60.The UK’s future relationship with the EU will require the two governments to work together in ways not foreseen in the original devolution settlement, as they will need to agree high level rules in areas like agriculture and the environment—something previously done at EU level. These are devolved policy areas where, because of the UK’s membership of the EU, some or all of the policy was set by EU law. This means that, despite those policy areas being devolved, there was a limit to how different policies could be in different parts of the UK. Both the UK and Scottish Governments have agreed that post–Brexit there will be a need to maintain some alignment in some policy areas where this is currently achieved by the existence of EU law and have agreed to sign up to UK–wide common frameworks to achieve this.
61.A ‘common framework’ is an intergovernmental commitment to abide by common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition of standards. The UK and devolved governments have agreed that new ‘common frameworks’ will be needed in some areas in order to: support the UK internal market, ensure the UK meets international agreements, manage common resources and deal with cross–border issues.
62.The UK Government published its most recent assessment of where common frameworks might be needed in April 2019. This assessment suggests that of 160 areas where EU law intersects with devolved competence, statutory common frameworks may be needed in 21 areas (mostly in agriculture and environment), and that in 78 areas non–legislative frameworks (non-statutory agreements like concordats or Memorandums of Understanding) may be needed.
63.The UK Government has said the process for agreeing common frameworks would respect the devolution settlements and would be based on existing conventions and practices, including not normally legislating in devolved competence without the consent of the devolved administrations. However, the European Union (Withdrawal) Act 2018 contains powers for the UK Government to temporarily freeze devolved competence and maintain the current limits mandated by EU law (so–called “section 12 powers”), which could be used to prevent the devolved administrations legislating in these devolved policy areas if no agreement on common frameworks can be reached.
64.We heard that there has been a high degree of cooperation between the two Governments in agreeing common frameworks to date. Professors McEwen and Gallagher told us that officials have been working well together, and that there is a high degree of consensus on which policy areas will require common frameworks. Akash Paun, Institute for Government, likewise explained that both sides are “trying very hard to avoid having to use those powers to freeze the devolved powers”. When we discussed common frameworks during our evidence sessions on the Fisheries Bill and the Agriculture Bill, we heard that there is “a very good close working relationship” between the two governments, and that it had been agreed that legislation will not be needed in all of the areas initially thought. Professor Gallagher went as far as to say that it now seems unlikely that these temporary powers will be used, and that the once-feared “‘constitutional crisis’ seems likely to fizzle out”. Michael Russell MSP told us that agreement on common frameworks has so far been reached through productive negotiation and discussion:
I think the frameworks are a rare example of something that we have been able […] to get ourselves at least to an equilibrium. There have been two periodic reports […] Both of those have concluded that there is no need to move forward with a section 12 order in any area[…] I think that has been an area where we have been able to prove that it is negotiation and discussion that will work not imposition.
The UK Government has similarly claimed, the fact that freezing powers have not been used thus far, is evidence that the “cooperative approach on frameworks so far demonstrates the progress that can be achieved through proceeding collaboratively”.
65.We are encouraged that the two governments have cooperated well on developing common frameworks, and that there currently appears to be little prospect of the UK Government using its powers to “freeze” the powers of the devolved administrations. This demonstrates that both Governments can reach agreement through discussion and consultation.
66.Although the two governments have broadly agreed where common frameworks are needed, there is less clarity about how the content of these frameworks will be agreed and how disputes that arise will be resolved. The Royal Society of Edinburgh told us that “currently there is no clear institutional body or arrangement which could effectively facilitate the development and implementation of common frameworks”. The Secretary of State for Scotland agreed that new structures will be needed to manage the UK’s post–Brexit regulatory frameworks and said that the Cabinet Office’s ongoing review of intergovernmental relations is considering this issue.
67.Several witnesses suggest that the Joint Ministerial Committee (JMC)—or a very similar forum—could be used to agree and manage common frameworks. For example, Akash Paun noted that “there is going to be a need for additional JMC–type bodies, whether we call them that or not”. The Royal Society of Edinburgh have suggested that “new JMC type committees” and sub–committee structures should be used to manage and agree common frameworks. These recommendations were supported by Professor Nicola McEwen and in the Centre on Constitutional Change’s 2018 report on reforming intergovernmental relations.
68.Michael Russell MSP, explained that, in its current format, the JMC could not “manage” dealing with common frameworks—for the reasons we outlined in chapter two. However, he felt that the JMC might cope if it were reformed. Chloe Smith MP, Minister for the Constitution, stressed that the UK Government were looking at common frameworks as part of the Cabinet Office’s review of intergovernmental relations; “I would anticipate that that work in turn strengthens intergovernmental relations across quite a significant number of policy areas”.
69.Akash Paun and Professor Nicola McEwen told us that if the JMC format is to be used to reach agreement on common frameworks, it would need to become a decision–making body. However, Professor Jim Gallagher and Michael Clancy noted this would involve “straying quite far away” from the JMC’s original purpose as a forum for communication, consultation and information exchange. The Memorandum of Understanding, states that the JMC is “a consultative body rather than an executive body” which reaches agreements rather than decisions.
70.Concerns were also raised that reaching agreement on common frameworks will be difficult, because the UK does not have a strong history of joint decision making between central and devolved governments, meaning there is no “culture of or institutions for ‘shared rule’ between central and devolved levels”. This problem was first identified following the creation of areas of shared competence in taxation and welfare powers after the 2012 and 2016 Scotland Acts, but we were told the issue had become even more problematic in the context of common frameworks, which will create many more shared policy areas.
71.The Public Administration and Constitutional Affairs Committee has suggested that the JMC could be an appropriate forum for agreeing common frameworks. However, a key point of concern for some of our witnesses was how to introduce a model of decision–making which allows for binding decisions to be reached, but which also respects the democratic mandate and competences of all governments. Professor Jim Gallagher argued:
If we are going to re-engineer [the JMC…] taking the point about the democratic mandate of the parties around the table, it is quite difficult to square that with decision-making[…] The governments may agree to do this or that, but it is not and cannot be an authoritative decision-making body, because each of the Governments have their own democratic mandate[…] I think it would be an error to say that we can set up an intergovernmental machinery that can force one or other of the administrations to do something that they do not want to do.
Michael Clancy, Law Society of Scotland, raised similar concerns about the extent to which binding decisions could be reached:
The worrying thing would be if we got to the point where everything had to have an absolute resolution because then it could just break down in tears all the time, and we do not want the relationships between the UK Government and the devolved Administrations to break down in tears.
72.On the other hand, some witnesses suggested that the solution to this challenge is a relationship whereby both parties are equally invested in the issue and outcome, and both have a “meaningful role to play”, and where decisions are reached by consensus. We heard that overlapping areas of competence are not an uncommon feature of similarly devolved and federal systems around the world. In these examples, this tension is resolved by ensuring co–ownership of the issues at stake, and engaging and negotiating until a joint–decision can be reached—as the Centre on Constitutional Change notes, “comparative examples suggest that co–decision by consensus is not an impediment to agreement being successfully concluded, even among governments with deeply–held divergent territorial interests”.
73.We believe that common frameworks must be agreed through co-decision and by consensus and that disagreements over common frameworks are less likely to arise if a culture of cooperation and trust between the two governments is developed. However, should disagreements arise, we believe recourse to a reformed dispute resolution process of the type we have recommended would help reduce the risk of common frameworks being imposed.
74.We recommend that a new JMC sub-committee on Common Frameworks is established to facilitate the agreement of common frameworks. Within the JMC sub–committee, common frameworks must be co–owned, and decisions in relation to them must be reached by co-decision and by consensus. Where disagreements prove irreconcilable, recourse to the reformed dispute resolution process should be available.
142 Institute for Government, , November 2017
143 UK Government Cabinet Office, , 4 April 2019
144 UK Government Cabinet Office, , 4 April 2019
145 UK Government Cabinet Office, , 4 April 2019
148 Scottish Affairs Committee, ; Scottish Affairs Committee, , 9 January 2019, Q101
149 Professor Jim Gallagher ()
151 UK Government Cabinet Office, , 4 April 2019
152 Royal Society of Edinburgh ()
153 Secretary of State for Scotland ()
155 Royal Society of Edinburgh ()
156 ; Centre on Constitutional Change, , October 2018
162 , October 2013, p. 13
163 Scottish Parliament Information Centre, , February 2018
164 ; Royal Society of Edinburgh ()
165 House of Commons Public Administration and Constitutional Affairs Committee, , 31 July 2018, p. 32; Centre on Constitutional Change, , October 2018, p. 8
169 ; ; ;
170 Centre on Constitutional Change, , October 2018, p. 25
Published: 7 June 2019