National Assembly for Wales

Good afternoon, and can I welcome you to this afternoon's meeting of the External Affairs and Additional Legislation Committee? Just to remind Members that we are undertaking our meeting virtually and, as such, in accordance with Standing Order 34.19, I've determined that the public are excluded from the committee's meeting in order to protect public health, but the meeting is available to the public via our Senedd.tv on www.senedd.tv. The meeting is bilingual and translation is available. Because of the technology, you will find that if you're using translation there will be a short delay between hearing the translation and going back into hearing a larger volume of English. So, please be accepting of that.  If I lose my connection, we have agreed previously that Alun Davies will act as Chair in my absence, either until I return and come back in, or the end of the meeting, whichever is the first. We have not received apologies from anyone. Does anyone wish to declare any interests at this point in time? 

Chair, only my normal declarations of the three groups that I chair for the First Minister with a European interest.

Thank you, Huw. 

Then, I move on to our next item of business, which is item 2 on the agenda, and that's an evidence session with Professor Kenneth Armstrong from the University of Cambridge, and Professor Nicola McEwen from the University of Edinburgh. Can I welcome you both to this afternoon's meeting? And we'll go straight into questions, if that's okay with yourselves, and starting off with Dai Lloyd. 

Professor McEwen first, and then Professor Armstrong. 

Just in general, I think the frameworks programme is widely seen as having been very positive. It's obviously been running for a few years—disruptions, like everything else, in light of the pandemic, but, nonetheless, progress still being made. I can talk through where we think that they're at in more detail but, generally, the critical thing about the frameworks programme is that it has been seen to be co-owned. So, the process has been just as important, if not more important, than what is actually coming out of it at the end. It's obviously very much in stark contrast to the approach in relation to the internal market Bill, and there is some reason to think now that the frameworks programme is in some jeopardy as a result of the disputes around the internal market Bill. 

Thank you very much, and thank you very much for the invitation to be with you today. The only thing I would add to what Nicola has said is that, of course, common frameworks are a relatively recent invention but, of course, we are building upon levels of co-operation that have pre-existed the common frameworks programme itself. And one other thing that I think I would add into that is that that co-operation isn't simply at, if you like, the inter-governmental level, but also at the inter-administrative level—you know, the kind of co-operation that one sees between the Food Standards Agency and Food Standards Scotland, et cetera. So, in many ways, the common frameworks programme is building upon and part of a wider matrix of co-operation, and at different levels of seniority of officials, or officials with different functional responsibilities, including the administrative regulatory landscape out there more generally.

Perhaps I can come in there. This is partly in relation to the Bill— primarily in relation to the Bill, actually, but also speaking to the bigger picture, is that this political—. We referred the committee to the evidence session that you may have seen that the Counsel General and the Cabinet Secretary, his counterpart in the Scottish Government, gave to, I think it was, the House of Lords Common Frameworks Scrutiny Committee earlier this month. The Cabinet Secretary was asked if this—and 'this' being the context of the internal market Bill—was the end of common frameworks and Michael Russell's response was:

'Per force, it is. It is a great shame'.

And I think while the frameworks programme has been ongoing and, again, importantly, led by officials—so, perhaps trying to take some of the political heat out of the discussions—and we are led to believe that there are frameworks ready to go, at least in provisional form; the Counsel General talked about 26 frameworks being ready for the end of the transition period at least in a provisional sense, but the wider political environment might scupper that in some ways. And the frameworks programme, for me, is not just about agreeing a particular framework, it's also about governing in a co-operative way, it's about implementing that, keeping it under review, managing—a lot of the frameworks, actually, are about managing co-ordination, co-operation and co-decision where necessary, but talking to each other when they want to do things differently to try to ensure that that's complementary, I suppose, rather than undercutting the actions of different Governments. And that's at risk.

I think there's one very practical risk that emerges from this, which is that, as you can see—I think there's a very interesting letter from Emily Miles, the chief executive of the FSA to Baroness Andrews, who is obviously doing the work in the House of Lords on the common frameworks, where it's clear that getting finalisation on the frameworks that do exist is in part dependent on how this internal market Bill shapes up and trying to work out what the interaction between the two is going to be. And you will, of course, be aware of the amendments that are taking place in the Lords, some of which are very significant for common frameworks, particularly the Lord Hope amendment. So, one of the difficulties is that, unless we actually know what the Bill is going to look like in final statutory form, finalising some of these common frameworks is difficult. And, of course, the intention has always been that these would be in place by the end of the transition period, which is very, very soon. 

Professor Armstrong, you can go first this time.

I was going to say probably Nicola knows better about the history of this than I do. [Laughter.] But I think all I would say is that some of the changes are the obvious things you'd expect, which is—. A scoping exercise was done to try and see the lie of the land in terms of where the levels of overlap would be, and, of course, as that has progressed, two things become obvious. One is: it's better to combine some of the common frameworks so that there is not too much duplication and replication across areas which in fact have a close level of synergy. The other change is between the different categories, as you know, between the category 3 legislative, category 2 non-legislative, and category 1, where they don't feel that there's anything specific that needs to be in place. And there's been that movement between legislative and non-legislative. 

Precisely what explains some of that change is quite interesting, and the common frameworks that have appeared, particularly around nutrition labelling, hazardous substances et cetera, have been ones where they did anticipate this would be legislative, and they have instead moved to more of a non-legislative framework. So, those are the two things I would highlight as being significant, for one of which I think the change is obvious; the other may be less obvious why it is you move from a legislative to a non-legislative approach. 

The only thing I would add to that is that, I suppose, given that they had started out with over 150, I think, areas where they were exploring whether there ought to be replacement for EU regulations, they've ended up with very few. So, I think it's 115, and, of course, it varies a little between the administrations, but 115 don't require any framework at all. And that does seem somewhat at odds with the logic underpinning the other piece of legislation that we will go on to talk about. 

I think I can kick off on that. In one sense, I think we shouldn't be too dramatic about their absence at the very end of the transition period. That is to say, of course, at the end of the transition period, that body of retained EU law comes to life as a matter of domestic law, and therefore will provide levels of stability. And what we're really looking at here are mechanisms for controlling divergence—what happens when we move away either from that body of law or we introduce things where there previously weren't any specific EU rules in place. And that's not going to happen on 2 January. It's not going to happen overnight. These are things that will happen in the normal timescale and landscape. So, from that point of view, I wouldn't be that immediately anxious about it. 

I broadly share that view. There are one or two areas that may be day 1 issues. So, the emissions trading scheme is probably one of those, and I think that's one that is more advanced in terms of the joint working. I haven't seen the final version, but I've seen a preliminary version of that. But, for the most part, I think, retained EU law and the commitments made around that do buy some time. I suppose the one thing I would maybe slightly—not take issue with, I'd never take issue with Professor Armstrong, but to diverge a little, is that, my understanding is that the frameworks programme is specifically related to EU regulations as they exist, and to retained EU law then and what may replace it, but doesn't cover areas of future potential divergence. There's nothing to say it can't if it's established as a way of joint working—the kind of joint working process that the Welsh Government and some of your committees have been advocating for a long time, but I don't think that's in place as yet. The main weakness, I think, of the frameworks programme in that it risks being a finite exercise that officials work through and then the implications of that for the longer term are not great actually, so it does revert back to the old way of working rather than creating a new, potentially co-operative way of working.

If I could sort of slightly defend myself, but only ever so slightly, because I agree very much with what Professor McEwen has said, I think there is some ambiguity about those areas of retained EU law, where, as a matter of EU law, there was permitted divergence within EU law itself. And therefore, to what extent that kind of divergence, albeit one you might say was always within the power of the member states and the devolved administrations anyway—the extent to which that will remain within the scope of the common framework, I think, is slightly and probably too technical a legal issue to get into, but I think there might be a bit of fuzziness there in some circumstances.

Diolch yn fawr. Potentially, all this is going to be overtaken by events and the word 'divergence' might disappear from the lexicon. Anyway, Cadeirydd, diolch yn fawr.

Thank you, Dai. Actually, we'll move on to the internal market Bill questions and areas now, which is clearly an important aspect in relation to common frameworks, and over to Huw.

Thank you, Chair, and I wonder if, following up then from your exchange with Dai there, we look at this issue of divergence, I think a lot of the questions I have go to what extent do we need an internal market Bill? To what extent does it need to be as broad and all-encompassing as it is, if it is needed, and so on?

So, let's start with the issue of divergence. You've touched on it already, but what are your views on whether the common frameworks programme, if it were all in place—not just the work that's been done but the work that needs to be completed—would be sufficient to actually manage divergence in the UK after EU transition? Now, you've already hinted that you can't completely futureproof this, but do we need the internal market Bill to manage divergence or could the common frameworks largely do it for us? Professor McEwen.

You might want to think about whether divergence is something that has to be managed or whether it's just something to acknowledge and discuss and communicate. The frameworks programme is focused on quite specific things, so, around specific areas of policy. And the internal market Bill is much more broad-brush and apparently designed to sweep up anything that isn't covered in the frameworks programme. Now I don't know if it will be necessary to have a general set of rules. I'm fairly certain there isn't the need, or I'm certainly not convinced of the need to have the set of rules that are written into the internal market Bill as it stands. But it may be the case that, over time, there is a need for some sort of common rule book. But crucially, I think that would only be sustainable if it was one that was agreed by all of the parties and not one that was imposed centrally. 

The UK already has a very tightly integrated market. The White Paper that preceded the Bill acknowledged that and it's not clear to me that, without a rule book right now, it would lead to divergence and all sorts of new barriers to trade, because that's not in any Government's interest, whatever your political colour or your constitutional preference. And so, maybe the frameworks programme needs supplementing by something; maybe that's an inter-governmental process that oversees the internal market—a joint ministerial committee or some form of inter-governmental council for the domestic market, for the internal market. That's the sort of thing that could manage divergences, if you like, or discuss divergences and try to iron out difficulties and conflict and competition. I don't see the necessity of doing it in the way that the Bill currently proposes.

Okay, that's really helpful. If I can move to our other witness with the same question. That response was very interesting in that there may well be the need for something, but it may not look like this and it should be agreed between parties, and it might not be time imperative, as in, 'We have to sign this off in the next few weeks or months' because we have mechanisms in place. Do you agree with that or do you want to add anything to that?

I think what I would say is that I think, for those, particularly the civil servants who have been tasked with this job, if they were to try and defend why it's there, what you might say is, 'Well, something like this exists under EU law at the moment.' We do have principles of non-discrimination and mutual recognition within the EU internal market enshrined in primary law, enforced by courts, and that sits alongside a body of harmonised rules, other forms of mechanisms of notification of new divergences, et cetera, et cetera. So, it's not unusual to see something like this in an internal market context. I think the point that I would underline is to say, in the EU context, the interaction of these different governance tools and techniques is designed to create a particular kind of balance. And there are all sorts of balances that are involved in that: there are political balances between the roles of the member states; there are balances between economic and social values; there are all sorts of things, and therefore, creating an internal market is a design choice of how you go around doing it. So, one could say that there might be a space or a place for an instrument like this, but the point we would always then want to go back to is to say, 'Yes, but where does it fit within the broader architecture?', and, particularly, 'Where does it fit within the constitutional settlement that exists? Where does that fit within the relationship that has been developed, and is developing, between the UK Government and the devolved administrations? And does that contribute to that settlement and the balance inherent in it, or does it act as a constitutional irritant to that relationship?'

And could you answer that question for us that you've just posed at the end of that?

Well, having written a piece in Prospect magazine in which I say it is a constitutional irritant, I guess I have to defend that point, which is to say that the introduction of this Bill at this particular juncture, at this particular point in time, when the common frameworks process was really moving toward its final stages in terms of getting provisional frameworks in place—and, as you will be well aware, the very short consultation period around that gave devolved Parliaments in particular a limited opportunity to scrutinise the Bill, of course, going back to Professor McEwen's point about the political ramifications—has obviously created new political difficulties in those relationships, and therefore, to that extent, I do think it's a constitutional irritant.

Thank you very much. Let's turn this on its head, then, and pick it up from the comments that you've both just made. How would the market-access principles within the UK Internal Market Bill affect divergence, as set out through the common frameworks programme? So, we'll flip this question around. Who would like to go first?

I'm happy to have a go and then the lawyer can correct me when I get it wrong. The Bill itself doesn't prevent policy divergence, so there's nothing in the UK Internal Market Bill to prevent, explicitly, anyway, Senedd Cymru from passing a law that is in your area of competence that is distinctive from a law elsewhere in the UK. What the market-access principles would do is disapply that law to cross-border trade to those entering the market from other parts of the UK where they have satisfied regulations set in those other parts. So, it changes the territorial scope of legislation that the devolved institutions can make. So, it doesn't prevent divergence but it prevents or limits the effects of that divergence. And the documentation accompanying the Bill is quite explicit about the effect of that. It's quite explicit in saying that it will limit—I can't remember the exact form of words, but it will limit the ability of the devolved institutions to achieve social policy goals, or to achieve policy objectives. But that is seen as necessary to avoid potential barriers to trade. That's an argument, but it obviously has competing views also.

Okay, thank you. Professor Armstrong.

I think the way in which I see the Bill interacting with common frameworks is that common frameworks are ex-ante. It's about looking at a body of retained EU law and seeing what happens when there are modifications to that, and whether there are common solutions that can be agreed on a four-nations basis, or whether divergence occurs. The Bill deals ex-post with those divergences once they emerge, once we've moved away from the status quo position, not just the status quo of retained EU law, but just the status quo as at the point when the Bill comes into effect. New divergences trigger the Bill. So, that's very important, I think, because the Bill is often presented as an insurance policy; it just fills the gaps where the sectoral approaches of common frameworks leave spaces. That's not the case; it has an entirely different function. It's to start with a divergence, and then work out whether it's compatible with the market access principles. And if it's not compatible, to disapply that divergence, as applies to goods and services that emanate from other parts of the UK.

And in simple terms, could I just ask you both: does this strengthen or weaken the arm of the devolved nations to diverge in future, in comparison to the ability that we've had to diverge within the EU structures?

Indirectly, yes, because you couldn't—. It's not difficult to foresee that there may be pressure from those producers or service providers within Wales, who may be put at a competitive disadvantage by a divergent policy that may set higher regulatory standards that would only be imposed on them, but they would have to compete against those regulated in another part of the UK, but competing against them in Wales, to whom the regulation would not apply. So, although it doesn't stop the divergent policy, it does create a disincentive to diverge where that would put local producers and service providers at a disadvantage competitively.

So, if I could frame the question slightly differently—thank you for that answer—to our other witness, which is: do the legal structures within the internal market Bill inhibit the ability in future of Welsh Government to decide they wanted higher standards—different standards—in some areas, or not? Should we be worried about this, from a legal point of view, what is written in black and white?

It's a really good question, because I think it's very important to be clear about what the Bill does, which is it doesn't annul a rule; the rule will still be in place, and that is to say, if you put in place a rule that applies to Welsh producers, then that rule will still apply to them. But as Professor McEwen highlights, the point then was to say, 'But what happens when you then have a legal framework under the Bill that creates regulatory competition?' That's really what is crucially at the heart of this, which is to say that once you allow the mutual recognition principle to operate in a relatively unhindered manner, you're creating an extraterritorial effect of rules that you can apply—. Goods that comply with the rules in England or Scotland would be able to be placed on the Welsh market, and that rule would be disapplied to them; it would apply to Welsh producers. Now, of course, how that plays out is going to really depend upon on different markets, I guess, in terms of the size of the markets, and how important high standards, for example, might be. In fact, you may want to compete on high standards and, in fact, there's no interest in having those standards, because that's not a good outcome.

So, I think, going back to my point about design and choice et cetera, it's not just about the legal constraints, but there will be certain market constraints in place as well that will determine exactly how this shakes out. But I wouldn't be sanguine about the potential risks of regulatory competition, and the one thing that I would again emphasise is that while that regulatory competition is something that would be entirely possible as a result of EU membership, the EU model has been one in which regulatory competition is managed within parameters and boundaries, including through harmonised rules, et cetera, et cetera. And that is perhaps the big sell of the European single market to its own citizens, which is to say that there are open borders, there is free trade, but it is also fair trade.

Thank you very much. I only have one final question, because I think the other questions I had have been covered in some of the previous discussion with Dai, but it's to do with the local enforcement legislation that isn't in the scope of the framework. So, the question I have is: how would the market access principles in the internal market Bill affect that devolved local enforcement legislation that is not in the scope of the framework? So, one example of that, for example, is food and feed safety and hygiene.

I guess anything that constitutes a relevant requirement for the purposes of the Bill where it then falls within the scope of the Bill.

And the practical implications of that, Professor McEwen.

As Professor Armstrong said previously, so, if it's not covered by the quite narrowly defined exemptions within the Bill, then the regulations would not apply to those entering the Welsh market. Another example that the Counsel General gave, actually, in his evidence was around the single-use plastics, so because that has originated, perhaps, in EU legislation, but it's not part of retained EU law, it's not covered by the frameworks. So, again, that's an example of areas we might expect to see more of in the future if the frameworks programme is limited to the finite set of retained EU law that we have inherited from EU membership, and not part of an ongoing process of trying to co-ordinate regulatory divergence or work towards harmonisation where it's considered appropriate.

Thank you both very much. Chair, I think I've covered the areas that I needed to on that, unless there's anything you think I haven't picked up on, but we seem to have covered a lot in the last two sets of questions. 

I think the questions you've covered are okay, but we may come back to the internal market Bill, because it's going to be a major player in the whole thing. David—back to questions.

We've had some oblique observations with regard to common frameworks and international obligations, so if we could tease that out just a little bit more, could we have your views on how common frameworks are likely to interact with future international obligations, including, of course, that very, very important part, which is UK and EU future relationship agreements? Either of you could start.

I'm happy to say something about that. It's a very, very interesting area, I think, and I think there are different levels to it. Looking at one very specific common framework, the one that has been produced on hazardous substances and control of them in a planning context, this is something that is also implementing not just EU directives, so-called Seveso directives, but also international agreements of which the EU is party and the UK is party, and there'll be a number of examples like that, where there are just broad international obligations out there to which the UK will continue to be bound, and, therefore, on a kind of four-nations basis, we would not expect to see wide levels of divergence. They would carry on in similar sorts of ways. There'll be questions round about what should happen over time if those agreements come to be renegotiated and what roles devolves should play in the renegotiation or revision of international agreements, but there is that.

On the food side, you also see the importance of the codex alimentarius as an international food standard-setting environment out there, and that will continue to broadly mean that there'll be a certain level of consensus and alignment round about these things, just because there is an international consensus on some of these things, and in that sense, the common frameworks will be operating within that kind of environment.

More specifically, though, I think, on the UK-EU relationship, then, of course, one of the issues that we will have to see how this plays out is what commitments the UK ends up signing up to in terms of regulatory alignment. Now we know there are the requirements under the Northern Ireland protocol for regulatory alignment for Northern Ireland, but more generally, if these are broad and significant in areas like the environment, then, of course, we are replacing the discipline that exists under EU law with another discipline that isn't necessarily going to be domestic, but will arise from the operation of that new international agreement.

So, in a way, you can see that that might start to cut into some of the areas where you might have seen divergence—as Professor McEwen will know from the Scottish context more particularly—the continuity Bill, in terms of a keeping-pace power as a discretion for Scottish Ministers, may end up being limited if there's an actual obligation to comply with an international obligation to retain alignment in terms of the EU-UK free trade agreement.

Clearly, the ability to comply with international obligations was one of the original principles that underpinned the frameworks programme and is one of the drivers of the UK internal market Bill as well, of course. There are already legal requirements to implement international obligations within the devolution settlements, as you know. I suppose I want to make a broader point, in that there ought to be a symbiotic relationship between whatever is agreed externally with the EU or with other international partners, whether those are in trade agreements or the environment or whatever, that has to be able to interact with what is agreed in common frameworks. If it doesn't, then the frameworks will be very short lived. And there are provisions within the frameworks that we have seen for review, for revision, and that does suggest that there is scope for the two to interact.

But it's always struck me as quite intriguing, the way that in Whitehall—and perhaps all Governments—these things seem to be treated in silos, so we have the trade discussions, we have the Brexit negotiations, we have the frameworks programmes, we have the inter-governmental relations review, which is the overarching thing that will either make this work or prevent it from working in a collaborative sense, and I think these things have to hang together. There has to be an interaction between frameworks and international agreements for them to make any sense, really, in the longer term.

Thank you for that answer. I think we have to bear in mind that—I think, Nicola, you mentioned the fact—out of the 150 items that are being viewed in this common framework, 115 are actually already agreed, as such, and we have to keep it in that context, but obviously, one of the very important questions with regard to the international obligations is where the UK Government is negotiating international obligations relevant to common framework areas, what role should the devolved Governments play? That's a very fundamental question.

Just for clarification, 115 areas are areas where they've agreed that they don't need a framework at all, so they've agreed to leave it as it is and do whatever they feel is appropriate to do. But I think you're absolutely right that there is a sensible requirement, or there ought to be sensible provision, to allow for communication between the Governments on areas where the UK Government is representing the UK as a whole, within its area of competence, if it comes to an area like trade, but sometimes within areas where the devolved Governments have competence. But these things clearly interact, and, particularly given that the devolved Governments have to implement the results of international agreements, it makes sense for them to be part of the discussion—not necessarily in the room; all Governments have to be accountable for the decisions that they take themselves, but at least part of the preparatory process and part of the process of agreeing how things are implemented, even from a purely practical sense, to make sure that what's being decided and discussed makes sense in a devolution context and is compatible with the way things work in Scotland and Wales. Obviously there are added complications with respect to Northern Ireland. My understanding is that, at least in relation to trade, the inter-governmental processes are a little bit better than they have been around Brexit negotiations. The soundings from the devolved Governments seem to suggest that, but it's all very difficult for you because it's not really very transparent, and ideally we would have processes where we can shine more of a light on it, to be able to evaluate these things ourselves.

Kenneth, do you have any further comments on that?

I agree with all of that. I think the experience of scrutiny of the Trade Bill is quite instructive there, where you see powers in the Trade Bill that will allow the devolved administrations within their fields of competence to implement by regulations relevant aspects of these rollover trade agreements in place. But it does highlight the anomaly that I think Professor McEwen highlights, which is—we've developed a constitutional system by which, late on in the day, the UK Parliament has a scrutiny function once negotiations have taken place and there's a text of a treaty to be laid before Parliament et cetera, and it assumes that it's the UK Parliament alone that should be scrutinising these things, and only after the event. That doesn't even seem to extend right down to the devolved Parliaments in those areas. And of course the experience of the European Parliament in this area is incredibly interesting, because of course it had very limited powers in the external sphere, but the power that it had ultimately to give consent was used to then re-engineer a role further upstream, because there was no point putting something to the European Parliament that it wasn't going to agree to unless they were kept informed early on in the negotiations. Of course, that was the model that was used for the Brexit negotiations to ensure that the European Parliament was informed at an early stage, and I think there is then an argument to be had as the UK seeks to develop the new trade relations as to how you bring in all of the Parliaments of the UK at a relatively early stage to work out what exactly is likely to emerge from this.

If I may add something, I think the crucial thing there is that the European Parliament had consenting powers, and so it mattered that it had an informed role to play, and the devolved institutions do not have consenting powers over trade negotiations or any other international agreements. That, in a sense, doesn't then empower you to be involved in the process both at the devolved level—so, to be involved in holding the Welsh Government to account for its decisions and participation in discussions—but also it doesn't empower the devolved Governments themselves in their relations with the UK Government.

Thank you very much. Thank you, Chair.

Thank you. You've mentioned the inter-governmental review, which is clearly something we've been looking at and waiting for for quite a while, and perhaps it's important because it links in to how we may have resolution of disputes, and that aspect. Without a structure that allows such resolution, are the common frameworks going to be an effective mechanism?

Yes, I think they can be, because they are setting up a set of processes and relationships that institutionalise communication, and often disputes have emerged in the absence of effective communication. So I think underpinning all of this, and all of these different issues that we've been looking at, it's partly about process, but it's also about the political culture that devolution operates within, and there does need to be a change to the political culture that recognises the status of the devolved institutions. I suppose it affords them legitimacy to speak in a lot of these areas, including areas around external relations, that fall within their areas of competence. 

So, you do need—. I, too, have been long and eagerly awaiting the results of the inter-governmental relations review, but you do need a fundamental shift in the processes and the machinery of inter-governmental relations. Everybody has for a long time been recognising that what we have is not fit for purpose, particularly now, but you also need a change of culture around that, too. And I think better processes can help to feed and to nurture a different kind of culture of inter-governmental relations, but I'm not sure how far we're going to get with either of these things, in the short term, at least. 

Professor Armstrong.

The one thing I think I would add is that, of course, when we think about dispute resolution here, there's an escalation policy as well. So, even in the absence of something at a really high level—at a truly inter-governmental and inter-ministerial level—nonetheless, common frameworks design is one in which dispute resolution is supposed to take place at the lowest possible level within the chain, so that there can be discussions between officials, between agencies, to try and move things along at that level, and then an escalation up to senior officials, and then beyond that to lower ministerial and ministerial levels. So, if the system under the common frameworks worked well, the problem you identify in some ways wouldn't need to necessarily arise, because we shouldn't find ourselves in the situation where the JMC, or any other functional equivalent ministerial body, was really having to adjudicate the dispute; it should have been resolved through common workings and existing ways of working between officials. 

Let's hope so. Professor Armstrong, you actually mentioned earlier the Scottish continuity legislation that's been proposed. I suppose I want to try and find out what impact will that have upon common frameworks, and if that is successful, what impact will it have upon Wales's position within the common frameworks and our roles? Would we need to do similar legislation to ensure that there is consistency? 

The keeping-pace power is, of course, a discretion; there's nothing mandatory about it. It's something that Scottish Ministers can decide that they wish to keep pace with EU law, but the point would be, of course, that that would then potentially create EU divergence if something—. I've given an example before of nutrition labelling, which at the moment—. The front of packaging labelling, you know, that traffic light system that you'll be aware of, is voluntary from an EU perspective; member states can implement it, or not. The UK hasn't done it on a voluntary basis but, in fact, there is an agreed approach between the four nations on how they deal with that. 

If the Scottish Government decided to use a keeping-pace power, and the EU does, as it looks as if it might do, make this mandatory, so it will be mandatory for packaging labelling, and the Scottish Government decided it was simply going to follow that, then, of course, you would then have something that would then trigger the common frameworks process, which is to say, 'This is what Scottish Ministers are intending to do—what's the reaction from the others?' They may say, 'Well, we do it on a voluntary basis, it's going to more or less work out the same. We don't really mind. There is no problem.' So, it doesn't necessarily pose a problem, all it does is trigger the event that would then give rise to the discussions within the frameworks of the common frameworks process. 

Professor McEwen, anything to add?

No, just that, of course, the provisions within the internal market Bill will rather limit the effect of the keeping-pace power. Partly, I think it's a political endeavour to keep up as much as possible with the acquis in areas of devolved competence to prepare what the current administration hopes will be the next step in terms of EU accession negotiations. But I think, in effect, it will probably be more limited than they may wish it to be, but I think it would have limited impact on the frameworks programme. I suppose one thing that I would add is a note of caution in that the continuity legislation empowers Ministers quite a lot to act through secondary legislation, and it does raise some issues around parliamentary scrutiny. So, you may be wary of recommending something that would, potentially, undermine the Senedd's own ability to scrutinise. 

We wouldn't do that. Alun.

Thank you. I was just listening to the conversation there and we've covered most of the areas, I think, that we wanted to cover as a committee by now. But I'm just interested, back at the beginning of the conversation when we were discussing the internal market Bill, there was agreement—I sensed agreement or passive agreement, at least—that the Bill affected the competence of all the devolved administrations. I think that was there. Do the common frameworks perhaps play a similar role but in a different way in limiting the competence of devolved legislators?

Professor McEwen and then Professor Armstrong.

That's a really interesting question and I suppose it would depend on what each individual framework agreed. So, if it's agreed that they would limit their scope to do things differently, then in a sense, perhaps it does impose, not similar limits because it would be by agreement and that's very important, but it does institutionalise a process for trying to reach common ground. So, trying to reach common policy or trying to reach agreement that there may be scope for divergence and then potentially escalating from there if that agreement couldn't be reached. But ultimately, at the end of that process, there's nothing in the frameworks dispute and governance arrangements that I have seen that would prevent divergence and that would prevent each devolved institution from doing what it thought appropriate and in its own interests. And although the UK internal market Bill, for the most part, doesn't do that either, it does just undermine it, because it undermines its effect. So, there are similar issues around—it does raise also issues around accountability, I think, the frameworks programme. And potentially, the institutions voluntarily constrain their scope for divergence, but there's nothing to prevent them from diverging if they see fit.

Professor Armstrong.

I agree with all of that. I think I'd make a different point, which is about the arena within which these things are happening. And the internal market Bill, as I see it, when you read it, it's not clear from it what the dispute resolution mechanism is within it. How are these principles enforced? Who does this? To which, the answer, inevitably, has to be, 'Well, these are binding legal principles enforceable by courts'. It's going to be courts that are going to be interpreting the non-discrimination principle; it's going to be courts that are going to be balancing the legitimate public interest aims that are enshrined in the rules enacted by the Senedd, by the Scottish Parliament, whoever; and it is courts that will be engaging in reasonableness tests and they'll be doing so at the instigation, typically, of private actors—there'll be business interests that will be litigating these things. 

And the common frameworks process, while it may involve constraints, while it involves processes, these are largely political, they're within the political domain in a small 'p' sense in that they are largely at the official level and in some ways, de-politicised in the sense that you will also have regulatory agencies involved doing risk assessment that is de-politicised. And so, there are really important choices there about, in the post-Brexit period, where does this new control lie? Does it lie back in the political domain, as I think many people thought would be the consequence of Brexit—messy, difficult when you've got a multinational United Kingdom with different Governments and different Parliaments? Or did we think it was going to end up back in the courts, when we thought that maybe we didn't like the idea that courts were the bodies that were making these kinds of public interest judgments or public interest balances about the relative merits of opening up markets and regulating them properly? So, in a way, I would see the relationship here as also a kind of normative question about choice, about where do we want that control or power to lie—back within the political domain, or back in the courts.

This is a fascinating conversation. But, going back to what the common frameworks actually are, in terms of structured working together, shall we say, just to simplify it a little bit, within that political environment, Professor Armstrong, there needs to be the transparency that Professor McEwen mentioned in an earlier answer, and there needs to be that accountability. When I first heard about these common frameworks and this beast that's being born, I was pretty terrified by it, quite frankly, because it seemed to me to be a way for Governments to get together, reach agreements, out of sight—you don't know what they're up to when they close the door and break open the sandwiches, neither do I—and they could reach all sorts of agreements, and then we would here, in, wherever we are, Cardiff, have the opportunity to look at one part of it, our colleagues in Edinburgh would look at another part of it, colleagues in Westminster would see another part of it, but nobody would see the whole of it. And that, to me, doesn't feel that it serves either transparency or accountability well. 

I think that's a really interesting point, and it's another variant on the point that I was making, which was, again, in the European system, where we have decision making through committees, or we brought together national officials and so-called comitology committees, it lacked transparency, and people felt uncomfortable about the rise of kind of executive and bureaucratic power, really, I think. And it would also possibly feel like an odd consequence of the UK's withdrawal to simply replicate another bureaucratic process domestically. I think what I would say is that, of course, rule making is what rule making is. Those rules will have to come into public light in some way, shape or form, however they emerge, whether it's powers exercised by Ministers or legislative powers exercised by Parliaments.  

But I think there is a very big challenge, and it's one that I know the Scottish Parliament is aware of, which is how should Parliaments engage with this bureaucracy, how should scrutiny, transparency, be brought to bear on this kind of bureaucracy. Is it at the level of the common frameworks as they are emerging at the moment? We've got these provisional frameworks in place. They've been laid before the legislatures for their views. Is that a meaningful scrutiny that can be carried out by this or other committees, or should we wait and see how they're operationalised? When they are actually put into practice, is that the moment where scrutiny can come in? So, I completely understand and agree with the sentiment, which is how do we ensure accountability, how do we ensure transparency round about this. I think, for parliamentarians, there is a genuine challenge in trying to work out what your degree of interest is, and at what point that can come in. 

One final thing to say on that, though: given the complexity of all this, there is, I think, a strong argument for a degree of inter-parliamentary working on this. And the fact that the House of Lords has established its own common frameworks committee is, I think, a useful resource for everybody, in the sense that it can do a certain amount of work, and then for the devolved Parliaments to work out, within their own spheres of interest and competence, to what extent they want to engage, and engage with one another, in developing good scrutiny arrangements round about it. But I don't take away from the fact that this is a real challenge. 

Professor McEwen, do you want to add anything to that?

Yes. I agree with all of that, and I think there's definitely scope for greater inter-parliamentary working. You've obviously got the experience of doing that around Brexit issues more broadly anyway. I do think, though, that it's important to emphasise the need to strengthen accountability within each administration. Ultimately, the Governments are accountable to their own legislatures for their own actions in the inter-governmental sphere, and that's quite difficult to identify for the reasons that you gave, because so much of this is behind closed doors. And we get reports—we get these quarterly reports—on frameworks and where they have got to, but these are joint declarations; these are the results of the discussions in the negotiations and they're not telling us anything about the individual contribution of each administration. And I think that has to be done at territorial level and I think there are agreements in place. I'm not quite sure how they're operating and whether they're operating effectively. But the weakness in the scrutiny and oversight of inter-governmental relations in the UK is much greater—. I mean, it's terrible everywhere, but it's greater and more of a problem in the UK context than in anywhere else I have looked.

Thank you very much.

Well, we've come to the end of our time, so can I thank you both for your evidence this afternoon? It's been very interesting to look at the perspectives of common frameworks. As you know, you'll receive a copy of the transcript. If you identify any factual inaccuracies, can you please let the clerking team know as soon as possible so that we can have them corrected? Thank you for your time this afternoon—it's been much appreciated.

Thank you. Diolch.

Thank you very much indeed.

For Members, we move on to the next item on the agenda, which is item 3 and papers to note. The first is correspondence from the Counsel General and Minister for European Transition in relation to the UK-Japan comprehensive economic partnership agreement. Are Members content to note that paper? I see they are.

The second one is on preparedness in Wales for the end of the transition period. Those are the consultation responses we've received. I do apologise for the large amount of paperwork associated with that, but they are the responses that we've received. Are Members content to note those responses? They are. Thank you.

The third one is the provisional food and feed safety and hygiene common framework. Again, are Members content to note that? It's been mentioned this afternoon already. They are. Thank you very much for that.

And the fourth one is correspondence from the Counsel General and Minister for European Transition regarding the Joint Ministerial Committee (EU Negotiations) on 1 December 2020, which actually is taking place, I would assume, this afternoon. Are Members content to note that? I see they are. And I assume we'll have an update as to the outcomes of that meeting at some point next week. And the Counsel General is coming to us next week anyway, so we can always ask him about it.

Next on the agenda is a motion under Standing Order 17.42(vi) and (ix) to resolve to exclude the public for the remainder of today's meeting. Are Members content? I see they are. Therefore, we will now end the public session of the meeting and go into private.