The Sewel Convention and devolution.

One of our commenters [T&J] couldn’t wait to comment on this.. But during NI Questions today, the DUP’s Peter Robinson asked the Secretary of State for Wales etc, Peter Hain, a question about the Sewel Convention – Normally associated with the Scottish Parliament, it “gives a broad statement of principles for relations between the executive authorities in the UK, Scotland, Wales and Northern Ireland.” and, in this case, any proposed Irish Language Act.From Hansard

3. Mr. Peter Robinson (Belfast, East) (DUP): If the Government will adhere to the Sewel convention in relation to Northern Ireland legislation if powers are devolved to a Northern Ireland Assembly. [100588]

The Secretary of State for Northern Ireland (Mr. Peter Hain): The UK Parliament retains authority to legislate on any issue, whether devolved or not. However, the Government would not normally bring forward legislation with regard to devolved matters except with the agreement of the Northern Ireland Assembly.

Mr. Robinson: I am grateful to the Secretary of State for pointing out British sovereignty in Northern Ireland and the convention that would be followed. Will he confirm that the Irish language is a devolved matter and that there is no prospect of the Government introducing legislation before the date that he set for devolution? Will he also indicate that the Government have no intention of breaching the convention if there were a devolved Parliament, which would therefore decide the matter, and that, if the Government were to legislate, they could do that only with the Assembly’s agreement?

Mr. Hain: I am happy to confirm that it is a devolved matter, provided that there is something to which to devolve it and that there is an Assembly up and running from 26 March. As the hon. Gentleman knows, we will shortly announce a consultation paper, which will explore several options on a way forward. That consultation will last three months and we will have to see where we go from there. There is no slot in the Queen’s Speech for rushing through emergency legislation before 26 March. Assuming that restoration happens—as I hope that it will—on 26 March, of course it remains the case that, although Parliament is sovereign, we would not legislate on a devolved matter, except with the Assembly’s acceptance and agreement.[added emphasis throughout]

Here’s a BBC Q&A and the wikipedia entry on Sewel Motions

More details from the House of Commons Library [pdf]

Outline of the Sewel Convention

The “Sewel Convention” is a colloquial term for the UK Government’s stated policy on legislation concerning devolved matters in the UK Parliament. It 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 1997-98 on 21 July 1998:

Clause 27 makes it clear that the devolution of legislative competence to the Scottish parliament does not affect the ability of Westminster to legislate for Scotland even in relation to devolved matters. Indeed, as paragraph 4.4 of the White Paper explained, we envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However … we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament.[original emphasis]

The Sewel Convention is just that: a convention. It is not enshrined in the Scotland Act 1998. However, it was embodied in the Memorandum of Understanding between the UK
Government and the devolved executives, which was drawn up in 1999.2 The Memorandum gives a broad statement of principles for relations between the executive authorities in the UK, Scotland, Wales and Northern Ireland. The Memorandum is not intended to be legally binding, but it does represent a political undertaking.

The thinking behind the Convention is that the UK Parliament, as a sovereign body, retains full legal power to legislate on devolved matters, yet the spirit of devolution implies that political power rests with the Scottish Parliament. In order to avoid conflict, the Government undertook not to seek nor support relevant legislation in the UK Parliament without the prior consent of the Scottish Parliament. This consent is embodied in a “Sewel motion,” or, formally, a “legislative consent motion.”

The Sewel Convention applies when UK bills make provision for a devolved purpose (ie a matter on which the Scottish Parliament is competent to legislate), when they vary the legislative competence of the Scottish Parliament, or when they vary the executive competence of Scottish Ministers.

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  • slug

    Interesting. So how come a Language Act was announced as part of the SAA package?

  • Pete Baker

    Somebody forgot about the Sewel Convention applying to Northern Ireland, slug?

  • slug

    Ah. Somebody, or rather, the whole lot of the officials that run that stuff. Pretty shambolic lot this team around Hain.

    Don’t suppose have you managed to work out whether referral of a Ministers decision by the Assembly to the Executive – as mentioned in the SAA – requires a cross community decision to reverse the minister decision or to let it go ahead? This critical distinction appears nowhere in any of the documents I have read.

  • slug

    Maybe Truth and Justice knows the answer to my 8:29.

  • Truth and Justice

    As i have stated and been vindicated on, the leglislation did not include the Irish Language Act and if there is a deal and it looks like a big if tonight, the Assembly will descide on the Irish Language act and unionism will have a veto which proves that the UUP were scare mongering the whole time, once again the UUP have egg on their faces its no wonder their vote is going down down down! It also shows Alex Kane got it badly wrong!

  • Pete Baker

    Somewhat off-topic, slug ;op

    Sorry I haven’t really had a closer look..

  • Truth and Justice

    a petition of concern by 30 members from one designated side can stop a minister doing anything!

  • slug

    T&J: the petition refers the ministerial decision to the executive and the executive must decide based on a cross community consensus.

    But does the ministerial decision need a cross community executive agreement to go through, or does the ministerial go through unless there is cross community agreement on the executive to stop it. Do you see the distinction? DO you know which of the two applies?

    Because if its the latter, then its unlikely that nationalist on the executive would agree to reverse the scrapping of the 11+…

  • kensei

    “a petition of concern by 30 members from one designated side can stop a minister doing anything!”

    And then real politics hits home. If the DUP nukes the Irish Language Act (as opposed to thoughtful amendments) then SF can and will nuke any piece of legislation that the DUP wants. Tit for tat and we have paralysed government.

    It is far more likely that a compromise is reached to avoid such a situation. But with our politicians, you never really know.

  • Gonzo

    Maybe an attempt to teach Norn Ireland politicians how to co-operate… the hard way?

  • Pete Baker

    Conspiracy theory over the cock-up theory, Gonzo?

    I know which one my money’s on.

  • dpef

    This argument also seems to scupper the DUP’s claim of retaining academic selection.

  • Pete Baker

    dpef

    A general policy would need Assembly approval on that.

    But my understanding is that academic selection will not be banned if an assembly is restored, even though the 11-plus may be abolished.. leaving the way open for individual schools, or groups of schools, to use academic slection as part of their selection process.

    I did mention this possibility previously

  • Pete Baker

    But that’s veering off the original topic somewhat..

  • Pete
    Yes if there is an Assembly a ban on selection will require a cross community vote – which will not happen. In the event of a failure by the Assembly to agree on a new form of academic selection one assumes grammar schools will create one?

    On Irish language – more ‘spin’ from Labour – they’ve lied about the rates amendments being dependent on devolution and it looks like they have been misleading SF/SDLP with the promise of an Irish Language Act

  • Carson’s Cat

    slug
    “But does the ministerial decision need a cross community executive agreement to go through, or does the ministerial go through unless there is cross community agreement on the executive to stop it. Do you see the distinction? DO you know which of the two applies?

    Because if its the latter, then its unlikely that nationalist on the executive would agree to reverse the scrapping of the 11+…”

    As far as I know the accountability mechanisms within the SAA mean that at an Executive meeting any 3 members of the Executive can ask for an issue to be put to the Executive and require it to pass a cross-community vote. Therefore an issue will go through unless it is highlighted by a group of 3 – in those circumstances then it requires cross-community consent to pass.

    Should the Executive let a matter through there is still a further mechanism whereby 30 members can submit a petition of concern and ask that a matter be returned to the Executive for consideration and the same cross-community vote before it can become legislation.

    As for academic selection. The previous Education Order expressly banned academic selection as a method to transfer children at 11. Therefore it would have required a cross-community vote to have returned academic selection. What the DUP have achieved in the legislation is that academic selection remains on the statute book as the method of transfer and therefore any change/abolition would require cross-community support. Academic selection however remains the basis for whatever method is used to transfer children at 11. The 11+ as a particular form of academic selection is banned (no party supported its retention).

    The issue remains as to what form of academic selection will be used (presumably as unionists will not vote to see academic selection scrapped) to replace the 11+. That replacement will require cross-community support. It in a sense puts it up to nationalists as to whether they’d prefer to have a system which they maybe are not completely supportive of (despite it being very kind to the thousands of Catholics with a good grammar school education) or do they want gridlock and chaos in the system.

  • Truth and Justice

    You all forget that Sinn Fein dont have 30 memebers and are unlikly to do so.

  • Alex Kane

    Truth and Justice,

    Re yesterday’s post 08.33

    You still haven’t taken up my offer of a bet that an Irish Language Act will be in place by November 2008—with or without DUP approval and with or without devolution.

    As for the so-called new safeguards on accountability! They won’t work; and the government will be paralysed by mutual veto. Accountabilty isn’t just about “stopping themuns” from doing things, it’s about holding a government to account. The mechanisms weren’t in the 1998 Agreement (and I whinged about it) and they aren’t in the SAA—which is why I am still whingeing about it.

    Best wishes,

    Alex.

  • Truth and Justice

    Poor old Alex, can never admit you got it wrong, the Irish Act is not even in the leglislation, the Secrtary of State has stated on the House of Commons the Assembly will have the say, how clearer can it get. now if there is No Agreement because people like your good self cant bare to thing the DUP have got a better deal then the Governments under Plan B could well introduce an Irish Language Act, do you Alex really want Plan B, Water Charges, Rates, an end to Acedemic selection and the Grammar Schools, the Irish Government having a greater say in all our lives is that what you really want for Northern Ireland, you never did annswer my question and come out and oppose the St Andrews Agreement after all the UUP were involved in the negoiations to!

  • slug

    Thanks Carson’s Cat on the accountability measures. Very informative on something I have been asking about for some time. This does suggest a considerable change to the previous situation under GFA.

    Also on academic selection interesting comments.

    This suggests that the DUP have made some important gains in the negotiations.

  • Porlock

    T and J

    There is a letter in today’s News Letter–supposedly from a woman–which reads remarkably like your own style on this site!!

    Alex may irritate you but your real problems (and I’m sorry, but I still think of you as a DUP plant)are with Jim Allister and Ivan Foster.

    Personally I think the new St Andrews Act has linked progress in the Irish Language with progress in Ulster-Scots. With any luck both of them will become victims of internal Executive stalemate.

    Finally, you seem to put a lot of trust in promises from Peter Hain. That’s very generous of you. But I would draw your attention to one word of Hain’s reply—“The government would not normally bring forward etc etc” “Normally” leaves a lot of leeway.

    Porlock

  • Carson’s Cat

    Porlock
    “Finally, you seem to put a lot of trust in promises from Peter Hain. That’s very generous of you. But I would draw your attention to one word of Hain’s reply—“The government would not normally bring forward etc etc” “Normally” leaves a lot of leeway.”

    He has to use the ‘normally’ response in this reply – because at the end of the day Parliament is still soverign and ultimately has authority to do what it wants.

    However, Parliament does not take its conventions lightly and given the furore it would cause in Scotland and Wales should they break this one I would imagine its not going to be broken just for an Irish Language Act.

    “Personally I think the new St Andrews Act has linked progress in the Irish Language with progress in Ulster-Scots. With any luck both of them will become victims of internal Executive stalemate.”

    I have to say that if an Executive ends up with stalemate and no movement on these two issues then I wont particularly shed any tears.

  • George

    Pardon my ignorance but why all the anger about an Irish language act? It is irrelevant in the greater scheme of things.

    Also, all the talk here about the DUP being able to block everything seems to imply that northern nationalists would be better off signing up to no deal and taking direct rule with the Irish government pushing their interests instead.

  • Reader

    George: Pardon my ignorance but why all the anger about an Irish language act? It is irrelevant in the greater scheme of things.
    Not to taxpayers and ratepayers it isn’t!
    George: northern nationalists would be better off signing up to no deal and taking direct rule with the Irish government pushing their interests instead.
    Either that, or rise above the zero-sum game and look to get cross-community agreement on some things. Same applies on the other side of the divide, of course.

  • Porlock

    Carson’s Cat,

    There was an earlier convention (dating back to 1923)that Westminister wouldn’t interfere in Stormont matters. Came to a sudden end when it suited the London end of the relationship.

    And let’s not forget the 1949 Ireland Act which put NI’s constitutional future in the hands of Stormont. That disappeared, too.

    Given the record of PMs and SoSs on these matters I wouldn’t put too much store by a guarantee from Peter (“This is my final warning and your final deadline”)Hain.

    But a hearty “hear hear” re the Irish Language and Ulster-Scots, the ugly sisters of this particular pantomime.

    Porlock

  • George

    Reader,
    “Not to taxpayers and ratepayers it isn’t!”

    I would assume that there are taxpayers and ratepayers in Northern Ireland who support this act so that is hardly a reason. What is the big deal with this act?

    “Either that, or rise above the zero-sum game and look to get cross-community agreement on some things. Same applies on the other side of the divide, of course.”

    But I’m hearing very little about cross-community agreement but an awful lot about vetoes.

    Surely if the DUP can’t compromise on an Irish language act then what hope for anything else?
    If this act is considered so grave a threat to the union that a unionist veto must be applied what chance for compromise on bread and butter issues?

    I don’t get the danger. Is there something subversive in this Act that I have missed?

  • Carson’s Cat

    Porlock
    Indeed there were other conventions – but they were broken on matters of much greater substance than simply one Irish Language Act.

    I agree that Hain’s word isnt to be trusted – but this matter isn’t in the hands of Hain, or even the Government, but with Parliament as a whole.

    As mentioned earlier – of course it could be broken, its a soverign parliament, but the earlier examples you mention did just involve NI and as I mentioned ealier this is a convention which doesnt just relate to us, but to Scotland and Wales, particularly given that this convention arose specifically in relation to Scotland.

    Scottish and Welsh MPs (Hain aside) would be reluctant to meddle too much with this one.