Changes to the way in which the Scottish Parliament gives its
consent to Westminster to legislate on devolved issues – the Sewel
Convention – which were outlined in a report by the Scottish
Parliament's Procedures Committee in October this year, have been given
Parliamentary approval.

The convention is named after the Government Minister, Lord Sewel,
who set out the terms of the policy in the House of Lords during the
passage of the Scotland Bill on 21 July 1998. He gave a commitment that
"Westminster would not normally legislate with regard to devolved
matters in Scotland without the consent of the Scottish Parliament".

The Sewel convention is not enshrined in the Scotland Act: it
operates instead as an agreement between the UK government and the
Scottish Executive. While the UK Parliament retains full power to
legislate on Scottish devolved matters if it wishes to do so,
devolution implies that the UK Parliament should not normally legislate
in such areas, at least without the prior consent, or perhaps at the
request of, the Scottish Parliament.

The purpose of the convention is to assert the Scottish Parliament’s
political (if not legal) primacy in devolved areas – any legislation
must either be the product of its own deliberations or require its
explicit consent. However, the process has become the subject of
ongoing controversy among politicians, the media and academic
commentators.

The Procedures Committee therefore launched an inquiry in January
2005 to address the widespread concern and misunderstanding surrounding
the Sewel convention.

The principal criticism has been that the convention has been
over-used, with nearly as many Sewel motions passed as there have been
Acts of the Scottish Parliament. A related perception is that powers
are being "handed back" to Westminster, and that use of the Sewel
process is a kind of "counter-devolution". In some specific instances,
the criticism has been that the convention has been used
inappropriately to impose a general UK solution on a subject where a
distinctively Scottish approach would be preferable.

More recently, Lord Sewel himself has suggested that what was
originally meant to be an inter-Parliamentary convention has instead
been "hijacked" by government, and used for purposes for which it was
never intended.

Since devolution, Holyrood has given its consent to Westminster
legislation on 63 occasions, mainly to transfer procedural matters.
However, some of the motions have been invoked on extremely contentious
issues, such as the Gambling Bill, same-sex partnerships, and the
Serious Organised Crime and Police Bill which introduced anti-trespass
powers in Scotland for the first time.

The Procedures Committee report proposed that the current, largely
ad hoc procedures should be replaced with a framework of new rules to
improve transparency and to enhance the opportunity for parliamentary
scrutiny. It is hoped that this would lead to the Scottish Parliament
achieving shared ownership of what has hitherto been regarded as a
device used by and for the Scottish Executive alone.

The report recommended that the Scottish Executive be required to
provide information about the Scottish implications of any Bill
announced in the Queen's speech at Westminster, and to provide a
detailed memorandum at an earlier stage in the Westminster process,
thus giving Holyrood more time for scrutiny. The Committee also
recommended that Ministers make more time for debate on Sewel motions
which deal with major issues, and proposed that the device should be
given a new name, suggesting that in future Sewel motions should be
known as "Legislative Consent motions".

The Procedures Committee's report was debated in the Chamber on
Wednesday 23 November. MSPs endorsed the Committee's conclusions and
changes will be made to the Parliament's Standing Orders in accordance
with the report's recommendations. The changes will be made with effect
from 30 November 2005 and will apply to all Bills introduced, or
amendments agreed to or tabled, after that date.

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