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. There is a formal process for Holyrood to do this. Giving consent is sometimes known as the “Sewel convention”.
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 and why.
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.
Sometimes 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
Legislative consent motions
When the Parliament is ready to debate the memorandum, the Scottish Government prepares a “legislative consent motion.” 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.
This has to happen before the Bill goes through its last amending stage in the UK Parliament.
Find out more about UK Bill stages
UK Bills without legislative consent motions
The Scottish Government can also produce a legislative consent memorandum to say it does not intend to lodge a legislative consent motion on a particular Bill.
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.