Hybrid | Legislative Consent After Brexit

Legislative Consent After Brexit

Speakers: Dr Christopher McCorkindale (University of Strathclyde) and Professor Aileen McHarg (Durham University)

Commentators: Professor Rick Rawlings (UCL) and Akash Paun (Institute for Government)

Chair: Professor Erin Delaney (UCL)

Summary

In this edition of the Public Law Seminar Series, hosted by the Global Centre for Democratic Constitutionalism at UCL Laws, scholars Christopher McCorkindale and Aileen McHarg will present on their cutting-edge analysis of the Sewel Convention. Following the presentation, commentators will offer their remarks, leading into further discussion. 

Presentation Abstract

Although the UK Parliament retains unlimited law-making powers in devolved areas, this is tempered by a political rule – the Sewel Convention – that the UK Parliament will ‘not normally’ do so without the consent of the relevant devolved legislature(s). The Convention both facilitates co-operation between the UK and devolved authorities and provides a safeguard for devolved autonomy against unwelcome UK legislation. In the pre-Brexit era the operation of the Convention was mostly uncontroversial, with only one (accidental) breach of the convention that was quickly remedied. Our hypothesis is that Brexit has resulted in an increased willingness on the part of the UK Parliament to legislate in devolved areas without consent. This has caused the devolved governments to lament a 'broken' convention that undermines UK-devolved co-operation and that weakens the safeguards for devolved autonomy. At the same time, in many policy areas outside of the Brexit context, devolved consent is routinely given to UK legislation of a technical nature or for pragmatic reasons. According to the UK Government, this demonstrates that the Convention is still working and that controversy can be contained to the 'abnormal' Brexit context. Through textual analysis of legislative consent memorandums lodged in the three devolved legislatures and interviews conducted with political actors and officials engaged in the process, this paper seeks to demonstrate, understand and analyse the changing operation of the Sewel Convention, what it means for devolved autonomy and the proper functioning of the UK Constitution, and how (if at all) the Convention might be strengthened following the change of UK Government at the 2024 UK General Election.

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About the Speakers

Chris McCorkindale is a Reader in Law at Strathclyde Law School, where he started in 2012. His teaching reflects his research interests in constitutional and administrative law, with a focus on devolution and on constitutional law, history and theory in Scotland and in the UK more generally.

He is an adviser to the Constitution, Europe, External Affairs and Culture Committee of the Scottish Parliament during its current session, the public law analysis editor of the Edinburgh Law Review and a steering group member of the Scottish Public Law Group.

Aileen McHarg has been Professor of Public Law and Human Rights at Durham Law School since September 2019. Prior to joining Durham she held a Chair in Public Law at Strathclyde University, and before that posts at Glasgow and Bristol Universities.

Her main teaching and research interests lie in UK and Scottish constitutional and administrative law. She publishes widely in these fields, but has particular expertise in devolution and the UK's territorial constitution. Along with Prof Roger Masterman, she is joint general editor of Public Law.

About the Commentators and Chair

Prof Erin Delaney joined UCL Laws as Leverhulme Professor of Comparative Constitutional Law in September 2024, and she serves as the Inaugural Director of the Global Centre for Democratic Constitutionalism. She retains an affiliation with Northwestern University where she was Professor of Law at the Pritzker School of Law and Professor of Political Science (by courtesy) at the Weinberg College of Arts and Letters. She is currently the Secretary General of the International Society of Public Law, Co-Editor of the Hart Series on Judging and the Courts, Co-Editor of the International & Comparative Law Section of JOTWELL, and a member of the editorial boards of Public Law and the Brill Series on Studies in Territorial and Cultural Diversity Governance. She is an elected Member of the American Law Institute, and an Advisory Board Member of the International Institute for Justice and the Rule of Law.

Professor Delaney was the 2022 Federal Scholar in Residence at Eurac Research’s Institute for Comparative Federalism in Bolzano, Italy, and held the Fulbright Visiting Research Chair in the Theory and Practice of Constitutionalism and Federalism at McGill University. She has also held research fellowships at Edinburgh University and the Université Libre de Bruxelles. Prior to her position at Northwestern, she served as a law clerk to U.S. Supreme Court Justice David Souter and to Second Circuit Judge Guido Calabresi. She received her J.D., magna cum laude, from NYU School of Law, where she served as Editor-in-Chief of the NYU Law Review. She earned an M.Phil. and Ph.D. from Cambridge; her doctoral dissertation was awarded the Walter Bagehot Prize from the U.K. Political Studies Association. She has an A.B. in Government, magna cum laude, from Harvard College. 

Akash Paun is programme director for devolution at the Institute for Government, overseeing research on devolution to Scotland, Wales and Northern Ireland, and to England’s cities, counties and regions. In 2020 he was co-author of the report Legislating by Consent: How to revive and reform the Sewel Convention which made the case for a number of reforms to how the legislative consent process operates. Akash joined the Institute in 2008 and has also worked at the UCL Constitution Unit, the British Academy and as an adviser to the Independent Commission on the Constitutional Future of Wales.

Professor Richard (Rick) Rawlings is the Professor of Public Law at UCL. He is a Fellow of the British Academy (FBA), Fellow of the Learned Society of Wales (FLSW), and Honorary Bencher at Middle Temple. He is a former Leverhulme Major Research Fellow. Rick has also been appointed Honorary Distinguished Professor at Cardiff University.
Rick's many works include leading monographs and edited collections such as Law and Administration (4th edn 2021) (with Carol Harlow); Delineating Wales: Constitutional, Legal anbd Aministrative Aspects of National Devolution (2005); The Regulatory State: Constitutional Implications (2010); Sovereignty and the Law (2013); Process and Procedure in EU Administration (2014) (with Carol Harlow). Reports include Challenge and Opportunity: The Draft Wales Bill (2016) and Brexit and the Territorial Constitution (2017). Rick has held visiting posts at leading universities in the common law world such as University of California, Berkeley; National University of Singapore; and University of Auckland. He was recently Miegunyah Distinguished Visiting Professor at Melbourne University. Rick has served as Legal Adviser to the House of Lords Constitution Committee and on the (Thomas) Commission on Justice in Wales. He currently serves on the Welsh Advisory Committee of the Law Commission.

About the GCDC

The Global Centre for Democratic Constitutionalism, based at the UCL Faculty of Laws, seeks to advance scholarly understanding of the relationship between democratic government and the rule of law in domestic, comparative, and transnational perspective, with a particular focus on identifying the supporting conditions for constitutional resilience in electorally competitive political systems. Read more about the group and its work.

Book Your Place

You can attend this event in-person at UCL Faculty of Laws (Bentham House, 4-8 Endsleigh Gardens, London WC1H 0EG) or alternatively you can join via a live stream.

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