Hansard

I begin by sincerely thanking my colleagues on the Finance and Constitution Committee for the significant work undertaken to develop this unanimous report. On behalf of the committee, I also thank the clerks, in particular Jane Williams, for all their fantastic work in supporting the committee to come to its conclusions.

Last October, I had the pleasure—at least I think that that is the right word—of making the first ever Finance and Constitution Committee announcement to the chamber, when I explained to members the committee’s work on the important matter of common frameworks. Is it not therefore fantastic that all the political journalists will be tuning in to this debate?

Common frameworks arise when the United Kingdom and devolved Governments agree to establish, post-Brexit—if indeed that still happens—common approaches across the UK in policy areas such as justice, the environment, health, agriculture and fisheries, which are currently within the competence of the European Union.

Since my announcement, the committee has discussed agreement making with representatives from different tiers of government across Europe and the European Commission as well as with stakeholders from across the UK. All of that activity helped to inform our report on common frameworks, which was published on 25 March. I thank all those with whom we met for so generously giving of their time and expertise.

In its fourth quarterly report in July this year, the UK Government confirmed that there are 78 policy areas, including public procurement and energy efficiency, in which non-legislative common frameworks such as memorandums or concordats may be necessary to deliver common rules or ways of working. Additionally, there are 21 policy areas, including agricultural support and food labelling, in which legislation may be needed, in whole or in part, alongside a non-legislative framework agreement. Finally, there are four framework areas in which competence is currently disputed between the UK and the devolved Governments, with state aid being one of those.

To date, however, only one outline common framework has been published, in the area of hazardous substances. It came with the caveat that it is

“a suggested outline for an initial UK-wide, or GB, framework agreement in a particular policy area.”

It is somewhat frustrating that more than a year after the committee began its work, we have yet to see what a final common framework will look like. On the upside, at least that means that the recommendations in our report remain as relevant today as when they were published, six months ago.

As the cabinet secretary stated to us, common frameworks are not required for any specific exit day; they remain discrete long-term arrangements that are designed to be put in place post-Brexit. It would be helpful, nevertheless, if, in responding to the debate, the cabinet secretary could update us on the timescales to which the joint ministerial committee on European Union negotiations is working in order to finalise the frameworks.

I turn to what the frameworks will do. As the joint ministerial committee explained, they are there to enable the proper functioning of a UK internal market, a concept that we were not previously required to address while remaining in the EU. They are also there to ensure that the UK can negotiate, enter into and implement new trade agreements and international treaties. They will also help in the area of common resources and will provide access to justice in cross-border areas.

It is expected that a framework will set out a common UK or GB approach, as well as how it will operate and be governed on the ground. It could consist of minimum or maximum standards, it could involve harmonisation, it could place limits on action or it could provide for areas of mutual recognition. The JMC(EN) confirmed that common frameworks will respect the devolution settlements and will maintain, as a minimum, the equivalent flexibility for tailoring policies as is currently the case. From that description, I think it fair to say that common frameworks can be used for many different reasons, that they will serve a range of purposes and that they might contain a range of information and—potentially—different approaches.

That complexity, combined with the fact that common frameworks are subject to intergovernmental negotiations, will inevitably require confidentiality in some areas, and that poses challenges for parliamentary scrutiny. Parliamentary scrutiny matters, because it enables the public and stakeholders to have a say about the development of frameworks, and it helps to aid an understanding of the compromises that Governments might have to make in order to achieve agreement. It also provides a key test as to whether what Governments think a framework will achieve is matched by the lived experience of those who legislate, or indeed by that of those whose work is affected in the policy area concerned.

In our report, we set out a comprehensive set of recommendations on all aspects of the scrutiny of common frameworks. As our motion recognises, we see formal parliamentary scrutiny as crucial throughout the process, including in development, agreement and implementation, and for both legislative and non-legislative frameworks. We welcome the Scottish Government’s recognition of that. It now falls to officials from the Scottish Government and the Scottish Parliament to develop what the scrutiny process will look like in practice, and the committee looks forward to considering their proposals in the near future. I am heartened that, in the meantime, Scottish Parliament committees are continuing to monitor framework developments in their policy areas.

One of the principal challenges facing all of us across the Parliament lies in the increasing complexity of devolution following any Brexit from the EU. In particular, that concerns the extent to which the constraints on devolved competences arising from the UK’s membership of the EU will differ following any Brexit—and, if so, how such constraints will be agreed—as well as the role for this Parliament in that process.

Common frameworks that consist of voluntary arrangements between the Scottish and UK Governments may nevertheless constrain this Parliament’s powers. There may be good reason for doing that, but it is essential that that is done transparently and is not a solely Executive-driven process.

That complexity also means that, frankly, it could be more difficult to identify the extent of constraints on the competences of the Scottish Parliament and where they arise from—for example, whether they arise from common frameworks or from trade deals.

Responding to the committee’s concerns in that area, the cabinet secretary identified work by the JMC to help

“surface and map these types of interdependencies.”

I would welcome an update on that work, as well as guidance about whether the Scottish Government plans to provide a central, publicly available site where non-legislative and legislative agreements that interact between devolved and reserved areas can be found.

That complexity also poses a challenge in terms of committee scrutiny. No longer will policy development be solely for the Scottish Government. Instead, it could be the result of frameworks or trade agreements that are agreed elsewhere, such as by the UK Government or indeed between Governments. Following responses in relation to that challenge from Scottish Parliament committees and our counterpart committees in Westminster and the Welsh Assembly, the committee wrote to the UK and Scottish Governments setting out a range of principles to provide for a more co-ordinated approach to scrutiny. Those principles include providing sufficient time for scrutiny, opportunities for public and stakeholder engagement and the ability to influence early on the development of common frameworks. I welcome the cabinet secretary’s positive response to our proposals, and we will soon see a process for delivering such scrutiny arising from the work that is under way.

Until now, I have spoken about a consensual common framework process. However, as the cabinet secretary said to us, one of the challenges for Governments working together is that the more that is written down, the less likely Governments are to get agreement. As we heard in Brussels, a robust and trusted intergovernmental relations process is key to avoiding disputes.

In our report, we note that the UK approach to intergovernmental relations is currently under review by the joint ministerial committee plenary. However, that review has been on-going since March 2018, with no final completion date. Although a set of principles has been agreed recently—such as building trust, maintaining positive and constructive relations and resolving disputes according to a clear and agreed process—a greater sense of urgency to complete the review is needed. I would welcome an update from the cabinet secretary on how much trust has been established, as well as his views on whether he considers that the intergovernmental review requires to be completed before common frameworks can be finalised.

Time has not allowed me to do justice to all the recommendations in our report, but I know that others will highlight some of the other report themes in their speeches.

Our work does not end with this report. Our next area of focus will be the internal market and what that means for Scotland.

I again thank my colleagues for their hard work during the common frameworks inquiry, and I look forward to seeing our deliberations appearing in the national media tomorrow.

I move,

That the Parliament notes the conclusions and recommendations contained in the Finance and Constitution Committee’s 4th Report, 2019 (Session 5), Report on Common Frameworks (SP Paper 498), and in particular its recommendations that the Parliament has a formal role in relation to the process for developing, agreeing and implementing both legislative and non-legislative common frameworks.