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19 February 2020
The Welsh Government is working with the other Governments of the UK to agree new common policy frameworks in areas such as agriculture and the environment following Brexit. This blog looks at why the Governments think we need common frameworks, what forms these frameworks will take, and what progress has been made so far.
Why do the Governments of the UK think we need common frameworks following Brexit?
When the Brexit transition period ends, EU law will be transferred into domestic law and the UK and devolved Governments will be able to make changes to it. This body of law will be known as ‘retained EU law’. In 2017, the UK, Scottish and Welsh Governments agreed they would need to manage policy divergence between the different parts of the UK in some areas currently covered by EU law. They agreed to work together to establish common policy frameworks on the basis of set criteria, including to:
- enable the functioning of the UK internal market, while acknowledging policy divergence;
- ensure compliance with international obligations and enable the UK to enter new international agreements; and
- enable the management of common resources.
The UK Government was still concerned this might not do enough to limit policy divergence. In the EU (Withdrawal) Act, the UK Government gave itself the power to make regulations lasting up to five years to ‘freeze’ the competence of the devolved institutions to pass legislation to modify retained EU law in devolved areas for up to two years after exit day. This was to ensure that no part of the UK could make divergent policy in those areas before a UK-wide common approach had been agreed. No such regulations have been made to date.
What forms will common frameworks take?
The Governments have identified 70 policy areas where retained EU law will intersect with devolved competence in Wales. They have concluded that around 40 of these areas are likely to need frameworks. Where the Governments have decided that no framework will be needed, they will be able to make divergent policy.
Most of the common frameworks are likely to require non-legislative agreements between the UK and devolved Governments. These could include Memorandums of Understanding, concordats or other forms of agreement. The agreements will cover the operation of UK and devolved legislation, but they will not themselves be set out in legislation. For example, the draft outline framework for hazardous substances published in July 2019 says that the Governments are expected to agree a memorandum of understanding setting out ‘principles of engagement … where changes to devolved legislation are concerned’.
Around 20 of the frameworks will include legislation as well. For example, the UK Government has said the fisheries framework could be made up of ‘a limited set of legislative provisions’ as well as a concordat on ‘ways of working, dispute resolution and enforcement processes’. For some policy areas, UK primary legislation will be used. In a letter to the External Affairs and Additional Legislation Committee in December, the First Minister said that UK primary legislation – in the form of the Agriculture and Fisheries Bills – would be required for the agriculture and fisheries frameworks. If the UK Parliament legislates in a devolved area to set up a framework, that legislation will require the Assembly’s consent under the legislative consent convention.
In other areas, secondary legislation will be used. These areas could include animal health, food and feed safety and hygiene, and emissions trading. UK secondary legislation is not subject to Assembly consent. However, the Assembly does have a procedure under Standing Order 30A for scrutinising any UK secondary legislation that seeks to amend primary legislation in a devolved area of competence.
What progress have the Governments made so far?
The Governments have committed to have all the frameworks in place by the end of December 2020. The UK Government’s last progress report on the common frameworks programme was published in October 2019. This states that each framework will go through five phases of development:
- Principles and proof of concept
- Policy development leading to an ‘outline framework’
- Review and consultation leading to a ‘provisional framework’ to be endorsed by ministers from each Government
- Preparation and implementation
- Post-implementation arrangements and reappraisal
Different frameworks are going through this process at different rates. In October, the Welsh Government’s Counsel General and Brexit Minister said he expected outline agreements to be sent to Assembly committees at the end of Phase 2 and formal scrutiny to take place during Phase 3. The draft outline framework on hazardous substances is the only one published so far. This outline includes an overview of the relevant area of EU law and current arrangements; a breakdown of the parts of the policy area where common rules will and will not be needed and any areas of disagreement; an outline of how the framework will operate, including how disputes will be resolved; and a summary of how the framework would be implemented if approved. The First Minister has said that outline draft frameworks for emissions trading, radioactive substances and nutrition are expected early in 2020.
At the same time as developing common frameworks, the Governments are working on the broader issues underpinning the frameworks programme, including how the UK internal market will work and how frameworks will be affected by the UK’s international obligations. In its October report, the UK Government said it was ‘exploring the case for principles and governance structures which could be applied to the UK internal market’. Speaking to the External Affairs and Additional Legislation Committee on 27 January, the Counsel General and Brexit Minister explained that ‘if you have one part of the UK deregulating and other parts seeking to align or build upon EU standards, that will require the frameworks to operate in a particular way’. He added that he hoped that the Joint Ministerial Committee would soon consider how frameworks could respond to divergence between different parts of the UK. A review of intergovernmental relations – looking at issues including how the Governments should resolve disputes – is also ongoing.
In the meantime, the default position remains that EU law will be transposed into domestic law at the end of the implementation period. The Welsh Government has consented to the UK Government making over 150 statutory instruments under the EU (Withdrawal) Act to do this. The Constitutional and Legislative Affairs Committee reported on this process in February 2019.
One important issue for the Assembly over the coming months will be establishing how the legislative and non-legislative parts of the new common frameworks will be scrutinised. The External Affairs and Additional Legislation Committee has now proposed a model for Assembly scrutiny. To learn more, you can read their report and the Government’s initial response.
Article by Lucy Valsamidis, Senedd Research, National Assembly for Wales