On 2 February 2023, the House of Lords in scheduled to debate the following motion:

Baroness Andrews (Labour) to move that this House takes note of the report from the Common Frameworks Scrutiny Committee ‘Common frameworks: An unfulfilled opportunity?’ (1st report, HL Paper 41).

1. Common frameworks

1.1 What are common frameworks?

Following the UK’s exit from the EU, the UK government has been working jointly with the Scottish government, the Welsh government and the Northern Ireland executive to develop UK common frameworks. These frameworks ensure a common approach is taken where powers have returned from the EU which intersect with policy areas of devolved competence.  

The Joint Ministerial Committee (JMC) was a set of committees which served as the primary structure for engagement between UK and devolved government ministers. In 2017, a sub-committee of the JMC, the Joint Ministerial Committee (EU Negotiations), provided a definition of common frameworks in a communique:

As the UK leaves the European Union, the government of the United Kingdom and the devolved administrations agree to work together to establish common approaches in some areas that are currently governed by EU law, but that are otherwise within areas of competence of the devolved administrations or legislatures. 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.

Common frameworks can be implemented by legislation, executive action, memorandums of understanding, or by other means.

1.2 Why are common frameworks needed?

When the Brexit transition period ended on 31 December 2020, a number of EU powers were returned to the UK. Some of these powers relate to matters that are within the devolved competence of the devolved administrations in Scotland, Wales and Northern Ireland.

Common frameworks ensure that the UK and devolved governments take consistent approaches towards some of the devolved policy areas that returned from being handled at an EU level following Brexit. They have many purposes, including:

  • enabling the functioning of the UK internal market, whilst acknowledging policy divergence
  • ensuring compliance with international obligations
  • ensuring the UK can negotiate, enter into and implement new trade agreements and international treaties
  • enabling the management of common resources

In 2020, the UK government published a frameworks analysis which identified 154 areas where EU law intersected with devolved policy areas, although there were differences between Scotland, Wales and Northern Ireland given the asymmetrical devolution settlements. However, the government said that only a small number of new frameworks would be developed, with current working arrangements being sufficient for many other areas.

2. Common Frameworks Scrutiny Committee

2.1 What is the background to the committee?

The House of Lords Common Frameworks Scrutiny Committee was appointed in September 2020 to scrutinise and consider matters relating to common frameworks. The committee said that it would consider how the common frameworks programme would operate and relate to other initiatives, how the programme could be reviewed and improved in the future, and the role for parliamentary scrutiny across the UK. The committee published two reports while active.

2.2 What did the committee’s first report find?

The committee published its first report, ‘Common frameworks: Building a cooperative union’, in March 2021. In this report, the committee noted that there was widespread support for common frameworks across sectors in all parts of the UK. It also highlighted that between December 2016 and January 2017 the UK, Scottish and Welsh governments had all acknowledged the need for such frameworks to try to achieve regulatory consistency. The Northern Ireland executive did not operate between January 2017 and January 2020 so was not involved at that time.

Despite this support, the committee said that three problems existed with the current framework approach:

First, during much of their evolution, frameworks have been developed behind closed doors and with minimal stakeholder engagement or parliamentary scrutiny, and the vast majority are unfinished and have still not been published despite being operational.

Second, their relationship with the Protocol on Ireland/Northern Ireland needs to be clarified.

Third, more information must be given to Parliament so that it can scrutinise effectively the operation of these important intergovernmental agreements, which remain largely invisible.

The committee also highlighted that only three provisional frameworks had been published by the end of the transition period and that none had completed scrutiny in all legislatures.

The committee made a number of recommendations in its first report. These are summarised in the House of Lords Library briefing ‘Common frameworks and the devolved nations’, which was published in September 2021 to support a debate in the House of Lords on the committee’s report. The briefing also provided information on the government’s response to the report.

3. What did the committee’s second report say?

3.1 Findings

The committee published its second report, ‘Common frameworks: An unfulfilled opportunity?’, in July 2022. In this report, the committee argued that common frameworks were “a crucial, yet largely overlooked, aspect of the UK’s withdrawal from the EU”.

The committee set out that common frameworks were being developed in 32 policy areas. It explained that while these frameworks would create the processes “necessary to day-to-day cooperation across the UK”, they varied widely in their focus. However, the committee expressed disappointment that the frameworks mainly contained processes to agree ways of working between administrations, rather than policy content as was originally indicated when the programme was set out.

Noting its earlier report, the committee said that it had since scrutinised a further 17 frameworks and taken more evidence. It argued that this work had reaffirmed its earlier conclusion that common frameworks have “unique potential to strengthen the union and are innovative mechanisms for developing UK-wide policy by collaboration and consensus”. However, the committee also said that it was “seriously concerned that common frameworks are at risk of becoming a missed opportunity”. It argued that this risk had manifested in a few key areas:

  • Post-Brexit legislation: The committee argued that some post-Brexit legislation, including the UK Internal Market Act 2020 and the Subsidy Control Act 2022, had damaged relations between the four administrations in the UK. It also said that such legislation had challenged the consensus approach taken in common frameworks.
  • Northern Ireland: The committee contended that common frameworks could “become a casualty of political fall-out in Northern Ireland”. Noting that frameworks were intended to facilitate the cooperation of all four administrations, the committee argued that the lack of an executive in Northern Ireland had meant that this had not always been possible. It also said that while progress had been made on clarifying the relationship between the frameworks and the NI protocol, “there are further issues that need to be resolved”. The UK government’s introduction of the Northern Ireland Protocol Bill in the UK Parliament was also highlighted by the committee. It expressed concerns that the dual regulatory regime proposed in the bill “may contribute to further uncertainty and instability in Northern Ireland”, although the “full implications” for common frameworks were yet to be determined. In addition, the committee reported that there had been a lack of engagement with the Republic of Ireland on common frameworks that may have cross-border implications on the island of Ireland.
  • The common frameworks programme: The committee said that it had “identified areas of significant concern in relation to the delivery and central coordination of the common frameworks programme itself”. It noted that the programme had been “hindered by significant delay”. It also argued that by moving ministerial oversight of the programme away from the Cabinet Office to the Department for Levelling Up, Housing and Communities, the government risked undermining the profile, coherence and central purpose of the programme. In addition, the committee argued that its scrutiny of frameworks had shown that “ineffective central coordination, focus, and attention to detail in government” had resulted in a lack of consistency between frameworks and poor drafting quality. It also said that some frameworks were “overly complex and bureaucratic in their structures”, which it argued was likely to make them “inefficient and indecipherable” for those trying to execute and scrutinise them.

The committee also argued that common frameworks continued to be characterised by a lack of transparency in relation to their development and future operation. It said that stakeholder consultation had been insufficient and reported a lack of commitment within the frameworks to ensure regular reporting on their ongoing functioning. The committee said that ongoing parliamentary engagement and scrutiny would be essential to ensure future accountability.

3.2 Recommendations

To address these issues, the committee made a number of recommendations. These included that:

  • the UK Internal Market Act 2020 exclusions process, “which is essential for mitigating the damaging effects of the act”, be made explicit in all relevant frameworks
  • the UK considers how legislation it brings forward might conflict with relevant common frameworks, impede their successful operation, and affect the health of the union
  • the NI executive and assembly be kept updated on legislation that will apply there and that all frameworks that have cross-border implications on the island of Ireland should acknowledge that the Irish government is a stakeholder that should be consulted
  • the common frameworks programme should be centrally coordinated solely from the Cabinet Office
  • all drafting errors the committee highlighted in its scrutiny are corrected and all provisional frameworks are reviewed to check for factual errors, textual omissions and drafting problems
  • the process for ongoing reporting to the legislatures on the operation of the common frameworks should be developed as a matter of urgency
  • as common frameworks become more embedded, stakeholders should be routinely engaged and that future reviews of frameworks should include an open and well-publicised stakeholder consultation process.

In its report, the committee welcomed the House of Lords Liaison Committee’s decision to enable it to continue its work “up to the end of this year” to ensure sufficient parliamentary scrutiny of the outstanding common frameworks.

4. How did the government respond to the report?

The government responded to the committee in October 2022. It said that it agreed with the committee’s overarching finding that the common frameworks programme was “an important part of how the UK government and the devolved governments work together to deliver for people and communities across the UK”. The government also said that it agreed with the committee that the common frameworks programme needed to be properly embedded to realise its full potential and for individual frameworks to succeed as consensus-based agreements.

Focusing on the committee’s individual recommendations, the government noted that the committee raised 44 specific points, of which 22 were formal recommendations, covering six broad thematic areas: strategy, the UK Internal Market Act 2020, regulatory divergence and framework operation, Cabinet Office-specific recommendations, quality assurance and transparency. The government said that of these it accepted 13, partially accepted or agreed in principle with five, and had not accepted three. It also said that it had passed one to the Office for the Internal Market.

Summarising this response, the government said that it:

  • accepted or agreed in principle with most of the committee’s recommendations concerning the common frameworks principles
  • accepted or partially accepted all of the committee’s recommendations related to the UK Internal Market Act 2020 with the exception of the recommendation for the independent Office for the Internal Market
  • accepted or partially accepted each of the recommendations on regulatory divergence
  • accepted both of the committee’s recommendations about the role of the Cabinet Office and accepted without qualification the recommendations on drafting and working groups
  • accepted the committee’s three recommendations on transparency without qualification

Alongside the government’s response to the report, the then minister for intergovernmental relations, Nadhim Zahawi, wrote to the committee’s chair, Baroness Andrews. Mr Zahawi reiterated that the government accepted the “vast majority” of the committee’s recommendations and said that government officials would work with their counterparts in the devolved governments to implement the recommendations.

In November 2022, Baroness Andrews wrote to Michael Gove, secretary of state for levelling up, housing and communities and minister for intergovernmental relations, to reiterate the committee’s recommendation on the role of the Cabinet Office. Stating that she understood responsibility for common frameworks had been made part of his portfolio, Baroness Andrews urged Mr Gove to follow the committee’s recommendation that the Cabinet Office should have sole responsibility for central coordination of the common frameworks programme.

The Office for the Internal Market also responded to the committee’s recommendation that it should make clear in its statutory reports “exactly how in practice it takes into account devolved policy autonomy when advising on, and assessing, the impact of policy divergence agreed through common frameworks on the UK internal market”. The office said that its first statutory report would be published by 31 March 2023. On its approach, the body explained that when it assesses the impact of divergent approaches on the effective operation of the UK internal market, its analysis was likely to be focused on economic effects as this would be consistent with the relevant provisions of the UK Internal Market Act 2020. It also said that where it was appropriate, it would make the scope of its reports clear and acknowledge any wider policy considerations that had informed governments’ decision-making.

In its most recent intergovernmental relations quarterly report, published in December 2022, the government said the following on common frameworks:

Since leaving the EU, the UK government has been working with the devolved governments to develop UK common frameworks. These are agreed ways of working between the governments to support management of powers returned from the EU to ensure that the same set of rules and practices are followed where powers returned from the EU overlap with devolved policy areas. Two common frameworks—resources and waste, and emissions trading scheme—are currently undergoing clearances across all four governments so that they can be published on GOV.UK. Getting these frameworks to this position has been a result of effective collaboration between governments. Work also began on ensuring that common frameworks can cover divergence from the Retained EU Law (REUL) Bill, including what approach the four governments will be taking to specific pieces of REUL.

The Common Frameworks Scrutiny Committee produced their second report on the common frameworks programme in July [2022]. The governments have since been working together to draft a response on an agreed cross-governmental basis, which is in the process of being shared with the committee and will be published by them in due course.

5. Read more

Cover image from Wikimedia. This article was updated on 1 February 2023.