Examining Arrangements of the UK’s Constitution: Constitutional Conventions – The Sewel Convention

By: Kelly Fraenkel

The United Kingdom’s constitution is uncodified, with constitutional arrangements being  found in common law, statute, prerogative powers, convention, historical practice, and  principles. Conventions, as Victorian scholar Albert Venn Dicey wrote, are “customs, practices,  maxims, or precepts which are not enforced or recognised by the Courts, make up a body not of  laws, but of constitutional or political ethics…”1 Conventions are usually “unwritten  understanding[s]” governing Parliamentary practices.2 Conventions, therefore, are politically, not  legally, enforceable. The Sewel Convention is one such arrangement in the UK’s uncodified  constitution. It states that the UK Parliament will not normally legislate on devolved matters  without the consent of the devolved legislatures.3 The Convention is named after the then  Scottish Office Minister, Lord Sewel, who laid out the terms of the Convention during the  drafting of the Scotland Bill 1997-98.4 When the UK Parliament wishes to legislate on powers  devolved to the devolved legislatures of Scotland, Wales, and Northern Ireland, the Sewel  Convention applies, and the Westminster Parliament will not normally do so without the consent  of the devolved legislatures.5 

The Scotland Act 1998 created the Scottish Parliament, with the Act legislating, “There  shall be a Scottish Parliament.”6  Just before the 2014 Scottish Independence Referendum, the leaders of the three principal unionist parties issued “The Vow:” a joint statement promising the  devolution of further powers to the Scottish Parliament should the “no” vote succeed, and  Scotland remain in the Union.7 Scotland voted “no” to independence, and the Smith Commission  was established to consider the delegation of more powers to the Scottish Parliament. The results  of the Commission resulted in the Scotland Act 2016, which included a statement of the Sewel  Convention: “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.”8 A  statement of the Convention was also included in the Wales Act 2017.9 Though given a statutory  footing in these Acts, the Sewel Convention remains a politically enforceable Convention.  

The legal enforceability of the Sewel Convention was tested in R (on the application of  Miller and another) v Secretary of State for Exiting the European Union.10 One argument the UK Supreme Court (UKSC) ruled on in Miller I was whether the consent of the devolved legislatures  was required if an Act of Parliament was necessary to initiate process under Article 50 Treaty on  European Union (TEU) as the exit from the European Union would affect the devolution  arrangements, therefore triggering the Sewel Convention.11 The majority in the case ruled that  “Judges therefore are neither the parents nor the guardians of political conventions; they are  merely observers. As such, they can recognise the operation of a political convention in the  context of deciding a legal question… but they cannot give legal rulings on its operation or  scope, because those matters are determined within the political world…the UK Parliament is  not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts; rather, it is recognising the convention for what it is, namely a political  convention, and is effectively declaring that it is a permanent feature of the relevant devolution  settlement.”12 The UKSC ruled that though the Sewel Convention had been given statutory  footing, it remained politically, not legally, enforceable. Dicey’s interpretation of Conventions as  not being “enforced or recognized by the Courts” remains the understanding of Conventions by  the Courts today.13 The Convention was not put into law, and therefore, the UKSC refused to rule  on it. The Court found the matter to be a political one, not a legal one.  

The Sewel Convention continues to remain contested today, especially in light of the  UK’s withdrawal from the European Union. Despite the Scottish Parliament withholding its  consent for the European Union (Withdrawal) Act 2018, and all three devolved legislatures  withholding their consent for the European Union (Withdrawal Agreement) Act 2020, the Acts  were still passed by the Westminster Parliament.14 This has led to criticism by the Welsh and  Scottish Governments, who argue that “the UK Government has breached both its letter and  spirit.”15 Though given statutory footing, the Sewel Convention remains politically, not legally,  enforceable, which continues to be contested.  

Sources:

1 Albert Dicey, Introduction to the Study of the Law of the Constitution (LF ed., Liberty Fund, 1915), 277-278,  https://oll.libertyfund.org/title/michener-introduction-to-the-study-of-the-law-of-the-constitution-lf-ed. 2 “Conventions,” UK Parliament, n.d., https://www.parliament.uk/site-information/glossary/conventions/. 3 “Sewel Convention,” UK Parliament, n.d., https://www.parliament.uk/site-information/glossary/sewel convention/. 

4 Paul Bowers, “The Sewel Convention,” (Parliament and Constitution Centre, November 25,  2005), https://researchbriefings.files.parliament.uk/documents/SN02084/SN02084.pdf. 

5 Graeme Cowie and David Torrance, “Devolution: The Sewel Convention,” May 13, 2020,  https://researchbriefings.files.parliament.uk/documents/CBP-8883/CBP-8883.pdf. 

6 “Scotland Act 1998,” Legislation.gov.uk, n.d., https://www.legislation.gov.uk/ukpga/1998/46/part/I.

7 Megan Dewart, The Scottish Legal System, 6th ed. (Bloomsbury Professional, 2019), 52-53. 8 “Scotland Act 1998.” 

9 Cowie and Torrance, “Devolution: The Sewel Convention.” 

10 [2017] UKSC 5. 

11 “Controversial Constitutional Cases: Miller I with Professor Mark Elliott,” www.youtube.com, January 20,  2022, https://www.youtube.com/watch?v=eFWYhj087FM.

12 [2017] UKSC 5, https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf. 13 Dicey, Introduction to the Study of the Law of the Constitution. 

14 Cowie and Torrance, “Devolution: The Sewel Convention.” 

15 Cowie and Torrance, “Devolution: The Sewel Convention.”

Image: https://en.wikipedia.org/wiki/Constitutional_conventions_of_the_United_Kingdom