In this, the second blog of our trio on common frameworks, we consider why it’s important for parliaments to scrutinise these frameworks, consider the constitutional context in which they have been developed and will operate, and the ways in which they may change decision-making processes and policy in devolved areas. To help with navigation, please use the contents popout below.
The first blog in the series looks at what common framework are, why and how they have been developed, and their link to the UK Internal Market Act 2020. A third and final blog will consider how frameworks can be scrutinised.
What are common frameworks?
Common frameworks are agreements between the governments of the UK (often all four governments, but this does not have to be the case). They set out how the governments will work together, to discuss and agree an approach to decisions about when they should have the same rules and when they may have different rules in specific policy areas (which are devolved but used to be governed at EU level).
Legislation which is subject to a framework sets the law in part of a framework subject area. In some cases, the legislation may mean that the governments have to abide by a common or minimum standard at present, for example, the Ionising Radiation (Basic Safety Standards) (Miscellaneous Provisions) Regulations 2018.
Notably, there also appears to be the prospect of frameworks being used for a wider purpose than initially stated, for considering matters which were not formerly governed at EU level. The Ozone Depleting Substances and Fluorinated Greenhouse Gases framework states that:
Areas of devolved competence not previously governed by EU law, including enforcement, are not formally within scope of the Framework. However, where it is appropriate for an issue to be discussed between the Parties (in line with the 2012 Devolution Memorandum of Understanding) the engagement fora set out in this Framework (see ‘Decision-making fora’) will be utilised, without prejudice to the competence of the devolved Ministers.
Ozone Depleting Substances and Fluorinated Greenhouse Gases framework
Frameworks will, therefore, have a significant impact on the decisions which the Scottish Government makes. As such, it’s crucial that the Parliament understands what is in them and how they may restrict the legislative and policy proposals which come before it.
Frameworks and the fundamentals of parliamentary scrutiny
A central function of parliament is to scrutinise the policies and actions of government.
Given that frameworks are intergovernmental agreements the Scottish Parliament has a role in ensuring that it is content with the Scottish Government’s part in them. This means that the Parliament may look at overarching issues (in addition to the specific detail of any framework) such as:
- how the Scottish Government has made decisions about what frameworks to enter into
- the way in which frameworks function (e.g. who makes decisions, what decisions can be made and how disputes will be dealt with), and the role of the Scottish Government within those decision-making processes
- how decisions will be made about any changes to the operation of frameworks in the future
- whether frameworks are transparent and open to scrutiny on an ongoing basis.
Understanding frameworks as a new constitutional arrangement in a shifting devolution landscape
Frameworks are new constitutional arrangements driven by a need for a way to manage divergence between UK nations in policy areas previously governed by EU law. Viewed in isolation frameworks may appear technical, but they are an important part of the constitutional jigsaw post EU exit.
In Scotland, the arrangements for EU exit have changed the way the devolution settlement operates in two key ways:
- Legal changes to devolved legislative competence (i.e. legal changes to the Scottish Parliament’s power to make laws). For example the UK Internal Market Act 2020 (“UKIMA”) reserving subsidy control – which was not previously a reserved matter and was formerly governed by EU law.
- Changes and new arrangements which do not affect the Parliament’s powers to make laws but may in practice make it more difficult for the Parliament to exercise its powers effectively.
Common frameworks fall into the latter category, as do things like:
- the market access principles (mutual recognition and non-discrimination) in UKIMA which may have an impact on whether a law made by the Scottish Parliament applies to goods and service providers which come from another part of the UK
- the intergovernmental agreement on seeking exclusions to the market access principles in UKIMA where divergence is agreed in a framework
- the EU-UK Trade and Cooperation Agreement, which may influence decisions made in devolved policy areas (fisheries, for example) because this agreement, and future decisions made under it, are legally binding
- the Scottish Government’s stated policy ambition of keeping pace with EU law (facilitated by the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021) which may affect the legislative and policy choices which the Scottish Government chooses to present to the Parliament.
Similarly, the increase in the number of executive powers for UK Ministers in devolved areas is important – the result being that more secondary legislation which is within the Scottish Parliament’s competence may be made in the UK Parliament rather than in the Scottish Parliament. This means the Scottish Parliament cannot scrutinise and approve or reject the legislation in the usual way. There is a protocol between the Scottish Government and Scottish Parliament to give the Parliament a voice in relation to proposals for this type of secondary legislation, but it involves scrutinising the Scottish Government’s decision to consent to such legislation, not scrutinising the legislation itself.
Individually these things have the potential to shift the balance between the executive (government) and the legislature (parliament). Collectively, they significantly increase the number of decisions being taken at an executive (government) level with the risk that there is not the transparency the Parliament needs to be able to exercise its powers effectively.
The Constitution, Europe, External Affairs and Culture Committee commented in its report on the UK internal market that:
One of the key issues which emerged from our inquiry is the extent to which there is
Constitution, Europe, External Affairs and Culture Committee, 1st Report 2022, UK Internal Market Inquiry
a risk that the increasing shift towards inter-governmental working, as a
consequence of the UK leaving the EU, may result in reduced democratic oversight
of the Executive and a less consultative policy-making process. The primary risk for
the Scottish Parliament arising from the impact of post-EU constitutional change is
that the level of transparency and Ministerial accountability which existed while the
UK was a Member State of the EU is either intentionally and/or unintentionally
diluted post-exit.
What does effective exercise of powers actually mean and how does it relate to the scrutiny of common frameworks?
The ability of the Parliament to exercise its powers effectively is not just about whether a legislative proposal would be effective if enacted. It’s about the Parliament’s ability to consider the full range of legislative and non-legislative options which are within devolved competence, and to decide on the course of action it considers to be most appropriate.
For such consideration and scrutiny to happen, the Parliament has to have all of the relevant information, it has to be given it in a way which allows for clear understanding, it must have time to consider it properly and it must be allowed to consider matters sufficiently early for its views to be taken into account. This requires transparency between executive and legislature, as well as analysis on how the proposal sits with other proposals and policy aims.
Common frameworks pose a double challenge to the Parliament’s effective exercise of its powers. Firstly, because they require transparency (having all of the relevant information) and secondly in understanding (being clear on how frameworks interact with other constitutional arrangements and policy proposals).
The transparency challenge
The executive leads decision-making in areas subject to a framework. This raises the possibility that the Parliament has little information about how the framework is operating; any disputes arising in the framework; and any discussions on changes to the framework.
The documents that establish frameworks can vary, but they all establish decision-making forums and processes, as well as outlining dispute resolution and review mechanisms. In all cases decision making is led by officials.
Likewise, dispute resolution is official led. There is a commitment in frameworks that disputes will be resolved at the lowest possible level. This means that only serious disputes will likely make their way to Ministers and be dealt with through the newly revised formal intergovernmental dispute resolution mechanisms.
Intergovernmental decision making may have a negative effect on transparency. Some frameworks require that governments inform legislatures of developments in policymaking “if appropriate” and others contain no requirement for parliamentary engagement.
Such intergovernmental decision making may affect the extent to which policy making is collaborative and informed by the views, experience and expertise of stakeholders.
In the first instance, the Parliament’s scrutiny of frameworks is important in setting the expectation of transparency. In the longer term, it is about creating formal opportunities for information sharing between the Scottish Government and the Parliament to ensure that there is parliamentary oversight once frameworks are operating fully (they have already been operating on a provisional basis, many since the start of 2021). As Professor Jo Hunt told the Constitution, Europe, External Affairs and Culture Committee:
when Parliaments are engaging with those frameworks, they are not looking at final policy decisions on particular issues; they are looking at the frameworks for managing decision making. Therefore, it is important to ensure that steps are built into how those frameworks work that enable the on-going oversight and engagement of Parliaments in that process—that is the challenge. It is not the case that the framework is a done deal and that provides an answer and a final output on a particular policy issue; rather, the framework should be an ongoing, living constitutional document.
Official Report, column 25, 2 December 2021
The challenge in understanding the interconnectivity of frameworks
Given that frameworks are generally agreements about how decisions will be made, rather than about what policy decisions will be taken, exactly how they will interact with other post EU exit arrangements, like UKIMA and the Scottish Government’s policy aim to keep pace with EU law, is unknown to the Parliament. An example of this can be seen in the recent Organics (Derogations) Amendments 2022 SI notification, which suggests that the effect of the market access principles in UKIMA is a reason why Organics legislation should be done on a UK-wide basis, as intended by the Organics common framework:
The United Kingdom Internal Market Act 2020 is applicable to the production and labelling of products. The principle of mutual recognition means that goods sold in one part of the UK must be automatically accepted across all other parts of the UK, regardless of the rules in that other part. This means that if Scotland were to apply different standards to organic production those rules would have limited effect since they could not apply to any products produced in any other part of the UK but then sold in Scotland. For that reason it would also seem appropriate to fix deficiencies in organics legislation on a GB wide basis, as is intended by the Organics Framework Outline Agreement.
Organics (Derogations) Amendments 2022 SI notification
At present, scrutiny of the framework agreements (the documents which set out how frameworks will operate) is the only route available to the Parliament to gain insight into what policy decisions the Scottish Government anticipates making and its assessment of the interconnection between frameworks and other issues.
In the longer term, as finalised frameworks operate in practice, understanding how a framework interacts with other constitutional arrangements is essential in order to make sense of the legislative proposals, including proposals to keep pace with, or diverge from, EU law, put forward by the Scottish Government. This is because such proposals are likely to have been assessed as compatible with frameworks. It is similarly unlikely that legislative proposals at odds with frameworks would receive the backing of the Scottish Government.
In either scenario, for the Parliament to properly assess a legislative proposal, or to be content with being informed that a proposal is at odds with a framework, it is crucial that it has the information it requires to make that assessment.
A final thought
As with most things in life, the devil is in the detail. Frameworks may appear high level, but they are part of an emerging picture of change in the way that decisions will be made post EU exit.
Frameworks could lead to the Parliament being ill-informed where legislative or policy proposals are brought before it in framework areas or in areas which interact with frameworks. The Parliament’s task is likely to be made even more challenging by the interplay between a framework and other constitutional elements – such as UKIMA; the TCA; which Ministers have powers in devolved areas; and keeping pace with EU law.
If you’ve found this blog helpful, you may want to keep an eye out for the third and final blog which will follow on from this blog and consider how the Scottish Parliament may scrutinise frameworks.
Sarah McKay and Annie Bosse, SPICe Research