This blog article provides an update on common frameworks, following publication of the thirteenth European Union (Withdrawal) Act 2018 and Common Frameworks statutory report. It details progress on the development of common frameworks from 26 June to 25 September 2021.
Previous SPICe blogs have provided updates on past reports. The SPICe Common Frameworks Hub provides information on frameworks which are being considered by the Scottish Parliament.
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 in areas previously governed by EU law. You can read more about common frameworks in our FAQs.
Update on common frameworks
One common framework, Hazardous Substances (Planning) had been finalised and fully implemented during the last reporting period. To reach the final implementation stage, a framework goes through the following steps:
During the reporting period, a further 21 frameworks were provisionally confirmed, and shortly after, an additional framework was confirmed. The total number of provisionally confirmed frameworks now stands at 29. The provisionally confirmed common frameworks that apply to Scotland are:
- Agriculture – Fertiliser Regulations
- Agriculture – Organic Production
- 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, remaining policy development, the resolution of cross-cutting issues, and further technical stakeholder engagement needs to take place.
Frameworks which have reached phase four can be scrutinised by legislatures in all four nations of the UK, including the Scottish Parliament. However, the extent of scrutiny and the way it occurs is not prescribed. At the Scottish Parliament, subject committees can consider frameworks which sit within their policy areas. The Constitution, Europe, External Affairs and Culture Committee has an oversight role in relation to frameworks and will lead on cross-cutting issues around transparency, governance and ongoing scrutiny. Issues raised by legislatures during this scrutiny period are fed back to their respective governments. Governments then consider whether they want to make any changes in light of scrutiny by legislatures before implementing the framework, however, they are not required to. For more details on parliamentary scrutiny of common frameworks, see a SPICe article on this subject.
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 powers have not been used to date and were due to expire on 31 January 2022 (i.e. two years after exit day). The report confirmed, however, that the UK Government will repeal the section 12 powers. In a written statement on 9 December 2021, the UK Government stated that:
As a result of the progress that has been made to establish Common Frameworks in collaboration with the devolved governments, the Government intends to repeal section 12 powers through the enabling power set out in section 12(9) of the Act.
Common frameworks and the Internal Market Act
A key element of the UK Internal Market Act (UKIMA), passed in December 2020, is that it establishes two market access principles to protect the flow of goods and services in the UK’s internal market:
- the principle of mutual recognition
- the principle of non-discrimination
For the sale of goods, the market access principles would in effect mean that if a good meets the required legal standards to be placed on the market in any one of the four nations of the United Kingdom, it can be placed on the market in all four nations. In addition, the non-discrimination principle means that the sale of goods in one part of the United Kingdom should not be affected by restrictions that discriminate against goods that have been produced in another part of the United Kingdom. In terms of services, the Act provides that where a service provider is authorised to provide a service in any of the four nations of the UK, they may provide the same service in all four nations of the UK.
UK Government Ministers have the power to disapply the market access principles set out in the Act where the UK Government has agreed with the devolved governments that divergence is acceptable through the common frameworks process. Although UK Ministers can disapply the market access principles in such circumstances, they are not legally obliged to do so.
The process for securing exclusions from market access principles was published on 10 December 2021. This is a political agreement between the UK Government and the devolved administrations. According to this process, any party that wants to propose an exclusion will have to clarify the scope and provide a rationale for the exemption, including an assessment of the economic impact. The proposal will be considered according to the decision-making and reviewing mechanisms set out in the frameworks – these can vary – and confirmed in the relevant framework forum. The exclusion can then be given legal force as a statutory instrument which is laid by the UK Government to the House of Commons and House of Lords, where it must be approved by one committee in each.
Future developments
Scottish Parliament committees will continue to engage with the Scottish Government on the development and implementation of common frameworks. The SPICe Common Frameworks Hub collects information on individual frameworks being considered by Scottish Parliament Committees.
Annie Bosse, SPICe Researcher