Devolution: common frameworks and Brexit

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How will Brexit affect the powers of the devolved institutions?

When the UK leaves the European Union (EU), subject to the terms of our future relationship with Brussels, powers exercised at EU level will be ‘repatriated’ to the UK.

Many of these powers, for instance, those relating to immigration, trade and competition policy, will become the sole preserve of Westminster.

In other areas, where EU law intersects with the legislative competence of the devolved institutions, powers currently exercised by EU institutions will transfer to Scotland, Wales and Northern Ireland. 

However, the UK and devolved Governments have agreed that in some areas new UK-wide ‘common frameworks’ will be needed to ensure consistency or coordination across certain policies.

What are ‘common frameworks’?

The devolved institutions are legally bound to comply with EU law. As a result, in many nominally devolved policy areas – such as environmental regulation, agriculture, public procurement and aspects of justice, transport and energy – the autonomy of the devolved institutions is significantly constrained in practice.

When the UK leaves the EU, if no changes were made other than to remove the statutory requirement to comply with EU law, these policy areas would fall completely under devolved control.

This could lead to policy differentiation within the UK in areas where EU law has previously provided a common legal framework.

To prevent or limit divergence, common frameworks may therefore be created to "set out a common UK, or GB, approach and how it will be operated and governed". Depending upon the policy area, "this may consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition".

In what areas might common frameworks be created?

According to the UK Government, there are 160 distinct policy areas where EU law intersects with devolved powers in at least one of the three devolved nations. These include environmental regulation, agriculture, state aid for industry, public procurement and aspects of justice, transport, and energy.

The government departments with the greatest number of policy areas falling into this category are the Department for Transport (DfT – 37 areas); the Department for Environment, Food and Rural Affairs (Defra – 29 areas); the Home Office (28 areas); and the Department for Business, Energy and Industrial Strategy (BEIS – 26 areas).

New frameworks will not necessarily be required in all these areas. In 63 of these policy areas, the UK Government has stated that “no further action to create a common framework is required” and so full control will transfer to the devolved institutions.

What principles will guide the development of common frameworks?

On 16 October 2017, the UK and devolved governments announced that they had "agreed the principles" that will guide the development of common frameworks, including six different reasons for why common frameworks might be needed:

  • To “enable the functioning of the UK internal market”
  • To “ensure compliance with international obligations”
  • To “ensure the UK can negotiate, enter into and implement new trade agreements and international treaties”
  • To enable the “management of common resources”
  • To “administer and provide access to justice in cases with a cross-border element”
  • To “safeguard the security of the UK”.

The UK Government reiterated its commitment that frameworks will “respect the devolution settlements" and will therefore be “based on established conventions and practices” including the Sewel convention.

The UK and devolved governments also agreed that the overall effect will deliver “a significant increase in decision-making powers for the devolved administrations”, and that no existing devolved policy power will be taken away.

What form might the new common frameworks take?

In its updated frameworks analysis, published on 4 April 2019, the UK Government envisages two principal forms that future common frameworks could take.

First, in areas where the UK is “taking back control”, but where regulatory consistency is deemed crucial, new frameworks could be established through legislation passed at Westminster for the entire UK. The UK Government believes there are 21 policy areas where “legislative common frameworks arrangements might be needed, in whole or in part”.

Most of these areas fall within Defra’s remit, including subsidies for agriculture, regulation of genetically modified organisms, animal health and welfare, chemical use in agriculture, and the management of fisheries. Legislative frameworks are also envisaged for food safety standards, services regulation, emissions trading and mutual recognition of professional qualifications.

Second, in areas where coordination is required, but a binding legal framework is seen as unnecessary, powers would be repatriated to the devolved institutions but with agreement about how the different governments will work together, for instance through concordats or memoranda of understanding agreed between ministers.

According to the UK Government, there are 78 such areas, including many aspects of environmental regulation, transport regulation, medical regulation, and justice and police cooperation.

This chart was first published in the Institute for Government’s report on Devolution at 20

What does the EU Withdrawal Act mean for common frameworks?

The EU Withdrawal Act 2018 ends the authority of EU law in the UK and converts EU law, as it stands on the moment of exit, into UK law.

Section 12 of the EU Withdrawal Act provides that control of areas where EU and devolved law overlap will pass by default to the devolved institutions.

However, it also allows UK ministers to freeze the devolved governments’ ability to legislate in those areas where it believes legislative common frameworks will be needed. In those 21 areas, the UK Government will be able to set UK-wide regulations until new common frameworks are agreed.

Ministers will have to consult with their devolved counterparts, and report to the UK Parliament every three months on where and why they have made such regulations, and on the progress made towards agreement on new UK-wide frameworks.

The Welsh Assembly granted consent to the EU Withdrawal Act. The Northern Ireland Assembly expressed no view, as it has been suspended since January 2017.

The Scottish Parliament withheld its consent: the Scottish Government view is that the UK Government is staging a “power grab” by restricting the ability of the devolved administrations to modify retained EU law.

Despite this, the EU Withdrawal Act received Royal Assent on 26 June 2018.

So far, the Section 12 “freezing” power has not been used by UK ministers. Instead, the UK and devolved governments have sought to reach agreement on the terms of new frameworks.

What progress has been made in developing the new common frameworks?

There has been substantial intergovernmental working on common frameworks, mainly at civil service level. In 2018, over 30 ‘deep dive’ workshops were held, each bringing together civil servants from different administrations to discuss common frameworks for a specific policy area, and on cross-cutting themes such as the UK internal market.

The EU Withdrawal Act requires the UK Government to publish quarterly progress reports on common framework development. The fourth of these was published in July 2019. 

The Fisheries Bill, which creates a UK-wide framework for fisheries, passed Commons committee stage in December 2018 but is still awaiting a date for report stage.

However, agreement on common frameworks at ministerial level has not been reached, and there are signs of significant differences between the UK and devolved governments. In March 2019, Scotland’s Brexit Minister Michael Russell said that the “the Scottish Government is refusing to have any truck with the UK Government’s invented concept of the supposed needs of some non-existent ‘UK Single Market’”. In addition, neither the Scottish Parliament or Welsh Assembly have given its consent on the Fisheries Bill.

Update date: 
Wednesday, July 17, 2019