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 was often adopted across all four nations of the UK, even where those policy areas were devolved.
At 11pm on 31 December 2020, the transition period ended, and the United Kingdom left the EU single market and customs union. At this point the requirement to comply with EU law also came to an 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.
Statutory reporting on common frameworks
Schedule 3 of the European Union (Withdrawal) Act 2018 requires that the UK Government reports to the UK Parliament every three months on progress in the development of common frameworks. On 10 December 2020, the UK Government published the ninth such report. You can access both this report, and the ones preceding it, through our Post-Brexit Hub.
The ninth report covers the period 26 June to 25 September 2020 and provides updates on:
- the implementation of future common frameworks
- the UK Internal Market
- 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 some common frameworks, including:
- The Nutrition Labelling, Composition and Standards Framework and the Hazardous Substances (Planning) Framework received provisional confirmation at the Joint Ministerial Committee (EU Negotiations) (JMC(EN)) on 3 September, and the lead policy teams prepared for parliamentary scrutiny.
- The Food and Feed Safety and Hygiene Framework team made progress on preparations for technical stakeholder engagement in October.
- Policy teams for the Emissions Trading System Framework responded to recommendations from the earlier Phase 3 Review and Assessment (R&A) panel and further developed the framework. One of the next stages for this framework is portfolio ministerial approval.
- The Radioactive Substances Framework completed an initial light touch review in August, following which further policy development was conducted in preparation for an in-depth Phase 3 R&A in October. A number of other frameworks were expected to have a Phase 3 R&A at the same time.
- On 17 September, the House of Lords established a new Common Frameworks Scrutiny Committee (CFSC). The CFSC is chaired by Baroness Andrews and will sit for the parliamentary year.
- The majority of provisional frameworks are expected to be shared with the UK Parliament, Scottish Parliament, Welsh Parliament and Northern Ireland Assembly for scrutiny in 2021. As such, UK departments have started to engage with legislatures at official level. During this reporting period, the Nutrition Labelling, Composition and Standards, Emissions Trading System, and Food and Feed Safety and Hygiene framework summaries were formally shared with committees across all legislatures.
The report also notes that the COVID-19 pandemic continued to place capacity pressures on officials working across the UK Common Frameworks programme, in both the UK Government and the devolved administrations. It does however state that “the UK Government and the devolved administrations remain committed to delivering UK Common Frameworks and the programme will continue into 2021.”
A detailed list of the areas where common frameworks are currently being developed can be found in the Frameworks Analysis 2020, which was published on 24 September 2020. This report provides a technical update on the implementation arrangements for each individual framework area.
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.”
UK Internal Market
The report also discusses the progress through the UK Parliament of the United Kingdom Internal Market Act 2020 which subsequently received Royal Assent on 17 December 2020. A key element of the Act is to establish two market access principles to protect the flow of goods and services in the UK’s internal market: the principle of mutual recognition and the principle of non-discrimination.
The Act does however also have a large impact on the delivery of common frameworks between the four nations of the UK. Further details on this can be read in a dedicated SPICe blog on the topic.
While the report covers the period from 26 June to 25 September 2020, work on common frameworks continues to move forward. Michael Russell MSP, Cabinet Secretary for the Constitution, Europe and External Affairs, wrote to the Finance and Constitution Committee at the start of February with an update. His letter provided the committee with a progress report on common frameworks, and details the ongoing work in this area.
Three common frameworks are currently being scrutinised by Scottish Parliament committees. The Health and Sport Committee are considering both the Framework on Nutrition labelling, Composition and Standards and the Framework on Food and Feed Safety and Hygiene (FFSH). The Local Government and Communities Committee is also considering the Framework on Hazardous Substances Planning.
Michael Russell’s letter notes that in a number of areas frameworks have been provisionally agreed by Governments but are yet to be scrutinised by legislatures. Due to the forthcoming Scottish Parliament elections, this scrutiny will continue into Session 6 of the Parliament.
The tenth Statutory Report on the European Union (Withdrawal) Act 2018 and Common Frameworks will cover the reporting period 26 September to 25 December 2020 and is due to be published in March 2021.
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.
Laura Gilman, SPICe Research