Common Frameworks (Common Frameworks Scrutiny Committee Report)

Baroness Andrews Excerpts

Thursday 2nd February 2023 Lords Chamber

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[Baroness Andrews]

That this House takes note of the Report from the Common Frameworks Scrutiny Committee Common frameworks: an unfulfilled opportunity? (1st Report, HL Paper 41).

[Baroness Andrews (Lab)]

My Lords, I am grateful for the opportunity to debate the latest report from the Common Frameworks Scrutiny Committee and the Government’s response. I have been privileged to chair this extraordinarily distinguished committee for more than two years and continue to be grateful for the expertise, the decades of experience across the UK and the wisdom that the committee brings. It is wonderful to see our previous member, the noble Lord, Lord McInnes, with us today—people find it very difficult to leave the Common Frameworks Scrutiny Committee. I know that every member of the committee would have wanted to take part but it is a difficult day and we have been entrusted with speaking for the rest of the committee today.

When we published our first report in March 2021, on building a co-operative union, we were optimistic that the potential of the common frameworks would be more clearly realised by our second report, which was published last July. We have made some progress—I want to acknowledge that in relation to the Government as well—but there are many outstanding issues. That is why the title, Common Frameworks: An Unfulfilled Opportunity?, carries a defiant question mark. That question mark is critical because, while common frameworks certainly hold potential to build a more resilient, innovative and equal union, the odds seem to be stacked against them at the moment. This is an opportunity we simply cannot afford to lose.

Our own committee has had a rather precarious experience. We mirror the common frameworks history. We have been extended twice—unusually—and now for a third time. I thank the noble Lord, Lord Gardiner, and the Liaison Committee for enabling us to continue our work and for the continuity of support that we have received. This gives me an opportunity to thank the outstanding staff we have had. In this report, we had Moriyo Aiyeola, Holly Woodhead and Glenn Chapman; our current team is Clayton Gurney, Lucy Molloy, Nick Boorer and Jilly Luke. They are absolutely wonderful, all of them. Jilly has left us for pastures greener—absolutely—because she is going to work for the Horticultural Committee. I thank them all for their dedication and expertise.

I thank the different Ministers. We have engaged with a huge range of Ministers and civil servants across the UK because common frameworks touch on practically every aspect of public life and public policy. I also thank, of course, the Senedd, the Scottish Parliament, the Northern Ireland Assembly and the civil servants. We have worked together very closely; I look forward to us going on doing that.

I return to the report and the exam question: why do we assert so firmly that the potential of the common frameworks is at risk? I will start at the beginning. In 2017, in the post-Brexit landscape, there was widespread recognition that the common frameworks programme was crucial to maintaining the stability and health of the UK internal market. The frameworks were due to be agreed and fully operational by the end of the transition period. They should have contained substantial policy content. The fact is that they have not fulfilled that promise; they have become vehicles for process. The sad fact is that our report reveals not just a failure of process itself; they have also fallen victim to political hostilities.

Failures of process have been evident in the continuing collapse of the timetable. There are still five frameworks outstanding after three years. There have been failures in standards and consistency, so much so that we had to devote an entire chapter to them. So uneven is the quality and so complex are some of the structures that have been created to replace the EU structures, and so many gaps and inconsistencies are there, that we have had to devote the chapter simply to quality assurance. It is symptomatic of deeper failures—not least a hollowing-out of Whitehall, a lack of prioritisation of resourcing available to the programme, and the continuing failure of transparency, which we have harped on about so much, and of effective stakeholder engagement. That has meant that a limited selection of people, fewer in some frameworks than others, have been engaged, and therefore they have been unable to have an influence, even though they will bear the impacts. That could be in relation to protecting the environment from harm from pollutants, ensuring that professional qualifications are recognised across the UK, or air quality.

A second set of failures is political: ones that are firmly in the control of government. They include, for example, a consistent refusal to require that each framework is scrutinised by Parliament once the initial framework is agreed. That is where the divergences, gaps and contradictions will be played out, when the frameworks are in development. It is a fundamental failure of accountability and foresight. There has been a dilution of purpose—a failure to follow through on the original principles that would have enabled the common frameworks to pursue coherent policies, as well as ensure consistency of process. Those political failures sit like Russian dolls within a wider set of challenges, which include legislation which by default or design has damaged relationships between the four nations across the UK. They have certainly challenged the spirit of collaboration in the frameworks. Those issues cover the Northern Ireland protocol, the interaction of the common frameworks with the internal market Act, and the decision to move responsibility for the union from the centre of government to a single department. All have serious consequences for common frameworks; indeed, the Northern Ireland situation has been the source of so much chronic delay that we have just described it as a casualty of the political fallout in Northern Ireland.

The internal market Act aimed a direct blow at the common frameworks, salvaged only by the amendment put forward by the noble and learned Lord, Lord Hope, which gave the Secretary of State the power to create exemptions for common frameworks from the operation of the Act that would have, in effect, rendered the dispute arrangements of the common frameworks redundant and created avoidable conflicts between the four Administrations. It was a vital safeguard, hard won in this House; it should be explicit within a framework. We also recommended in our report that every framework should be updated to include a consistent and transparent process for agreeing areas where the power will be used.

Finally, there is the vexed question of who should be responsible in government for common frameworks. It is an extraordinary question, which should not need to be asked at all. It is simply bizarre that the function of the United Kingdom as a whole does not simply sit as a matter of course and principle within the Cabinet Office, with a dedicated Minister. Common frameworks are now caught between DLUHC and the Cabinet Office—an improvisation that has led to ineffective central co-ordination, overly complex structures and a lack of focus.

How have the Government responded to our report? I am pleased that the Government have accepted 13 of our 22 formal recommendations, and I welcome the tone in which they responded, which was generous and warm in many respects. They have also agreed in principle to another five, while four have been rejected, which relate to the following policy areas: the process for agreeing not to create a common framework for a policy area, the Northern Ireland protocol, and the machinery of government. I remain unconvinced by the arguments for rejection.

With regard to the recommendations that have been accepted, we have reached agreement on many of the issues, but there is an outstanding mass of detail still to be resolved and confidence to be won. While it is good to have on the record that the Government agree with our overall finding that the common frameworks programme is an important part of devolution and needs to be properly embedded, will the Minister provide a definite timetable for the publication of the outstanding frameworks?

Secondly, the Government have taken the point that there is huge room for improvement in quality and consistency. How is this going to be achieved? Where will we see the resources and oversight that need to be available to those teams in government to ensure that the frameworks are up to scratch?

Thirdly, while the Government have again accepted the recommendation that stakeholders should be routinely consulted and engaged, how is this being actioned? When will we see the results?

Fourthly, with regard to the internal market Act, the Government have agreed in principle that the option of exclusion should be explicitly referred to in every framework, subject to the agreement of the devolved Administrations. I understand that this is a sensitive area, but it is also urgent. Conversations are going on; can we be informed about their nature and updated on them? In fact, since the report, the exclusions process has been invoked by the Scottish Government for the first time through the resources and waste framework in respect of single-use plastic items. The Government said that they would build on that, so can we have some information on how they are building on it and how improvements will be identified?

We also welcome the fact that the UK Government have accepted our recommendation that an ongoing reporting mechanism needs to be developed as a matter of urgency. We have been promised that details of that will be provided to Ministers through the interministerial standing committee in the coming months. Please can we have that timetable?

Finally, I come to two outstanding and vexatious issues which impact on common frameworks. Both are part of the legacy of Brexit. With regard to the Northern Ireland Protocol Bill, while the Government accepted our report’s recommendation that they should carefully consider how the Bill could impact the operability of common frameworks, many questions remain unanswered. Again, I appreciate the sensitivity of this, but, if the Minister could say anything about how this might be facilitated in the near future, it would be much appreciated. I also reiterate the importance of engagement with the Irish Government on the common frameworks programme. Our recommendation for closer engagement was rooted in what seemed to be inconsistent practice across government. I would be very grateful to hear what engagement has been taking place with the Irish Government.

Finally, I come to what I think is an existential threat to the survival of the common frameworks: the REUL Bill, which is designed to remove all extant EU secondary legislation retained in law. Our report was published before the Bill reached Parliament and specifically recommended that the UK Government should consider how legislation they bring forward might impede the operation of common frameworks and affect the health of the union. The UK Government “partially” agreed with this—it is baffling that they could say that—but it is quite clear now, in any case, that this has been completely contradicted. The point is that most common frameworks are underpinned by aspects of EU retained law. The powers that are given to Ministers in this Bill, which we will debate on Monday, to retain, revoke or amend any of the 4,000 SIs within its scope are absolute. How can the Bill’s intentions be reconciled with the Government’s assertion to us that they are committed to the proper use of common frameworks?

The Government say that common frameworks will be exempt from the draconian sweep of the law, but, given the number, range and interrelationships of these SIs, which form the scaffolding of the common frameworks, it is impossible to guarantee this. The range of SIs involved in common frameworks cross agriculture, the environment, health and safety, air quality, carbon emissions, blood products, agricultural processes, plant health, transport of radioactive substances, professional qualifications, waste and resources, and much more. These SIs cross the UK, and they are the statutory underpinning of the internal market. Even if the processes were properly resourced and time was allotted to this in government for civil servants to really trawl through these massive amounts of legislation and work out what should be retained, what can be revoked, where the devolved powers and the devolved countries fit in and what they will be affected by—even if there was the time and the respect to do that, it would be challenging in the extreme. As it is, there is an enormous risk that complex and subtle work cannot be done and that SIs will be accidentally overlooked and swept up in the cliff edge of the end of the year, and nothing is planned to take the place of that scaffolding. Tearing down this legal structure leaves, frankly, as far as I can see, nothing but anarchy.

I think I am right to conclude that the Bill presents a direct and unacceptable risk to the programme, and to the health of the union. This aspect of the Bill was not shared with Ministers in Wales or Scotland, and they have advised that legislative consent will be withheld. The Northern Ireland Executive are, of course, in no position to give their view on the Bill because they are not in operation.

It is essential that, before we come to Second Reading, the Minister can tell us how the Government intend to proceed with the Bill, which deeply impacts the devolved Administrations without their consent. Is this really an acceptable way to conduct business across the UK? Does the Minister seriously believe that common frameworks can successfully operate alongside the Bill, especially as, despite the Cabinet Office’s earlier assertion that it accepted our recommendation that it should hold this programme firmly and exclusively, it has changed its mind about that too?

Despite everything, I will end a bit more optimistically. I think that the Government are committed to the importance of common frameworks and see their role in maintaining and enhancing the union, but there is a real risk to its health and stability. I would be very grateful to have as much information as possible from the Minister. I thank my colleagues on the committee again for making a great effort to be here today.

--- Later in debate ---

[Baroness Andrews (Lab)]

My Lords, I thank the Minister for that splendid response. It was warm, sympathetic and very positive about the common frameworks, and it answered some of the questions we raised in as much detail as we could have expected in most cases. We will obviously read what she said, but I have to say it was in marked contrast to the response we had to the last report. I know she is multitasking, but it demonstrates the strength of that interconnectedness across government, and I thank the officials who have supported her today.

We want to read carefully what the Minister said. One really important question that she did not answer was on the REUL Bill. As she recognised, it is a herculean task. There is no capacity—and the Welsh Government would forgive me for saying this—for doing the job. They would be heavily dependent on Whitehall, and there would be enormous scope for mistakes and accidents. We need to know whether the Government are aware of the timetable—if it does in fact finish on 31 October—which is something that may be raised on Monday. It is an added complication and stress on the Welsh Government.

Much of what the Minister said about the sharing of responsibility between the Cabinet Office and the departments is absolutely sensible. However, it does not take away the sense of urgency we have that, if this had remained in the Cabinet Office with a Minister responsible, it would have affected the importance attached to the union. I thank my colleague on the Front Bench for following up so many of those questions, which were very thoughtful.

I thought at one point that I would not accept this debate at this time on a Thursday afternoon, and I am still regretful that there were not more people here to hear it. It showed, quite brilliantly, the significance of the frameworks in relation to constitutional change; constitutional powers as they are developing; the role and potential of the union’s resilience; and where it sits on the Government’s mental map of priorities. So many issues were raised by the noble and learned Lord, Lord Thomas, for example, about how we make policy across the union and where we go on future divergence and the operation of the UK Internal Market Act and those exclusions.

My noble friend Lord Foulkes raised many huge issues. They are exciting questions but they are huge, and they are problematic. They require debate in this House, and they require understanding. In the debate this afternoon, we have had some of that revealed to great effect but we have also had a really thorough, quite forensic debate on the nature of the common frameworks. That has been enormously beneficial and something that, as a committee, we are very grateful for. We are grateful also for the support of the noble Baroness, Lady Bloomfield. I commend the report to the House.

Motion agreed.