95.Common Frameworks are required where competences must be shared over a particular matter which is devolved and therefore there must be agreement about policy between Whitehall and the devolved administrations in this area. As an EU member state, the UK as a whole and its component parts individually are subject to EU laws in areas of competence are ceded to or shared with the EU. These laws create EU Common Frameworks establishing common practices across the UK and help maintain a single market throughout the EU. When the UK leaves the EU, the UK will have exclusive competence over these areas and EU law will cease to be applicable within the UK. In order to provide legislative and regulatory continuity as the UK leaves the EU, the European Union (Withdrawal) Act 2018 will import the relevant EU laws into domestic law and preserve EU-related domestic law so that, as far as possible, “the same rules and laws will apply on the day after exit as on the day before”.151
96.The effect of the European Union (Withdrawal) Act 2018 will be that, on the first day after the UK’s exit from the EU, in the areas of competence formerly held by the EU, the law and regulations will be perfectly aligned across the UK. However, according to an assessment carried out by the UK and devolved Governments, 153 areas of EU law intersect with areas of devolved competence.152 In these areas of intersection, it is clearly open to the devolved nations of the UK to legislate differently and, therefore, diverge if they so choose. While divergence in many of these areas will not necessarily be problematic, in other areas it has been recognised that a common approach or a common framework will be required for the whole of the UK or Great Britain, for example in the areas of food safety and hygiene law and food labelling.
97.Through the Joint Ministerial Committee (European Negotiations) (JMC(EN)), supported by inter-working of officials from all four UK administrations, a series of what have been termed “deep dives” have been carried out. The aims were, first, to identify the 153 intersections between EU law and devolved competence; and, second, to assess where common frameworks will be required. The outcome of this work was the identification of 24 policy areas where legislative frameworks may be required; 82 areas where non-legislative frameworks are being explored; and 49 areas where no further action is considered necessary.153
98.The evidence to this inquiry has clearly shown that Common Frameworks in some areas were always going to be necessary after leaving the EU.154 The key questions around Common Frameworks have been, who will determine when they are necessary; how will the Common Frameworks be decided and agreed upon; and what systems will be put in place to regulate the Common Frameworks for the future? Professor McEwen told us that, for Common Frameworks to be effective, it would be necessary to establish a common language and understanding of what the Frameworks, and the systems and the rules relating to them, mean.155 We were also told that any Common Framework regime would have to be able to take account of the potential need in Northern Ireland to be able to maintain not only east-west but also north-south Common Frameworks in areas such as energy supply.156
99.We heard evidence that the appropriate forum for managing Common Frameworks would be the JMC system or whatever inter-governmental system might replace it.157 Elin Jones, Llywydd (Presiding Officer) of the National Assembly for Wales, argued that if the JMCs take on a more prominent role in shaping Common Frameworks, there will be a need to enhance parliamentary scrutiny of these inter-governmental processes.158
100.A point of contention which arose around the European Union (Withdrawal) Bill as it was making its passage through Parliament was whether the UK Government alone would create UK Common Frameworks in areas of devolved competence, or whether they would be mutually agreed with the devolved administrations. The concern expressed by the UK Government was that it had to be able “to protect the UK common market [and] to meet our international obligations”.159 As discussed in Chapter 3, Section 13 of the European Union (Withdrawal) Act allows a UK Minister to make regulations to enable the UK Government to set up Common Frameworks in 24 identified areas. This mechanism was granted legislative consent by the Welsh Assembly, but not the Scottish Parliament. The continued concern of the Scottish Government is that there is nothing in the legislation to prevent the UK Government extending the 24 identified areas, nor to prevent it amending the Frameworks in any way it sees fit.
101.Both the Minister and Lucy Smith, Director General of the UK Governance Group in the Cabinet Office, told us that the Section 12 mechanism would only be used to freeze the regulations for a 5-year period while negotiations on long-term Common Frameworks take place. New, long-term Frameworks would be enshrined in primary legislation, and both this primary legislation and any secondary legislation flowing from it would be subject to the Sewel convention.160 If current EU rules are frozen as UK Common Frameworks through Section 12 regulations, and if after the 5 year period no new Framework or extension has been agreed, then the restriction on the devolved parliaments and assemblies not to legislate in those areas will lapse, as will the UK Government’s commitment not to legislate in these areas for England.
102.The Minister and Lucy Smith told us that there is currently no plan to publish a white paper on Common Frameworks, nor for there to be a coordinated policy for how Common Frameworks will operate.161 Instead, Common Frameworks will be developed on an issue by issue basis and are likely to differ from one competence to another and from one department to another.162
103.Common Frameworks, where competences over a particular matter are devolved and therefore there must be agreement about policy between Whitehall and the devolved administrations, will be an important element of our constitutional architecture once the UK has left the EU. We are pleased to note that there is wide acceptance of the necessity and importance of Common Frameworks. The extensive work done by the UK and devolved Governments in collaboration to identify areas where Common Frameworks will be required is a promising sign of future cooperation.
104.We are, however, concerned that the UK Government does not have a common strategy or policy for how Common Frameworks should operate, and is instead leaving it to different Whitehall departments to develop their own strategies and models. This runs the risk of creating a disparate set of Frameworks with no consistent or coherent rational or operational logic. As these are new systems, it will be challenging enough for civil servants, legislators and end users to come to terms quickly with how Common Frameworks operate. The Government is adding to this challenge by permitting the creation of multiple different systems by different departments and this appears to us to be deeply unhelpful.
105.The Government should seek to develop a coherent policy for the establishment, operation and monitoring of Common Frameworks, which acknowledges the need for parliamentary scrutiny of these frameworks. This should have been set out in a white paper, for members of all the UK’s parliaments and assemblies to examine, but it may now be too late. Instead, the Committee recommends the Government set out a clear set of principles for the governance and operation of Common Frameworks in its Response, or alongside its Response, to this Report.
106.We note the five-year sunset provision in relation to the frozen EU Frameworks. The new systems for discussing, agreeing, monitoring and amending Common Frameworks should be set up as soon as possible so that they will be fully operational before the five-year period is ended. In the short-term, we recommend that either a Joint Ministerial Committee for Common Frameworks be set up or individual Joint Ministerial Committees for departmental areas be established in order that experience of joint decision-making can be built up.
152 FRAMEWORKS ANALYSIS: BREAKDOWN OF AREAS OF EU LAW THAT INTERSECT WITH DEVOLVED COMPETENCE IN SCOTLAND, WALES AND NORTHERN IRELAND
159 David Lidington, United at home Stronger abroad, Speech
Published: 31 July 2018