Legislative Consent Motions, also known as “Sewel Motions”, are motions passed by the devolved legislatures (the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly) which permit the UK Parliament to legislate on a matter over which that devolved legislature normally has legislative authority.

Legislative Consent Motions were created when the UK Government was planning the devolution of power to Scotland, as it recognised that in certain circumstances it would be sensible and advantageous if, with the consent of the Scottish Parliament, the Scottish Ministers agreed with the UK Government that a UK Parliament Bill should include provisions on devolved matters. Such circumstances might include:-

  • Where the provisions in question relating to devolved matters are minor or technical and uncontroversial;
  • Where the UK Parliament is considering legislation for England and Wales which the Scottish Government believes should also be brought into effect in Scotland, but no Parliamentary time is available at the Scottish Parliament to do so; or
  • Where it would be more effective to legislate on a UK basis in order to put in place a single UK‑wide regime.

The Scottish Parliament is usually advised in advance of a Bill which is likely to be subject to a Legislative Consent Motion, and the relevant Parliamentary Committee is provided with a memorandum explaining the purpose and effect of any devolved provisions after the Bill is introduced. The Parliamentary Committee then considers the proposal and makes a recommendation to the Scottish Parliament as to whether or not a Legislative Consent Motion should be approved. According to the Scottish Parliament’s own records, at present, 156 Legislative Consent Motions have been passed since 1999.

Whilst they previously did not exist in statutory form, the Scotland Act 2016 recently attempted to codify Legislative Consent Motions. At Section 2, the Act sets out that “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”.

What, then, is the significance of Legislative Consent Motions to ‘Brexit’?

In the context of the “Miller” case, currently being heard by the UK Supreme Court, much commentary has been directed towards Legislative Consent Motions. Should the UK Parliament repeal the European Communities Act 1972, or amend the UK devolution statutes to remove references to EU Law, there is an argument to be made that the Scottish Parliament and the other devolved assemblies would need to pass a Legislative Consent Motion in order for these changes to be effected. Indeed, the House of Lords Select Committee on the Constitution, in its report on the invoking of Article 50 suggested that the consent of the Scottish Parliament would be required in such circumstances. We discuss this here within the context of the UK’s exit from the European Union.

Supreme Court Decision

It remains to be seen what the UK Supreme Court in Miller will decide on the matter of the involvement of the devolved institutions in the invoking of Article 50. Arguments made by the Lord Advocate, on behalf of the Scottish Government, and the Counsel General for Wales, on behalf of the Welsh Government, are to be heard. Their position is that the invoking of Article 50 will modify the competences of the devolved assemblies and legislatures, and therefore require the consent of those assemblies and legislatures. The outcome of the case, likely to be handed down in January, might mean that Legislative Consent Motions become crucial to the Brexit process.