In this guest blog, Jack Sheldon, Research Assistant at the University of Cambridge, and a Fellow at the Centre on Constitutional Change explores some of the challenges which common frameworks pose for Parliamentary scrutiny, particularly for the devolved legislatures.
Jack Sheldon also works on the ‘Between Two Unions’ research project, funded by the ESRC.
As with all guest blogs, what follows are the views of the author, not those of SPICe or the Scottish Parliament.
Background to common frameworks
The UK is set to leave the EU on 31 January. However, there are still many outstanding questions about domestic post-Brexit arrangements among the UK’s component parts.
Among the most pressing concern the form, scope and content of UK/GB-wide ‘common frameworks’ in policy areas that are devolved but which have previously been subject to EU law. Examples of areas where it is envisaged that frameworks will be agreed between the devolved governments and the UK government include agriculture, fisheries and environmental regulations. Both the Scottish and UK governments have reported that official level negotiations on frameworks have made good progress. However, further negotiations, including at ministerial level, will be needed to finalise frameworks – which may take a variety of legislative and non-legislative forms – in more sensitive policy areas. With the ‘implementation period’ due to last for only 11 months after exit day, parliaments across the UK will have to be pro-active if they want to have an input, otherwise there is a danger that they will find themselves cut out of the process.
Scrutiny by devolved legislatures
The Scottish and Welsh governments have made arrangements with their respective legislatures to provide relevant committees with written notice before intergovernmental meetings and written summaries following them. These arrangements would apply to any inter-ministerial body in which common frameworks are discussed by ministers, and could help to facilitate scrutiny of proposed frameworks if committees choose to focus on them. Nevertheless, the summaries are typically thin on detail and may not of themselves alleviate the difficulties committees can experience in having much input during intergovernmental negotiations. These difficulties are also exacerbated by the fact that intergovernmental arrangements are themselves widely seen as insufficient, with devolved governments often calling for arrangements that allow them to have more input into decision-making. There are no arrangements for scrutiny of intergovernmental relations equivalent to those in Scotland and Wales in the Northern Ireland Assembly, which can be expected to take an interest in the common frameworks process following the establishment of a new devolved Executive in January 2020.
Any primary legislation introduced at Westminster to create a common framework would invoke the Sewel convention. This means that the devolved legislatures would each have a chance to vote on whether to agree to a legislative consent motion to the proposed measure. However, as the experience of previous Brexit-related legislation has demonstrated, Westminster is able to proceed even in the absence of legislative consent – so this may prove a relatively blunt tool for influencing the outcome. Common frameworks that take non-legislative form, for example as concordats, would not invoke the Sewel convention and so there would be no formal process in place for devolved legislatures to vote on them. Parliamentary scrutiny of these in the devolved legislatures is likely to be absent unless undertaken pro-actively by committees.
Pro-active scrutiny is possible. Committees within each devolved legislature may choose to conduct inquiries focusing on specific frameworks, or on the frameworks process as a whole. In the course of these they would be likely to take evidence, including from UK and Scottish Government Ministers. However, the exact nature of such scrutiny will depend to a large extent on how transparent governments are during this process. It is possible that frameworks will only be published once they have been agreed by governments, making it difficult for parliaments to influence the course of negotiations.
Scrutiny at the UK Parliament
Westminster’s scrutiny of proposed common frameworks can be expected to be undertaken primarily through its select committees. An initial difficulty is that, following the general election, Commons committees need to be re-established. Elections for committee chairs will take place on Wednesday 29 January, but it may take a while longer for other members to be elected within party groups. Once the committees are operational many will have a wide range of topical issues on which to pursue inquiries. Their members may not necessarily choose to prioritise common frameworks – which have less political salience at Westminster than in the devolved legislatures – as inquiry topics. The Lords Constitution and EU committees may have an important role to play in filling any gaps, although they too will have no shortage of possible inquiry topics. There are currently no arrangements between committees and the UK Government requiring that the former are kept updated on individual intergovernmental relations meetings equivalent to those in Edinburgh and Cardiff. However, the UK Government is obliged to publish quarterly reports on progress with common frameworks under a provision of the European Union (Withdrawal) Act 2018 – the most recent of these was published last October.
December’s Queen’s speech envisages that a considerable volume of Brexit-related legislation will be introduced. Some of these bills – for example those on agriculture, fisheries and trade – will provide opportunities for debate on future domestic arrangements within the UK, including potential frameworks. Further legislation may be introduced later in the parliamentary session to put in place any legislative common frameworks that are agreed. However, it is envisaged that the majority of common frameworks will be non-legislative and so subject to no formal parliamentary approval process. Scrutiny of non-legislative frameworks may potentially be undertaken through other mechanisms such as questions and backbench debates that can serve an important scrutiny function in requiring a ministerial response, as well as by committees. However, with parliamentarians having no shortage of potential topics to focus on it is possible that important agreements will instead be reached with little or no scrutiny at Westminster.
Interparliamentary relations across the UK
There is a strong case, previously made by various parliamentary committees including the Scottish Parliament’s Finance and Constitution Committee, for there to be an interparliamentary element to parliamentary scrutiny relating to common frameworks. These matters are clearly of common interest to parliaments across the UK. Some joint interventions could potentially help to strengthen the collective voice of parliaments vis-à-vis governments, avoid excessive duplication and provide a focus for scrutiny of these matters that might be lacking in some of the individual parliamentary chambers.
The most readily available vehicle for interparliamentary activity is the Interparliamentary Forum on Brexit, which has met eight times since October 2017. This body has brought together members of committees with remits covering domestic constitutional issues, EU affairs and statutory instruments from across the UK. To date its meetings have been relatively informal, focusing on information-sharing and including time for private discussions with ministers and other guests. It has also sent letters to UK Government ministers, outlining joint concerns and calls for action – primarily in relation to reform of intergovernmental relations arrangements.
Other forms of ‘joint’ work could additionally be undertaken on an informal basis across the legislatures, assuming the logistical challenges of coordination can be navigated. Informal joint evidence sessions, letters to ministers and/or coordinated report recommendations could be helpful tools to consider where committees in different legislatures have a common interest in a particular framework, and would not prevent committees within individual legislatures from undertaking their own scrutiny and reaching their own conclusions. There is precedent for committees from the Scottish Parliament, National Assembly for Wales and Westminster undertaking such joint work. For example, the Commons Scottish Affairs Committee and the Scottish Parliament’s Social Security Committee held two joint meetings in 2017.
There have been a number of proposals to move towards a more formal interparliamentary structure, including from members of the Interparliamentary Forum on Brexit itself and often in the context of post-Brexit domestic arrangements. There is not, however, agreement on whether formalisation would be the best route and exactly what form it would take. One difficulty is that the UK’s devolved legislatures are set up differently. The Scotland Act 1998, for example, prevents the Scottish Parliament and its committees from holding formal meetings outside of Scotland. The 1998 Act and the Standing Orders of the Scottish Parliament provide no legal basis for formal joint proceedings with committees of other legislatures. Unlike the Scottish position, the Standing Orders of the National Assembly for Wales explicitly allow for joint committee meetings – Welsh Assembly Standing Order 17.54 provides that its Committees “may meet concurrently with any committee or joint committee of any legislature in the UK”. There are also other major organisational questions that would need to be addressed if a more formal interparliamentary process was to be established, and it is probably not realistic that this could be achieved in time for it to be able to scrutinise intergovernmental negotiations during the implementation period.
Given the importance of common frameworks in shaping how the multi-level UK will operate in the future, it would be highly undesirable for agreements to be reached without proper oversight from the UK’s legislatures. If this is to be achieved, parliaments will need to be proactive in seeking to overcome the various practical, procedural and, in some cases, legal barriers to conducting scrutiny in this area. While scrutiny work can be expected to be undertaken by committees in at least some of the individual institutions, an interparliamentary element involving parliamentarians from across the different legislatures might also be considered.