Negotiating Frameworks

The interplay between Brexit and devolution is a complex one and, as yet, says Michael Keating, there is little to suggest that the questions it raises have been answered. 
 
One of the key issues in Brexit concerns the fate of those competences that are currently shared between the EU and the devolved governments and legislatures. In the absence of any specific action, these would revert to the devolved level. Brexit means that there would no longer be an EU framework governing them, but there would not be an overall UK framework either. This could pose problems about policy coherence, the maintenance of the UK internal market and externalities. After some months, the UK, Scottish and Welsh Governments are now agreed that there will need to be some UK frameworks and have started talks on how this might be achieved.
 
Following the Joint Ministerial Committee (European Negotiations) of 16 October 2916, the UK Government has stated that: "A framework will set out a common UK, or GB, approach and how it will be operated and governed. This may consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued. Frameworks may be implemented by legislation, by executive action, by memorandums of understanding, or by other means depending on the context in which the framework is intended to operate."
 
This does not tell us how these will be done. There are essentially two possibilities. The Withdrawal Bill proposes that all EU competences will be taken back to Westminster. Some of these may later be ‘released’ back to the devolved level. The Scottish and Welsh governments have opposed this and insisted that the division of competences within the devolution acts be respected. Frameworks can then be negotiated across the various governments rather than imposed from above. Discussions are currently under way on what these might contain. Meanwhile, the Scottish and Welsh Governments support amendments to the Withdrawal Bill to remove the provision about taking powers back to Westminster.
 
The recent report from the Scottish Affairs Select Committee, agreed by all parties, is a contribution to this debate but does not resolve the issue. On the contrary, it seems to take both positions at the same time. It agrees on the need for frameworks and that these should not be imposed but agreed. Yet it also says that ‘Once agreement has been reached the UK Government should bring forward a plan to devolve all powers not covered by those frameworks to the Scottish Parliament.’ This suggests that powers that are covered by the frameworks will be reserved to Westminster. This would allow Westminster the final word on policy as it does on all reserved matters. Indeed, it would be constitutionally strange to stipulate that any reserved matter could not proceed without the agreement of devolved governments. 
 
If the emphasis is on negotiated frameworks, on the other hand, the reservation provisions may be largely redundant. They could be replaced by general principles about the market and perhaps clearer provisions for enforcing international agreements.
 
The extent of the reservation thus implied would depend on how detailed the frameworks are but it is possible that devolved matters would be confined to implementation rather than policy making, consistent with the UK Government belief that currently the devolved governments only implement EU policy. 
 
There are federal countries in which policy frameworks are agreed without the need to take back powers to the centre, for example Belgium and Canada. That provides an alternative route for the UK which does not involve Brexit rolling back the existing settlement. 

Comments policy

All comments posted on the site via Disqus are automatically published. Additionally comments are sent to moderators for checking and removal if necessary. We encourage open debate and real time commenting on the website. The Centre on Constitutional Change cannot be held responsible for any content posted by users. Any complaints about comments on the site should be sent to info@centreonconstitutionalchange.ac.uk

Michael Keating's picture
post by Michael Keating
University of Aberdeen
20th November 2017
Filed under:

Latest blogs

  • 18th December 2018

    Aileen McHarg looks at last week’s decision by the Supreme Court in the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill reference which demonstrates both the strength and the weakness of Holyrood as a legislature.

  • 17th December 2018

    The Supreme Court's ruling on the Scottish Continuity Bill gave both sides something but acknowledged that the vast bulk of the Bill was within Holyrood's competence at the time it was passed however, suggests Sionaidh Douglas-Scott, the strong feeling that devolved interests are not taken seriously highlights underlying fractures within the Union.

  • 14th December 2018

    Disagreements about the border between Northern Ireland and Ireland are about more than practical considerations of where customs checks should be performed, says Michael Keating.

  • 14th December 2018

    Derek MacKay’s third budget of this parliamentary session was doomed to be overshadowed by events at Westminster.

  • 12th December 2018

    Although the N-VA has insisted it left the Belgian government to pursue ’principled opposition’ those principle are, says Coree Brown Swan, at the very least informed by a strategy that allows it to maintain policy influence from outside government while countering the electoral threat posed by a resurgent Vlaams Belang.

Read More Posts