On 16 July 2022, the House of Lords Common Frameworks Scrutiny Committee (CFSC) issued its Second Report on the Common Frameworks. This post summarises the Report’s principal findings and reflects on the future role of the Common Frameworks in the management of domestic intergovernmental relations post-Brexit.
The Common Frameworks Programme was established by joint agreement of the UK, Scottish and Welsh governments in October 2017 (the Northern Ireland Government collapsed in January 2017 and was therefore not at that point engaged) (see 2017 Communiqué). As the CFSC’s latest Report reiterates, Common Frameworks exist to manage future policy divergence between the four administrations of the UK in areas of devolved competences following the UK’s departure from the European Union. The domestic regulatory challenge is a new one. During the UK’s membership of the EU, coordinating policy between the governments of the UK, Northern Ireland, Scotland and Wales in areas of devolved competence was largely unproblematic. Membership of the EU internal market established common standards, minimising space for regulatory divergence in all policy fields falling with the scope of Union law (para. 10).
An initial UK Government trawl of policy areas where devolved competence intersected with EU law had produced a list of 154 potential areas for collaborative common frameworks. Far fewer have subsequently been determined as requiring a framework, and only a small minority of these involve a statutory framework for cooperation. The CFSC’s Second Report is expressly conceived as a first attempt to evaluate the 32 Common Frameworks adopted since the 2017 Communiqué was agreed (para. 2). 26 of these Frameworks are now published (see Appendix 6). They cover such matters as food labelling and compositional standards; agricultural support; public procurement; chemicals and pesticides; air quality; food and feed safety; hazardous substances; motor insurance and plant health. All but one of the agreed frameworks (on hazardous substances) remains provisional, the timetable for their production and Parliamentary scrutiny having slipped dramatically. Nonetheless, they have for the most part been operational since the end of the implementation period which followed the UK’s exit from the EU. Six of the Frameworks apply solely to relations between the UK and Northern Ireland; the remainder address all four administrations. Frameworks outline the processes for policy cooperation, as well as how policy divergence is to be managed. Where when one part of the UK wants to use its legislative powers to introduce changes to its regulations, Common Frameworks set out the route map to consider whether the proposed changes fall within acceptable parameters for divergence.
The CFSC remains fully committed to supporting the development of Common Frameworks as regulatory instruments to manage policy divergence across the UK. Repeating its conclusions in its First Report (March 2021), the Committee views the Common Frameworks as ‘a unique and innovative mechanism for developing UK-wide policy by collaboration and consensus’ (paras 8, 20). Further, those frameworks are considered to exhibit ‘singular potential to strengthen cooperation between the [four] administrations which is essential to maintaining the Union.’ Measured against such robust baselines, the Committee’s Report details a series of concerns regarding the evolution of the Common Frameworks Programme thus far. The CFSC’s analysis is also underpinned by a sense of untapped potential, or as the Report puts it, the ‘unfulfilled opportunity’ of Common Frameworks as instruments for intergovernmental cooperation post-Brexit.
A full summary of the CFSC’s findings is available here (pp 3-4). In this short post, we would direct attention to the following headline conclusions:
- The Report identifies an important shift in purpose with respect to the adoption of Common Frameworks from the ambition suggested for them in the 2017 Communiqué. Rather than harmonising policy, Frameworks are primarily process-orientated, with a focus on agreeing working practices between administrations. They are mechanisms for governance, rather than outputs in themselves. On the CFSC’s analysis, meaningful policy content is absent in 18 of the 26 published Frameworks. The Report views this development critically and recommends that the four administrations update the 2017 Communiqué to reflect their ambitions for future intergovernmental cooperation under the Common Frameworks, ideally scoping out a greater role for agreed policy direction (paras 31, 32).
- The Report raises significant concerns around coordination, consistency, quality and transparency. Much of the criticism is traceable back to the fragmented approach to managing the Common Frameworks across central Government. Moving forward, the CFSC recommends that the Cabinet Office should retain sole responsibility for centralised coordination ‘to maintain profile, credibility and coherence’ (para. 133). Presently, responsibility to lead on specific Common Frameworks is vested in individual departments with ministerial oversight recently transferred to the Department for Levelling-Up, Housing and Communities. The Report also calls for the Cabinet Office to assume primary responsibility for ensuring that Common Frameworks comply with the Joint Ministerial Committee for EU Negotiation Principles (JMC Principles) agreed on 16 October 2017 (para 39).
- Unsurprisingly, the Report isolates the United Kingdom Internal Market Act 2020 (UKIMA) and Subsidy Control Act 2020 as primary threats to the effective operation of the pre-existing Common Frameworks Programme (para. 51). The UKIMA, in particular, is considered to undermine the cooperative and consensus-based approach to managing regulatory divergence under the Frameworks. It does so principally by subordinating agreed Common Frameworks to the market access principles set out in sections 2 and 5 of that Act.
But it is not all negative. The Report also points more favourably to a number of developments since its initial Report in May 2021. We highlight three examples:
- First, the Report welcomes the publication of details on how the UK Government will exercise its powers under sections 10 and 18 of the UKIMA to exempt agreements reached under individual Common Frameworks from the application of the market access principles set out in that Act. The applicable process is presently set out in a Ministerial Statement dated 10 December 2021 (see earlier post by Armstrong). The CFSC recommends that these guidelines are fully integrated into individual Common Frameworks and, further, are applied in full cooperation with the devolved administrations (para. 70). The first use of these exclusionary powers has now been made for the Scottish Government’s ban on single-use plastics. (The Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021).
- Secondly, the Report praises the successful modelling of regulatory divergence under the Northern Ireland Protocol. The Report cites the example of ‘stress-testing’ the impact of changes introduced at EU and domestic levels, respectively, on the operation of the Common Framework on Nutrition, Labelling, Composition and Standards. The CFSC recommends that similar exercises are conducted to test all Frameworks that intersect with the Protocol (para. 103).
- Thirdly, the Report recognises progress towards the development of new processes to manage intergovernmental cooperation and strengthen Union capacity within Whitehall (para. 87). The Report also distinguishes the contribution of the UK Government’s 2021 Frameworks Analysis, which improves transparency by introducing justifications to support decisions not to adopt Common Frameworks in specific policy areas (para. 170). The CFSC recommends that future Frameworks Analyses (completed annually) bolster transparency further by including references to JMC principles when justifying determinations not to develop Frameworks (para. 171).
Reflections: Waiting for Dust to Settle
As the CFSC outlines, Common Frameworks are a ‘crucial, yet largely overlooked, aspect of the UK’s withdrawal from the EU’ and the ‘result of the consequential need for changes to the governance of the UK,’ notably the management of the UK internal market (p. 3). The Committee’s Second Report provides the first comprehensive assessment of how these instruments are evolving as new modes of domestic intergovernmental cooperation in the context of broader administrative, legislative and political challenges. This is important work, enhancing our understanding of the still rather opaque world of Common Frameworks. We very much welcome the decision of the House of Lords Liaison Committee to extend the CFSC’s scrutiny activities until the end of 2022 (para. 196).
The underlying challenge to which the Common Frameworks seek to respond is one of regulatory design. Do we manage prospective regulatory divergence between the four administrations of the UK post-Brexit by cooperation and consensus, or do we opt for a command and control approach managed by the UK Government? The Common Frameworks speak to the former model; subsequent legislative interventions (notably the UKIMA) to the latter. It remains as yet unclear where the dust will settle. Despite recent progress (captured in the CFSC’s Report), we have not yet reached the Archimedean point at which it is possible to judge whether the Common Frameworks will become a permanent feature of the new institutional architecture governing domestic intergovernmental relations or end up as a transitory experiment forever associated with Brexit. The evolution of the Frameworks as process-orientated mechanisms for governance (rather than outputs in themselves) is an important factor when considering their lasting constitutional significance.
The tension that characterises the current hybrid framework is a product of the outgoing Johnson administration. That administration subordinated the initial cooperation and consent approach to managing regulatory divergence across the UK (Common Frameworks) to one of far greater centralised control by the UK Government (UKIMA and Subsidy Control Act). The arrival of a new government at Westminster provides a fresh opportunity to rebalance approaches. On the one hand, this is unlikely to precipitate the repeal of (or substantive amendment to) legislative instruments such as the UKIMA that marked a shift in favour of greater centralised control. On the other hand, however, a change of leadership at Westminster does open up space to improve the politics of intergovernmental relations. The CFSC’s Report attaches considerable weight to the further improvement of relations between the UK Government and the devolved administrations. Indeed, this is ultimately how it seeks to bridge gaps between Common Frameworks and the UKIMA. For the CFSC, centralised control should be engaged with maximum respect for cooperation and consent on the part of the devolved administrations (eg para 69 on the application of UKIMA exclusions). We echo the Committee’s conclusions on that point. In practice, this ought to result in the UK Government routinely exercising its discretion to exempt substantive Common Framework provisions from the UKIMA’s market access principles.
Further developments will also determine the legacy of the Common Frameworks. The CFSC Report reflects on the impact of the Northern Ireland Protocol Bill on their effective operation (for discussion, see Chapter 4). But on other challenges it is silent. There is, for instance, no discussion of the potential impact of future changes to the status of retained EU law under the European Union (Withdrawal) Act 2018. As the case studies in the CFSC’s Report illuminate (eg p. 33), retained EU law features prominently in Common Frameworks. If the next UK Government pushes ahead with plans to relax the process for reforming retained EU law, it should do so in a way that acknowledges the agreed processes for managing any changes to the law by any one of the governments of the UK. Sidelining them risks further undermining the opportunities for Common Frameworks to fulfil their potential. The House of Commons EU Scrutiny Committee’s Report on the Future of Retained EU Law (21 July 2022) recognises the importance of retained EU law in relation to Common Frameworks (para. 160). It ‘urges’ the UK Government to engage early on and proactively with the devolved administrations to anticipate the complex issues involved (at para. 177). We fully agree.
Our thanks to Professors Alison Young and Michael Gordon for their helpful comments on the initial draft of this post.
Thomas Horsley, Reader, University of Liverpool
Jo Hunt, Professor, University of Cardiff
(Suggested citation: T. Horsley and J. Hunt, ‘In Praise of Cooperation and Consensus under the Territorial Constitution: The Second Report of the House of Lords Common Frameworks Scrutiny Committee’, U.K. Const. L. Blog (26th July 2022) (available at https://ukconstitutionallaw.org/))