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A new Institute for Government paper says the future of the Union could be put at risk without reforms to the principle of legislative consent which lies at the heart of the devolution settlement.

Published yesterday, Legislating by consent: How to revise the Sewel convention warns that passing UK-wide legislation in Westminster without the consent of the devolved nations risks undermining the stability of devolution, power-sharing in Northern Ireland, and even the Union itself. The paper recommends ways to repair this breakdown in trust, to hold UK ministers more accountable for decisions relating to devolution, and to reassure Scotland, Wales and Northern Ireland that Westminster does not intend to undermine the devolution settlements.

The UK government insists that it will uphold the Sewel convention, under which Westminster does not normally pass laws in devolved areas without devolved consent, but the devolved administrations believe that Brexit has exposed the convention’s limitations and left devolution vulnerable to unilateral actions taken at Westminster. The UK government has already forced through two key pieces of Brexit legislation without the approval of all the devolved nations.

The controversial UK Internal Market Bill is causing further tension over Westminster’s approach to legislating in devolved areas, and other Brexit-related bills mean further disputes are likely ahead of the 2021 Scottish and Welsh elections – at which Scottish independence will be one battleground.

Both the UK and devolved governments are committed to making the consent process work, and committees of all five legislative chambers of the UK recognise the need to reform Sewel.

The IfG paper says the governments of the UK should work together to reform and strengthen the convention, and its recommendations include:

• Formal recognition by the UK government that consent is required for legislation that amends the powers of the devolved bodies as well as for legislation in already devolved areas such as education or housing
• The UK and devolved governments should reach agreement on the limited circumstances in which consent need not be sought for legislation in devolved areas
• An agreed minimum period for Whitehall departments to share draft legislation with their devolved counterparts before introduction into the UK parliament
• Ministerial ‘devolution statements’ at the introduction of a bill to set out why consent is required and then again if the UK government has chosen to proceed without consent
• A greater role for parliamentary committees – such as a new devolution committee – in scrutinising the devolution implications of all legislation and considering how the UK and devolved governments could resolve disputes over consent.

Akash Paun, the report’s author, said: “The Sewel convention and the process of seeking devolved consent has been a central pillar of the devolution arrangements for two decades, but it has been put under serious strain by Brexit. If the UK and devolved governments do not repair their relationship and agree how a reformed consent process should work, then there is a risk of the convention collapsing altogether. This would carry serious implications for the stability of the Union.”

Notes to editors

1. The full report can be found on our website. 
2. The Institute for Government is an independent think tank that works to make government more effective.
3. For more information, including data to reproduce any charts, please contact press@instituteforgovernment.org.uk / 0785 031 3791.

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