Common frameworks are intergovernmental agreements that set out how the governments of the UK nations will work together to manage regulatory divergence in policy areas formerly governed at an EU level. Most of these agreements have been operating on a provisional basis for over two years. This blog looks at the Parliament’s consideration of common frameworks, how common frameworks are functioning, and how interactions between common frameworks and the UK Internal Market Act 2020 are affecting parliamentary scrutiny of Government policy (see Contents pop-out below).
How many Common Frameworks are operating?
There are 26 common frameworks applicable to Scotland. These frameworks cover policy areas like agriculture, public health protection, and resources and waste. Common frameworks go through four phases of development before they are they are finalised at Phase 5.
Twenty-two frameworks are at Phase 4 of development and operating on a provisional basis. It is also at Phase 4 when each of the UK legislatures receive the framework documents for scrutiny. SPICe tracks the Parliament’s scrutiny of common frameworks at Phase 4 on the Common Frameworks Hub.
To date, the Parliament has completed scrutiny on 14 frameworks with 7 frameworks currently undergoing scrutiny. Five frameworks (of which three remain unpublished) are yet to start formal scrutiny in each of the UK legislatures. The Hazardous Substances framework is the only framework that has been finalised following scrutiny at all four UK legislatures.
What were the findings from Parliamentary scrutiny?
Committee scrutiny of provisional frameworks in the Scottish Parliament and other legislatures of the UK (most notably, the House of Lords Common Frameworks Scrutiny Committee) often focussed on the following issues:
- limited policy content in most framework documents
- lack of stakeholder engagement in the development of common frameworks
- lack of transparency on the progress and outcomes from common framework processes, and
- lack of monitoring and reporting requirements on how frameworks are functioning.
For more detail on the issues raised, see a SPICe blog from January 2023 summarising views on Common Frameworks from the Scottish Parliament Constitution, Europe, External Affairs and Culture Committee and House of Lords Common Frameworks Scrutiny Committee.
What information does the Parliament get about the operation of Common Frameworks?
The House of Lords Common Frameworks Scrutiny Committee report recommended that a process for reporting to legislatures on the operation of Common Frameworks be developed. The UK Government accepted this recommendation and discussion of the proposed process took place at the Interministerial Standing Committee, an intergovernmental structure, on 1 February 2023. The Communiqué from the meeting was published on 3 February 2023 and stated:
Ministers agreed the importance of reporting to both the IMSC and legislatures on the operation of Common Frameworks, once they are fully implemented and that officials should carry out an assessment, including on the impact of emerging issues on the programme.
Baroness Bloomfield of Hinton Waldrist also provided detail on how this process would be developed and implemented at the House of Lords Common Frameworks Scrutiny Committee debate on 2 February 2023. Baroness Bloomfield stated:
This includes development of a standard template for reporting to be used across all frameworks, enabling a jointly agreed overview of framework operation. The template was shared and discussed at the Interministerial Standing Committee yesterday. All four Governments agreed to report to the IMSC and legislatures on the operation of common frameworks once they are fully implemented…
The first report using the template would in most cases be due following the anniversary of the finalisation of the common framework. I am pleased to confirm that an annual report on the Hazardous Substances (Planning) Common Framework was shared with the committee on Tuesday. The report, produced jointly and collaboratively with devolved government policy teams, reports on how the framework operated within its first year of operation.
How are Common Frameworks operating?
Legislatures have not yet seen the proposed reporting process for common frameworks (or the first report on the Hazardous Substances framework). In the absence of a formal and operational process for reporting to legislatures, the only routes to information on how frameworks are operating is through the discretionary disclosure or publication of information by the four governments of the UK. For example, the first indication the Scottish Parliament had that, from the Scottish Government’s perspective, frameworks were not being used as agreed was during the Rural Affairs, Islands, and Natural Environment Committee evidence session on common frameworks with the Cabinet Secretary for Rural Affairs and Islands Mairi Gougeon MSP on 2 November 2022. The Cabinet Secretary stated:
…we have also seen examples in which, despite all four Administrations agreeing to the process and agreeing to work in collaboration, the process has not been adhered to. An example of that relates to the UK Government’s Genetic Technology (Precision Breeding) Bill. The process should have been used for that but, instead, it started the other way round. The bill was published without discussion having taken place with the other Administrations in the UK.
The Cabinet Secretary also indicated the implications of the Genetic Technology (Precision Breeding) Bill were being considered so that any policy divergence can be assessed and managed. However, it was not clear whether that consideration was taking place within common frameworks or only internally in the Scottish Government.
Only glimpses of the intergovernmental discussions have been provided through the Communiqués from the Interministerial Group for Environment, Food and Rural Affairs. The most recent discussion relating to the Bill that was also reported in the Group’s Communiqués was held on 20 July 2022. The discussion was summarised as:
Next up was a discussion of the Genetic Technology (Precision Breeding) Bill where discussions focused on the implications for devolved administrations and the need for greater engagement to avoid unintended consequences for competition and trade.
The Interactions between Common Frameworks and UK Internal Market Act 2020
The difficulty in the Parliament being able to scrutinise policy decisions made through frameworks becomes more apparent when legislation is expected to interact with the UK Internal Market Act 2020 (UKIMA). UKIMA establishes two market access principles to protect the flow of goods and services in the UK’s internal market.
The market access principles apply even when an agreement to diverge has been reached through a common framework process. If such an agreement to diverge is reached, the process for seeking an exclusion to the market access principles within a framework involves:
- The relevant government setting out the scope and rationale for the exclusion
- A review of the proposed exclusion and supporting evidence for it by the relevant framework forum; and if the exclusion is agreed
- The laying of a statutory instrument by UK Government Ministers in the UK Parliament to implement the exclusion.
Although UK Government Ministers have the power to disapply the market access principles by an exclusion, this is discretionary. Ministers do not have to make such an exclusion even where there is support and consent from the devolved governments. When an exclusion is to be implemented, the role of the Scottish Parliament is limited to the Statutory Instrument Protocol 2 process. This involves the Parliament scrutinising the Scottish Government’s decision to consent to such legislation, not scrutinising the legislation itself.
What access to information on UKIMA exclusions does the Parliament have?
There are two exclusions requested by the Scottish Government with information in the public domain: the single use plastics exclusion (now active) and a proposed exclusion (still being discussed) for the Scottish Deposit Return Scheme. Both exclusions illustrate the transparency challenges for the Parliament in scrutinising how common frameworks and the associated UKIMA exclusions processes are working.
Single Use Plastics: The first exclusion from UKIMA Market Access Principles
The Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021 came into force on 1 June 2022. These regulations banned many single-use plastic items in Scotland. However, the UKIMA mutual recognition principle meant that single-use plastic products which were lawfully produced in or first imported into other parts of the UK could still be sold in Scotland. This was the case until the United Kingdom Internal Market Act 2020 (Exclusions from Market Access Principles: Single-Use Plastics) Regulations 2022 came into force on 11 August 2022. A previous SPICe blog considers the UKIMA implications of the ban on single-use plastics in more detail.
The first indication that an exclusion from the UKIMA market access principles had been requested was in the minutes from the Interministerial group for Environment, Food and Rural Affairs on 6 December 2021. The Communiqué (published on 12 January 2022) stated:
The meeting opened with a discussion on Single Use Plastics where Scottish government ministers presented their preferred approach to mitigate the environmental policy impact of the UK Internal Market Act (the Act) as raised by their Single-Use Plastics regulations. This included the option for as broad an exclusion as possible from the operation of the market access principles set out in the Act for policy areas under the Resources and Waste Common Framework, noting that they wanted to come to a workable solution for all administrations despite their continued and fundamental opposition to the Act. Welsh ministers also favoured the broad solution approach.
The Resources and Waste framework, through which an exclusion for single use plastics was first expected to be considered, had been operating on a provisional basis since January 2021. However, the provisional framework was only published on 19 December 2022. As such, there was little indication as to which framework groups considered the evidence base for an exclusion prior to its consideration by the Interministerial Group for Environment, Food and Rural Affairs.
A later Communiqué from 21 March 2022 indicated that a “narrow” exclusion was to be agreed. Whilst there was a list of items to be included in the exclusion, there was no information on what had been omitted or the nature of the broader exclusion from which to assess how the policy decisions had developed. This Communiqué stated:
Defra’s Secretary of State confirmed that the UK Government’s position was for a narrow exclusion from the UK Internal Market Act covering bans on the supply of single use plastic straws, stirrers, cotton buds, plates, cutlery, balloon sticks and expanded and extruded polystyrene food and drinks containers. While Scottish and Welsh Ministers welcomed that an exclusion had finally been agreed, they were clear that their preference remained for a much broader exclusion to align with devolution and to avoid needing to revisit the process in the near future for further bans on single use plastic.
The Parliament was first informed of the exclusion on 6 May 2022 when the Minister for Green Skills, Circular Economy and Biodiversity Lorna Slater MSP made a notification seeking the approval of the Parliament for Scottish Ministers to consent to the UK statutory instrument that would create an exclusion from UKIMA for the single-use plastics regulations. This meant that the Parliament was being asked to consent to Scottish Ministers consenting to the UK statutory instrument without any idea of the scope of the exclusion or details of framework discussions that supported the exclusion.
Subsequent correspondence between the Convenor of the Net Zero, Energy and Transport Committee and the Minister also did not provide details on the nature and scope of the broader exclusion requested versus the exclusion that was agreed. The transparency challenges in scrutinising new constitutional arrangements, such as common frameworks, was highlighted by the Constitution, Europe, External Affairs and Culture Committee in its report on the UK internal market. The Committee has also considered issues relating to the Parliament’s ability to scrutinise secondary legislation under the Statutory Instrument Protocol – these are discussed in its report The Impact of Brexit on Devolution.
Deposit Return Scheme: The broader exclusion request
Further detail on the nature of the broad exclusion (to the market access principles of UKIMA) that was first requested through the Resources and Waste Common framework was not known until the Scottish Government published this information on 28 February 2023. This information was published ahead of a Ministerial statement on the Deposit Return Scheme on 1 March 2023 (DRS), a recycling initiative where consumers pay a small deposit when they purchase drinks in single-use bottles or cans (see SPICe blog on the Scottish Deposit Return Scheme). It is important to note that this information was not provided to the Parliament, rather it was put into the public domain by the Scottish Government following comments made by the Secretary of State for Scotland Alister Jack MP to the House of Commons on 22 February 2023 that suggested the Scottish Government had not requested an exclusion from UKIMA for DRS.
The Scottish Government stated that it first raised the issue of an exclusion for the Deposit Return Scheme when it initiated the consideration of a broad exclusion in July 2021. However, there was no indication from information in the public domain at that time that the specific requirements of DRS were expected to be included in this exclusion. The Interministerial Group minutes from the 21 March 2022 only referred to the Scottish Government’s single-use plastics regulations and policy areas covered by the Resources and Waste framework.
The Scottish Government documents then indicate that a separate assessment of UKIMA exclusion for DRS was not initiated in the Resources and Waste framework until October 2022. Notification that the proposal was being considered by the Interministerial Group for Environment, Food and Rural Affairs was not included in a Communiqué until November 2022. Ministerial discussion of the proposed exclusion (as indicated in the Scottish Government documents) was expected on 6 March 2023, and minutes from that meeting (published by the Scottish Government on 20 March 2023 and the UK Government on 21 March 2023) provided further detail on the nature of the discussions. The minutes state:
Minister Slater reiterated how an exclusion from the UK Internal Market Act, with a broad scope to cover all deposit return schemes across the UK but, at a minimum, an exclusion for Scotland’s deposit return scheme regulations, is needed in advance of the Scottish scheme launch on 16 August. Scottish Ministers pressed Defra Ministers now for a decision regarding their support for an exclusion and a timeline for when a final UK Government position may be reached. Defra Ministers acknowledged that Scottish Ministers have fully followed the agreed processes, that the relevant Common Framework had agreed to seek ministerial views on its recommendations of an exclusion, while also highlighting Defra’s need to progress with seeking agreement internally as set out in the process for considering UK IMA exclusions in Common Framework areas.
What is the Scottish Government view of how the exclusions process is operating?
Although most of the recent parliamentary debate has focussed on the requirements of the DRS scheme and its interaction with the UKIMA principles, recent events have shown the Scottish Government’s views on how the UKIMA exclusions process works. Mark Ruskell MSP asked the Minister for Green Skills, Circular Economy and Biodiversity Lorna Slater MSP on 14 March 2023 whether the Scottish Government had planned for an exclusion for DRS not being agreed. Lorna Slater MSP in response, stated:
That is premature. The Scottish Government has been following, and continues to follow, the agreed process for excluding the DRS regulations from the Internal Market Act…
Whether there is an exclusion is not at the whim of the UK Government. The exclusions from the internal market act are agreed under common frameworks. The frameworks are an agreed process by which the devolved Administrations in the UK protect their powers in respect of devolved matters. The resources and waste framework is there to protect the Scottish Government’s ability to legislate in devolved areas. Under that framework, we have put together the evidence and the case that the matter that we are considering—our deposit return scheme—is fully a devolved matter, which it is. It clearly is a fully devolved matter, and we have presented that evidence through the agreed process to the UK Government.
Euan Page, Head of UK Frameworks in the Scottish Government, during the same Net Zero, Energy and Transport Committee meeting indicated the Scottish Government’s view on the broader implications of an exclusion for DRS not being granted:
…without any further reasoning or reference to the evidence that has been gathered through the common frameworks process—it would represent a very significant threat to the agreed common frameworks process, through which we collaborate as equals with the UK Government and the other devolved Administrations. The repercussions would be significant for a key plank of intergovernmental structures that have been put in place since EU exit.
It is one of the frankly rare examples of things progressing quite well. The frameworks have created a space for more collaboration. Therefore, were we to see a situation arise in which UK ministers declined to use their powers to give effect to an exclusion, we would need to understand with urgency how they came to that view in the light of the common frameworks process recommending that an exclusion should be implemented to remove the confusion and uncertainty that the internal market act is causing.
What’s next for Common Frameworks and the UK Internal Market Act 2020?
It has been several years since the enaction of UKIMA and the initiation of the Common Frameworks programme, but insights into how both are operating have been fleeting and heavily dependent on the discretionary disclosure of information. The Office for the Internal Market, the body tasked with assessing whether the UK Internal Market is operating effectively, published its first annual report on 22 March 2023. This report provides further insights into the interactions between common frameworks and UKIMA.