The House of Lords is due to consider the report from the House of Lords Common Frameworks Scrutiny Committee, ‘Common Frameworks: Building a Cooperative Union‘, on 13 October 2021.

What are common frameworks?

Following the UK’s departure from the EU, the UK and devolved governments have been agreeing regulatory approaches in certain devolved policy areas. These approaches are known as ‘common frameworks’.

The Joint Ministerial Committee on EU Negotiations provided a definition of common frameworks in a communique published in 2017:

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.

The Joint Ministerial Committee (JMC) is a set of committees made up of UK and devolved government ministers that are responsible for devolved matters, amongst other things. The Joint Ministerial Committee on EU Negotiations is a subcommittee of the JMC.

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

Why are common frameworks needed?

When the Brexit transition period ended on 31 December 2020, EU powers were returned to the UK. Some of these powers relate to matters that are within devolved policy areas. This means those matters that the devolved nations of Scotland, Wales and Northern Ireland are individually responsible for.

Common frameworks ensure that the UK and devolved governments take consistent approaches to some devolved policy areas now that these EU powers have been returned. Common frameworks have many purposes, including to:

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

A frameworks analysis conducted by the UK Government in 2020 identified 154 areas where EU law intersected with devolved policy areas. The Government determined that only a small proportion of these required frameworks to be developed, with current working arrangements being sufficient for many others.

What scrutiny has there been?

The House of Lords Common Frameworks Scrutiny Committee (the committee) published its first report, ‘Common Frameworks: Building a Cooperative Union‘, on 31 March 2021.

The report noted that there were currently 32 active framework policy areas. This included frameworks relating to public procurement, food labelling, and animal health and welfare. The full list can be found at annex 4 of the report.

The committee noted widespread support for common frameworks across sectors in all parts of the UK. Between December 2016 and January 2017, the UK, Scottish and Welsh governments all acknowledged that common frameworks were needed to ensure the necessary regulatory consistency. The Northern Ireland Executive ceased functioning in January 2017 so was not involved at that time.

Despite this support, the committee said 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.

Additionally, the committee highlighted that only three provisional frameworks had been published by the end of the transition period, however none had completed scrutiny in all legislatures.

What recommendations did the committee make?

To increase transparency, the committee suggested that future framework summaries should be published during the initial development. It also recommended that the UK Government publish a justification for each policy area that it had decided does not need a common framework.

The committee also raised concerns about insufficient stakeholder consultation during the initial frameworks development. It highlighted evidence given by Viviane Gravey, lecturer in European Politics at Queen’s University Belfast, who argued that the common frameworks process was less transparent than the EU process it replaced:

The EU directives were debated publicly in the European Parliament and in the Council of Ministers, with stakeholders who could decide for themselves whether they felt they were affected, whether they wanted to speak about this topic and whether they wanted to influence it.

As such, the committee recommended that future reviews of frameworks should include an open and well-publicised stakeholder consultation to ensure those directly affected can contribute.

On Northern Ireland, the committee acknowledged that the nation had been without a properly functioning executive and assembly during a large portion of the time that the frameworks had been developed. Despite this acknowledgment, it described the fact that the Northern Ireland Executive had yet to approve 21 of the frameworks as “extremely regrettable”. It referred to evidence given by Colin McGrath, the chair of the Committee for the Executive Office in the Northern Ireland Assembly, who said that progress on common frameworks had been hindered by disagreements on Brexit-related matters in a “divided executive”.

The committee recommended that frameworks should include processes for reporting on divergence between Great Britain and Northern Ireland, with results being forwarded to the EU for information. Divergence refers to the UK’s ability to change its rules now that it has left the EU. However, the Protocol on Ireland/Northern Ireland contains a list of EU rules that Northern Ireland must continue to apply in the same way as the EU does. Therefore, as divergence starts to take place in Great Britain, differences will begin to emerge between rules in Great Britain and Northern Ireland. The committee said that this is likely to negatively impact UK businesses. It recommended that the UK Government seek to minimise this divergence in order to maintain the integrity of the UK internal market.

Despite recent differences between the UK and devolved administrations on some internal market matters, the committee believed that a collaborative approach on common frameworks was important and “should be used as a model to reset UK intergovernmental relations and build a cooperative union”.

What was the Government’s response to the committee report?

The Government published its response to the Common Frameworks Scrutiny Committee report in May 2021.

It endorsed the committee’s view that common frameworks play an important role in evolving devolution settlements and strengthening the union. The Government either agreed or agreed in principle to all of the committee’s recommendations.

On transparency, it confirmed that the reasons why certain policy areas did not currently require common frameworks would be published in its upcoming 2021 frameworks analysis report.

The Government also agreed that frameworks should be published earlier in the development process, noting that it hoped to publish the 32 active frameworks as soon as possible. However, it argued that this publication had been impacted by a delay in receiving provisional confirmation of the frameworks from the Northern Ireland Executive. A letter from the UK Minister of State for Constitution and Devolution, Chloe Smith, to the committee in June 2021 later confirmed that the UK Government was still engaged with the Northern Ireland Executive to support the clearance process as a priority.

On divergence, the Government agreed it was vital that frameworks took account of divergence resulting from the Protocol on Ireland/Northern Ireland. It agreed with the committee that processes should be in place to monitor this. However, it said the extent to which this information is gathered and shared is a matter for the UK Government and devolved administrations.

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Cover image by Peggy and Marco Lachmann-Anke from Pixabay.