Common Frameworks (Common Frameworks Scrutiny Committee Report)
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.
Lord Garnier (Con)
My Lords, I shall be brief, because the noble Baroness, Lady Andrews, in her gentle but devastating analysis of our committee’s work and the oversight we gave to the work of the Government in this respect, has essentially said all that needs to be said. But, in that great cliché of Parliament, just because it has been said before does not mean that I will not say it again. However, I adopt entirely what she said.
I too publicly thank the clerks and other staff who assisted us on the committee since we began our work in 2020. For a number of reasons, including career development and staff shortages, we have had several people assist us on the committee; I know I can say without fear of contradiction that all of them demonstrated the intellectual, analytical and administrative skills that have enabled us to interrogate the complex questions that underlie the common frameworks regime and the Government’s management of it.
It is also right to draw your Lordships’ attention to the work of our chairman. Her calm and consensual leadership of the committee, and her ability to restrain the more exasperated members of her team, has been a masterclass. I confess that I am probably the most apoplectic member of the committee, not least because, as a Conservative Peer and a fervent supporter of the union, I have had particular reason to be disappointed by my own Government’s failure to take this subject or the preservation of the union as seriously as I think they should have done.
I fully accept that much of my disappointment goes back to the days when my right honourable friend Mr Boris Johnson was Prime Minister—a political interlude on which I do not intend to dwell—and now that we have a serious-minded, hard-working and assiduous Prime Minister, and the wheels are falling off the Nicola Sturgeon regime, I have every hope that the United Kingdom is in less danger of splitting up. There is, though, no room for complacency, and the political and legislative concerns identified by the noble Baroness, Lady Andrews, must be taken seriously.
The work of this committee is primarily to oversee the policymakers, not the officials. Whereas relations between officials in the four jurisdictions have in the main been professional, productive and workmanlike, that cannot be said of the political relationships between the four Administrations. Much of the political fallout and dissension between the devolved Administrations and the Government here in London could, with good will and mature leadership, have been avoided or dealt with more productively.
Unquestionably—here I gently disagree with the noble Baroness—the name of our committee and the task of ensuring regulatory consistency across the four parts of the United Kingdom do not excite the political juices of many noble Lords. It is probably fair to say that the usual channels have not been overflowing with applicants to join us. If some have been put off by what they think must be the turgid examination of EU directives, or the translation of EU competence over plastic bags into our four jurisdictions, they have been mistaken.
There is an old rule in Whitehall and Westminster that the grander a Minister’s title or uniform, the less power and influence they have. Indeed, it is often possible to get rid of incompetent Ministers only by promoting them to grand-sounding but empty offices. To find where power lies, look for the Minister who has no need to shout. So it is with Select Committees: the Common Frameworks Scrutiny Committee does not sound exciting, but it does not need to, as our work takes us to the very heart of our constitution as a union of four nations under the Crown. The effect that the noble and learned Lord, Lord Hope, and others had on the internal market Act, and the dangers highlighted this afternoon behind the Government’s somewhat cavalier approach towards the retained EU law Bill, are just two examples of the oversight required to keep the Government from straying from the constitutional path or complying with the rule of law.
The Government, I regret, have not given common frameworks the political attention or leadership they and the United Kingdom deserve. There has been a lack of ministerial focus on this area of post-Brexit public policy, no doubt because it looks uninteresting. The Ministers whom we saw seem not to have been prepared to devote the time to it because it does not look like fertile ground for getting noticed. However, if the slogan that got you elected was “Get Brexit Done”, you are under an obligation to complete the task in an orderly manner and not to avoid what you think are the boring bits. I acquit my noble friend Lady Bloomfield, who is on the Front Bench, of this charge because she has, over the last several months, played a significant—if understated—part in ensuring that common frameworks were not cast aside as some unimportant or peripheral issue, but were given proper ministerial attention. However, even she can achieve only so much.
I appreciate that members of the Cabinet have a great deal to do, so I do not expect the Secretary of State for Levelling Up to spend all day dealing with the progress or otherwise of common frameworks. However, it is disheartening for the officials working on this policy in London, Edinburgh, Cardiff and Belfast if less than full-throttled attention is given by the lead Minister and if the Minister with the day-to-day task of overseeing the work—currently the Minister for Housing and Homelessness—is not in the Cabinet Office. The Cabinet Office should be the panopticon from which the Secretary of State can see what is going on, at what pace and how effectively, in other parts of government. When things stop, slow down or go in the wrong direction, the Minister, on behalf of the Secretary of State, should be taking immediate steps to correct the matter.
I know from my own time in government—admittedly now a decade ago—about developing and implementing policy sometimes in the face of other Ministers’ lack of interest in the subject and an unwillingness to engage by overworked and distracted Ministers. First, encouragement from a Secretary of State not only activates the more junior Minsters but motivates officials. Secondly, it requires a senior Minister to grasp ownership of a policy for it to have any chance of success. Common frameworks, throughout their so far short life, have been the ugly little orphan whom no one wants to care for.
Too often, sloth and inadequate progress in departments to produce the necessary documents on time and of a sufficient quality have been all too evident. Correspondence from Ministers to the committee has occasionally been bland and failed to answer perfectly proper questions asked by us and has meant that we have had to go back to them for clarification, adding to the delay. Even worse, no or not enough corrective action has been taken by the supervising Ministers. Too many deadlines have been missed. It is no wonder that our report is subtitled An Unfulfilled Opportunity? To my mind, that is a statement: it is the answer to the question, not the question itself. If this is a foretaste of what Parliament will see with the REUL Bill, no one can say that we did not warn them.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, it is indeed a pleasure to follow such a distinguished lawyer: as we will see with subsequent speeches, our committee has been well served by a number of very distinguished lawyers and it has been very useful to have such knowledge and experience on this relatively complicated area. A couple of my colleagues expressed to me that they think it is a peculiar form of masochism for a Scot to spend all Thursday afternoon in debates on two committees. Mind you, looking around, I see that that masochism is shared by three other Scots here, and it is even worse for them, because at least I participated in the previous debate, and they sat through it tolerantly and impressively.
As a member of the committee—it is a unique and fascinating committee—I welcome the report but I also want, as the noble and learned Lord, Lord Garnier, did, to congratulate my noble friend Lady Andrews very sincerely on the really skilful way she steered us through the rapids of this notoriously tricky river. She has done it brilliantly, as we see from the report and as we heard from her introduction. I endorse what she and the noble and learned Lord, Lord Garnier, said in thanking the staff who helped us.
I will concentrate on one of my hobby-horses, and I apologise to those—I am looking at the noble Lords, Lord Bruce and Lord McInnes, and others—who have heard this regularly from time to time. They will know that I am a long-time advocate of devolution. Way back in the 1960s, when it was only a glint in the eye of John P Mackintosh, it took us some time to persuade the Labour Party and then the country, in Scotland, to accept devolution. I think some people forget, certainly some of the nationalists forget, that it was no easy task to get devolution through. We tried it in the 1970s and we eventually got it in the 1990s.
So, I fully support any attempt to strengthen the ties between the United Kingdom Government and the Governments of the devolved nations. I endorse the report’s emphasis on establishing intergovernmental co-operation when establishing these new frameworks. But devolution is not fully understood, as the noble and learned Lord, Lord Garnier, said. Some people in Whitehall still cling to the notion that power should be centralised here in London and do not like any devolution, so we have to overcome that, on one hand. On the other hand, we have to tackle the fact that there are some people, in Scotland, particularly, but also in other parts of the United Kingdom, who want to use devolution as a stepping-stone towards independence. Devolution is entirely different from independence. By its very definition, devolution implies the continuation of the United Kingdom: it is implicit; that is what it means. Independence is an entirely different thing.
We discussed Brexit in the previous debate. If anyone here thinks or accepts that Brexit has created problems for the United Kingdom—breaking up a union of about 40 years—think how much worse Scexit would be, breaking up the United Kingdom, a union of over 300 years. There would be problems of the border and of the currency—a whole range of problems.
As the noble and learned Lord, Lord Garnier, has said, the Teflon gloss coating is beginning to go from Nicola Sturgeon at the moment. The issue on which it seems to be faltering is astonishing: it is not the major problems that the Scottish Government have created with their inability to build ferries in a country which has more islands than most and needs ferries more than anyone else, but another issue that seems to be causing them the problems.
I propose that our committee should consider the role that constitutional reform could play in facilitating a truly co-operative process that focuses on finding consensus, but also allows sensible, appropriate, real and effective devolution on what we accept are the devolved issues. I believe that the long-term solution—I hope it is not too long—lies in a coherent and comprehensive system of devolution throughout the whole of the United Kingdom. We should also now accept that we need to tackle it, that it is unfinished business and that the Labour Government should have continued on with devolution, because we have a long-standing English democratic deficit.
I see someone entering who has particular knowledge of English local government—the noble Lord, Lord Porter—and we need to strengthen devolution within England, to give much more power to the regions of England. More power can be exercised, as the Mayor of Greater Manchester showed, for the good of a particular region. A series of devolved authorities throughout the United Kingdom and elected representatives to a reformed chamber would support and enhance the ideas outlined in the common frameworks programme. I am sorry if Members of this current Chamber do not agree, but I think that we should be reformed along the lines of a senate of nations and regions. We have witnessed some admirable attempts at a form of decentralisation, such as the metro mayors programme, but it has been derailed by what has been described as a piecemeal delegation of powers and functions, which is precisely why I believe the common frameworks agenda could play a vital role in effectively facilitating much-needed decentralisation and reform.
As much as I am disheartened by our exit from the European Union, it has by chance given us the opportunity to create a more collaborative and representative structure of politics, where the bonds between the different regions of the United Kingdom are strengthened through increased power-sharing. I also agree that greater transparency around these kinds of frameworks is required, and I believe this would be more effectively achieved if frameworks were also scrutinised by representatives from each part of the United Kingdom in a senate-like structure. This structure would also help ensure that all stakeholders feel adequately consulted, and could get around issues such as a lack of engagement, which we currently experience with the lack of an executive in Northern Ireland, as that part of the United Kingdom and other regions would have representatives acting on their behalf here in the senate.
My party, the Labour Party—the next Government of the United Kingdom, I certainly hope—has a strong proposal for constitutional reform, and these common frameworks can, in my view, play an important supporting role in achieving this vision. I am grateful to noble Lords for allowing me this hobby-horse and to push it one step forward. I agree with the noble and learned Lord, Lord Garnier, that the Minister who will reply in this debate has been one of the most positive and supportive Ministers in responding to our suggestions since she was appointed. I hope that we will see another example of that this afternoon.
Lord Thomas of Cwmgiedd (CB)
It has been an enormous privilege to serve on this committee. Listening to the speech of the noble Lord, Lord Foulkes, and with my little knowledge of Scottish politics, I can say that one of the great benefits of sitting on it is to realise that in this United Kingdom we share common problems and we need to try to solve them. It has been very fortunate for us to have had, as has been described by the noble Baroness, Lady Andrews, and the noble and learned Lord, Lord Garnier, the wonderful clerks and analysts that have pursued points. I cannot pretend that reading common frameworks is anything but a cure for insomnia. I just marvel at the officials and how they have provided this detailed analysis. I wish to add my thanks.
As has been seen from the various speeches that have preceded mine, we have been extraordinarily fortunate in the outstanding chairmanship of the noble Baroness, Lady Andrews. She has kept us on our toes; she has made certain we have gone into everything in appropriate detail without being swamped by it; and she has found an almost entire consensus on the way forward. I wish to add my deepest thanks to her.
I want to add one or two points that go to the general importance of common frameworks. No one could have devised a more awful name for these. It was a mistake. People spend huge amounts on branding, and whoever thought of this failed to brand its importance. That is why it is necessary to realise what this was trying to achieve. When we were members of the EU, there was in place a mechanism, both between Brussels and London and internally, for dealing with the two critical questions that arise in a state that has more than one Government. There are lots of examples all over the world of constitutional mechanisms. We had to try to devise something to replicate and replace the constitutional mechanism that had governed intergovernmental relations within the UK and their corresponding relationships with Brussels, as regards both policy formation and delivery. I do not think anyone quite understood the importance of carrying through on the commitment made to that end in 2017. We needed a real determination to make this work. It is not easy.
We have asymmetrical devolution. It was designed at a time when we were members of the EU. Therefore, it probably would not have been designed in the same way today; but it is incredibly difficult to make a constitutional change of that kind. The devolution settlements—no one appreciates this until they start to work out where powers lie—are awful in terms of their complexity and get more awful every year. The mechanism that common frameworks were designed to deal with made certain that we ran ourselves as a state that recognised that there was large devolution of home rule—and I want to use the phrase “home rule” to stop the confusion with devolution to local authorities, because they are very different. We did not really work out how to be sure—with limited, differing forms of home rule within Scotland, Wales and Northern Ireland—that we had agreement on areas where it was necessary to preserve home rule, to preserve unity and to deliver.
If you look at the common frameworks, the delivery mechanism for working out how you deliver decisions is not too bad. One can criticise them. They are terribly complicated. One would not have devised them to look the same, since they differ so much that a new official would not know where to find one. And I regret that there is an overemphasis on process, but one can understand that. But this must not detract from the substantial achievement.
Where I think there is a problem—we are seeing it more and more—is the mechanism for agreeing policy: agreeing what is for Cardiff, for Edinburgh and for Belfast, and what is for the UK Government. If you cannot get agreement on that, we are in for a very rocky ride ahead. I entirely agree with the analysis that has been given of the retained EU law Bill. This is a major problem, and it should not be.
Therefore, there are two things we ought to look at. I am going to say the easy thing first and the more difficult one subsequently. I must also add to the deserved praise that has been given to the Minister for what has transformed since she came to take an interest in this subject. First of all, can we fix transparency? It is incredibly difficult to find out what is going on. Civil servants are wonderful at producing minutes. They do not have to say a great deal, but would it not be wonderful if we had published the minutes of meetings so that we knew what was happening? It is almost impossible to find out, but that cannot be too difficult.
Secondly, it would be quite useful, so that people understood the problem, if we had some kind of simplified structure described on one piece of paper with what is trying to be done in relation to the agreement on policy. That step seems relatively easy to take.
A third step would be to try to bring greater transparency to the relations between the devolved Administrations and their respective legislatures and Westminster. There is not enough publicity about this—it is almost impossible to find out. That is the easy bit.
The much more difficult bit is fixing the structure on agreeing on policy and agreeing what is for London, what is for Cardiff, and for Edinburgh, and where legitimately you can have differences. We seem to we see this fairly regularly in this Chamber; for example, on the Trade (Australia and New Zealand) Bill. Points come up as to the impact of that agreement on Scotland and Wales in particular.
To give an illustration, which takes one outside common frameworks, as to why it is so unfortunate that we do not have agreement, I wanted to say one word, and I do not expect the Minister to say anything in response to this, because I raised it and unfortunately she had to leave this morning. She would have had some advance notice then of what I was going to say, so in fairness I must say that. The levelling up Bill is before this House at the moment, and that contains, or is going to contain, provision to make 12 statements of mission. One does not need to go into what a mission is and whether that is the right thing, but it is essentially what the UK Government hope to achieve by 2030, and it covers a number of different areas. They include education, skills, health, well-being, housing and local government. All those are devolved, as is the policy. The immense seriousness of the failure to agree the structure on policy that should be in the common frameworks is demonstrated by the fact that we have no model to deal with the much more serious problem of what the devolved Governments are going to say is, from this perspective, an invasion of their policy areas in such an important area.
I want to say one final thing. We ought to thank the Minister for the steps she has taken. However, we also ought to convey the message to Scotland and to Wales that it takes two to make this work—four, in fact. Even if one of the nations is not keen—I will not suggest which one, as I would be delving into an unfortunate area of politics—the others must go ahead. We cannot go on with a non-transparent lack of structure for agreeing policy. The failure to deal with this in the common frameworks—that is why it is so relevant—is to my mind the big failure we have; it is the unfulfilled opportunity. I wish we had it there.
Lord McInnes of Kilwinning (Con)
My Lords, it is a great pleasure to provide the short, pedestrian palate-cleanser between the two noble and learned Lords, Lord Thomas and Lord Hope. I hope it will give everyone’s brains a bit of a rest.
Fundamentally, I am delighted that the report from the noble Baroness, Lady Andrews, has been afforded the time to come before us. It always seems such a long time between publication and debate. We have already heard that events have started to overtake it, but we have a relatively timely report to discuss today, which is a very good thing.
I have to declare a historical interest as having had the privilege of being a member of your Lordships’ Common Frameworks Scrutiny Committee until summer 2021, when I entered No. 10 to advise the then Prime Minister—that was two Prime Ministers ago—on the union. I therefore had the benefit, or perhaps the disbenefit, of observing the common frameworks both through this House’s scrutiny and from the government machine.
It is of deep regret that I was not able to take part in your Lordships’ debate on the committee’s first report. That is why I begin by commending not only the central message of today’s report but that of the previous report. I believe that proposition to be that common frameworks provide the encapsulation of the future for the United Kingdom and its continuation. I know that there will be some noble Lords in the Chamber today who, like me, did not vote for Brexit. We heard in the previous debate lots of discussion of the benefits or otherwise of Brexit, but one benefit has been ensuring that the Administrations of the United Kingdom properly discuss policy and its implications. The noble Lord, Lord Foulkes, and the noble and learned Lord, Lord Thomas, referred to that too.
For the United Kingdom to go on in strength requires a normalisation of the constitutional settlement, which in turn requires dialogue and interaction between all those Administrations. The United Kingdom’s strength has always been its flexibility and ability to celebrate difference. That there are four Administrations across the UK ensures that there is that requirement for joint working. That should develop best practice and policy as well as process.
There is not a bifurcated choice between uniformity across the UK and a natural drift apart and the end of the UK. Rather, there should be a working, organic union that delivers for the people of all its constituent parts. That is the utopian view of how things should be, but we all know that politics interfere. A good example is the Scottish Government’s unfortunate decision not to support any legislative consent Motions related to Brexit, when so much of the legislation is necessarily related to it. We immediately have a situation in which one Administration will not enter properly into that discussion because of their commitment to the break-up of the United Kingdom. That is why I was so pleased—although I did not vote for it, because I was doing the good thing and being whipped properly—that the amendment on exclusions in the name of the noble and learned Lord, Lord Hope, in effect a safety valve for the union, was passed in this House.
I know that there is significant criticism in the report of the means, timing and implementation of the exclusion on single-use plastics but, at the end of the day, the amendment from the noble and learned Lord, Lord Hope, provided the UK Government the opportunity to avoid what would have been a ridiculous argument. Imagine how intransigent the UK Government would have looked trying to stop the implementation in Scotland of a policy that was widely accepted and publicly supported not because the UK Government had a problem with the individual policy but because Scotland and—I think—Wales were going to implement that policy earlier than the whole UK. I am glad to see that common sense prevailed. That pragmatism is what common frameworks are all about.
That is why I am glad that the Government’s response to the committee’s report has been so positive. This whole process should be evolutionary. I believe the Government’s position has changed significantly over the last two years, from when the internal market Act was introduced in a context, perhaps, of muscular unionism, to a much more pragmatic approach now. From what other Members have said today, the good work of my noble friend the Minister played a significant role in that pragmatism and common sense prevailing.
For common frameworks to be successful, they require a two-way—or, as the noble and learned Lord, Lord Thomas, said, a four-way—street of communication. I agree very much with recommendation 13 of the report, which asks the UK Government to consider the impact on common frameworks of any legislation being considered. It is a huge tribute to our excellent civil servants—whether they work for the UK Government, the Welsh Government, the Scottish Government or the Northern Ireland Civil Service—and the work that they invest behind the scenes to identify problems at an early stage and try to alleviate them. However, all GB civil servants are currently responsible to Ministers, and it is very important that the Ministers, whatever Administration or political party they come from, also look seriously to avoid—or avoid creating—issues. To reiterate, that applies just as much to the devolved Administrations as it does to the UK Government.
The common framework process and the union brief have flipped between the Cabinet Office and DLUHC since the creation of DLUHC only in 2021, which seems a very long time ago. Unfortunately, that flipping of responsibility for the union framework has been driven by the politics of government. I have a slight concern about the union and common frameworks disappearing into the Cabinet Office, where lots of good policy areas disappear. Despite the Cabinet Office’s responsibility for delivery, it does not always follow through, because it has an awful lot to deliver. I agree very much with the thrust of the recommendation that, whichever Cabinet Minister is responsible for the union and common frameworks, they and their officials must be empowered within government to go to departments, bang heads together and ensure that there is proper delivery and alleviation of tensions in the progression of policies.
In short, this report demonstrates that common frameworks are being carefully scrutinised and improved through the continuing work of your Lordships’ committee, so ably led by the noble Baroness, Lady Andrews. Rather than talking about an “unfulfilled opportunity”, I hope that the title of the next report can call common frameworks an “ongoing opportunity”.
Lord Hope of Craighead (CB)
My Lords, I am afraid that time is running against me. This debate started later than expected and if I were to remain to the end, I would miss my flight home. I apologise very much to the Minister for not being able to stay for her reply, but I hope she will allow me to speak. I am very grateful to her for that.
I congratulate our chair, the noble Baroness, Lady Andrews, on securing this debate and on the masterly way in which she introduced it for us. I join others in thanking our staff for the work they did to support our committee. We simply could not have done that work without their research and dedication, and all the assistance they gave us. It was invaluable.
When we were debating our first report, I began by asking the question, “What’s in a name?”; I think I am picking up a point that the noble and learned Lord, Lord Garnier, made earlier. My point was that the words “common frameworks” are not very exciting. Unlike the words “internal market”, which appear in the title of the United Kingdom Internal Market Act 2020, they do not say what frameworks are or do. I discovered that this caused real problems when the internal market Bill was being debated and I was trying to make the point that the noble Lord, Lord McInnes, mentioned earlier, about an amendment to the Bill. When we mentioned those words, almost no one in Whitehall seemed to know what we were talking about.
That is past history now, of course. Due at least in part to the work of this committee, there is a better understanding—I do not think I could put it higher than that—of frameworks’ function and importance in the development of UK-wide policy by collaboration and consensus, in marked contrast to the way in which the internal market Act is designed to operate. Nevertheless, the fact is that, as we say in the first line of our report, common frameworks are largely overlooked. So I very much welcome the statement in paragraph 7 of the Government’s response that they agree with us that this
“programme needs to be properly embedded”
to enable the frameworks to achieve their “full potential” as “consensus-based agreements” that operate across all parts of the United Kingdom.
The opportunity to diverge, which is what consensus-based agreements are all about, is at the heart of this system. It is now a key part of the internal part of the market that we have created for ourselves in the UK. The example that was given of how Scotland has been able to devise its own system for single-use plastics, which Wales is going to follow soon, is a powerful demonstration of the value of the consensus-based agreement system. It is important that this measure is spread and understood throughout Whitehall as widely as possible.
That brings me to ask the same question again: “What’s in a name?” I direct the question this time to the words that make up the title of our committee, the Common Frameworks Scrutiny Committee. Those words were well chosen because they describe exactly what our function is and why we are here. Our report is a powerful demonstration of how necessary and important that scrutiny has been but our work is incomplete due to the continuing failure of the timetable. We will not be here for ever. Our time will run out later this year; I do not think that there is any other committee in this House that can take over and fulfil our role. It is now over to the Government to sustain this effort so that the common frameworks programme can survive as a valued and permanent part of our arrangements in these policy areas. I hope the Minister can assure us that all the departments in government have learned the lessons to which we have drawn attention repeatedly during our work, as described in the report.
In that connection, we said in our report:
“Accountability to Parliament is of fundamental importance.”
The process for reporting to the legislatures on the operation of common frameworks and their ongoing function, once our committee has ceased to exist, needs to be developed as a matter of urgency. The Government said in paragraphs 42 and 43 of their response that they accept these recommendations and that
“the Cabinet Office will promote this approach as best practice.”
That leads me to ask the following questions.
The issue of who should be responsible in government for common frameworks has been, as the noble Baroness has said, a vexed question throughout our work. Can we take it that someone in government will be prepared to take the overriding responsibility, which will now rest firmly with the Government? My preference would be—I am afraid that, here, I possibly disagree with the noble Lord, Lord McInnes—the Cabinet Office. That central body should be prepared to accept the responsibility—I stress, the overriding responsibility—despite the inevitable involvement of other departments from time to time.
What will the Government do to keep this House fully informed once our committee goes out of existence? A solution to that problem needs to be worked out through the usual channels, preferably with the benefit of the co-operation and advice of this committee, as soon as possible.
I turn finally to what the noble Baroness described as an existential threat to all common frameworks: the REUL Bill. The common frameworks are made up of, or dependent on, retained direct EU legislation, typically in the form of EU regulations. That is the position today: EU regulations, rather than statutory instruments, provide the foundation. In the case of the agricultural support framework, for example, EU regulations lay down the marketing standards currently in force, including for production methods and carcass classification for pigs, sheep and beef. These regulations have been retained in UK legislation since January 2021. The question is: how are these standards to be preserved, given the need to transpose them into equivalent SIs before the end of this year when the sunset clause will take effect? The process is this: we have the retained EU law, in the form of these regulations, but they cannot survive after sunset and they need to be reformed into statutory instruments.
In their most recent Intergovernmental Relations Quarterly Report, published in December 2022, the Government said that work has begun
“on ensuring that Common Frameworks can cover divergence from the Retained EU Law … Bill, including what approach the four governments will be taking to specific pieces of REUL.”
I suggest that that statement seems to hide behind a number of problems. Much of the ground covered by the common frameworks is devolved. In discussion with the devolved Administrations in Wales and Scotland, on which I will concentrate—we can leave out Northern Ireland, given that its special position requires it to retain EU law—have the Government identified how much common framework retained direct EU law they need to deal with in order to transpose it into their own domestic legislation? That is the first question: how much retained direct EU law do they need to deal with, as devolved Administrations?
In discussion with the devolved Administrations, have the Government also identified whether they will be able to do that work in time? After all, it will be up to them to draft their own SIs to replace what exists at present for operation within the devolved areas. These are two key questions that must be addressed as a matter of urgency.
It so happens that members of another committee of this House visited Wales earlier this week. Among other things, they discussed the implications of the REUL Bill, including the effect of the sunset clause. They were much surprised to be told that, due to the way the Senedd handles its legislation and the way its system operates, the day when the sunset provision will come into effect in its case, as the Bill stands, is 31 October, not the end of the year. So the urgency is heightened by that fact in the case of Wales in particular.
This means that all the retained direct EU law relating to the way the common frameworks operate in Wales will first have to be identified and then transposed by that date if they are to survive. Have the Government fully appreciated that point? If not, could they turn their attention to that as soon as possible—in close consultation with the Welsh Government, of course? Are they satisfied that all of these common frameworks can be “diverged”, to use their expression, in time? If not, if that time cannot be met, the problem is indeed a very worrying one.
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.
Baroness Taylor of Stevenage (Lab)
My Lords, I am very pleased to follow the noble Lord, Lord Bruce. His expression about common frameworks, that they make the heart beat faster, will stay with me for some time. I thank him for that.
I add my thanks to my noble friend Lady Andrews for the fantastic work that she has done and for the excellent summary that she gave at the beginning of the debate. I also thank the whole Common Frameworks Scrutiny Committee for its very diligent and tenacious work on common frameworks, and for the clarity of its report, which allowed a newcomer to this topic such as myself to clearly understand the background and context of its work. It is very helpful to me that this was the case because most noble Lords taking part in this debate today are members of that committee.
I welcome the second report of the Common Frameworks Scrutiny Committee and I am very pleased that this House has the opportunity today to consider its findings. When I came into the Chamber this afternoon, I did not expect to be talking about things such as Russian dolls, apoplexy, insomnia, palate cleansing, and carcass classification. If the noble and learned Lord, Lord Garnier, had expressed some of the apoplexy that he felt during the course of the discussions, it might have been quite interesting for some of us on this side of the House, but I thank him for not doing so.
This report follows the committee’s earlier report, Common Frameworks: Building a Cooperative Union, which identified three issues with the Government’s approach: minimal scrutiny; ambiguity over Northern Ireland; and a lack of information given to Parliament. However, it is deeply regrettable that as we consider the second report of the committee, many of the problems found by the first report have still not been addressed.
Will the Minister commit to re-examining the proposals from the first report to consider whether it would be appropriate to introduce them now? That point was highlighted by the noble Lord, Lord McInnes. This is a crucial set of frameworks for ensuring that our United Kingdom can function effectively between and within its devolved nations. It should have the utmost priority with the Government already. As we begin to consider the Levelling-up and Regeneration Bill referred to by the noble and learned Lord, Lord Thomas—the mission of which will not work unless we have effective ways of ensuring that it is enacted across our nations and regions—this kind of framework approach becomes even more important.
The role of common frameworks is crucial for ensuring that regulations returned to the UK following Brexit are aligned across the UK, including in relation to the functioning of the internal market and the management of mutual resources. The noble Baroness, Lady Andrews, and the noble and learned Lords, Lord Garnier and Lord Thomas, all referred to that point. They also represent a great opportunity for the UK to work with the devolved Administrations and strengthen the union. We surely must not miss that opportunity.
With three years having now passed since the UK left the European Union, it is right that Parliament asks whether the right approaches have been taken and whether, given their importance, they deserve extensive and urgent scrutiny across this Parliament and the devolved Administrations. In this latest report, the committee has focused on the potential missed opportunities for engagement and while the Government’s commitment to implementing many of these recommendations is welcome, questions remain as to why not all of them will be brought forward.
I turn to the specific recommendations. It is important to note that the Government’s response accepted the overarching conclusion of the report and most of the actions, to some extent. I am particularly pleased that the Minister has agreed to review the 2017 communiqué after all provisional frameworks have been finalised. In the six years since the communiqué, intergovernmental relations have undergone significant challenges but new opportunities have also emerged. Do the Government have a target for when the provisional frameworks must be finalised?
It is important that intergovernmental co-operation and specifically the communiqué are not seen as isolated events. So I also ask the Minister to consider how the Government can continually reflect on the operation of the communiqué within government, and to remain open to the prospect of further revisions in the future.
I hope that the Government have now agreed fully that the Cabinet Office should be solely responsible for the central co-ordination of common frameworks. I think the noble Lord, Lord McInnes, and I may disagree on that point. The noble Baroness, Lady Andrews, and the noble and learned Lord, Lord Garnier, both referred to the importance of where this issue sits within government. As the committee notes in its report, this would give
“profile, credibility, and coherence across Government.”
My noble friend Lady Andrews referred to the powerful section in the report relating to the variable quality of the frameworks from different departments. Does the Minister consider that oversight by the Cabinet Office would better address this? For example, it is simply not good enough, as my noble friend Lady Andrews said, that some departments see stakeholder consultation and engagement as almost optional. Who is responsible for updating the frameworks and how? The noble and learned Lord, Lord Thomas, mentioned this. The mechanism of agreeing policy is vital and should sit firmly within these frameworks. I ask the Minister to confirm a timescale for the Cabinet Office taking responsibility. Given that this debate is not being responded to by a Minister from the Cabinet Office, I assume it is not in place already.
Unfortunately, three recommendations have been rejected outright by the Government, including the suggestion that the frameworks analysis report should be updated. On this specific issue, can the Minister confirm whether the Government are refusing to update the report in any form, or whether they are just rejecting the specific recommendation to include the Joint Ministerial Committee’s principles?
There can be no doubt of the sensitivity of the recommendations in the report relating to the Northern Ireland Protocol Bill and its impact on the common frameworks. However, not to consider this could indeed be a great unfulfilled opportunity. I hope the Minister can say more on this topic. I also ask the Minister to commit at least to ongoing engagement with the committee to consider whether it would be appropriate to implement the three other recommendations at a later date.
One of the architects of Welsh devolution, Ron Davies, once said:
“Devolution is a process. It is not an event”,
and my noble friend Lord Foulkes spoke of the history of devolution in the UK and reminded us of the difference between devolution and nationalism. This certainly applies to the implementation of common frameworks. That is the iterative approach to the common frameworks, not them coming into being immediately. Back in 2020, the Government identified 154 areas where EU law intersected with devolved policy areas.
I conclude by thanking noble Lords, who have brought so much wisdom and insight into their work on this framework update, and by asking the Minister to estimate how many of these areas are now covered by frameworks. Can she recommit to ensuring that the REUL Bill will not simply sweep away all the excellent work done on common frameworks? The noble Baroness, Lady Andrews, the noble and learned Lords, Lord Garnier and Lord Thomas, and the noble Lord, Lord Bruce, all referred to that point. After all, as the Government agreed in their response to the report, common frameworks are
“an important tool for strengthening the Union as part of a collegiate four-way process”,
and it is only through a commitment of the UK Government, as well as the devolved Governments, that they can best deliver for the entire United Kingdom.
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.
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.