Explainers

When Holyrood said no: the 2018 dispute over legislative consent and the EU Withdrawal Bill

Explainers · Published 2026-11-04

The curved wooden debating chamber of the Scottish Parliament seen from the public gallery, with members standing in the aisles
The debating chamber of the Scottish Parliament at Holyrood. Photo: Jamieli, public domain, via Wikimedia Commons.

For the first time since devolution began in 1999, the UK Parliament in June 2018 passed a law affecting devolved powers after the Scottish Parliament had expressly refused its consent. Supporters of independence presented it as proof that Holyrood's wishes could be overridden; the UK government said it had acted lawfully and in exceptional circumstances. This article explains the rules and what happened.

Timeline

The Sewel convention

When the Scottish Parliament was created, Westminster kept the legal power to legislate on any subject, including devolved ones. In 1998 the government minister Lord Sewel said that Westminster would "not normally" legislate on devolved matters without the consent of the Scottish Parliament. This became known as the Sewel convention. In practice, Holyrood gives consent through legislative consent motions, and it had done so well over a hundred times by 2018. The Scotland Act 2016 wrote the convention into the Scotland Act 1998, as the Smith Commission had recommended.

In January 2017, in the Miller case on the triggering of Article 50, the Supreme Court held that the convention, even though now in statute, was a political commitment and not a rule that courts could enforce. Whether a situation was "normal" was for politicians, not judges, to decide.

The dispute over clause 11

As first introduced, the Withdrawal Bill provided that EU law in devolved areas such as farming, fishing and the environment would be "retained" and that the devolved legislatures could not alter it until the UK government released each area. The Scottish and Welsh governments objected that this reversed the principle of devolution, under which everything not reserved is devolved. After months of negotiation, the bill was amended in the House of Lords so that the restrictions would apply only to areas specified in regulations, for a limited period. The Welsh Government accepted the revised text in April 2018; the Scottish Government did not, arguing that Holyrood's powers could still be restricted without its consent.

Holyrood says no

On 15 May 2018 the Scottish Parliament voted on a motion declining consent. It passed by 93 votes to 30: the SNP, Labour, the Scottish Greens and the Liberal Democrats voted for it, and the Conservatives against. It was the first time since 1999 that Holyrood had refused consent to a major UK bill. The UK government took the view that the circumstances of leaving the EU were not "normal" and proceeded anyway.

On 12 June 2018 the House of Commons considered the Lords amendments, including the devolution clauses, under a timetable that left only a few minutes for debate on them. The next day, at Prime Minister's Questions, the SNP's Westminster leader, Ian Blackford, was ordered to leave the chamber after refusing to sit down while pressing for a vote, and most SNP MPs walked out with him. The Act received Royal Assent on 26 June 2018.

The Continuity Bill and the Supreme Court

In parallel, the Scottish Parliament had passed its own UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill on 21 March 2018, intended to provide for retained EU law in devolved areas on Scottish terms. The UK government's law officers referred it to the Supreme Court. In December 2018 the Court ruled that most of the bill would have been within the Parliament's competence when it was passed, but that one section was not. By then, however, the Withdrawal Act had become law and had been added to the list of statutes Holyrood cannot modify, so that much of the Continuity Bill could not take effect as drafted.

Why it still matters

The episode showed that the protection offered by the Sewel convention depends on the political will of the UK government of the day. The pattern was repeated: in 2020 the Scottish Parliament also refused consent to the United Kingdom Internal Market Bill, which became law regardless. Supporters of independence regard these episodes as evidence that devolution is not secure. Supporters of the Union argue that leaving the EU was a unique, UK-wide decision requiring UK-wide frameworks, and point out that most powers returning from Brussels in devolved areas did in fact go to Holyrood. Proposals to strengthen the convention, such as those of the Commission on the UK's Future in 2022, are discussed in our article on a "new union".

Sources

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