One of the challenges faced by the UK Government in relation to Brexit is the possibility that devolved authorities will “withhold legislative consent” for key legislation. But what is ‘legislative consent’? And what happens when it is withheld?
What is legislative consent?
The UK Parliament normally only legislates about devolved matters with the consent of the relevant devolved legislature. This is a constitutional convention.
The convention is contained in each section two of the Scotland Act 2016 and the Wales Act 2017. However, being contained in legislation does not mean that this convention is a rule courts can enforce – the UK Supreme Court confirmed this in ex parte Miller. Where a devolved legislature has the power to make laws this doesn’t diminish, legally, the law-making power of the UK Parliament in those areas.
Why does the UK have legislative consent?
The legislative consent convention seeks to protect the constitutional spheres of authority of devolved institutions. It seeks to prevent the UK Parliament from unilaterally changing devolved powers or overriding decisions made by devolved institutions.
This objective is achieved through a constitutional convention rather than through legal constraints because of the UK’s unique constitutional arrangements. To impose legal constraints on Parliament’s powers would be incompatible with its “sovereign” status. A constitutional convention can still condition UK Parliamentary and Government behaviour.
In other (typically federal) states, like Canada, the constitutional authority of sub-state institutions is protected by legal constraints. Restrictions are imposed on the powers of the central or federal legislature to make laws in certain areas. In such countries, unlike in the UK, significant changes to the powers of a sub-state legislature typically require a constitutional amendment. This may in turn require formal input of sub-state institutions or even a form of sub-state “veto” over any changes. Courts then police these legal boundaries.
When is legislative consent required?
There are two distinct circumstances in which consent for legislation is expected to be sought.
Firstly, consent will be sought if provisions in UK Bills could have been made by the devolved legislature instead. In March 2018, for instance, the Scottish Parliament was asked to consent to the UK Parliament’s Laser Misuse (Vehicles) Bill because it created criminal offences that Holyrood could itself have created.
Secondly, consent will normally be sought if provisions would (more than incidentally or consequentially) modify the legislative competence or the functions of devolved institutions. The most notable examples of this happening have been the Scotland Acts 2012 and 2016 and the Wales Acts 2014 and 2017. These all made major changes to devolved competence and functions. The UK Parliament only sought Royal Assent after the Scottish Parliament and National Assembly for Wales respectively agreed to them.
How does a devolved legislature grant consent?
The Standing Orders of the devolved legislatures set out what should happen when a UK Bill includes provisions that engage the legislative consent convention.
Each of these processes begins with a requirement placed on the devolved executive. It must submit to its legislature a “legislative consent memorandum” within two weeks of the relevant Bill being introduced. A memorandum does three things:
(a) it sets out the provisions a devolved government believes engage the convention.
(b) it explains the effects those provisions would have in devolved areas or on the devolution settlement.
(c) it recommends whether the legislature should give its “consent” to the Bill.
A designated devolved legislature’s Committee is then given responsibility for scrutinising the memorandum. It publishes a report recommending whether consent should be given to the Bill.
A “legislative consent motion” can then be tabled, debated and voted on. This is taken to determine whether consent has been granted or withheld. Alternatively, the devolved government may decline to table a motion. This implies the absence of legislative consent but provides the UK Government with an opportunity to amend its legislation.
What happens when legislative consent is withheld?
It is very rare for legislative consent to be withheld. Over 320 legislative consent motions have been tabled across the three devolution settlements. Only 9 have been rejected (7 in Wales, 1 each in Scotland and Northern Ireland).
Legally, the UK Parliament can seek Royal Assent for any Bill, even if a devolved legislature withholds consent for its provisions. When the UK Government has accepted the convention applies, it has never (yet) attempted to legislate to defy a motion withholding legislative consent. Instead, legislation has been changed either (a) to secure consent or (b) to remove provisions for which consent has not been given.
On other occasions, governments have disagreed whether Bills’ provisions engage the legislative consent convention. Most recently the UK Government sought Royal Assent without consent for their Trade Union Bill in 2016, arguing it related to reserved matters. The Welsh Government disagreed, and legislated in the Assembly to reverse some of those changes in devolved areas.
For further information on how legislative consent works, see our briefing Brexit: Devolution and legislative consent.