conventions have not traditionally been enforced by the courts, although courts have acknowledged their existence as aids to judicial interpretation. So it is unclear whether a challenge mounted to UK legislation adopted in the absence of legislative consent would be justiciable.

However, it is clear that, were a court to refuse to take notice of conventions, this would ignore constitutional law and also undermine how the constitution in practice operates to ensure a democratic, rule-of-law framework, which courts are bound to uphold. Conventions are the glue that hold the constitution together. Without them, it may cease to function: ‘Many constitutional conventions … are permeated by values – democracy, the separation of powers, responsible government – which are generally regarded as possessing independent and permanent worth.’ (Joseph Jaconelli, ‘The Nature of Constitutional Convention’). Therefore, the normative value of conventions as higher-order principles is in no way diminished by their status or judicial characterisation as something other than strict legal rules.

What is the impact of the word ‘normally’ in this context?

The wording of the provision is that ‘the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’ (emphasis added). This use of the word ‘normally’ in the Sewel convention, and in s. 2 Scotland Act 2016, whilst a direct quote from Lord Sewel, creates difficulties. What circumstances would the UK government consider sufficiently abnormal for the convention to disapply, so that the UK would legislate on devolved matters without the consent of the Scottish Parliament? Amendments to remove the word ‘abnormal’ were rejected during the passage of the Scotland Bill through the UK parliament (for example, Lord Cormack’s 2015 amendment, which would have replaced ‘normally’ with ‘save in times of war or national emergency’, failed). As ‘normally’ is not defined in legislation, and is in any case far from unambiguous, it is possible this is a matter that could be left to the courts to decide.

What would happen if Westminster ignored the need for legislative consent?

But suppose that Westminster ignored constitutional practice and nonetheless enacted legislation amending s. 29 Scotland Act 1998 without the consent of the Scottish Parliament? There exist precedents in which the Welsh Assembly has refused consent to UK legislation, but in which the UK government pressed on regardless, and the Welsh Assembly also enacted its own legislation. The Welsh legislation was challenged in the UK Supreme Court (being a non- sovereign legislature this is possible) and in the 2014 case, In re Agricultural Sector (Wales) Bill, the Welsh legislation was upheld.

The most pressing instance of legislative consent in the context of Brexit surely relates to repeal of the ECA 1972 and amendments to the devolution statutes such as the Scotland Act 1998. In both cases, the legislative consent issue most clearly relates to varying the competences of devolved institutions rather than legislation in devolved policy areas, as was the case in the Welsh examples. What difference does this make? Perhaps most obviously, it might mean that any legislative challenge might emanate not from the UK government seeking to challenge Scottish legislation as ultra vires, but from devolved governments as a challenge to any UK wide legislation amending devolution legislation in the absence of legislative consent.

However, UK courts have traditionally not struck down acts of parliament for breaches of parliamentary procedure, due to the doctrine of parliamentary sovereignty, at least not outside the field of EU law. Article IX of the Bill of Rights Act operates to prevent proceedings in parliament from being questioned in the courts. In Pickin v British Railways Board [1975] it was held that an act of parliament must be accepted as conclusively valid by the courts, even if there is some evidence that it was brought about by deception. UK courts will certainly be chary of scrutinising UK acts of parliament for their validity, although notably in the Jackson case (R (Jackson) v. Attorney General [2005] UKHL 56), the courts did consider a challenge to the validity of the parliamentary procedure by which the Act reached the statute book, namely by use of the Parliament Acts. In any case, the growth of purposive interpretation and declarations of incompatibility under the Human Rights Act 1998, and an enhanced sense of constitutionalism under devolution legislation, indicate that when the courts consider UK legislation to be seriously flawed parliament has considered itself bound to alter that legislation. It is possible therefore that the courts will be called upon to adjudicate in a declaratory way in the event of a statutory formulation of the Sewel convention being breached.

Furthermore, any attempt to disregard the legislative consent of devolved legislatures in a subsequent UK statute might infringe the 2012 case BH v. Lord Advocate in which the UK Supreme Court held that the Scotland Act 1998, as a ‘constitutional statute’ cannot be impliedly but only expressly repealed. This would imply that a subsequent UK parliament could legislate for Scotland without consent but only explicitly. Any claim that subsequent legislation impliedly repealed provisions in the Scotland Act 1998 could be challenged, presumably in the courts.

The most extreme consequence would be if a UK Brexit, and disregard of the need for legislative consent were to trigger a second Scottish independence referendum. The First Minister suggested a UK vote to leave the EU could pave the way for a second Scottish independence referendum:

‘[T]his could be one scenario producing the kind of material change in circumstances which would precipitate popular demand for a second independence referendum.’

So ignoring the requirements of the Sewel convention could have considerable consequences.

In a further blog post, to be published later this week, Sionaidh Douglas-Scott will ask what would happen if, fearing such a crisis, the UK government simply left the devolution legislation untouched.

The Constitution Unit has published a briefing paper, written by Robert Hazell and Alan Renwick, on Brexit: Its Consequences for Devolution and the Union.

About the author

Professor Sionaidh Douglas-Scott is Anniversary Chair in Law at Queen Mary University of London.