About Legislative Consent
The UK Parliament and the Scottish Parliament can both make laws for Scotland. Usually the Scottish Parliament makes laws on issues that are “devolved” to Scotland.
Westminster makes laws on issues that are “reserved”. Those laws can apply to the whole UK.
Sometimes the UK Parliament will make laws for Scotland on:
- devolved matters
- what the Scottish Parliament can make laws about (“legislative competence”)
- the powers of Scottish ministers (“executive competence”)
These laws will usually only pass after the Scottish Parliament gives its consent. This is known as the “Sewel convention”. There is a formal process for Holyrood to give this consent.
Legislative consent memorandums
When the UK Parliament looks at a Bill that affects Scotland, the Scottish Government prepares a “legislative consent memorandum”. The memorandum explains to the Parliament how the Bill affects Scotland. It also sets out the Scottish Government’s view on whether or not the Parliament should consent to this Bill.
Usually a Parliament committee will look at the memorandum. It considers it and publishes a report to the Parliament. The report gives the committee’s views on whether the Scottish Government should agree that the UK Parliament make this Bill for Scotland.
Occasionally, because of the timings of the Bill in the UK Parliament, a memorandum needs to be looked at quickly. When this happens a committee does not look at and report on the memorandum. Instead the whole Parliament considers the memorandum in the Debating Chamber.
- read the rules for Legislative Consent Memorandums and Motions in Chapter 9B of the Parliament’s Standing Orders
Supplementary legislative consent memorandums
Further legislative consent memorandums (“supplementary legislative consent memorandums”) may be lodged after the first one. That can happen if changes are made to the Bill at Westminster that need the Scottish Parliament’s consent or if the Scottish Government wants to change its position on consent from what was set out in the first memorandum.
Legislative consent motions
If the Scottish Government wants the Parliament to consent to the Bill, it prepares a “legislative consent motion”. This is voted on in the Chamber, normally after the lead committee has reported on the legislative consent memorandum. There may be a debate before the motion is voted on, or it may only be a vote. The motion asks the Parliament if it agrees the UK Parliament should make the Bill apply to Scotland. MSPs can vote to agree or disagree.
In practice, this has to happen before the Bill goes through its last amending stage in the UK Parliament.
The UK Parliament must ask the Scottish Parliament for consent if it is passing a Bill that affects Scotland. This is included in the Scotland Act 2016.
The UK Supreme Court decided in 2017 that the Scottish Parliament does not have a “legally enforceable veto”. This means that if the Scottish Parliament votes against a legislative consent motion, it can still become the law.