Common frameworks: completing the constitutional puzzle?

Published 08/12/2021 | Reading Time minutes

The UK and devolved governments have been negotiating common frameworks for managing divergence in law and policy outside the EU since 2017. Common frameworks are generally agreements setting out how the governments will work together and make decisions about future law and policy.

The Counsel General, Mick Antoniw MS, has now told the Senedd that the final sticking points in these negotiations have been resolved, so most common frameworks will shortly be brought forward for scrutiny in all four UK legislatures.

Why are the governments negotiating common frameworks?

Now that the Brexit transition period is over, the UK and devolved governments can take different approaches in policy areas previously governed or coordinated at EU level, like food safety and air quality.

In 2017, the governments decided that they wanted to manage divergence in some of these policy areas – for example, to reduce the risk that unintended barriers to trade could develop or to allow the UK to negotiate international agreements. To do this, they decided to set up ‘common frameworks’ in certain policy areas according to a set of six criteria.

The UK and devolved governments have plans for 26 common frameworks in areas devolved to Wales. Initially, they wanted all frameworks to be finalised by the end of the transition period on 31 December 2020. However, the programme was delayed because the governments were still negotiating on key questions about how they should work. So far, only eight provisional common frameworks in areas devolved to Wales have been published.

In November, the Counsel General told the Senedd that the governments had reached agreement on the remaining issues in the negotiations. He said the governments would be publishing most provisional frameworks this month, including updating those already published. The four UK legislatures will be able to scrutinise provisional frameworks before they’re finalised.

How could frameworks change what the Senedd and Welsh Government can do?

When the governments agreed to develop common frameworks, they said that they could consist of:

… common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued.

The UK Government has published a series of analyses setting out when frameworks should be established.

Common frameworks are generally presented as non-legislative agreements between the four governments, setting out how they will work together and decide when to follow the same rules and when to diverge. Legislation in a common framework area can also contribute to creating a common approach, for example by granting Ministers concurrent or equivalent powers, requiring the governments to work together, or setting common goals.

For example, when the UK was in the EU, the European Commission was responsible for authorising new nutrition and health claims (such as saying a product is low fat). The UK Government made regulations under the EU (Withdrawal) Act 2018 to transfer this power to the Welsh Ministers, or UK Ministers with their consent. The provisional nutrition framework sets out that applications for new claims should be considered by a group of officials from all governments. Officials will consider whether the governments should take the same or different approaches and submit a recommendation to Ministers. If Ministers can’t agree an approach, a dispute resolution process is invoked. If the dispute can’t be resolved, it will be referred to the dispute resolution process set out in the Memorandum of Understanding on Devolution. This process is currently under review.

Because common frameworks require the governments to discuss and agree approaches, they may act as a practical constraint on the ways that the Senedd and Welsh Government can exercise their competence. This means it’s important for the Senedd and stakeholders to understand how common frameworks are working in practice. In the Fifth Senedd, the Welsh Government committed to report annually on the common frameworks programme and to notify the Senedd when legislation relates to a common framework. The Counsel General also confirmed this November that the governments had all committed to future reporting on frameworks.

How will common frameworks interact with the UK Internal Market Act 2020?

The governments agreed in 2017 that common frameworks should be established where needed to ensure the functioning of the UK internal market, to prevent unintended barriers to trade from developing between different parts of the UK.

However, the UK Government was concerned that common frameworks wouldn’t be enough to do this. In December 2020, the UK Parliament passed the UK Internal Market Act. This sets new market access principles in law. These principles are intended to ensure that goods, services and professional qualifications sold or recognised in one part of the UK can be sold or recognised in another part.

The market access principles could limit the effect of changes to the law in Wales, even if those changes are agreed through a common framework. For example, the provisional food compositional standards and labelling framework provides for the governments to discuss when to follow the same rules and when to diverge on food labelling law. Food labelling law is likely to fall within scope of the mutual recognition principle for goods. So the governments could agree to set different food labelling standards in Wales through the framework. However, the mutual recognition principle would mean that food products permitted or imported into one country could still be sold in Wales, even though Welsh food producers would still need to comply with the labelling standards set by the Welsh Government.

The Act allows the UK Government to create exclusions from the market access principles to give effect to an agreement reached through a common framework – but it doesn’t have to do this. The Counsel General has said that the governments have now agreed a process for how such exclusions should be agreed. It’s not yet clear what that process will involve.

How will common frameworks take account of international obligations?

The governments also agreed in 2017 that common frameworks should be established to ensure compliance with international obligations and enable the UK to negotiate new international trade agreements.

Now that the UK has left the EU, the UK Government is responsible for negotiating international agreements in areas where the EU previously did this on its behalf. The devolved governments are responsible for implementing UK international obligations in devolved areas.

Some common frameworks set out how the governments will be able to work together on the UK’s international obligations. For example, the provisional nutrition framework says that the governments must consult and inform one another on their implementation.

The framework says that England’s Department of Health and Social Care will be responsible for formulating foreign policy on nutrition, but will involve the devolved administrations fully and look to agree a stance ”where possible”. This text is marked as not yet agreed.

In November 2021, the Counsel General confirmed that the governments had reached agreement on how common frameworks should interact with “international relations and the Northern Ireland Protocol”.