My Lords, it is a great privilege to follow all the speeches so far, which have so compellingly made the case for the common frameworks process. I wish to speak in favour of the amendments in this group, which have been spoken to so effectively by the noble and learned Lord, Lord Hope of Craighead. These are amendments which, rightly, seek to give effect and primacy to decisions agreed under the common frameworks process. I regret that it was not possible for me to join the Committee stage proceedings, but I have read the O fficial R eport of the first-class discussion of similar amendments debated on 25 October.
The issue of common frameworks and the lack of any recognition in this Bill of their existence, let alone their importance, goes to the heart of many of my profound misgivings about this proposed legislation. As has been noted several times in the past and already several times today, the creation of the common frameworks process can be traced back to the Joint
Ministerial Committee declaration on 16 October 2017. Among the principles set out in that communique was that:
“Common frameworks will be established where they are necessary in order to: enable the functioning of the UK internal market, while acknowledging policy divergence”—
and the noble and learned Lords, Lord Hope and Lord Falconer of Thoroton, emphasised the words “policy divergence”. Among the other principles was that:
“Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore … maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules”.
Crucially, and to state the obvious, that declaration was agreed by the United Kingdom Government and the devolved Administrations.
The importance of such agreement being reached was recommended by the conclusions of the European Union Committee of the House, which, in its fourth report of the 2017-19 Session, said:
“Any durable solution will need the consent of all the nations of the United Kingdom, and of their elected representatives.”
It went on to say that
“A successful settlement cannot be imposed by the UK Government: it must be developed in partnership with the devolved Governments.”
The Government themselves acknowledge in their most recent report, published only a few weeks ago, that
“the UK Government and devolved administrations have continued to work jointly to develop UK Common Frameworks, to protect the UK economy and give maximum certainty to businesses, consumers and international partners”,
and, notably, that United Kingdom Ministers commend UK common frameworks as ensuring
“regulatory coherence across the UK by flexibly managing any potential policy divergence across the four nations.”
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However, instead of building on the positive and constructive work of the common frameworks process, we have this Bill, which surely runs counter to the conclusions of the European Union Committee report. Quite clearly it does not command the support of the devolved Administrations, nor was it developed in partnership with them—it is being imposed by the UK Government. That is why I believe that these amendments are so essential to restore the common frameworks process as the main driver for giving certainty to business and allowing potential policy divergence to be sensibly managed.
With respect, the efforts of Ministers to date to explain why the common frameworks are insufficient to achieve that goal have so far been unconvincing. In a letter of 10 November to the noble Baroness, Lady Taylor of Bolton, the chair of the Constitution Committee, of which I am a member, the noble Lord, Lord True, sought to explain why common frameworks alone are insufficient. He said that:
“Common Frameworks cover the large number of policy areas where powers previously exercised at EU level will flow directly to the UK Government and the devolved administrations
in Edinburgh, Cardiff, and Belfast. The Common Frameworks programme is restricted to these areas, and is not intended to cover the full spectrum of the UK economy or of business operations.”
The last sentence is factually correct, but the implication is surely that the provisions of this Bill are intended to go beyond areas where powers were previously exercised at EU level. That runs counter to what is said in the opening paragraphs of the Explanatory Notes, where we are told that businesses should be able to trade freely across the UK “as they do now.” The measures in this Bill obviously do not apply “now” to areas where powers were not exercised at an EU level, nor have they applied, or indeed been needed, in the 21 years since the devolved legislatures were established.
Rather than building on the common frameworks process, and in spite of there being no examples of trading among our UK nations having been disrupted by the legislation of a devolved legislature in these 21 years, this Government seek to take powers to regulate and diminish these legislatures as some kind of safety net against some unspecified hypothetical measure which might be brought forward at some unspecified future time. On no account can that be described as proportionate.
Surely the better way of achieving a durable and successful solution would, as advocated four years ago by the European Union Committee and reflected in the recent report of the Constitution Committee, be to reinvigorate the common frameworks based on consent and in partnership with the devolved Administration—or as the noble and learned Lord, Lord Hope, put it, “all four nations working together.”
If the Government feel that there are gaps, far better to negotiate and agree with the devolved Administrations principles of mutual recognition which can be incorporated in a fresh memorandum of understanding, as well as establishing a common way forward on resolving disputes. Of course there may be challenges involved, but the agreement on common framework principles in 2017, and the admirable co-operation shown since in developing them, suggests that it is a far from impossible task.
Many of us would be reassured if, before Third Reading, Ministers were able to show a willingness—reciprocated by the devolved Administrations—to engage constructively with the objective of producing the draft of such a fresh memorandum of understanding, together with proposals for a common way forward on resolving disputes. Building on the common frameworks process, agreed jointly and implemented co-operatively, surely provides us all with a better way forward.