Scotland Act 1998 s. 28(8)

Introduction

Section 28(8) of the Scotland Act 1998 provides that "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." This reflects the Sewel Convention, a political understanding that Westminster should seek consent before legislating on devolved areas.

The provision was added by the Scotland Act 2016 to give the convention statutory recognition. It sits alongside section 28(7), which confirms that nothing in section 28 affects Westminster’s power to make laws for Scotland. Together, these clauses acknowledge the political norm of consent while preserving parliamentary sovereignty.

The phrase "not normally" is at the centre of discussion. It allows some room for Westminster to proceed without consent in certain circumstances. Courts have treated the convention as political rather than legally enforceable, but the practice carries significant political weight and affects relations between governments.

What You'll Learn

• What section 28(8) says and how it links to the Sewel Convention
• The role and process of Legislative Consent Motions (LCMs)
• When consent is usually sought for UK Bills
• What "not normally" has meant in practice
• How courts have approached section 28(8), especially in Miller (No. 1)
• Practical steps for advisers, policymakers, and exam preparation

Core Concepts

What section 28(8) says and why it was added

• Text: Section 28(8) states that "it is recognised" that Westminster will not normally legislate on devolved matters without Holyrood’s consent.
• Origin: The Sewel Convention originated in statements by Lord Sewel during passage of the Scotland Bill in 1998. It operated as a political rule for many years.
• Statutory recognition: The Scotland Act 2016 inserted section 28(8) to reflect the convention in the statute book. It did not convert the convention into a legally enforceable duty.
• Sovereignty preserved: Section 28(7) makes clear that Westminster retains full law-making power for Scotland.

Tip: Read sections 28(7) and 28(8) together. One preserves sovereignty; the other records the political practice of seeking consent.

The Sewel Convention and legislative consent

• Convention in simple terms: Westminster should ask for consent when legislating in devolved areas. The Scottish Parliament may agree or refuse.
• Guidance: UK Government Devolution Guidance Note 10 (DGN 10) and the Memorandum of Understanding set out when and how consent should be sought.
• Process: In Scotland, the Government normally lays a Legislative Consent Memorandum. Committees scrutinise it, and the Parliament votes on an LCM.
• Outcome: The vote signals the Scottish Parliament’s position. It guides but does not bind Westminster.

When is consent usually required?

Consent is typically sought where a UK Bill would:

• Make provision applying to Scotland in a devolved area (e.g., health, education, agriculture).
• Modify the legislative competence of the Scottish Parliament.
• Modify the executive competence of the Scottish Ministers.
• Implement international obligations in a way that affects devolved matters.

Consent may also be sought where a UK Bill includes a mixture of reserved and devolved elements, with practical reasons to legislate at Westminster for consistency across the UK.

What does "not normally" mean?

"Not normally" is deliberately flexible. Commonly suggested circumstances for proceeding without consent include:

• Urgency or national security where timing is critical.
• UK‑wide policy measures where a single legal regime is considered necessary.
• Implementation of international obligations on a timetable that makes separate devolved legislation impractical.
• Situations where a devolved legislature refuses consent for reasons the UK Government considers go beyond the specific provisions at issue.

There is no hard legal test for "not normally". The assessment is political and context‑specific. Parliament decides, and the remedy for disagreement is political accountability rather than litigation.

Legal effect and justiciability

• Courts have recognised that section 28(8) records a political rule. They have been clear that supervising compliance with the convention is not a matter for judges.
• In Miller (No. 1), the Supreme Court confirmed that the Sewel Convention, even when recognised in statute, remains non‑justiciable. The court will not enforce it or decide whether circumstances are "normal".
• Legal limits on devolved law‑making do exist, but they arise from the Scotland Act’s competence rules (e.g., reserved matters, compatibility with Convention rights), not from Sewel.

Key Examples or Case Studies

R (Miller) v Secretary of State for Exiting the European Union (No. 1) [2017] UKSC 5

• Context: Whether the Government could trigger Article 50 without an Act of Parliament.
• What the court said: The Sewel Convention "plays an important part" in practice but is not a legal rule the courts can enforce. Section 28(8) recognises the convention but does not change its nature.
• Why it matters: Confirms that consent is a political requirement. Lack of consent does not invalidate Westminster legislation.

UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill – Reference [2018] UKSC 64

• Context: The Scottish Parliament passed a Continuity Bill to retain EU law in devolved areas ahead of Brexit.
• What the court said: Parts of the Bill were within competence at introduction but became outside competence after the EU (Withdrawal) Act 2018 modified the devolution settlement. The case concerned competence, not enforcement of Sewel.
• Why it matters: Highlights that hard legal limits come from the Scotland Act and subsequent UK legislation, not from the consent convention.

Legislative consent and major Brexit‑related Acts (2018–2020)

• EU (Withdrawal) Act 2018: The Scottish Parliament withheld consent; Westminster legislated regardless, citing UK‑wide needs during Brexit.
• EU (Withdrawal Agreement) Act 2020 and UK Internal Market Act 2020: Consent was again withheld by devolved legislatures; Westminster still proceeded.
• Why it matters: Practical illustration of "not normally". The convention shaped debate and intergovernmental relations but did not prevent legislation.

Practical Applications

• For policymakers drafting UK Bills

  • Identify early whether provisions affect devolved matters or modify devolved or ministerial competence.
  • Engage with Scottish Ministers and officials in line with DGN 10 and the Memorandum of Understanding.
  • Allow time for the Scottish Parliament’s LCM process (memorandum, committee scrutiny, debate, vote).
  • If proceeding without consent, record reasons and address intergovernmental forums to manage political consequences.

• For Scottish Parliament committees and advisers

  • Scrutinise whether a UK Bill truly requires UK‑wide provision or could be delivered by devolved legislation.
  • Request clarity on clauses that modify devolved or ministerial competence and seek amendments where needed.
  • Track amendments at Westminster that may alter the consent position mid‑Bill.

• For litigators and public law practitioners

  • Do not treat Sewel as a cause of action. Courts will not quash UK legislation for lack of consent.
  • Focus legal challenges on competence or procedural points with a statutory footing (e.g., Scotland Act constraints, human rights compatibility), not on the consent convention.
  • Be cautious about parliamentary privilege: internal parliamentary proceedings are protected from judicial scrutiny.

• For students and exam preparation

  • Structure answers: quote section 28(8), explain its link to Sewel, outline LCMs, discuss "not normally", and cite Miller (No. 1).
  • Distinguish political practice (consent) from legal enforceability (competence).
  • Use Brexit‑era examples to show how the convention operates in reality.

Tip: Always pair section 28(8) with section 28(7) in analysis. One expresses a political norm; the other secures legal authority.

Summary Checklist

• Know the text of section 28(8) and its purpose.
• Remember that section 28(7) preserves Westminster’s power.
• Understand when LCMs are sought and how the Scottish Parliament handles them.
• Recognise that "not normally" is judged politically, not legally.
• Cite Miller (No. 1) for the point that Sewel is non‑justiciable.
• Use Brexit‑related legislation as examples of proceeding without consent.
• For legal challenge, look to competence rules, not the convention.

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