Brexit and Devolution

Implications of Brexit for devolution

Under the Good Friday Agreement, legislative and executive powers were devolved (transferred) to the Northern Ireland Assembly. Health, education, roads, and housing are some of the devolved policy areas. During the UK’s membership of the European Union, many matters under these areas were regulated by European Union rules on the Single Market. New rules now need to be agreed between the four nations of the UK in these areas, to avoid barriers to trade and divergence in standards. The UK Government has committed to work closely with the devolved administrations to develop Common Frameworks in these areas.

• Legislative Consent
• Intergovernmental and interparliamentary relations
• Common Frameworks

Legislative Consent

According to the Sewel Convention, when the UK Parliament is legislating on matters within the devolved competence of the administrations of Northern Ireland, Wales, and Scotland, the Government should “not normally” do so without the consent of the devolved administration. The devolved administrations can indicate their consent for Westminster to legislate on a devolved matter by agreeing a legislative consent motion (LCM). Ultimately the principle of parliamentary sovereignty means that Westminster has the power to legislate on any matter, whether devolved or not. In June 2022, the UK Government confirmed it has legislated without consent from the devolved administrations on 11 occasions since December 2019, mostly relating to EU exit. You can find details of the LCMs which the Assembly has considered in relation to Brexit by following this link.

On 30 December 2020, the Northern Ireland Assembly debated the UK-EU Trade and Cooperation Agreement and agreed “to decline legislative consent to the British Government to impose the European Union (Future Relationship) Bill”

Intergovernmental and interparliamentary relations

Review of intergovernmental relations

In January 2022, the UK Government (UKG) published the conclusions of the review of intergovernmental relations (IGR), which was jointly conducted by UKG and the devolved administrations. All four administrations have agreed to work under the new arrangements set out in the review.

The new structures and processes are based on the following principles:

• Maintaining positive and constructive relations, based on mutual respect for the responsibilities of the governments and their shared role in the governance of the UK;
• Building and maintaining trust, based on effective communication;
• Sharing information and respecting confidentiality;
• Promoting understanding of, and accountability for, their intergovernmental
  activity;
• Resolving disputes according to a clear and agreed process.

There will be a three tier structure of engagement for intergovernmental relations:

• Top tier: The Prime Minister and Heads of Devolved Governments Council will oversee intergovernmental relations
• Middle tier: Engagement on cross-cutting issues, including an Interministerial Standing Committee and a Finance Interministerial Standing Committee
• Lowest tier: Interministerial Groups (IMGs) for specific policy engagement at official and ministerial level

The review contains a new process for avoiding, escalating and resolving disputes. An IGR Secretariat will also be established to provide administrative support. In addition to existing groups, several new Interministerial Groups (IMGs) will be established including an IMG on the EU-UK Trade and Cooperation Agreement and an IMG on Trade.

This research briefing from the Commons Library contains further information about intergovernmental relations in the UK, including historical intergovernmental relations, intergovernmental relations and Ireland, and interparliamentary relations.

Joint Ministerial Committee on EU Negotiations (JMC(EN))

Previously, the Joint Ministerial Committee (European Negotiations), which was established in November 2016, was the primary focus for multilateral Ministerial engagement on EU exit. The Joint Ministerial Committee on EU Negotiations (JMC(EN)) was attended by UK Government Ministers, and Ministers from the Senedd, Scottish Parliament and Northern Ireland Assembly. The meetings dealt with the implementation of agreements between the UK and EU, including the Northern Ireland Protocol, arrangements for the end of the transition period, and Common Frameworks. The Committee met seven times in 2020.

Inter-Parliamentary relations

The Inter-Parliamentary Forum on Brexit held its inaugural meeting in October 2017 and met eight times between October 2017 and September 2019. Chairs and Convenors of Committees scrutinising Brexit-related issues in the House of Commons, House of Lords, Scottish Parliament and Senedd took part. While the Assembly was not conducting its normal business, Northern Ireland Assembly officials attended all meetings as observers. Following on from the Inter-Parliamentary Forum on Brexit, a new Inter-parliamentary Forum (IPF) was established in February 2022. Read more about Inter-Parliamentary relations.

Common Frameworks

Following an agreement in the Joint Ministerial Committee on EU Negotiations in October 2017 between the UK Government and Scottish and Welsh Governments, principles were agreed for the establishment of Common Frameworks. In 2020, following the restoration of devolved government in Northern Ireland, the Executive endorsed these principles. Common Frameworks are being developed in policy areas which were previously governed by EU law and which intersect with devolved competence. They aim to ensure a common approach is taken by devolved administrations in these areas and are being established to:

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

[Source:  JMC(EN) communiqué October 2017 ]

Furthermore, the Committee agreed that Common Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures, and that “the competence of the devolved institutions will not normally be adjusted without their consent”.

The principles also state that frameworks will recognise the “economic and social linkages between Northern Ireland and Ireland”, noting that Northern Ireland “will be the only part of the UK which shares a land frontier with the EU”.

The Common Frameworks process was initially led by the Cabinet Office in the UK Government, in consultation with the devolved administrations. Currently, responsibility lies with the Department for Levelling Up, Communities and Housing.

An amendment was made to the Internal Market Bill to acknowledge the role of frameworks and to allow for some regulations to be excluded from the market access principles if agreed through the Common Frameworks process.  The Internal Market Act (IMA) operates on the basis of two principles: non-discrimination and mutual recognition. Non-discrimination means that regulations in one region of the UK should not discriminate against goods or services from another region of the UK. Mutual recognition ensures that any goods and services sold legally in one part of the UK can also be sold in any other part of the UK. Each of the four UK governments can propose exclusions from the principles as outlined in the process for considering UK Internal Market Act exclusions in Common Framework areas. The Scottish Government is banning certain single use plastics from 1 June 2022. They made the first formal request to exclude these items from the market access principles. On 9 June 2022, the UK Government made the United Kingdom Internal Market Act 2020 (Exclusions from Market Access Principles: Single-Use Plastics) Regulations 2022 using the powers under Section 10 of UK IMA.  The devolved governments/Executive were asked for their consent to the making of this regulation.

Due to the differing devolution settlements, each devolved administration will participate in a different number of Common Frameworks.  In addition, given the provisions of the Protocol on Ireland/Northern Ireland, the development of each Common Framework must take the Protocol and any potential for NI/GB divergence into account.

The Common Frameworks which apply to Northern Ireland (as of November 2022):

Schedule 3 of EU (Withdrawal Act) 2018 requires that the UK Government lays a report on progress on Common Frameworks every three months. Progress reports can be found by following this link.

The Common Framework Process

The Cabinet Office has outlined the plan for delivery of common frameworks as below:

Cabinet Office Frameworks Delivery Plan

• Phase 1: Principles and proof of concept: First phase of multilateral “deep dives” (involving UK Government and devolved administration officials) across legislative framework areas, as well as key non-legislative areas and cross-cutting issues.
• Phase 2: Policy development: Multilateral engagement work to develop outline frameworks in each area; development of required frameworks legislation; the beginning of bilateral stakeholder engagement; a light-touch review of outline frameworks. At the end of this phase, ministers will be sighted on the outline framework, and will agree the direction of travel.
• Phase 3: Review and consultation: Policy finalisation and an exploration of the interaction between frameworks and other key work streams (for example, international obligations and trade); multilateral stakeholder engagement, including high-level programme engagement, parliamentary engagement and technical engagement; and an in-depth review and assessment process. This phase will end with collective agreement of the policy approach, and a provisional framework confirmed by JMC(EN)
• Phase 4: Preparation and implementation: Collaborative work to prepare and deliver the implementation of legislative and non-legislative elements of individual frameworks, alongside stakeholder (in addition to UK Government and devolved administration) engagement as appropriate; some reappraisal of framework agreements may be required based on the outcomes of cross-cutting issues.
• Phase 5: Post-implementation: Post-implementation arrangements, alongside continued required reappraisal of frameworks agreements, based on the outcomes of cross-cutting issues

Phases 3 and 4 offer parliaments in the devolved administrations, as well as stakeholders, an opportunity to scrutinise the Common Frameworks and provide their views to the corresponding Minister. Northern Ireland Assembly Committees began scrutinising Common Frameworks in 2020.