March 30 2023

How should we develop common frameworks across the UK?

Common frameworks are non-binding agreements between the UK Government and Devolved Administrations setting out how they will work together on a range of policy areas. Why are common frameworks needed, and what do they do? Jessica Sellick investigates. ………………………………………………………………………………………………..

What are common frameworks? Back in 2017, a subcommittee of the Joint Ministerial Committee (JMC) provided the following definition: ‘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.’

All UK Common Frameworks are non-statutory intergovernmental arrangements. While some Frameworks have associated primary or secondary legislation, others can take the form of an executive action, memorandums of understanding and other means.

Why are common frameworks needed? When the Brexit transition period ended on 31 December 2020, a number of EU powers returned to the UK. Some of these powers relate to matters in Northern Ireland, Scotland and Wales. Under these circumstances, common frameworks are intended to ensure devolved Governments take a consistent approach to policy areas previously conducted at a European level. Three principles have been applied in the development of common frameworks in the UK:

Firstly, common frameworks will be established where they are necessary in order to:

Enable the functioning of the UK internal market, while acknowledging policy divergence.
Ensure compliance with international obligations.
Ensure the UK can negotiate, enter into, and implement new trade agreements and international treaties.
Enable the management of common resources.
Administer and provide access to justice in cases with a cross-border element.
Safeguard the security of the UK.

Secondly, common frameworks shall respect the devolution settlements and the democratic accountability of the devolved legislatures. They will therefore be based on:

Established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent.
Maintaining, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by the EU.
A significant increase in decision-making powers for devolved administrations.

Thirdly, common frameworks are intended to ensure recognition of the economic and social linkages between Northern Ireland and Ireland, and that Northern Ireland will be the only part of the UK that shares a land frontier with the EU. Common frameworks will also adhere to the Belfast Agreement, also known as the Good Friday Agreement.

Since 2018, the UK Government has been publishing a breakdown of areas of EU law that intersect with devolved competence in Scotland, Wales and Northern Ireland. The latest publication of this frameworks analysis, in November 2021, for 152 areas of EU law, identified whether each policy area required a framework or not and/or any associated primary legislation. The analysis sets out:

120 policy areas where no framework is required, and the UK Government and Devolved Administrations will continue to cooperate.
29 policy areas where common rules and ways of working are, or will, be implemented through a non-legislative Common Framework agreement.
3 policy areas where new primary legislation will be introduced, working alongside a non-legislative Framework agreement.
32 policy areas require Frameworks. In some instances, these policy areas include a mix of reserved and devolved competence, including where technical standards derived from EU law are relevant.

How are common frameworks being developed and implemented? In September 2020, a House of Lords Common Frameworks Scrutiny Committee was appointed. In October 2020, the Committee launched an inquiry into how the common frameworks programme would operate and relate to other initiatives, and the role for parliamentary scrutiny across the UK.

The Committee published its first report in March 2021. While the Committee acknowledged how the UK, Scottish and Welsh Government all recognised the need for common frameworks to achieve regulatory consistency; at the end of the transition period just 3 provisional frameworks had been published and none had completed scrutiny in legislatures. The Committee called for more stakeholder engagement and parliamentary scrutiny of common frameworks, and the need to clarify the relationship with the Protocol on Ireland/Northern Ireland.

The Committee published its second report in July 2022. Noting its earlier report, the Committee had scrutinised 17 common frameworks since. The Committee described how “common frameworks have unique potential to strengthen the union and are innovative mechanisms for developing UK-wide policy by collaboration and consensus.” The Committee highlighted how the frameworks they had reviewed focused on agreeing processes and ways of working between administrations. The Committee highlighted three key risks:

The UK Internal Market Act 2020 and the Subsidy Control Act 2022 had challenged the consensus approach taken in common frameworks.
The lack of an Executive in Northern Ireland had made cooperation across all four UK administrations difficult, and the introduction of the Northern Ireland Protocol Bill could further contribute to uncertainty and instability in Northern Ireland.
The transfer of the common frameworks programme out of the Cabinet Office and into the Department for Levelling Up, Housing and Communities (DLUHC) may affect the profile, coordination, coherence and delivery of the programme.

To address these risks the Committee made a number of recommendations. This included the need for the Government to ensure that the legislation it brings forward does not conflict with relevant common frameworks; that the Northern Ireland Assembly and Executive be kept updated on legislation that will apply there and that frameworks with cross-border implications on the island of Ireland should recognise the Irish Government as a stakeholder to be consulted; and that a process for the ongoing reporting of the operation of common frameworks should be developed.

The Government responded to both reports – emphasising how the common frameworks programme is “an important part of how the UK Government and Devolved Administrations work together to deliver for people and communities across the UK”. The Government noted the Committee’s recommendations across 6 areas: strategy, UK Internal Market Act, regulatory divergence, framework operation, Cabinet Office, quality assurance and transparency; and how it accepted or partially accepted the majority of the Committee’s recommendations.

In December 2022 the Cabinet Office and DLUHC published its latest intergovernmental relations quarterly report. This provides information from all UK Government departments on their participation in intergovernmental meetings and a summary of engagement that has taken place. For example, during Quarter 3 of 2022 there were some 50 intergovernmental meetings, and 5 meetings between the UK Government and Devolved Administrations. The Quarter 3 report contains 2 case studies relating to the Commemoration of Her Majesty Queen Elizabeth II and The Thomas Commission; and details the formation of the Islands Forum including a meeting held in Orkney to consider the potential for islands to support net zero commitments and renewable energy projects.

In February 2023, the Prime Minister and President of the European Commission announced a new agreement had been reached to change the way the Northern Ireland Protocol operates. Known as The Windsor Framework, it provides for:

A new system of checks on goods moving from Great Britain to Northern Ireland; with goods destined to stay in Northern Ireland going through a ‘green lane’ and other goods subject to full checks and protocols to protect the EU’s single market.
A reduction in checks and controls on agri-food goods such as dairy and meat; and the removal of the prohibition on certain chilled meats from Great Britain to Northern Ireland.
The Northern Ireland Assembly will be able to object to the adoption of new EU rules on goods where they are ‘significantly different from existing rules’, using the Petition of Concern mechanism. This is part of a new emergency brake mechanism, known as the Stormont brake.
There will be no dual regulatory system for medicines in Northern Ireland.

The Government has stated that the Windsor Framework will mean the Northern Ireland Protocol Bill will no longer be needed, and that the Framework will be implemented through a series of legal instruments. On 22 March 2023 the Government motion to approve the deal made with the EU was carried, with 515 votes for and 29 votes against. However, the Democratic Unionist Party (DUP) voted against the Framework in arguing that it does not deal with the fundamental issue which is the imposition of EU law by the Protocol.

How do common frameworks apply to rural areas? A Frameworks Analysis in 2021 set out a breakdown of areas previously governed by EU law as they intersect with Devolved Administrations and Government departments. In relation to Defra, the analysis contains information about previous EU law, devolution interest and associated primary legislation (e.g. agricultural support); policy areas where common rules and ways of working would be implemented through a non-legislative agreement (e.g. organic production, fertiliser regulations); as well as areas where no framework is required (e.g. water resources).

In April 2022 the Environment, Food and Rural Affairs Select Committee held a call for evidence, seeking views on the provisional draft common frameworks covering these Defra areas. Written submissions were invited on how to ensure consistency and divergence, the extent to which the frameworks allow each Government of the UK to support their food and farming sector, practical challenges and how these frameworks might be scrutinised. Unlike other parliamentary committees which had looked at common frameworks from technical or operational perspectives, the Select Committee focused on the practical implications for stakeholders. In June 2022 the Select Committee published the written evidence it had received. The Chair also wrote a letter to the Secretary of State. The letter highlighted two stakeholder concerns: (a) managing divergence and (b) transparency and stakeholder engagement.

The main concern raised by stakeholders was around the scope for policy divergence that is permitted within common frameworks, particularly in relation to animal welfare and agricultural support. While there were a range of views on how much divergency was desirable, stakeholders felt there was not enough information provided about what would trigger a dispute, leading to a lack of clarity about how much divergence would be permitted. The Select Committee queried Defra’s assessment of the risks of different approaches across the UK, particularly in agricultural support, and the potential for this to cause level playing field disagreements. Several submissions further highlighted concerns regarding communication and engagement in the UK context compared to the level of engagement they had seen under the previous EU system. Stakeholders requested that they be involved early in the decision-making process, and emphasised the importance of at least maintaining, but ideally increasing, the level of transparency that existed when the UK was a member of the EU (e.g., making available schedules of meetings, agendas, and minutes).

In Quarter 3 2022 Defra held 1 meeting with the Welsh Government, 1 meeting with the Northern Ireland Executive and 1 meeting with the Scottish Government. This compares to 4 meetings with the Scottish Government, 3 meetings with the Welsh Government and 1 meeting with the Northern Ireland Executive in Quarter 2 2022. In addition to providing a quarterly framework summary, some stakeholders may find it useful to see a more detailed breakdown of meetings and the policy areas covered – including any stakeholder consultation underway or carried out, and any matters of divergence identified or addressed.

As of January 2023, Defra had produced 13 policy papers on the provisional common frameworks in place that it had been jointly working with Devolved Administrations on.

Since 2017, the UK Government has been working with the Scottish Government, the Welsh Government, and the Northern Ireland Executive to develop UK common frameworks. There are advantages and disadvantages to having the same or different rules as other places. For the 32 policy areas requiring a common framework, how will Government’s balance being responsive to local needs with tackling issues that are transboundary; the balance between focussing on the process (technical aspects) with content (stakeholder perspectives) – and, ultimately, what will these common frameworks deliver for rural areas? Watch this space.

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Jessica is a researcher/project manager at Rose Regeneration and a senior research fellow at The National Centre for Rural Health and Care (NCRHC). She is currently supporting the National Federation of Young Farmers’ Clubs and Lantra to gather the views of young people on what the future of farming should look like, and what they want to see in new agricultural and environmental policies. Jessica also sits on the board of a Housing Association that supports older people and a charity supporting Cambridgeshire’s rural communities.

She can be contacted by email jessica.sellick@roseregeneration.co.uk.

Website: http://roseregeneration.co.uk/https://www.ncrhc.org/

Blog: http://ruralwords.co.uk/

Twitter: @RoseRegen