Over almost two years, the House of Lords Common Frameworks Scrutiny Committee has been conducting an inquiry into common frameworks. The Committee published its first report of the 2022-23 session entitled ‘Common frameworks: an unfulfilled opportunity?’ on 15 July 2022. The UK Government responded to the report on 1 November 2022.
This blog summarises key findings from the House of Lords report. It also compares its recommendations with those of the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee in its UK Internal Market Inquiry report published on 22 February 2022. Previous SPICe blogs look at what common frameworks are, why it is important for legislatures to scrutinise them, and how they can be scrutinised effectively.
You can use the expandable headings to navigate the blog.
The purpose and delivery of frameworks
The Common Frameworks Scrutiny Committee report states that common frameworks are “a unique and innovative mechanism for developing UK-wide policy by collaboration and consensus” required after the UK’s exit from the EU. It cites former Ministers and officials from governments across the UK who noted that the common frameworks process has been helpful in building relations between different governments. However, as reflected in the title of the report (‘an unfulfilled opportunity’), the Committee suggests that the framework agreements published so far fail to deliver on some of their potential. Two central reasons identified by the Committee are the lack of policy content in frameworks agreements and delays to their publication.
Policy content
The common frameworks principles published in 2017 by the Joint Ministerial Committee on EU Negotiations, state that:
The Common Frameworks Scrutiny Committee notes that over the time in which it has scrutinised common frameworks, “the inconsistent and limited element of policy content within the majority of framework documents has become evident.” In its report the Committee says that only six out of 26 common framework agreements published so far had what they describe as “substantial policy content”. However, the policy content in those agreements cited by the Committee is still limited. For example, the Fisheries Framework is meant to comprise several Operational Agreements setting out common policy directions in greater detail, but none of these Operational Agreements have yet been published.
Delays in the framework programme
The Common Frameworks Scrutiny Committee report also draws attention to significant delays in the delivery of common frameworks. Though frameworks have been operational since the beginning of 2021, most framework agreements were only published in 2022 and five framework agreements are still outstanding. The Committee states that the “delay and inconsistency in delivering frameworks has made it more difficult for relevant committees across the legislatures to plan for and conduct meaningful scrutiny.”
It also notes the anticipated further delay to the publication of outstanding framework agreements and the approval of final versions due to the lack of a current Northern Ireland Executive and thus ”recommend[s] that a solution be found to publish and finalise the outstanding frameworks while there is no properly functioning Northern Ireland Executive. All resources should be deployed within Government to ensure this happens as a matter of urgency.” The UK Government did not accept this recommendation. It argued that framework agreements cannot be finalised without involvement by the Northern Ireland Executive and scrutiny from the Northern Ireland Assembly. However, in its latest intergovernmental relations report published in December 2022, the UK Government says that two further framework agreements “Resources and Waste, and Emissions Trading Scheme […] are currently undergoing
clearances across all four governments so that they can be published”. The Resources and Waste Framework Agreement was published on 19 December 2022.
Post EU-exit legislation
The Common Frameworks Scrutiny Committee concludes that some pieces of post-EU legislation, specifically the Subsidy Control Act 2022 and the UK Internal Market Act 2020 (UKIMA), have challenged the “collaborative working and consensus” it sees as being necessary for the success of common frameworks. The Welsh and Scottish legislatures withheld legislative consent for both pieces of legislation, which were nevertheless passed by the UK Parliament.
The Scottish Parliament Constitution, Europe, External Affairs and Culture Committee notes in its report on the UK internal market that UKIMA has “increased tension within the devolution settlement”. It also states that common frameworks “have the potential to resolve the tensions within the devolved settlement through managing regulatory divergence on a consensual basis while facilitating open trade within the UK internal market.” However, in its most recent report, ‘The Impact of Brexit on Devolution’, the Committee concludes that “there are fundamental concerns which need to be addressed by the Scottish Parliament in relation to how devolution works outside the EU.”
During evidence to the Common Frameworks Scrutiny Committee in 2020, then Scottish Government Cabinet Secretary for the Constitution, Europe and External Affairs, Michael Russell MSP, described the effects of the UK Internal Market Act 2020 (then UK Internal Market Bill) on the relationship between the UK and devolved governments, saying: “The relationship is poor. It is regrettable.” Similarly, his successor, Angus Robertson, giving evidence to the Committee in 2021, stated that “The most critical obstacle to the successful implementation of frameworks remains the interaction with the United Kingdom Internal Market Act.”
Nevertheless, common frameworks are intergovernmental agreements which aim to build consensus and depend on collaboration between governments to enable decision-making. For example, the decision-making processes set out in framework agreements make clear that dispute avoidance is central – with dispute resolution processes only to be used as a last resort and designed to foster consensus. There is therefore a tension between the effects of some of the legislation introduced by the UK Government to manage EU exit and the consensus-driven approach in the common frameworks programme. The Common Frameworks Scrutiny Committee highlighted this tension, concluding that:
Read more about the interaction between UKIMA and the common frameworks programme and a case study on single-use plastics in previous SPICe blogs.
Parliamentary scrutiny and transparency
Both the Common Frameworks Scrutiny Committee and the Constitution, Europe, External Affairs and Culture Committee express concerns about lack of transparency in frameworks and that this may impede parliamentary scrutiny.
Clarity and consistency
In letters to UK Government Ministers, the Common Frameworks Scrutiny Committee have highlighted a large number of drafting errors and unclarities in framework agreements, which have also been noted by committees in the Senedd, the Northern Ireland Assembly, and the Scottish Parliament. These issues around clarity have the potential to make it more difficult for stakeholders to engage with frameworks.
The Constitution, Europe, External Affairs and Culture Committee’s UK Internal Market report echoes concerns about a lack of clarity and transparency. It cites examples of organisations reflecting on their engagement with common frameworks, including Alcohol Focus Scotland which told the Committee that in their view, which it said was “shared by other third sector public health organisations”, common frameworks are ”really opaque”, which makes them ”extremely challenging for a third sector organisation to engage with.”
In response, the UK Government stated “that review processes should be streamlined and strengthened to reflect lessons learned, and indeed Cabinet Office already has, in partnership and agreement with the devolved government central teams, recently amended, through the Common Framework Project Board, our review processes.”
Confidentiality requirements
Common frameworks are intended to facilitate intergovernmental discussion and decision-making in devolved policy areas. Having information about those discussions and decisions is an important component of facilitating parliamentary scrutiny. However, information published so far on discussions held in framework forums tends to be limited and some common framework agreements include confidentiality requirements, which limit what information can be made publicly available.
In evidence to the Common Frameworks Scrutiny Committee, Professor Nicola McEwen, Professor Daniel Wincott, Professor Katy Hayward, Professor Catherine Barnard, and Professor Stephen Weatherill highlighted that some frameworks include ”unnecessary conditions of confidentiality” and stated that “while it is important to provide some private space for free and frank discussion between administrations, especially at the early stage of policy development, we believe that the balance between confidentiality and openness tilts too much towards the former.”
The Constitution, Europe, External Affairs and Culture Committee has stated that taking policy decisions at an intergovernmental level through framework forums may “undermine [the Scottish Parliament’s] ability to develop procedures which make possible a participative approach to the development, consideration and scrutiny of policy and legislation.” The Institute for Government state in their written submission to the Committee’s inquiry on the UK internal market that the increase in inter-governmental working, including through common framework forums, “poses challenges for legislatures aiming to hold their governments to account” because “the lack of transparency over the content of the discussions and negotiations between the government means fewer opportunities for influence.”
Reporting
Legislatures across the UK have noted a lack of reporting requirements in common framework agreements. For example, though framework agreements include regular reviews of how frameworks are functioning, they typically do not require that information about those reviews is published and only one agreement states that reviews will “involve engagement with relevant legislature committees and other stakeholders, as considered proportionate”.
The Common Frameworks Scrutiny Committee emphasises the importance of reporting mechanisms to enable parliamentary scrutiny. Specifically, it recommends that “the process for ongoing reporting to the legislatures on the operation of common frameworks be developed as a matter of urgency.” The Constitution, Europe, External Affairs and Culture Committee states that “In order to provide clarity and certainty there needs to be a formal agreement with the four legislatures across the UK that each government will provide detailed information on the outcome of common framework discussions which impact on significant policy areas […]”.
The Welsh Government has committed to reporting on the functioning of common frameworks to the Senedd. The Constitution, Europe, External Affairs and Culture Committee has called for a similar agreement between the Scottish Parliament and Government. The UK Government accepted three of the Common Frameworks Scrutiny Committee’s transparency recommendations and states:
In response to a recommendation to update relevant parliamentary committees after framework reviews by the Common Frameworks Scrutiny Committee, the UK Government said it agreed but that it “will be for legislatures’ individual committees to work with Government to agree specific ways of working for providing updates a specific Common Framework and its policy area.”
Annie Bosse, SPICe Research