Briefing from Committee advisor Professor Michael Keating to the Committee, 5 January 2022
When the UK was a member of the European Union, the devolved legislatures and governments were obliged to legislate and act within EU law. EU regulations were binding on them whether by direct application or by transposition (by Westminster or devolved legislatures). This meant that there was an overlap of devolved and EU competences and, in many cases, an absence of UK-wide law and regulation. Instead, it was the EU that assured harmonisation across the UK. After Brexit, if nothing were done, there would no longer be a UK-wide framework in these areas, which include agriculture and fisheries, the environment and a range of regulatory matters.
The EU Withdrawal Bill provided for the incorporation into British law of the existing body of EU law – this is known as ‘retained EU law’. It could then be changed over time. In the first version of the EU Withdrawal Bill, the UK Government proposed to take these powers to Westminster and later ‘release’ those where centralisation was not necessary. In the final version, the EU Withdrawal Act, these competences were to be repatriated to the devolved legislatures, but the UK Government could ‘freeze’ their exercise until January 2022 pending agreement on how they should be handled.
In meantime, negotiations would take place between the UK and devolved governments on Common Frameworks. The Scottish Government agreed to negotiate, as long as no competences were taken back (frozen) and no frameworks were imposed.
In practice, the power to take back or freeze competences was never used. In December 2021, the UK Government announced its intention to repeal the Section 12 powers https://questions-statements.parliament.uk/written-statements/detail/2021-12-09/hcws458.
The basic principles for Frameworks were agreed in the Joint Ministerial Committee (European Negotiations) in October 2017 as follows:
Common Frameworks will be established where they are necessary in order to:
Common Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore:
There followed a mapping exercise to determine where Frameworks might be needed. Competences are now divided into three categories: where no Framework is required: Frameworks with no associated primary legislation; Frameworks with associated primary legislation.
The process of agreeing Frameworks involves five stages:
Phase one brings together the UK Government and devolved administrations to engage in initial discussions on how the common framework should proceed;
Phase two is focussed on detailed policy development;
Phase three is a period of review, consultation and further policy development;
Phase four is when the framework is agreed and implemented; and
Phase five deals with post-implementation arrangements.
Many Frameworks are provisionally agreed and operate on an interim basis before final
confirmation.
There are quarterly reports from Cabinet Office on progress in Frameworks. The 13th report was published 9 December and covered 26 June to 25 September https://www.gov.uk/government/publications/the-european-union-withdrawal-act-and-common-frameworks-26-june-to-25-september-2021
Progress on Frameworks has been slower than expected, due to delays in completing Brexit and the impact of Covid. The Report of November 2021, which covered the period 26 March to 25 June, noted that focus had been turned to cross-cutting issues affecting multiple Frameworks instead of working on individual Frameworks. By December 2021, an initial list of 154 areas of intersection between former EU and devolved competences had been reduced to 152. It had been agreed that 120 (75 in Scotland) of these would not require Frameworks because there is a minimal risk of divergence; or existing intergovernmental arrangements are sufficient; or because divergence would have minimal impact. There are 29 policy areas (23 in Scotland) where frameworks have been proposed without primary legislation, sometimes accompanied by secondary legislation. In three areas, new primary legislation had been introduced, down from an initial UK estimate of 18. In two areas (now reduced from four) the UK Government claims that the competences are already reserved. These are food and drink geographical indications and data sharing. The UK Internal Market Act specified that state aid, previously disputed, is reserved.
Frameworks are usually led by individual UK Deparments. Almost half the Frameworks cover the work of the Department of Environment and Rural Affairs (DEFRA) which deals with both environment and agriculture, the two areas with the largest overlap of EU and devolved competences. The second largest number concerns the Department for Business, Enterprise and Industrial Strategy (BEIS). Cross-cutting work involves more than one Department.
According to the agreement of 2017, A framework will set out a common UK, or GB, approach and how it will be operated and governed. This may consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued. Frameworks may be implemented by legislation, by executive action, by memorandums of understanding, or by other means depending on the context in which the framework is intended to operate.
Frameworks are a new concept in UK constitutional practice, although framework laws do exist in some federal and devolved countries. Here they apply only to competences returning from the EU. This means that the starting point is uniformity of regulations with some discretion in their application (within their own competences, the devolved UK territories had the same discretion as EU Member States). The central question is how far the UK and its component parts would diverge from these inherited regulations and from each other.
From the outset, there was some ambivalence about the purpose of Common Frameworks. One view is that they might be used to make common policies across the UK or GB, jointly agreed by the UK and devolved governments. This resembles ‘cooperative federalism’ as well as the functioning of the European Union. The Welsh Government has favoured this approach, in line with its wider perspective on devolution, including a UK Council of Ministers along the lines of the EU counterpart. The other view is that Frameworks should provide for as much autonomy as possible for devolved governments to make their own distinct policies. This is in line with the Scottish Government’s preferences, focusing on its right to act independently in devolved areas.
In the event, the focus of Common Frameworks has been on process rather than policy substance. Indeed, they are being described as ‘policy neutral’. Some of them suggest that minimum standards might be agreed but mostly the emphasis is on notification and discussion of divergence. Some suggest that joint policy-making might be possible. For example, the Public Health Protection and Health Security mentions joint working, research, and developing ‘national’ strategies. The Food and Feed Safety and Hygiene (FFSH) Common Framework proposes joint risk analysis programme, where the four constituent parts of the UK will conduct a single process for food safety across the whole of the UK. The Nutrition, Labelling, Composition and Standards (NLCS) Framework states that a UK-wide NLCS Policy Group consisting of officials from each of the four administrations to discuss and agree common recommendations on nutrition policy. Decisions are then made by relevant ministers in each administration. the framework also allows for the possibility of divergence on the basis of consent and establishes a dispute settlement process for cases when an agreement cannot be reached on a particular policy.
These, however, are exceptions, as most Frameworks are about the management of divergence.
There is a strong emphasis on technical issues, to be resolved among officials and a search for practical accommodation, rather than on high politics.
Each Framework identifies the relevant EU competences. It provides for notification if any government proposes changes in the retained EU law with implications for the others. There is a process for analysis of impact and for discussion and then agreement. In the case of disputes, the issue can be escalated to higher official levels and ultimately to ministers. At that point, the resolution will be decided politically.
Apart from that, the Framework documents differ in their format. Indeed, there is not even a consistent definition of what a Framework is. Some use the formulation from the 2017 agreement while others choose slightly different words.
Frameworks differ in their length, complexity and detail. Those applying in Scotland vary from 23 pages (Public Procurement) to 58 Pages (Food and Feed Safety). The former has a succinct definition of Framework: A “Common Framework” (or “framework" in short) sets out a common approach to those policy areas that fall under devolved competence, which were previously governed by means of EU legislation, where it has been recognised that a particular level of cooperation is required.
Some Frameworks include a Memorandum of Understanding (MoU) providing guidance as to how they will work. Others refer to MoUs to be found elsewhere.
It is not possible, at this stage, to assess whether Frameworks provide the same degree of flexibility as was available in the implementation of EU regulations or whether they have increased the decision-making powers of the devolved institutions. That might be addressed in the scrutiny of individual Frameworks.
Part of the purpose of Common Frameworks is to enable the functioning of the UK Internal Market, following withdrawal from the European Internal (Single) Market. This is a contested concept on two grounds. First, there is disagreement on what the scope of the market (as opposed to public policy and regulation) should be. Second, there is disagreement on how far market rules need to be uniform across the UK and who should be responsible for them. In parallel with the Frameworks discussions, the UK Government, in 2020, introduced a UK Internal Market Bill (now Act) (UKIMA). This provides for non-discrimination and mutual recognition for goods traded across the UK (with special provision for Northern Ireland). If a good is approved for sale in one part of the United Kingdom, then it can be offered for sale in any other part. This does not reduce the regulatory competences of the devolved governments but may undercut them because any regulations set by a devolved government could apply only to products made in its own territory but not those made in, or imported into, another part of the UK, which would be marketable anywhere. Exceptions are made for regulations already in place and for a tightly-defined set of issues including health.
The UKIMA was criticised on a number of grounds. It introduces a new principle into the devolution settlement, which was previously based on a rather clear model in which all competences not reserved are devolved. Now devolved matters will be subject to the overarching, transversal principles of non-discrimination and mutual recognition. While this bears a resemblance to the non-discrimination and mutual recognition principles of the European Internal Market, the list of exceptions in the UKIM is much narrower. Unlike in the EU Internal Market, there are no principles of proportionality and subsidiarity. The UKIMA and its operation were to be entirely a matter for the UK Government, while the EU rules are negotiated by the institutions and the member states. Finally, it was argued that the UKIMA was redundant, because common issues could better be handled by the Framework provisions.
During the passage of the UKIMA, a number of concessions were made. Changes in the list of excepted matters are subject to the consent of the devolved legislatures (although refusal of consent has no effect). A consent mechanism will ensure that the devolved administrations have a ‘significant say’ during the appointment process for the panel of the new Office for the Internal Market.
There is provision for the list of excepted matters to be expanded if agreement has been reached on a Common Framework for any issue.
One or more governments can propose exclusion. This is then considered within the working provisions for the relevant Framework. There is consultation in accordance with the procedures of each government with no standard procedure. Where agreement on divergence has been agreed within relevant Framework forum, there can be agreement on exclusion, recorded in an exchange of letters, and the UK Government can bring forward a Statutory Instrument, to be agreed by affirmative resolution of both Houses of Parliament. It is not clear whether there will be a role for devolved legislatures in this process.
These concessions were not enough for the Scottish and Welsh Parliaments, which refused legislative consent for the Act.
Another context in which Frameworks might be relevant is to deal with obligations arising from international treaties, especially in trade but also in environmental and other matters. This could include development of the Trade and Cooperation Agreement (TCA) with the EU. Such agreements might include common regulatory standards, which foreign partners would expect to apply across the United Kingdom (or Great Britain). That, in turn, could impinge upon the degree of divergence allowed in Common Frameworks. Such issues might also arise in other areas not covered by Common Frameworks because they do not involve retained EU competences.
The TCA does not require regulatory alignment between the UK and the EU. Yet, if either side lowers regulatory standards, the other can retaliate. If either side raises standards, the other can call for a review of the TCA. The Scottish Government, for its part, has declared its intention to keep pace with EU regulatory standards in devolved areas, where appropriate.
All this means that we cannot yet tell what pressures for convergence and divergence between Scotland and the rest of the UK will exist in the future and therefore how much of a burden the Framework agreements will have to bear.
Some of the Frameworks address the question of international obligations. The Public Procurement Common Framework Provisional Framework Agreement states:
The negotiation of international trade agreements is the responsibility of the UK Government. The UK Government recognises that the devolved administrations have a legitimate interest in the UK’s international public procurement policy. The UK Government will therefore involve the devolved administrations directly and fully in the decision-making process regarding international public procurement policy.
The Radioactive Substances Framework states that:
The policy area covered by this Common Framework intersects with the EU-UK Trade and Cooperation Agreement and therefore topics relevant to the framework may be considered from time to time by relevant TCA Specialised Committees or the Partnership Council. Where a UK-EU meeting agenda includes an item concerning implementation in an area of devolved competence, UKG should facilitate devolved government attendance of a similar level to that of the UKG representatives with final discretion as to the UK delegation a matter for the UK co- chair.
This framework also commits all parts of the UK to maintain the same, or higher, standards than the EU.
These questions reflect broader concerns about how devolved governments and legislatures might influence international negotiations where devolved matters are at stake.
Concern has been expressed that Frameworks could be imposed unilaterally by the UK Government (Finance and Constitution Committee, First Report 2018, SP 255). That has not happened. Nor has the UK Government exercised its powers under the Section 12 of the EU Withdrawal Bill temporarily to prevent the devolved governments using selected repatriated EU competences to change retained EU law and has now announced its intention to repeal Section 12.
A notable, and exceptional, feature of Frameworks is that the constraints are applicable both to the devolved governments and to the UK in respect of England, meeting another concern of the Finance and Constitution Committee (First Report 2018, SP 255).
To some degree, the UKIMA and Frameworks are now complementary, with the broad provisions of the UKIMA acting as a standby where Frameworks have not been agreed. Yet they do not completely cover the same ground. Frameworks are only used to deal with former EU competences, while UKIMA has a broader reach. Memorandums of Understanding, one of the principal mechanisms for operating Frameworks, also exist in other fields. This creates a complex landscape of intergovernmental mechanisms, which has grown incrementally rather than following from a clear constitutional design. The failure to incorporate principles of subsidiarity and proportionality (as applied in the EU) is notable. It is not clear whether or how the forthcoming review of intergovernmental relations will address this.
It is commonly found that when policy issues are taken into intergovernmental forums, there is a loss of transparency and scrutiny. Common Frameworks are essentially agreements between governments on how to manage technical issues. They are written by, and for, policy practitioners for specific purposes. Although there are common elements, there is no common template and they vary in scope and detail. This does not make them easy reading for non-specialists, including parliamentarians.
Concerns have been expressed about the process for scrutiny of Frameworks. There is a House of Lords Common Frameworks Scrutiny Committee. Devolved parliamentary committees are engaged during the third stage of elaboration (review, consultation and detailed development) on the basis of summaries, although these summaries are not published. Frameworks are submitted for scrutiny to the devolved legislatures after they are agreed, with amendments possible in response to criticisms made at this stage. Sometimes they are already in operation before this stage. Within the Scottish Parliament, Frameworks are scrutinised by the relevant subject committees but the CEEACC has a role in scrutinising the programme as a whole.
The House of Lords Frameworks Scrutiny Committee in March 2021 called for ‘a well- publicised stakeholder consultation process that reaches beyond the small number of stakeholders previously consulted, so as to ensure that all those directly affected have a meaningful opportunity to contribute.’ (https://committees.parliament.uk/publications/5346/documents/53245/default/) These issues will be particularly important to the degree that Frameworks are used as a mechanism for joint policy-making.
There is also a need to consider mechanisms for scrutinising the continuing operation of Frameworks. They do provide for regular reviews but it is not clear how legislative scrutiny will come in there. The House of Lords Common Frameworks Scrutiny Committee seized on this point in its December 2021 report, recommending that ‘the frameworks should be updated to include a commitment to update the House of Lords, House of Commons and the three devolved legislatures on the ongoing functioning of these frameworks after the conclusion of the two-yearly reviews.’ https://committees.parliament.uk/publications/8242/documents/84234/default/
Common Frameworks have provided a flexible means of dealing with common issues across Great Britain and the United Kingdom following exit from the EU. They have allowed cooperation without changing the allocation of competences between the UK and devolved governments. They work by depoliticising policy matters, focusing on technical issues and divorcing them from broader constitutional issues on which there is no agreement. In case of disputes, matters are addressed at the lowest level first, only escalating to senior ministers if no agreement has been reached. This has clear advantages but depoliticization may not always be appropriate or possible should issues arise in which there is a wider interest among stakeholders or the general public.
Frameworks have been used mainly to clarify responsibilities and allow for divergence. The House of Lords Frameworks Scrutiny Committee (1st Report of Session 2019-20, Common frameworks: building a cooperative union) has suggested that ‘they and should be used to build consensus with the devolved administrations and develop a coherent approach to policy across the UK.’ This not a view that everyone would share. The question of how far policy should be developed jointly across the UK or autonomously in each nation is a matter of political judgement and goes well beyond the specific question of how to handle retained EU law. There is not agreement across the three devolved territories on this question and necessary good relationships have been damaged by the way in which the UK Internal Market Bill was developed without consultation with the devolved authorities.
Frameworks could place a heavy burden on devolved legislatures, given the need to scrutinise them in a timely manner. To the extent that Frameworks are used to develop common policies, the problem of parliamentary scrutiny and accountability is exacerbated as the process is conducted largely at official level and in intergovernmental forums.
Common Frameworks have been adopted as a means of dealing with retained EU after Brexit. They thus start from common regulations. In so far as the UK Government in respect for England departs from EU regulations while the Scottish Government seeks to maintain dynamic alignment, divergence may grow. This could put new strains on Frameworks. As time goes on, the very concept of retained EU law itself will become ever more irrelevant and questions may be asked about why Frameworks are used in that context and not in other areas where there are overlapping powers or common interests.
The lack of consistency in approaches does not help transparency or understanding and suggest an excessively ad hoc approach. Frameworks add to a complex system of intergovernmental relations, which is widely agreed to be in need of reform. This might involve clarification of key concepts such as consent, the ideas of proportionality and subsidiarity, simplification of procedures, consistency and clarity. It might also consider the way in which the UK Government also speaks for England, and of the ‘shadow of hierarchy’ that arises from the fact that the Westminster Parliament remains supreme in all circumstances.