This blogpost provides an update on common frameworks, following publication of the twelfth European Union (Withdrawal) Act 2018 and Common Frameworks statutory report. The report is published by the UK Government and presented to the UK Parliament and Ministers of the devolved administrations. It details progress on the development of common frameworks during the reporting period – in this case 26 March 2021 to 25 June 2021.
What are common frameworks and why are they needed?
A common framework is an agreed approach to a particular policy, including the implementation and governance of it. Common frameworks help to make sure that there is some degree of consistency in policy and practice across UK nations. 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 agreed that common frameworks would 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 9 November 2021, the UK Government published the twelfth such report, which provides updates on the implementation of UK common frameworks during the period 26 March to 25 June 2021. Alongside, the UK Government also published an updated frameworks analysis, which contains a detailed list of common frameworks and analysis of the areas of law previously governed by EU law which intersect with devolved competence.
Implementation of common frameworks
One common framework, Hazardous Substances (Planning) was finalised and fully implemented during the reporting period. The framework was published on 31 August 2021. Hazardous Substances (Planning) was the first framework in the programme to reach the point of finalisation and implementation. To reach the final implementation stage, a framework goes through the following steps:
No frameworks other than Hazardous Substances (Planning) received provisional or final confirmation during the reporting period. The UK Government says that the focus during this reporting period was on “addressing cross-cutting issues that are affecting multiple Frameworks instead of working on individual Frameworks”. In addition, the UK Government reports having worked with the devolved administrations “to determine a mechanism for agreeing exclusions from the market access principles in the UK Internal Market Act.”
The report also states that since the end of the reporting period, further frameworks are being developed through discussions between the UK Government and the devolved administrations. On 2 September 2021, Angus Robertson MSP, Cabinet Secretary for the Constitution, External Affairs and Culture told the Constitution, Europe, External Affairs and Culture Committee that the Scottish Government
“remain[s] committed to working with the UK Government and other devolved Governments in an equal partnership on common frameworks”.
The Cabinet Secretary did, however, indicate that the UK Internal Market Act 2020 is a point of tension between the UK Government and the Scottish Government. Donald Cameron, deputy director of the constitution and UK relations divisions in the Scottish Government explained the position stating:
“Our sense in the Scottish Government is that there needs to be a degree of automaticity to that process if we are to see the frameworks do the job that they were originally conceived to do, otherwise we will be in a situation in which, irrespective of what is agreed in a framework’s area, the United Kingdom Internal Market Act 2020 provisions can cut across that agreement”
New provisionally confirmed frameworks
Even though only one framework has been fully finalised and implemented, several other frameworks have been provisionally confirmed recently. At the end of the previous reporting period, eight frameworks had been provisionally confirmed. Since the end of the reporting period (i.e. after 25 June 2021 but before publication of the twelfth report), 22 other frameworks have been provisionally confirmed by portfolio ministers from across different administrations. This means that the majority of common frameworks agreed as needed have at least been provisionally confirmed. The provisionally confirmed common frameworks that apply to Scotland are:
- Agriculture – Fertiliser Regulations
- Agriculture – Organic Farming
- Agricultural Support
- Agriculture – Zootechnics
- Air Quality
- Animal Health and Welfare
- Best Available Techniques
- Blood Safety and Quality
- Chemicals and Pesticides
- Emissions Trading System
- Fisheries Management and Support
- Food and Feed Safety and Hygiene Law
- Food Compositional Standards and Labelling
- Late Payment
- Nutrition Labelling, Composition and Standards
- Organs, Tissues and Cells (apart from embryos and gametes)
- Ozone Depleting Substances and F-gases
- Plant Health
- Plant Varieties and Seeds
- Public Health Protection and Health Security
- Public Procurement
- Radioactive Substances
- Resources and Waste
For these frameworks to be fully finalised and implemented, parliamentary scrutiny by each legislature with an interest in the framework, remaining policy development, the resolution of cross-cutting issues, and further technical stakeholder engagement needs to take place.
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 powers to apply the ‘freeze’ expire two years after exit day, on the 31st January 2022. In its progress report, the UK government confirms that the relevant powers have not been used during the reporting period as “significant progress is being made across policy areas to establish Common Frameworks in collaboration with the devolved administrations”.
At the same time as the common frameworks progress report, the UK Government also published an updated frameworks analysis about areas of retained EU law that intersect with devolved competence in Scotland, Wales, and Northern Ireland. The previous version was published in September 2020 and the new report notes the following changes since then.
The previous use of ‘legislative’ and ‘non-legislative’ frameworks has been dropped. Instead, frameworks are now distinguished by whether they have any associated primary or secondary legislation.
The number of policy areas that the UK Government assesses as reserved, but about which it is in ongoing discussions with the devolved administrations has decreased from four to two. The two remaining areas are food and drink geographical indications and data sharing. The two policy areas that have been removed from this classification are elements of product safety and standards relating to explosive atmospheres and state aid. Concerning state aid, the report explicitly confirms that the UK Internal Market Act 2020 established that state aid is reserved.
The thirteenth Statutory Report on the European Union (Withdrawal) Act 2018 and Common Frameworks will cover the reporting period 26 June to 25 September 2021 and is likely to be published towards the end of the year or early next, based on the previous publication timetable. Scottish Parliament committees will continue to engage with the Scottish Government on the development and implementation of common frameworks. A recent SPICe article discusses some of the possible developments relating to frameworks and their scrutiny in Session 6. You can keep up-to-date on the work of the committees on the SPICe Common Frameworks Hub.
Annie Bosse, SPICe Research