In this, the third in our trio of blogs on common frameworks, we consider how the Scottish Parliament can scrutinise frameworks by looking at:
- consistency; and
- transparency of the agreements as well as the wider policy context.
Previous blogs have explained what common frameworks are and why it’s important for legislatures to scrutinise them.
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Understand the structure of frameworks
Common frameworks are agreements between the UK and devolved governments. They are typically made up of two components:
- a framework overview called a ‘Framework Outline Agreement’
- a written agreement called a ‘Concordat’ or ‘Memorandum of Understanding.’
The overview document seeks to explain the framework by setting out things like the policy area, the legislation relevant to it, and operational details on how the governments will work together to make decisions and how they will resolve disagreements.
The Concordat/Memorandum of Understanding is what the governments sign. These written agreements are not legally enforceable, something the agreements themselves often make explicit. The Air Quality Framework, for example, states that:
Whilst most frameworks follow the overview plus written agreement structure, it’s not always the case. The Fisheries Management Framework, for example, is made up of a framework overview and an MoU in addition to the Fisheries Act 2020, the Joint Fisheries Statement, the Fisheries Management Plans, and Operational Agreements. It is, therefore, a framework which has legislative elements.
Remember the purpose of frameworks
Common frameworks are about managing divergence. Most frameworks state that they aim to prevent divergence where it would be harmful, or allow it where it would be acceptable. In spite of this, frameworks are often silent on exactly what information will be considered when assessing whether a proposal for divergence is acceptable.
The Joint Ministerial Committee principles agreed between the governments of the UK in 2017 are one way in which proposals on divergence may be assessed. The principles state that common frameworks would be established where they are necessary to:
- enable the functioning of the UK internal market, while acknowledging policy divergence;
- ensure compliance with international obligations;
- ensure the UK can negotiate, enter into and implement new trade agreements and international treaties;
- enable the management of common resources;
- administer and provide access to justice in cases with a cross-border element; or
- safeguard the security of the UK.
These principles are, however, so broad that it still makes it difficult to know where divergence would be compatible/incompatible with a framework principle. When considering what acceptable divergence may look like in a specific framework area, it could be helpful to:
- understand the Scottish Government’s expectation around the divergence which a framework will allow for;
- consider how a framework may affect the Scottish Government’s stated policy aim to keep pace with EU law in certain areas; and
- be clear on whether the Scottish Government has any concrete plans for taking divergent approaches in policy areas covered by frameworks.
Be clear on where frameworks will be used to make decisions
Each framework sets out the areas of law and policy where it will be used to make decisions. This is known as the ‘scope’ of a framework.
Frameworks were only intended to be used to make decisions in areas previously governed at an EU level (matters now governed by retained EU law). However, it’s clear that some frameworks will be used to make decisions about policies and laws which were not previously governed at an EU level.
The Animal Health and Welfare Framework is an example of this type of framework where matters previously decided at an EU level, as well as those which were not, are within its scope.
It’s less clear where other frameworks will be used to make decisions. For example, the Ozone-Depleting Substances and Fluorinated Greenhouse Gases Framework, lists specific laws and policy areas where the framework must be used to take decisions, but the groups established by frameworks can also be used as the forums for discussion on much wider issues. The framework documents say:
“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 […] the engagement fora set out in this Framework […] will be utilised, without prejudice to the competence of the devolved Ministers.”
The Air Quality Framework adds in another element by stating that forums established by it could be used to obtain the consent of devolved governments in order for the UK Government to make specific regulations in devolved areas.
It’s important to know where frameworks will be used to make decisions and the only way to be clear on this is to understand the scope of each framework. In policy areas where there are no frameworks or in areas of a policy where a framework does not apply, governments are not bound to discuss matters with other governments in the UK before acting.
It may also be helpful to keep in mind that governments agreed that frameworks should maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each nation of the UK as was afforded by EU rules. Understanding how frameworks affect governments’ flexibility in policymaking in comparison to pre EU-exit arrangements is therefore important.
See frameworks in the wider policy context
Where a framework is made up of documents which set out ways of working and establish the policy direction, it is easier to understand how it will operate in practice. This is because the operational side of the framework (how a matter will be considered) and the policy side of the framework (what will be considered) can be seen together.
The Fisheries Management Framework was, for example, considered by the Northern Ireland Assembly’s Agriculture, Environment and Rural Affairs Committee alongside one of the framework’s legislative components, the Joint Fisheries Statement.
However, most frameworks only set out the processes for decision-making. This makes it difficult to understand how the operational side of the framework will interact with the policy side.
Considering a framework in the context of existing arrangements (legislation, international agreements, and policy direction) can make it easier to imagine the kind of discussions and decisions which may come before framework groups and therefore the interplay between process and policy.
Given the lack of detail on exactly how frameworks have been working whilst provisional, and therefore, their impact on policy to date, scrutiny would be enhanced by having information on:
- how individual frameworks have been operating so far; and
- what has been learned during their provisional operation.
It’s also important to think about how framework processes may be used in discussions on wider issues including, for example, exclusions which may be sought to the market access principles (set out in the UK Internal Market Act 2020 (UKIMA)).
The Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021 were laid in the Scottish Parliament in November 2021 and are due to come into effect on 1 June 2022. However, without an exclusion, UKIMA would have the effect of allowing products produced legally in, or first imported into, other parts of the UK to be placed on the Scottish market. The Scottish Government therefore sought an exclusion to the market access principles.
The minutes from an Interministerial Group meeting in December 2021 and a recent letter from the Cabinet Secretary for Constitution, External Affairs and Culture to the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee show that:
- discussion of an exclusion for single-use plastics has taken place through the Resources and Waste Framework;
- the UK Government has confirmed that it supports an exclusion on bans of single-use plastic items covered by the Scottish regulations;
- the Scottish Government is unhappy with the way that the UK Government handled the exclusion request by seemingly conducting “a wholesale re-examination of the issues over a number of months”; and
- the exclusion agreed by the UK Government was narrower in scope than the one proposed by the Scottish Government and supported by the Welsh Government.
The Resources and Waste Framework processes appear to have been used to make a decision on the single-use plastic exemption. Although the framework has been operating on a provisional basis for over a year, it is yet to be published. As such, there is no publicly available information on the groups established by the framework and therefore who was involved in making recommendations or taking decisions on the exclusion.
Given the lack of transparency in the exclusions process itself there is also no information on the nature and extent of discussions within framework groups on the exclusion and the outcome – the detail of the agreed exclusion.
Keep in mind the need for transparency in frameworks
There are two key things to consider when analysing how transparent a framework is: reporting and stakeholder engagement.
Most frameworks set out processes for interactions between groups or individual officials. What is often unclear is whether those interactions will be reported on so that the information is publicly available
If we look, for example, at the dispute resolution processes which frameworks set out we see a consistent emphasis on disputes being dealt with at the lowest appropriate level. This means that officials who engage through framework-specific forums will try to resolve disagreements on both the operation of the framework and on policy matters. However, these interactions do not generally have to be reported on. It is not until disputes enter the formal intergovernmental dispute resolution process (which sits above frameworks processes) that details of disputes may emerge because these matters do have to be reported.
Framework documents include a section on stakeholder engagement. Some frameworks make use of this section to set out limited details of stakeholder engagement that took place in the development of the framework. Several frameworks also make commitments on future stakeholder engagement, but this typically means that stakeholders will be informed of developments as appropriate rather than being involved in decision making.
For example, the Food Compositional Standards and Labelling Framework states that:
What is even less clear across frameworks is the ongoing role of legislatures (the UK Parliament, Scottish Parliament, Welsh Senedd, and Northern Ireland Assembly). Most frameworks tend not to specify the interactions that will take place with legislatures in the future and do not commit the governments to making operational details about the framework available.
It’s noticeable that some frameworks expressly restrict the sharing of information. For example, the Air Quality Framework states:
Where there is a legal duty to disclose, each Party to this Concordat will advise the others of its intentions and consider any legal argument by the one or more other Parties challenging the duty to disclose all or part of the information under consideration.“
A lack of transparency around frameworks and their operation will make it more challenging for the Scottish Parliament to scrutinise frameworks – both now and in the future. Focussing on what frameworks say about reporting and stakeholder engagement is the way to understand what information is likely to be made available in the future.
The Welsh Senedd’s Legislation, Justice and Constitution Committee was not content with the approach set out in frameworks and sought and received assurances from the Welsh Government that it will:
- notify the Senedd if a framework dispute is escalated to the Ministerial level;
- publish annual framework reports;
- seeks the views of the Senedd during framework reviews;
- informs Senedd when exclusions from the UKIMA market access principles are sought through frameworks processes.
Consider the detail of frameworks, not just the headlines
Having a keen eye for detail is important when looking at frameworks and can provide clues as to how they will operate in practice.
Consider, for example, the Agricultural Support Framework which is described as “a non-legislative framework for the UK collaboration, coordination and cooperation on agricultural support”. The framework indicates that framework groups will make joint decisions on recommendations made to Ministers with the groups “deciding which policy recommendations are to be escalated to Ministers individually or collectively”.
However, looking at the detail of some frameworks appears to indicate that they commit governments to acting jointly on policy development on a regular basis.
The Food and Feed Safety and Hygiene Framework Concordat, for example, states that the agreement “puts in place agreed ways of working […] to drive for consistent policy approaches”, later explaining that food safety authorities will carry out joint risk analysis for proposed changes within the scope of the framework. When the food safety authorities have reached a decision, they will present joint recommendations to Ministers, setting out whether a common or divergent approach is proposed.
This raises a key question when considering an individual framework: does the policy development process provide for collaborative working or require joint policy development?
Check consistency in frameworks
Frameworks are not always consistent in what they say. That lack of consistency can lead to a lack of clarity.
Where frameworks are inconsistent, seeking clarification is important. This will allow a better understanding of the framework and what it requires, for example, around reporting and when reviews will be carried out in the future.
As an example, the Agricultural Support Framework includes conflicting information on how many times groups meet, how often reviews are to take place, what groups are called, as well as diagrams which are unclear because process arrows are not explained.
The House of Lords Common Frameworks Scrutiny Committee has frequently highlighted the lack of consistency during its consideration of frameworks. As a result, UK Government Ministers have confirmed their intention to review framework documents and iron out inconsistencies before frameworks are finalised.
Sources of information on frameworks
SPICe is producing briefings for individual frameworks, which explain the framework and highlight areas that merit further attention.
You can find more information, including links to all published briefings, on the SPICe Common Frameworks Hub.
Sarah McKay and Annie Bosse, SPICe research