Seminar 6 – Devolution
Reading List
· Mark Elliott and Robert Thomas, Public Law (2020 4th edn, OUP) p.312-353
· s.1 and 2 Scotland Act 2016 and Wales Act 2017
· R (on application of Miller and another) v Secretary of State for Leaving the European
Union[2017] UKSC 5 (aka Miller No 1) [136]-[151] (Sewel convention).
· Mark Elliott, ‘Analysis – The Supreme Court’s Judgment in Miller’, accessible via:
https://publiclawforeveryone.com/2017/01/25/analysis-the-supreme-courts-judgment-in-
miller/ - section titled ‘Devolution and the Territorial Constitution’ only.
· Re Attorney General and the Advocate General for Scotland – United Nations Convention
on the Rights of the Child (Incorporation) (Scotland) Bill [2021] UKSC 42
1. What is the Sewel Convention?
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
a. In the case of R (Miller) v Secretary of State for Exiting the European Union the Supreme
Court considered the enforceability of the Sewel Convention in the context of the UK’s
decision to leave the European Union. What was the key claim and how did the court rule?
The triggering of article 50 would start process of EU withdrawal - now that the Sewel
convention was codified, was it legally enforceable and binding? Did Westminster need the
consent of the devolved institutions?
The issue before the Supreme Court regarding Gina Miller and Deir dos Santos’ claim was whether a
formal notice of withdrawal from the EU can lawfully be given by ministers without prior primary
legislation.
The Supreme Court, by a majority, ruled in favour of Gina Miller and Deir dos Santos on the question
whether the Secretary of State should seek permission from a statute before serving the notice of
withdrawal from the EU. However, it dismissed the claimants in relation to the Northern Ireland
questions, ruling that the devolution settlements did not impose legal restrictions on the power of
withdrawal(the Sewel convention did not hold any legal power so it couldn’t affect the UK's decision
to withdraw from the EU).
Gina Miller’s claim was approved for the following reasons:
▪ Although the European Communities Act 1972 authorised a dynamic process whereby EU
law became a source of UK law, it can be repealed by any other statute.
▪ However, the 1972 Act ss 2(1) and (2) did not authorise the use of prerogative power to cut
off the source of EU law entirely.
▪ This is because withdrawing from the EU involves such a significant constitutional change
and impacts such a wide range of domestic rights that it cannot be carried out by the Royal
prerogative without primary legislation.
▪ This would be the case unless Parliament expressly legislate to authorise the use of such a
power.
Reading List
· Mark Elliott and Robert Thomas, Public Law (2020 4th edn, OUP) p.312-353
· s.1 and 2 Scotland Act 2016 and Wales Act 2017
· R (on application of Miller and another) v Secretary of State for Leaving the European
Union[2017] UKSC 5 (aka Miller No 1) [136]-[151] (Sewel convention).
· Mark Elliott, ‘Analysis – The Supreme Court’s Judgment in Miller’, accessible via:
https://publiclawforeveryone.com/2017/01/25/analysis-the-supreme-courts-judgment-in-
miller/ - section titled ‘Devolution and the Territorial Constitution’ only.
· Re Attorney General and the Advocate General for Scotland – United Nations Convention
on the Rights of the Child (Incorporation) (Scotland) Bill [2021] UKSC 42
1. What is the Sewel Convention?
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
a. In the case of R (Miller) v Secretary of State for Exiting the European Union the Supreme
Court considered the enforceability of the Sewel Convention in the context of the UK’s
decision to leave the European Union. What was the key claim and how did the court rule?
The triggering of article 50 would start process of EU withdrawal - now that the Sewel
convention was codified, was it legally enforceable and binding? Did Westminster need the
consent of the devolved institutions?
The issue before the Supreme Court regarding Gina Miller and Deir dos Santos’ claim was whether a
formal notice of withdrawal from the EU can lawfully be given by ministers without prior primary
legislation.
The Supreme Court, by a majority, ruled in favour of Gina Miller and Deir dos Santos on the question
whether the Secretary of State should seek permission from a statute before serving the notice of
withdrawal from the EU. However, it dismissed the claimants in relation to the Northern Ireland
questions, ruling that the devolution settlements did not impose legal restrictions on the power of
withdrawal(the Sewel convention did not hold any legal power so it couldn’t affect the UK's decision
to withdraw from the EU).
Gina Miller’s claim was approved for the following reasons:
▪ Although the European Communities Act 1972 authorised a dynamic process whereby EU
law became a source of UK law, it can be repealed by any other statute.
▪ However, the 1972 Act ss 2(1) and (2) did not authorise the use of prerogative power to cut
off the source of EU law entirely.
▪ This is because withdrawing from the EU involves such a significant constitutional change
and impacts such a wide range of domestic rights that it cannot be carried out by the Royal
prerogative without primary legislation.
▪ This would be the case unless Parliament expressly legislate to authorise the use of such a
power.
