15 March 2018
At the fifth Joint Ministerial Committee (EU Negotations) (JMC (EN)) on 16 October 2017, the UK Government and the devolved governments agreed a set of principles governing the establishment of UK-wide common frameworks in some policy areas which fall within devolved competence but are currently governed by EU law. The Communique (PDF, 71.8KB) issued after the meeting states:
A framework will set out a common UK, or GB, approach and how it will be operated and governed. This may 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. Frameworks may be implemented by legislation, by executive action, by memorandums of understanding, or by other means depending on the context in which the framework is intended to operate.
The Communique also states that it will be the aim of all parties to agree where there is a need for common frameworks and the content of them.
The UK Government later identified 64 areas (PDF, 18.8KB) where EU law intersects with devolved powers in Wales and in which common frameworks might be created.
With regards to the work carried out by the JMC(EN) on possible frameworks in these areas, Mark Drakeford, the Cabinet Secretary for Finance, told the External Affairs and Additional Legislation Committee (EAAL) on 5 March:
A really significant amount of work has been invested by all three Governments through officials in that work. I think what we would say is that it demonstrates that by doing things by agreement—everybody coming to the table, everybody having responsibilities that they hold and everybody being willing to pool those responsibilities in pursuit of a sensible way through—we are demonstrating every day that we can make that work.
The Cabinet Secretary also told the EAAL Committee that the Sewel Convention should apply to the establishment of frameworks:
…if a framework is agreed and it gets to a point where we think that it could be signed off between Governments, the legislatures ought to have a say about that too. And if it’s a UK Bill that we all agree should be the mechanism, then that should have the assent of the National Assembly to going ahead in that way.
UK Government Analysis
On 9 March the Cabinet Office published a document (PDF, 197KB) setting out the UK Government’s provisional assessment of where common frameworks in areas of EU law within devolved competence might be required after Brexit. According to the UK Government, the analysis is ‘a working document, designed to inform engagement between officials in the UK, Scottish and Welsh Governments and the civil service in Northern Ireland.’
The analysis covers 153 different policy areas, including agriculture, fishing, food standards and environmental policy, and is divided into three categories, which can be summarised as follows:
- 49 areas where no further action is required;
- 82 areas where non-legislative frameworks may be required;
- 24 areas where legislative common framework arrangements might be needed.
Moreover, the analysis also includes 12 policy areas that the UK Government believes are wholly reserved but which are currently subject to ‘ongoing discussion’ with the devolved governments. These include protected food names and state aid.
The Cabinet Office press statement published alongside the analysis states:
The document published today by the Cabinet Office makes clear that the vast majority of these policy powers are now intended to be in the full control of the devolved governments from day one of Brexit.
With regards to the 24 areas that are expected to require legislative frameworks, and as a result will mean that these areas will be outside the powers of the devolved legislatures, the UK Government claims that this is a:
…temporary restriction on the devolved governments using some of these new EU powers is to help ensure an orderly departure from EU law and to provide certainty to UK businesses while new legislative frameworks are agreed.
In terms of Wales, the UK Government has identified 24 policy areas within Welsh devolved competence where there is the potential need for UK-wide legislative frameworks. These 24 areas include agricultural support, fisheries management and support, animal welfare, pesticides, food labelling and food safety, and plant health.
Welsh Government Response
In a written statement published on Wednesday 14 March, Mark Drakeford, Cabinet Secretary for Finance, highlighted the fact that it is a UK Government document:
…it had not been agreed with us and does not represent Welsh Government views. We will be considering the document in detail and working with the UK Government, the Scottish Government and the Northern Ireland Executive to overcome any differences where we can.
In response to the UK Government’s statement that ‘the vast majority of powers returning from Brussels will start off in Edinburgh, Cardiff and Belfast’, the Cabinet Secretary for Finance said:
Language around devolving “significant brand new powers” is misleading and unhelpful. These powers are not being handed to the National Assembly, they are already here.
Furthermore, the Cabinet Secretary stated that the overall number of areas in each group are ‘largely meaningless’:
…. because areas such as ‘Agricultural Support’ and ‘Fisheries management and support’ are significantly broader and have a greater impact on devolved competence in Wales than important, but narrower, areas such as ‘electronic road toll systems’ and ‘blood safety and quality’.
Scottish Government Response
In a letter to all members of the Scottish Parliament, dated 12 March, Mike Russell, the Minister for UK Negotiations on Scotland’s Place in Europe, said that the Scottish Government are not opposed to UK-wide frameworks in areas where they are in Scotland’s interest but that they should not be imposed without the agreement of the Scottish Parliament. The Minister also called for changes to be made to the Withdrawal Bill that ‘put it beyond doubt’ that the agreement of the devolved legislatures will be required in passing primary legislation to establish frameworks.
Like the Welsh Government, the Scottish Government has concerns about some of the areas identified as being wholly reserved. The Scottish Minister said:
The UK Government also claims that areas such as Geographical Food Indicators and State Aids are reserved, though both devolved administrations dispute that and the previous version of the list did not make that assertion…In addition the UK Government has confirmed to the devolved administrations that it may bring forward further subjects not presently on the list as published if it deems it necessary.
Article by Manon George, National Assembly for Wales Research Service