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What’s the story? Common frameworks so far…

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If you’re looking at ‘common frameworks’ and drawing a blank, this blog article, the first in a trio, is for you. In it we try to demystify common frameworks, looking briefly at why and how they’ve been developed; and their link to the UK Internal Market Act 2020.

The second blog article in the series will consider why scrutiny of frameworks is important, and what the Scottish Parliament’s role may be once frameworks are finalised and fully operational. The third and final blog article will be about how the Scottish Parliament can scrutinise common frameworks.

What are frameworks and why have they been developed?

Common frameworks are agreements setting out how the governments in the UK will work together to make decisions about the law and policy in certain devolved areas formerly governed by EU law.

The aim of common frameworks is to manage divergence in these areas in order to achieve some degree of consistency in policy and practice across UK nations post EU exit. In its October 2017 communique on common frameworks, the Joint Ministerial Committee (EU Negotiations) stated that:

“A framework will set out a common UK, or GB, approach and how it will be operated and governed. This may consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued. Frameworks may be implemented by legislation, by executive action, by memorandums of understanding, or by other means depending on the context in which the framework is intended to operate.”

You can read more about what common frameworks are, and in what areas they will operate on the SPICe common frameworks hub.

How have frameworks been developed?

The UK Government and devolved governments have been working on what frameworks will look like and then negotiating the detail of them since 2017.

Frameworks go through several stages as they are developed – these stages are set out below:

The Scottish Parliament, as well as other UK legislatures, scrutinises frameworks at phase four. At this point, the UK Government and devolved governments have provisionally agreed the frameworks and published provisional framework documents.

The legislatures have the opportunity to comment on the agreed frameworks and to raise any concerns they have about them. Once all of the UK legislatures have completed scrutiny, the governments will consider whether any changes need to be made to the frameworks before they are finalised and fully implemented.

These provisional framework documents are now coming to the Scottish Parliament with scrutiny of them expected to take place over the coming months. The SPICe common frameworks hub tracks scrutiny of frameworks at the Scottish Parliament.

Why has it taken so long to agree frameworks?

The programme to develop frameworks has been considerably delayed. In part, this is because of the COVID-19 pandemic. But delays have also occurred because of other developments, which have created tensions between the governments, and therefore in the frameworks programme. The most notable tension being the introduction and enactment of the UK Internal Market Act 2020.

The UK Internal Market Act establishes two market access principles to protect the flow of goods and services in the UK’s internal market:

  1. The principle of mutual recognition, which means that goods which can be sold lawfully in one nation of the UK can be sold in any other nation of the UK.
  2. The principle of non-discrimination, which means authorities across the UK cannot discriminate against goods and service providers from another part of the UK.

The Act means that the market access principles, mutual recognition and non-discrimination, apply even where divergence may have been agreed in a framework.

UK Government Ministers have the power to disapply the market access principles set out in the Act, where the UK Government has agreed with one or more of 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 UK Government and devolved administrations have agreed a process for considering exclusions to the market access principles of the UK Internal Market Act. The process was published on 10 December 2021. Announcing the agreement of an exclusion process in a letter to the Constitution, Europe, External Affairs and Culture Committee, Angus Robertson MSP, Cabinet Secretary for Constitution, External Affairs and Culture wrote:

With these matters resolved, frameworks can now move forward to publication and formal scrutiny in the four legislatures.”

In spite of the process for considering exclusions having been agreed, the Scottish and Welsh Governments still fundamentally oppose the UK Internal Market Act, as reiterated in the same letter. The Welsh Government brought a legal challenge to the Act and issued formal proceedings seeking permission for a judicial review in January 2021. The Welsh Government’s application for permission was refused by the Divisional Court, on the ground that it was premature. The Welsh Government submitted an appeal which was successful – the Court of Appeal, by Order dated 23 June, granting permission to appeal the Divisional Court’s decision. The Welsh Government’s Grounds for Judicial Review list the Scottish Government as an interested party. The application for permission was not granted. The Court of Appeal issued a judgement on 10 January 2022, arguing that it was “inappropriate to seek to address such issues in the absence of specific circumstances giving rise to the arguments raised by the claimant and a specific legislative context in which to test and assess those arguments”. In response, the Welsh Government announced that it had ”applied for permission to appeal this matter to the Supreme Court”.

Keep your eyes peeled for the next blog which will be out next week. In that, as indicated earlier, we’ll turn to the question of why the Scottish Parliament might want to scrutinise common frameworks.

Annie Bosse, SPICe Researcher