During its membership of the European Union, the UK was required to comply with EU law. This means that, in many policy areas, a consistent approach has often been adopted across all four nations of the UK, even where those policy areas are devolved.
The UK formally left the EU on 31 January 2020, entering a transition period which is due to expire on 31 December 2020. Once the transition period ends, the requirement to comply with EU law will also end. As a result, the UK and devolved governments have agreed that a number of common frameworks will be needed to avoid significant policy divergence between the nations of the UK where that would be undesirable.
On 9 March 2018 the Cabinet Office published a framework analysis, setting out 153 policy areas where EU law intersects with devolved competence in Scotland, Wales and Northern Ireland. The document also outlined the UK Government’s provisional assessment of where common frameworks will be required. A revised framework analysis was published on 4 April 2019 which increased the number of policy areas being looked at to 160.
Statutory reporting on common frameworks
Schedule 3 of the European Union (Withdrawal) Act 2018 requires the UK Government to report to the UK Parliament every three months on progress in the development of common frameworks. On 20 May 2020, the UK Government published the seventh such report. You can access both this report, and the six preceding it, through our Post-Brexit Hub.
The seventh report covers the period 26 December 2019 – 25 March 2020 and provides updates on:
- the implementation of future common frameworks; and
- legislation relating to retained EU law restrictions (so-called ‘freezing powers’)
These sections of the report are summarised below.
Implementation of future common frameworks
As in previous reports, this section provides a reminder of the five phases of development that a framework must go through. It then details the work that took place during the reporting period to develop and implement common frameworks, including:
- The Hazardous Substances (Planning) Framework and Nutrition Health Claims, Composition and Labelling Framework both completed the Phase 3 ‘Review and Assessment’ process in January. The next step is for these frameworks to undergo collective agreement before being submitted to the Joint Ministerial Committee (EU Negotiations) (JMC(EN)) for provisional confirmation. Upon receiving this confirmation, they would become provisional frameworks and enter Phase 4 of the development process (preparation and implementation).
- Phase 2 (policy development) reviews were concluded for both the Emissions Trading Systems (ETS) Framework and the Statistics Framework. The Public Procurement Framework was in the process of undergoing its Phase 2 review.
- UK Government and devolved administration officials continued to discuss the development of frameworks in a range of other policy areas including Reciprocal Healthcare; Food and Feed Safety and Hygiene; Animal Health and Welfare; Waste; Air Quality; Fluorinated Greenhouse Gases and Ozone Depleting Substances; Chemicals and Pesticides; and Fisheries.
- The JMC(EN) met on 9 and 28 January and discussed issues affecting the frameworks agenda including the future EU relationship and the ongoing review of intergovernmental relations.
- The Northern Ireland Executive was restored on 11 January 2020. Prior to this the Northern Ireland Civil Service was engaged in the common frameworks programme, but their input was limited to analytical and factual responses only. Northern Ireland Executive Ministers are now be able to make clear their own positions during the framework development process.
Legislation relating to retained EU law restrictions
Section 12 of the European Union (Withdrawal) Act 2018 removes the requirements in each of the devolution settlements that devolved legislatures can only legislate in ways that are compatible with EU law. The Act replaces those requirements with powers for UK Government Ministers to make regulations (secondary legislation) which apply a temporary ‘freeze’ on devolved competence in specified areas. The use of these section 12 powers is subject to the approval of the UK Parliament. The process for making, agreeing and revoking these regulations can be found in the first statutory report on the European Union (Withdrawal) Act and Common Frameworks Report.
The purpose of these powers is to ensure that the current parameters of devolved competence in relation to EU law are retained for a period of up to five years while replacement common frameworks are developed and implemented. The powers to apply the ‘freeze’ expire two years after exit day.
Both the Scottish and Welsh Governments have made clear their strong opposition to any imposition of common frameworks without devolved consent. For example, on 24 September 2019, speaking in the Scottish Parliament, Cabinet Secretary for the Constitution, Europe and External Affairs, Michael Russell MSP, stated that:
“All such frameworks must be agreed, not imposed, and they must recognise and respect devolution. That is a crucial issue for the Scottish Government.”
On 16 October 2017, the JMC(EN) agreed a set of principles to guide the work on common frameworks. One of these principles was that “frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures” and will be “based on established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent”.
These conventions do not however prevent the UK Parliament from legislating in devolved areas without the consent of devolved legislatures should it consider this to be necessary – a particularly relevant example being the European Union (Withdrawal) Act 2018, which was passed despite the Scottish Parliament having refused to give consent.
The report confirms that the UK Government made no regulations to ‘freeze’ any devolved competences during the reporting period because “significant progress is being made across policy areas to establish common frameworks in collaboration with the devolved administrations.”
The report confirms that the escalation of the COVID-19 pandemic towards the end of the reporting period led to the redeployment of a large number of policy officials in both the UK Government and devolved administrations. While it goes on to state that the UK Government and devolved administrations remain committed to the development of common frameworks, delivery plans and timetables were to be re-evaluated to take account of the pandemic and its impact. A more detailed update, including next steps, is to be provided in the next statutory report, due for publication in August 2020.
The eighth Statutory Report on the European Union (Withdrawal) Act 2018 and Common Frameworks will cover the reporting period 26 March to 25 June 2020 and is due to be published in August. The UK Government is also working with the devolved administrations to further develop understanding of where common frameworks will be required. This work will feed into a third iteration of its framework analysis, which will be published in due course.
Scottish Parliamentary committees will continue to engage with the Scottish Government on the development and implementation of common frameworks. You can keep up-to-date on the work of the committees on the SPICe Post-Brexit Hub.
Andrew Warden, SPICe Research