9. Debate on the Legislation, Justice and Constitution Committee Report — Common Frameworks

– in the Senedd at 5:10 pm on 12 July 2023.

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Photo of Elin Jones Elin Jones Plaid Cymru 5:10, 12 July 2023

(Translated)

We will now move on to item 9, which is the debate on the Legislation, Justice and Constitution Committee report on common frameworks, and I call on the Chair to move the motion—Huw Irranca-Davies.

(Translated)

Motion NDM8328 Huw Irranca-Davies

To propose that the Senedd:

Notes the report of the Legislation, Justice and Constitution Committee titled 'Common Frameworks', which was laid in the Table Office on 12 May 2023.

(Translated)

Motion moved.

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour 5:11, 12 July 2023

Diolch, Llywydd. As Members will know, the Governments of the UK have agreed to establish common frameworks to manage divergence and devolved policy areas previously governed by the EU. They are deemed by the UK and the devolved Governments as necessary to manage policy divergence between the nations now the UK has left the EU, and to address other issues such as the effective functioning of the UK internal market, to ensure compliance with international obligations, and to enable the UK to negotiate new international trade agreements.

Provisional common frameworks have been in operation since the UK left the EU in 2020, but the final frameworks have yet to be agreed. Because of the important role common frameworks have in the governance of the UK post Brexit, the Governments of the UK agreed that all four legislatures in the UK should be allowed to scrutinise them and to make recommendations on their content to their respective Governments. So, final versions of agreements will therefore not be agreed until a Northern Ireland Executive is established and scrutiny has been completed by the Northern Ireland Assembly.

The Senedd’s policy committees have been undertaking scrutiny of individual provisional frameworks, and my committee has been maintaining oversight of the overall common frameworks programme as it applies in Wales. So, it’s on that basis that we published our report on common frameworks in May this year, making recommendations to the Welsh Government in respect of cross-cutting issues that have arisen to date. Collectively, Senedd committees have made close to 100 recommendations on their content.

We made 21 recommendations, and I welcome the Counsel General’s letter responding to our report, and I thank Members of the committee and our team for their diligence in bringing forward those recommendations. I recognise that the Counsel General is not yet able to respond formally to our recommendations until scrutiny has been completed by all four UK legislatures. But, nevertheless, I look forward to hearing any observations the Counsel General is able to make today as part of this debate.

Our report has looked at a range of matters: the implications for devolved policy making, stakeholder engagement, the relationship with the United Kingdom Internal Market Act 2020, and international obligations, to name but a few. Clearly, I do not have time today to consider all themes in detail, but there are some I would like to highlight. Let me first of all turn to this issue. The Economy, Trade and Rural Affairs Committee, the Climate Change, Environment, and Infrastructure Committee, the Public Accounts and Public Administration Committee, and the Health and Social Care Committee have all raised concerns about the potential for common frameworks to limit the practical role of the Welsh Government and Senedd in policy and law making for Wales. In reflecting these concerns, we have recommended that the Welsh Government should explain how it will ensure that common frameworks do not limit the role of the Welsh Government, the Senedd or stakeholders, indeed, in Wales when making law and policy for Wales, and we reiterate the recommendations made by several Senedd committees.

This is a particularly important point from a constitutional perspective, not least given the Counsel General’s own comments that common frameworks have the potential to be enduring, flexible and increasingly significant governance mechanisms for the policy areas previously co-ordinated and governed at an EU level. So, we sincerely hope that the flexibility the Counsel General mentions in his letter will enable divergence to take place to reflect the specific needs of different parts of the UK. It is for that reason we also recommended that the Welsh Government should seek inter-governmental agreement so that each common framework clearly sets out in which areas divergence will not be acceptable.

Linked to this theme of the practical role of the Welsh Government and the Senedd in policy and law making for Wales is the role played by the UK internal market Act, and I'll turn to that now. And many Members will recall that it was introduced after the common frameworks process was established. Through their scrutiny, Senedd committees have raised issues about the interaction of the UK internal market Act—UKIMA—with the common frameworks. The Public Accounts and Public Administration Committee, the Health and Social Care Committee, and the Economy, Trade, and Rural Affairs Committee have recommended that the frameworks should be updated to acknowledge any interaction with the UK internal market Act. The Climate Change, Environment and Infrastructure Committee has recommended that an assessment of the impact of the internal market Act on Welsh legislation in framework areas should be included within annual reports on frameworks.

The UK internal market Act allows areas governed by common frameworks to be excluded from its scope. We have seen how this has been applied to single-use plastics and the Scottish Government’s deposit-return scheme. The HSC committee and the ETRA committee have both noted that the frameworks should be updated to reference the process for Governments requesting and considering exclusions under the internal market Act. They recommended that the Welsh Government seeks inter-governmental agreement to acknowledge this process. In the same vein, the House of Lords Common Frameworks Scrutiny Committee has stated that,

'The UK Internal Market Act 2020 has damaged intergovernmental relations. This means it is all the more important that the exclusions process, which is essential for mitigating the effects of the Act, is made explicit in all relevant frameworks.'

So, we therefore reiterated the views of the HSC and ETRA committees that the Welsh Government should seek inter-governmental agreement to amend each common framework to include a reference to the UK internal market Act and the process for considering and agreeing exclusions from the Act in areas covered by a common framework.

And the final theme, Dirprwy Lywydd, that I wanted to address is that of transparency and reviewing frameworks. In terms of transparency, the ETRA, PAPA, CCEI and HSC committees have all recommended that the Welsh Government should seek inter-governmental agreement to ensure that stakeholder consultation is undertaken during the review of each common framework and its subsequent amendment—a position we also endorsed in another of our recommendations. And a further recommendation of ours endorsed the view of other committees that the Welsh Government should seek inter-governmental agreement to ensure that each common framework provides that legislatures are notified of a dispute that has been escalated to ministerial level and are notified of the outcomes of any such dispute.

Our report also highlights how the HSC committee has noted that some frameworks contain limited information about ongoing reporting to legislatures and stakeholders. And the CCEI committee drew attention to the absence of mechanisms to support the scrutiny of frameworks once they are operational. It is not just devolved legislatures raising these concerns, Dirprwy Lywydd, the House of Lords Common Frameworks Scrutiny Committee has stated that a process for ongoing reporting to legislatures should be developed as, in their words, 'a matter of urgency'.

So, we have therefore recommended, in line with the views of other Senedd committees, that Welsh Government should seek inter-governmental agreement to ensure the regular reporting to legislatures on the operation of each common framework. And if such agreement is not secured, the Welsh Government should regularly report to the Senedd on the ongoing operation of each framework.

The Counsel General told us, Dirprwy Lywydd, at the February meeting of the Inter-Ministerial Standing Committee, that the Governments agreed to a model for future reporting to committees of legislatures following finalisation of the frameworks. However, as we have already noted, those finalised frameworks may not be available for some time and the provisional frameworks are currently in operation. Important decisions are being taken by the Governments through these provisional frameworks—decisions on laws related to agriculture and the environment, for example. The Senedd was notified recently that the Environmental (England and Wales) Permitting (Amendment) Regulations 2003 fall within the scope of the resources and waste common framework.

Dirprwy Lywydd, I can see that I've gone over time already.

Photo of David Rees David Rees Labour 5:19, 12 July 2023

I was about to remind you that you've actually used all your time to close as well.

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour

(Translated)

I apologise.

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour

To close, we believe that in the interests of transparency, accountability and good governance, the Counsel General should also commit to reporting to the Senedd on the operational provisional frameworks on a regular basis as an interim measure. So, I welcome the comments and contributions that others will make this afternoon. And with your consent, I might be able to say a few words in closing.

Photo of David Rees David Rees Labour

You'll say a few words—it will take a minute to close. James Evans.

Photo of James Evans James Evans Conservative

Diolch, Deputy Presiding Officer. The joys of having such a diligent Chair of our committee actually means that a lot of what I wanted to say has already been covered in the eight minutes in which the Chair has spoken. But I'd just like to thank the Chair and all members of the committee for the work that we've done on this. It's very, very important, because common frameworks are an important part of how inter-governmental relations are managed in the United Kingdom, following our departure from the European Union. All four Governments in the UK have recognised this framework as a good example of how governments can co-operate positively to manage divergence and make common policy decisions.

Common frameworks matter because they cover areas of importance to people's lives living here in Wales, such as agricultural support, public health, food safety and the environment—very key, important topics that need to be sorted out. This is why the committee took the task of scrutinising these frameworks seriously, and I do hope that all four Governments of the United Kingdom are able to collectively support all the recommendations in our report. 

Effective governance in the UK is dependent on all four Governments making the most of the new inter-governmental structures agreed as part of the inter-governmental relations review. I therefore hope that careful consideration is given to the committee's recommendation, which calls for each common framework to be updated to reflect the dispute avoidance and resolution process, as agreed as part of the review. 

One area of concern to the committee was the clarity and quality of some of the framework documents. Our report highlighted that the policy committees, such as ETRA, have found understanding some of the framework documents challenging, and it called for frameworks to be as plain and jargon-free as possible. As it considers final frameworks, I hope that the Welsh Government will follow the committee's recommendation that all frameworks and documents are subject to a full quality assurance exercise.

Common frameworks, if produced and used fully, have the potential to contribute to effective and efficient co-operation on policy and law making within the United Kingdom, to benefit the people of Wales, and I think that's what we're all here to do. I do hope that the Welsh Government and the UK Government give serious consideration to all our recommendations, as outlined by our Chair, as they finish their work on the frameworks, because if we get these things right, I actually do think we can create better law making and better inter-governmental working right across our United Kingdom. Diolch.

Photo of Mark Isherwood Mark Isherwood Conservative 5:22, 12 July 2023

Thank you for the opportunity to contribute to this debate as Chair of the Public Accounts and Public Administration Committee. The United Kingdom's exit from the European Union resulted in a number of powers that were held by the EU being returned to the UK. Many of these intersected with the competencies of at least one of the devolved Governments, so the UK Government, Welsh Government, Scottish Government and Northern Ireland Executive have been working jointly to develop UK common frameworks, a mechanism for the UK and devolved Governments to mutually agree some amount of regulatory consistency for sector-specific policy areas where returning EU powers are within devolved competence. 

The Business Committee agreed that the Public Accounts and Public Administration Committee would consider the late payments and procurement provisional common frameworks. Following our scrutiny, the committee considered the frameworks and raised concerns with the Minister for Economy and the Minister for Finance and Local Government. The committee wrote to the Ministers again on 23 June last year to outline its conclusions about the specific frameworks as well as about the approach to the frameworks more generally. I'll now summarise the committee's conclusions. 

Our primary concern related to the dispute-resolution mechanisms governing the common frameworks arrangements. As stated, they're dependent on inter-governmental agreement, with negotiation between the four Governments crucial in managing divergences between the four nations. Whilst both frameworks include sections on decision making and for setting processes for Governments to make decisions jointly in areas of devolved competence, they are less clear about how policy divergences and disputes should be resolved. The committee is concerned about complaint handling and the adjudication of disputes, particularly as the risks of dispute are heightened because of inter-governmental tensions around post-Brexit constitutional arrangements. Accordingly, we believe that the framework should be amended to include more information about how disputes will be dealt with and to allow Governments to seek independent advice or arbitration via a strengthened dispute-resolution process. We also recommended to the Welsh Government that they set out their view on whether time limits should be specified in the dispute avoidance process or processes. We're concerned about the interaction between the frameworks and the United Kingdom Internal Market Act 2020, and believe that the frameworks should be updated to acknowledge any interaction with that Act. Similarly, we're concerned about the lack of clarity about how the Subsidy Control Act 2022 will impact public procurement in Wales and recommended that the Welsh Government kept this situation under review. On the question of divergence, we recommended that the Welsh Government sets out how it will ensure that the public procurement framework offers no less scope for divergence than would have been possible in the EU.

The approach to stakeholder engagement is a key consideration, and we concluded that the Welsh Government should commit to ongoing stakeholder engagement if legislation that falls within the scope of the frameworks is introduced into the Senedd. We concurred with the Economy, Trade, and Rural Affairs Committee, and the climate change and infrastructure committee, that the Welsh Government should seek inter-governmental agreement to ensure that stakeholder consultation is undertaken during the review of each common framework and its subsequent amendment.

On reporting and review requirements, the committee recommended that the Welsh Government also seek inter-governmental agreement to publish any joint reports on the operation of each framework, and if such agreement is not secured, that the Welsh Government should unilaterally publish annual reports. We also noted that the Welsh Government's reports should include relevant commentary on UK-EU relations and international activity. We also asked the Welsh Government to confirm whether a process for changes to retained EU law that apply under the frameworks had been agreed upon, and what that process involves.

We note that the four Governments of the UK have agreed to report annually on how the frameworks are operating. However, we're concerned that many of the frameworks are provisional in operation, despite ongoing disagreement between the Governments about a series of issues, including the interaction between the frameworks and the internal market Act. We remain concerned about the process and approach to these frameworks, and are concerned about the potential for policy divergence, the inadequate dispute resolution mechanisms, and the limited consultation and engagement with the public. As such, the committee will continue to monitor these issues, and we'll pursue these with the Welsh Government should we feel that there are further issues to examine. Diolch yn fawr.

Photo of Peredur Owen Griffiths Peredur Owen Griffiths Plaid Cymru 5:28, 12 July 2023

Can I begin by recording my thanks to my former colleagues on the LJC committee, of which I'm proud to have been a part? What emerged most strikingly for me during the process of compiling this report, and indeed the work of scrutinising Wales's constitutional infrastructure more broadly, is the extent of the agreement across the committee that the people of Wales are poorly served by current arrangements. We disagree on our preferred vision for Wales's constitutional future, but as a committee, we feel that we have been consistently clear that the status quo is not working to protect Wales's interests.

A critical point for me is that the Senedd is where decisions about and for Wales should be taken and scrutinised. As this report that we have been debating today once again highlights, Brexit has consistently acted to constrain the role of both Welsh Government and the Senedd in making law and policy for Wales. Brexit has facilitated the power grab in Westminster and Whitehall and the consistent undermining of devolution, and I am unclear that this is liable to be reversed with a change of Government in Westminster either.

As we've seen in the case of Scotland's deposit-return scheme, the UK Government is the ultimate arbitrator of what kinds of divergence are to be permitted within the UK internal market, and this severely constrains devolved Governments' ability to implement policy. It is worth noting, as I have done previously in this Chamber, that, in this case, the Scottish Government followed the agreed common frameworks process for securing the exclusion under the internal market Act, but that the UK Government unilaterally changed the rules of the game halfway through.

We're assured that the common framework process is one based on consensus across the four Governments. In reality, it acts to reinforce Westminster's writ as both judge and jury on key regulatory decisions and the processes by which these decisions are made. As it stands, common frameworks provide us with less flexibility than the EU framework that they seek to replace, making it harder for us to make decisions that are right for Wales in areas like procurement, sustainability and public health. The Welsh Government should outline what it is doing to ensure that common frameworks provide the flexibility Wales needs and, I might add, how these policy constraints would be reversed by a UK Labour Government.

This also makes clear that, across all sectors, key stakeholders risk being shut out of decision-making processes under the common frameworks, and that processes, including dispute resolution, remain unclear. Here we have a further illustration of the kinds of democratic backsliding that have accompanied Brexit. Far from taking back control, Brexit has meant policy making that is more centralised and less accountable, and here too urgent action is required of the Welsh Government.

In closing, I'd like to make one final observation. We're assured by those who campaigned for Brexit that it was about reducing red tape. I can't help but be struck by the sheer investment of time, energy and public resources that this report represents; the volume of additional scrutiny that is now required of post-Brexit constitutional and governmental process, which are themselves sometimes impermeably complicated. Far from reducing bureaucracy, it seems to me that Brexit has increased it and, therefore, the cost of doing business exponentially. I would argue that this all leads weight to my party's argument that we should seek to rejoin the European single market with urgency. More immediately, we need urgent action to simplify and reduce the burden of processes, like the common frameworks, that Brexit has inflicted. Diolch yn fawr.

Photo of Rhys ab Owen Rhys ab Owen Plaid Cymru 5:32, 12 July 2023

While the common frameworks are supposed to encourage co-operation between the different Governments of the UK and the different legislatures of the UK, it remains unclear to me how they will impact the powers of the Senedd and the Welsh Government. The report talks of the impact of diverging legislation, but, surely, that is devolution, and isn't divergence from the current UK Government often a good thing, as we saw during the COVID pandemic?

On another matter though, I do agree with James Evans. The frameworks themselves are written in very-hard-to-understand language, and a proof-reader is desperately required. Examples of basic mistakes include a colour-coded diagram printed in black and white, and references to sections that simply aren't found in the frameworks. Will the Welsh Government please publish guidance on the common frameworks and any potential impact that they have on the devolution settlement? Because, currently, I do think there still is a lack of transparency and accountability and far too much complexity with regard to common frameworks. Diolch yn fawr.

Photo of David Rees David Rees Labour 5:33, 12 July 2023

(Translated)

I call on the General Counsel and Minister for the Constitution, Mick Antoniw.

Photo of Mick Antoniw Mick Antoniw Labour

(Translated)

Thank you, Dirprwy Lywydd. I'd like to thank the Legislation, Justice and Constitution Committee for its valuable presentation of the comments of various Senedd committees on the framework agreement documents. Under the protocol between the four Governments for comments from legislatures on the framework agreement, I cannot, at this stage, comment in detail on individual recommendations. Committee members will understand that. This will have to wait for the restart of the Northern Ireland Assembly and the comments of Northern Ireland Ministers, which I hope will not be far off. However, I can outline my understanding of the broad principles relating to some of the topics raised in the committee's report.

Photo of Mick Antoniw Mick Antoniw Labour 5:34, 12 July 2023

The common frameworks provide examples that demonstrate that good inter-governmental working is possible, and that coherence and divergence can be managed through constructive dialogue and collaboration. I think those points have been made by all the speakers today, and it's my view that, despite these successes, the mechanisms that the frameworks programme provides for early engagement do need to be more consistently used.

I've repeatedly stressed at meetings of the inter-ministerial committee that this point should be positively reinforced for colleagues at ministerial and permanent secretary level. For example, we've experienced problems in the past on border decisions where the relevant frameworks were not used, as well as a lack of consultation on the announcement of, for example, the then Genetic Technology (Precision Breeding) Bill. The concept of the common frameworks was an essential part of the Senedd giving consent to the UK Government's European Union (Withdrawal) Act 2018, based on the associated inter-governmental agreement, and this reinforces the importance of the common frameworks again.

So, in addition, my officials will be monitoring the use of the exclusions process under the United Kingdom Internal Market Act 2020, and it is vital that any exclusion requests are properly considered and managed in a timely and transparent manner. There needs to be clarity as to what is being considered, what decisions are being made, at every stage of the process. Senedd Members will be aware of the recent disagreements between devolved Governments and the UK Government on agreed policies concerning a deposit-return scheme, including glass bottles and the banning of wet wipes, and I can only perhaps read out the comments in the letter from the Minister for Climate Change that she sent to the Rt Hon Thérèse Coffey on this. She said,

'I'm concerned that over the last six months the IMG, as a core element of the frameworks process, has deteriorated, and significantly so. In relation to the deposit-return scheme, I've written to you separately. Strong statements were made by UK Government about the difficulty of any form of divergence.'

Perhaps just referring to the points that Mark Isherwood has made on the issue of divergence. So, there you have the UK Government making clear statements about avoiding divergence between the four nations, but then noting that the difficulties arose as a direct result of the UK Government deciding unilaterally to diverge from a common four-nation position on the material scope of the scheme—one that had been consulted on and agreed jointly between Wales and Scotland and Northern Ireland.

I have to say, very frankly, that the behaviour of the UK Government in these cases is impossible to reconcile with the principle of the common frameworks. Proper use of the frameworks is vital for the functioning of the UK internal market, and the most effective way of ensuring regulated co-operation and coherence, and this is only possible if the mechanisms they provide for are adhered to. Divergence is not just when Wales or Scotland choose to do something different, but not divergence when the UK, for England, decides to do something unilaterally. That is also divergence, and that is very clear in our understanding of the common frameworks and the way they should operate.

The frameworks programme is a considerable success at operational level and it has enhanced inter-governmental working, but the UK Government must recognise that this can only continue in an atmosphere of mutual respect, where the foundational framework agreement signed in 2017 is adhered to by all parties on all occasions. And perhaps in response to the final comments of Peredur and, indeed, Rhys ab Owen, on the EU: perhaps the only thing I can do is to quote Nigel Farage, who said, 'Brexit has failed.' Diolch.

Photo of David Rees David Rees Labour 5:38, 12 July 2023

(Translated)

 I call on Huw Irranca-Davies to reply to the debate.

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour

Thank you, Dirprwy Lywydd. Counsel General, thanks for that response. I think the contributions today have shown how common frameworks, even in this provisional form, are playing an increasingly important part in governance of the UK post Brexit, and they need to work and be effective—points that have been picked up by many Members. This is why the LJC committee and policy committees have diligently taken the scrutiny of these frameworks to task and developed detailed recommendations for their improvement. So, we hope that in reaching decisions on final frameworks, these recommendations are given careful consideration by the Governments of the UK, and we look forward to that full and detailed response from Welsh Government in due course. In the interim, all of our committees will continue to scrutinise the operation of these frameworks.

Can I thank James Evans, Peredur and former LJC member, Rhys ab Owen, for their contributions, and, of course, my fellow Chair Mark Isherwood as well? It shows the diligence that we are applying to this, and my thanks to all committees and their teams for their consideration of these common frameworks. I wish, Dirprwy Lywydd, you and them—if I can take this opportunity—and even the Counsel General, some quiet down time as we go into recess as well.

Photo of David Rees David Rees Labour 5:39, 12 July 2023

(Translated)

The proposal is to note the committee's report. Does any Member object? No. The motion is therefore agreed in accordance with Standing Order 12.36.

(Translated)

Motion agreed in accordance with Standing Order 12.36.