Migration 
Withholding legislative consent to the Illegal Migration Bill is important, says Isata Kanneh, project lead at the Bevan Foundation
Tuesday 20 June, was World Refugee Day. This week is also Refugee Week and the theme of this year’s festival is ‘compassion’. It was fitting, then, that in Plenary yesterday evening, the Senedd voted to withhold legislative consent for the UK Government’s Illegal Migration Bill.
Much of the debate around the LCM confirmed commitment to the Nation of Sanctuary and to humanitarian protection. Speeches highlighted the importance of international law on human rights and children’s rights. Because of provisions in the Bill impacting on devolved Social Care functions, debate centred on the needs and care of unaccompanied children, and defence of the ‘child first, migrant second’ approach in Wales.
The purpose of legislative consent
Legislative consent is a constitutional matter relating to devolution. When the UK parliament wishes to pass legislation that affects devolved functions, the Sewel convention states that the consent of devolved parliaments such as the Senedd should be sought before legislation is passed.
The purpose of legislative consent is to prevent the UK parliament from overriding decisions made by devolved parliaments and from unilaterally imposing changes in devolved areas of law. It is an important constitutional protection for devolution. The legislative consent process has been used 36 times in Wales since 2021, often with the result that consent to legislate is given. Yesterday’s plenary, for example, also included a Legislative Consent Motion on the Economic Crime and Corporate Transparency Bill, which was agreed (meaning that consent was given).
The process of legislative consent
In the case of the Illegal Migration Bill, the UK Government stated that legislative consent from the Senedd was not necessary. The Welsh Government disagreed. On 31 March 2023, the Minister for Social Justice, Jane Hutt MS, laid a Legislative Consent Memorandum (LCM) before the Senedd, setting out the reasons why she considered that legislative consent was needed. This was followed in May by a Supplementary LCM which responded to amendments made to the Bill during its passage through Parliament.
LCMs are considered by the Business Committee under Standing Order 29. If the Committee decides that the LCM should be considered, it asks relevant Senedd Committees to report. A debate and vote is scheduled on a Legislative Consent Motion and Committee reports are produced beforehand. If the Motion is agreed, consent is given to the UK Parliament to legislate. If rejected, then consent is withheld.
Because of the areas of devolved law covered by the Illegal Immigration Bill, reports were requested from the Equality and Social Justice Committee, the Children, Young People, and Education Committee, the Local Government and Housing Committee (which declined to provide a report), and the Legislation, Justice, and Constitution Committee.
To assist Committees in their consideration of the LCM, the Bevan Foundation submitted evidence individually. We also worked with the Children’s Society and Children’s Legal Centre Wales on a joint submission. The three Committees reported separately, all recommending that Senedd withhold legislative consent for the Bill. In the vote, 15 MSs voted in agreement with the Legislative Consent Motion, while 38 voted against, withholding Senedd consent for the Bill.
The key issues
Legislative consent must focus on devolved functions. Concerns centred on provisions in the Bill that affect powers and duties devolved to local authorities under the Social Services and Well-being Act 2014, and that impact on the devolved responsibility to observe and implement international obligations. These include safeguarding and upholding children’s rights under the Rights of Children and Young Persons (Wales) Measure 2011, and meeting responsibilities under the Refugee Convention and the European Convention on Human Rights. Concerns around provisions in the Bill which would give the Secretary of State the power to override and potentially repeal Welsh law were of key concern and were closely scrutinised.
Why does it matter?
The requirement to seek legislative consent is a convention, meaning that while it is expected, it is not legally enforceable. The Senedd’s decision to withhold consent for the Illegal Migration Bill is unlikely to prevent it from being passed into law. There is also little chance of legal challenge if powers devolved to Wales conflict with legislation passed by the UK Parliament.
The vote to withhold consent is nonetheless significant. It is a test of the convention that legislation on devolved matters should not be imposed by Parliament. If the Bill passes into law, as has previously happened where consent has been withheld, the relevant provisions will be imposed in breach of Senedd consent. Over time, this raises important constitutional questions about the functioning and strength of devolution. The House of Lords Constitution Committee has described the Bill’s clauses allowing for Welsh legislation to be repealed or amended as “constitutionally questionable”.
In the short term, yesterday’s vote and the preceding Plenary debate gave a positive focus to asylum and children’s rights. Several MSs made clear statements against plans to remove of children from local authority care, the detention and deportation of children, or invasive age assessments. They reaffirmed their commitment to human rights and the principle of humanitarian protection, sending an important message on a World Refugee Day themed Hope Away from Home.
