Common Frameworks (Common Frameworks Scrutiny Committee Report)

Lord Bruce of Bennachie Excerpts

Thursday 2nd February 2023 Lords Chamber

[Lord Bruce of Bennachie (LD)]

My Lords, it is a pleasure to follow the noble and learned Lord, Lord Hope, who, as a number of people said, helped us to amend the single market Act in a way that enabled the common frameworks to flourish. I detected from his speech that a plethora of amendments to the repeal of EU law Bill might be coming the Government’s way from that source.

I echo our chairman’s comments about the staff who helped us on this committee, which has been unique, as everyone has said. They have supported us in this long, complicated and highly technical area. This has enabled the committee to grapple with these issues and offer constructive engagement, which has been beneficial to the Government. Without that support, frankly, we would not have been as effective; we are very appreciative of how the staff have provided it in such difficult circumstances and in such a professional manner.

I also thank our chair, the noble Baroness, Lady Andrews, for the way she has chaired the committee. Although everybody has said it already, it is important to acknowledge that she chaired it with such good nature and kept us moving forward. It has been a congenial committee, operating in an area where, by definition, none of us could have been an expert; in fact, when we joined it, none of us really knew what we were joining. I also thank her for the way she introduced the debate, because she has ensured that the House understands the importance we attach to the work of the committee and the role of common frameworks, including their crucial role in securing the very future of the United Kingdom. Sparse as its attendance may be, the committee is actually engaged in something of fundamental importance.

As has been acknowledged, common frameworks were necessitated by our leaving the EU, because that had hitherto provided the umbrella for many aspects of policy and law under which the UK Government and the devolved Administrations were able to operate. As the noble and learned Lord, Lord Hope, observed at the beginning of the Brexit debate, the return of powers from the EU was a source of debate between the Government and the DAs because, while some powers were returned to the devolved Administrations directly and others to the UK Government directly, some fell between the two. Common frameworks were designed to provide a way of working out those areas by organising overlapping responsibility.

As has been said, I think by everybody who has spoken, our committee found constructive engagement at an official level, even if there was variable quality of delivery. There was no common approach by departments, and there were real sources of frustration which manifested themselves differently in each devolved Administration, leading to a degree of indifference or lack of urgency within the UK departments. Again, without the committee’s existence, that might have gone unchecked, untapped and unchallenged.

Committee members are especially aware of the stresses and strains on the cohesion of the United Kingdom, and as our report showed, we saw common frameworks as a practical if unglamorous way of securing the right outcomes across the UK. All the devolved Administrations are in a different space. The committee was impressed by the engagement of the Welsh Government and the Senedd in seeking to ensure that common frameworks delivered balanced and effective devolution, expressing their dissatisfaction with the UK Government’s rather cavalier attitude, especially to the internal market Act, the Subsidy Control Act and, as has been said by a number of noble Lords, the Retained EU Law (Revocation and Reform) Bill. That Bill rides a coach and horses through everything we are doing. It seems to be driven by ideology, without any real reference to the practicalities of what it could do not only to the cohesion of the UK but to our relationship with the European Union, on the basis of an agreement we signed which that Bill effectively rips up.

The Welsh Government have been trying to ensure effective working of devolution based on mutual respect, but they have complained of a lack of consultation or practical engagement. They are often presented at the last minute with things on which they have not had the opportunity to have an input. The Scottish Government echo that in spades, but with a very different approach. While the Welsh Government want a future of co-operation within the United Kingdom, the Scottish Government do not believe in devolution and want to present everything through the prism of the SNP’s and the Green Party’s campaign for independence—even by trying to give the impression that they are already independent and complaining when they come up against reality. So, although civil servants in Scotland are constructively engaged, Ministers are unwilling to advertise the fact that it is even going on, let alone acknowledge the benefits of co-operation.

For most of the time that common frameworks have been progressing, devolution in Northern Ireland has, I am afraid, been in suspension. In this area, as in so many others, the people of Northern Ireland have been badly let down by the lack of engagement of their elected representatives, specifically thanks to the undemocratic intransigence of the DUP—whose members are not here but should be. That has made it difficult, if not impossible, for our committee to broker progress on those frameworks which impact on Northern Ireland.

However, the divergent character of the devolved Administrations is no justification for the Government’s dilatory and cavalier attitude towards them, and for not progressing the common frameworks in a timely and constructive manner. It should all have been finished by now. At the heart of this is a tension within the UK’s untidy and evolving constitution which the noble and learned Lord, Lord Garnier, and the noble Lord, Lord McInnes, both acknowledged, making constructive suggestions on how it should be addressed.

I cannot at this point avoid highlighting the unfortunate clash between the nationalism of the SNP and the Scottish Greens and the corresponding nationalism of the Conservative Party, or at least its current leadership. Brexit was not just about escaping from what Brexiteers saw as EU interference with UK sovereignty. It brought power back to the UK in ways that enable the Government to apply unitary state arguments to an unsecured set of devolution settlements. That has been fundamental. In fact, I sometimes wonder whether the party should be renamed “the Conservative and Unitary Party” because, in spite of paying lip-service to it, too many Conservative Ministers—not the Minister in question—demonstrate ignorance, indifference or hostility to the fact of devolution. I am afraid that is a fact we have to live with.

Living in Scotland, I am frustrated by the sterility of the debate we suffer north of the border. After 15 years of divisive and incompetent government, the SNP and its fellow travellers have failed to secure a majority for independence but they have locked us in an unpleasant stand-off. |On the other hand, the Conservatives have all but destroyed their credibility as a party of government, seriously damaging the economy and undermining the UK’s reputation around the globe. Brexit has weakened and divided Britain economically and politically, and if it contributes to the break-up of the United Kingdom, the legacy of the Conservatives as a responsible party of government will surely be finally destroyed. That must not happen.

I do not believe that Scottish independence is desirable for Scotland or the rest of the UK: it will just pile division on division and resentment on resentment. As it is, Scottish Ministers lose no opportunity to trash all things British, and they try to suggest that the people of Scotland have some kind of superior identity, which for me, as a Liberal, is not justified; nor is it borne out by the record of the Scottish Government or the state of Scottish society. I am a passionate home-ruler, which means controlling our own affairs, but I am also for mutual benefit making a positive and constructive contribution to the whole of the UK, which the SNP wants to destroy. The day-to-day practicalities of government do not make the heart beat faster, as has been said, in the way that waving flags might, but they are how to ensure the delivery of what matters most people, so taking to the streets to fight for more effective common frameworks is unlikely to become a thing.

Nevertheless, our committee has seen how important it is that we work out constructively and with respect how we share decision-making across the United Kingdom. This means having robust and fair mechanisms for avoiding disputes and, where disputes occur, resolving them fairly and without rancour, which is what the common frameworks are effectively all about. The undertakings made at the start of the common frameworks were welcome and constructive and, as our chair has pointed out, included policy considerations which have been excised from them. As time has gone by, that noble statement of intent has been somewhat diluted. The process has taken too long, and it has been cut across by measures that took no account of their impact. It is recognised now that one of the things that is absolutely needed is a Cabinet Minister with leadership responsibility for following this through, backed by the Prime Minister, on the understanding that this very unexcitingly titled process is crucial to securing the future dynamics of our constitution, which evolves all the time. Devolution settlements need to be properly entrenched and respected, but the devolved Administrations need to recognise their role in contributing to constructive engagement across the United Kingdom.

The frameworks exist, our committee continues to exist to scrutinise them and the opportunity for the common frameworks to become the way forward must not be lost. The UK Government must avoid undermining devolution and find open and, as the noble and learned Lord, Lord Thomas, said, transparent ways of taking this forward so that people actually appreciate what is going on.

As has been mentioned, the trade negotiations in relation to Australia and New Zealand have caused considerable dissatisfaction. We understand that trade policy is reserved to the UK, but that is no excuse for not at least taking account of the wishes and needs of the interest groups in the devolved Administrations, who have certainly made their views known but who have not been included in the discussions.

Of course, the devolved Administration should fight their corner, but they should also show respect to the rule of the wider UK. Frankly, the debate that we need to have in Scotland is whether we have a Government or a Parliament that really serve the interests of the people of Scotland, who have never yet voted for independence, who have voted for devolution, and who need a Government who will engage on their behalf, not only in Scotland but across the UK, rather than constantly picking fights.

The common frameworks may be dull. Maybe it was deliberate to choose a name that made them dull, to ensure that the only people who participate in this debate are those who have served on the committee, apart from the Minister, who has a job to do when she winds up. We must make it clear that this is not some abstract corner of obscure policy-making. This is fundamental to the day-to-day practicalities of making the UK work. If the Government want the UK to work, they need to take it a little more seriously. We recognise that they have accepted many of our recommendations, at least in writing, but they need to show by their actions that they really mean to follow through. If they do that, the committee will have done its job. We are not going to last for very much longer. I hope that the Government do not take that as an excuse to push the whole issue to one side because that would be a great mistake and the United Kingdom would suffer for it.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I know that we often start by saying that this has been a very interesting debate—and, of course, this time it has been—but it has also been a very important one, and a meaty one at that. I am just sorry that we were given the almost-graveyard shift, the day before a train strike, to address a number of issues. I do not want to short-change noble Lords, so I shall go on, but if they need to leave for a train, I shall not notice.

I begin by thanking the noble Baroness, Lady Andrews, for securing this debate on the committee’s report, as well as for some of her more optimistic and generous comments, as well of course as for her honesty. I also thank all the members of the Common Frameworks Scrutiny Committee, past and present—and, indeed, their officials—for their detailed and diligent work on the operation of the common frameworks. I, for one, am very relieved that they were extended three times; maybe a fourth time might be appropriate.

The committee’s scrutiny of individual frameworks without hesitation makes them stronger and more accessible. The Government place a premium on the work of this committee. Thanks to its recent report, the Government are taking forward 13 of the 22 recommendations of the committee and have partially accepted a further five recommendations. I thank all noble Lords, regardless of whether or not they are currently on the committee, for their contributions today.

As noble Lords will no doubt be aware, since 2017 the UK Government and devolved Governments have worked together to develop the common frameworks programme, and have done so collaboratively and pragmatically to ensure progress, despite a number of external factors that could have thwarted efforts. In October 2021, my noble friend Lord Greenhalgh appeared in the debate for the committee’s first report; the tone of that debate was very much about the frameworks as potential waiting to be capitalised on. A year and a half later, I am pleased to say that some of the potential is beginning to be realised.

Common frameworks establish a four-nation common approach to exercising powers that have returned from the European Union and fall within areas of devolved competence. Thirty out of 32 frameworks have been provisionally cleared and are therefore operational. Almost all these have been published; two remain at an earlier stage of development. This means that these important tools for managing intra-UK policy-making and ensuring regulatory coherence in the long term can be properly used. This is especially important as the Government look ahead to progress our post-EU exit reforms through the retained EU law Bill.

In response to the noble Lords, Lord Foulkes and Lord Bruce of Bennachie, I strongly believe that frameworks facilitate joint policy working and are by their nature decentralised, as ownership is shared between the four Governments. Used properly, they should help to facilitate joint and consensual decisions. If it is of any comfort to the noble Lord, Lord McInnes, I am the whip in both the Cabinet Office and DLUHC, as well as being the spokesperson for Wales. I am variously called “that squeaky wheel”, “the grit in the ointment”, and other less charitable comments.

It is now over two years since the end of the transition period and regulatory divergence is very much a reality. In many cases, this is a result of incremental and cumulative divergence, leading to gradual differences in approach between England, Scotland, Wales and Northern Ireland. In this landscape, frameworks ways of working have begun to become embedded and make themselves felt, including in discussions with the devolved Governments about the approach to the reform of individual retained EU laws.

A number of noble Lords expressed concern about transparency, including the noble Baroness, Lady Andrews, the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Foulkes of Cumnock, but I think we have made some strides. Transparency is at the heart of the common frameworks programme, with transparent interaction between the UK and devolved Governments being a cornerstone of its success. I agree that this should extend to the vigilance of our legislatures. I am pleased to say that progress has been made on the approach to reporting to legislatures, and I hope that this is of some reassurance.

The interministerial standing committee, which met yesterday, agreed to report to legislatures. The approach officials have been working on will be useful for legislature scrutiny, supporting the exchange of information that routinely takes place between departments and their corresponding Select Committees. I am also pleased to confirm that the annual report on the hazardous substances planning common framework was shared with the committee on Tuesday of this week. The report, produced jointly and collaboratively with devolved government policy teams, reports on how the framework operated within its first year of operation.

Almost universally, everybody has commented on the perceived lack of central co-ordination, overly complex structures and lack of attention to detail, with common frameworks being split across two departments. The noble and learned Lord, Lord Garnier, in particular drew attention to a perceived lack of ministerial focus, and I acknowledge that the game of ministerial musical chairs has probably not helped in this process. So, while I understand the noble Baroness’s concern, in practice the Cabinet Office frameworks team works seamlessly with Minister Buchan, who is now responsible for frameworks in DLUHC, and has done so for the last 15 months. This structure is not uncommon—there is also the Government Equalities Office, for example—but the Government have accepted the recommendation around the Cabinet Office having oversight of the frameworks programme as the settled status for this work. Officials principally working centrally on the programme are based in the Cabinet Office, while relevant Ministers are located in DLUHC. This is because the union and devolution directorate is split between these two departments and teams, with a more explicit governance function remaining in the Cabinet Office.

Teams benefit from the convening power of the Cabinet Office to drive the union and devolution agenda across government, while also being able to work to deliver tangible improvements for people across the UK through policies led by DLUHC, including through levelling up. Having Sue Gray as Second Permanent Secretary for the union and constitution, with responsibilities across both DLUHC and the Cabinet Office, ensures continuity and consistency. I understand that this approach has been noted—I think by the clerks—as already showing an improvement in drafting quality and clarity in the most recently published resources and waste framework.

The noble Baroness, Lady Andrews, asked about the timetable for publication of the outstanding frameworks. We have made significant progress with those frameworks, which still need to be published for scrutiny purposes, including the emissions trading scheme framework, which will be published on or around 28 February. The specified quantities and zootechnics frameworks are ready to be published, subject to Northern Ireland portfolio ministerial sign-off. The provision of services and mutual recognition of professional qualifications frameworks remain in the early stages of development, pending agreement on their scope. With regard to the final publication of the common frameworks, all four Governments will require portfolio ministerial clearance, and, in addition to this, the Northern Ireland First Minister and Deputy First Minister will need to provide final clearance on behalf of the Northern Ireland Executive.

There are nine common frameworks that have completed scrutiny across all four legislatures. These can be published upon final ministerial clearance once the Northern Ireland Executive are reformed. A further eight common frameworks have been scrutinised by the Northern Ireland Assembly as well as this committee and are now awaiting scrutiny from the Senedd, the Scottish Parliament or both. We expect these to join the nine already completed soon, providing these legislatures make progress as soon as possible. There are a further nine common frameworks which are currently undergoing scrutiny and require scrutiny from the Northern Ireland Executive, which will therefore be unable to progress until the restoration of the Assembly.

As our progress on the resources and waste and emissions trading scheme frameworks shows, we are working hard with the devolved Governments to progress frameworks as far as possible, in preparation for the return of the Northern Ireland Assembly and Executive. We will, of course, update the committee with any further progress in this regard.

I know that the noble Baroness, Lady Andrews, was also concerned about resources and oversight being granted to the teams. I refer to the comment I made earlier: the central team in the Cabinet Office is devoting more time and resource to quality control since the recommendation was accepted, and I hope that the committee will see the results of its labours.

On stakeholder engagement and transparency, which I know was a concern of the noble and learned Lord, Lord Thomas of Cwmgiedd, transparency across the common frameworks programme is a priority. It is for this reason that each framework undergoes industry-specific stakeholder engagement throughout its development. The Government are keen to keep stakeholders involved in the programme and have been discussing with framework-owning departments how best to obtain further stakeholder views upon final publication. Departments are being encouraged to alert stakeholders to forthcoming frameworks reviews on GOV.UK in sufficient time to enable their views to be fed into the review.

There were a number of issues concerning the UKIM exclusions process references in the frameworks. The Government recognise that we have not reached a consensus with the devolved Governments on the UKIM Act. I believe that the exclusions regime has gone some way to addressing this, and the agreement to an exclusion for certain single-use plastics demonstrates the UK’s pragmatism.

The question has been asked why the exclusions process is not enshrined in the frameworks themselves. At this stage, we do not have agreement to do so with all the devolved Governments. As the Welsh Minister Mick Antoniw said in his evidence to the committee last March, it is not

“appropriate to include references to the exclusion process”

in common frameworks due to the continued “contested nature” of the UKIM Act formulation. Scottish Ministers hold similar views, and changing the frameworks’ text to include such a reference would also require the agreement of the Northern Ireland Executive. That certainly is work in progress.

A number of noble Lords, including the noble Baroness, Lady Andrews, asked what lessons we have learned from the UKIM exclusions for single-use plastic. The exclusion for single-use items was the first change to the list of UKIMA exclusions detailed in Schedules 1 and 2. I believe we have learned some lessons from this process. Discussions on this exclusion began before the four Governments had agreed the process for considering potential exclusions. As with any other process, using it for the first time has provided us with a better understanding of how it operates and possible ways to make it run more smoothly in future.

We have learned that any party considering a potential exclusion should notify other parties at the earliest possible opportunity at official level and commence internal processes as soon as notification of an exclusion request is received at official level. The exclusion-seeking party should set out the scope and rationale for the proposed exclusions, in line with the established processes as set out in the relevant common framework. Officials’ knowledge of the UKIM Act process should be upskilled to support progressing discussions through the common frameworks fora. Any further consideration of exclusions will have the benefit of an agreed process being in place this time before any discussions begin.

On the publication of the reporting proposal, work with the devolved Governments is still under way to agree the process for the monitoring and governance of common frameworks following their finalisation. This includes development of a standard template for reporting to be used across all frameworks, enabling a jointly agreed overview of framework operation. The template was shared and discussed at the Interministerial Standing Committee yesterday. All four Governments agreed to report to the IMSC and legislatures on the operation of common frameworks once they are fully implemented. It was also agreed that officials should carry out an assessment of the impact of emerging issues on the programme, and how it can be most rapidly implemented.

The first report using the template would in most cases be due following the anniversary of the finalisation of the common framework. I am pleased to confirm that an annual report on the Hazardous Substances (Planning) Common Framework was shared with the committee on Tuesday. The report, produced jointly and collaboratively with devolved government policy teams, reports on how the framework operated within its first year of operation.

The noble Baroness, Lady Andrews, asked me to comment on engagement with the Irish Government on common frameworks. She is right that it is difficult to go into specific detail about this, particularly in respect of the Northern Ireland Protocol Bill. The Government have noted before that it is within the gift of parties to common frameworks to engage more broadly with the Irish Government on the programme themselves, where appropriate. However, this would happen within individual frameworks and is not something the central team in the Cabinet Office or the relevant Ministers in DLUHC would be involved in. The Government agreed that this engagement, where it takes place, should be reflected in reporting to legislatures, hence why the Government accepted the second part of the recommendation.

I can confirm that the Northern Ireland Protocol Bill has been discussed informally with the Irish Government on a number of occasions. The Government have always stressed their preference for a negotiated settlement to the issues being caused by the protocol, and I note that the Bill has not been tabled.

Inevitably, there was a huge amount of discussion about the existential threat of the REUL Bill. The majority of the powers in the Bill are conferred concurrently on the devolved Governments. Accordingly, the devolved Governments will be able to decide which retained EU law to preserve and assimilate, and which to let sunset, within their devolved competence. I know that sounds terribly simple, but I do acknowledge that this is a Herculean task for many of them to take on. The devolved Governments will also be able to use the powers in the Bill to amend, revoke and replace retained EU law, and to consolidate and restate any secondary retained EU law, or secondary assimilated law, where desired to maintain the policy effect within their areas of competence.

On the genesis of the Bill, I take gentle issue with the noble Lord, Lord Bruce of Bennachie, regarding engagement activity. There has been active engagement at official level since March 2022. The devolved Governments and the UK Governments had fortnightly meetings when the Bill was in its early stages, and there is now a new working group named “Brexit opportunities”, which includes the devolved Administrations.

[Lord Bruce of Bennachie (LD)]

I did agree that the officials have co-operated from the outset. However, I welcome what the Minister says about the current engagement of Ministers, because it really is needed.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I was going to come on to say there was an early meeting on the Bill with Ministers, and my noble friend Lord Callanan met the devolved Governments in January when the Bill was introduced. I acknowledge that the REUL Bill is a contentious issue, and I am sure we will debate that at some length during its Second Reading on Monday.

I reassure the noble and learned Lord, Lord Hope, that, in addition to conversations within frameworks, the Government have established regular intergovernmental meetings intended to support devolved counterparts with the identification of which EU law is devolved or reserved, and the use of the powers in the Bill, as part of the retained EU law reform programme and wider Whitehall departmental engagement. I recognise it is a challenge, but I would also like to place on record the Government’s continuing commitment to devolution and to the Sewel convention.

In answer to the noble Baroness, Lady Taylor of Stevenage, we see the recommendations in the previous report as very important. I agree that it is worth while looking at these previously accepted recommendations to see what more needs to be done to implement them. Officials will take that forward as part of the work they have been tasked with doing by the IMSC, and will look at how best to implement that programme.

I was slightly surprised that the noble and learned Lord, Lord Hope, said we had not defined common frameworks. In fact, I thought the JMC principles of October 2017 gave rather a good definition of common frameworks:

“the devolved administrations agree to work together to establish common approaches in some areas that are currently governed by EU law, but that are otherwise within areas of competence of the devolved administrations or legislatures.”

Maybe they should have been a little more specific.

I thank all noble Lords again for their contributions today; in particular, I thank the noble Baroness, Lady Andrews, not only for initiating this debate but for sharing with me, in her typical spirit of generosity and collaboration, some of her concerns in advance so that I could answer in full. I look forward to the remaining scrutiny of the committee as further frameworks are published this year, and to working collaboratively on the issues raised with noble Lords. If there are any questions that I have been unable to answer, I will go through Hansard and write in response.