Introduction
Section 28(8) of the Scotland Act 1998 states that the UK Parliament will "not normally legislate with regard to devolved matters without the consent of the Scottish Parliament." This provision connects to the Sewel Convention, a principle guiding interactions between the UK Parliament and devolved legislatures. It acknowledges the Scottish Parliament’s authority over devolved matters. To understand Section 28(8), one must examine the history of the Sewel Convention, its inclusion in the Scotland Act, and its impact on relations between UK governments. This requires looking at the law, court decisions, and political aspects linked to legislative consent.
The Sewel Convention: From Principle to Statute
Before being added to law, the Sewel Convention operated as a political agreement without legal binding. Lord Sewel’s comments in the House of Lords during the Scotland Act’s passage explained the principle. The convention accepted that the UK Parliament should avoid making laws on devolved areas without Scottish Parliament approval. This method supported the devolution system and marked a shift in the UK’s constitutional setup. Section 28(8) included the convention in law, giving it a formal role in legislative consent.
Section 28(8): Statutory Recognition and Meaning
The phrase "not normally legislate" in Section 28(8) allows room to decide when the UK Parliament might act without consent. This wording has led to debate and legal examination. While the Scottish Parliament cannot legally stop UK legislation, the rule has political weight. If the UK Parliament disregards consent, it may damage trust between governments and weaken devolution arrangements.
Legislative Consent Motions: The Process of Consent
The Scottish Parliament uses Legislative Consent Motions (LCMs) to approve or oppose UK laws affecting devolved areas. These motions are debated and voted on by members. The process allows the Scottish Parliament to examine proposed UK laws, recommend adjustments, and state its position. The outcome of an LCM guides the UK Parliament’s actions, showing how the Sewel Convention operates in practice.
Case Law and the Sewel Convention
Legal cases have tested the limits of the Sewel Convention and Section 28(8). The Miller (No.1) case, though focused on Article 50, highlighted the convention’s political nature. Later cases involving Brexit laws also explored how the convention relates to parliamentary sovereignty. Courts generally view the convention as a political guideline but acknowledge its role in the constitution.
The Future of the Sewel Convention: Issues and Changes
Shifts in UK-devolved government relations challenge the Sewel Convention’s role. Brexit exposed conflicts in managing consent where UK and devolved powers intersect. Discussions about devolution’s future will influence how the convention evolves. Collaboration and mutual respect between governments are essential to maintaining devolution’s stability. The convention’s success depends on both parliaments cooperating to balance their interests.
Conclusion
Section 28(8) of the Scotland Act 1998 incorporated the Sewel Convention into law, establishing rules for legislative consent. While its legal strength is questioned, its political impact is evident. Legislative Consent Motions provide a way for governments to communicate and work together. As devolution progresses, the Sewel Convention’s role must respond to new issues. Its effectiveness hinges on both parliaments honoring shared objectives and the devolution system. Future legal and political developments will continue to shape how the convention functions in UK law.
