UK Devolution Frameworks Division– Written submission (PBC0028)

Question 1 - “Further to the examples in the table above, can you explain how (1) the risk of  divergence was assessed, and (2) the impact of divergence was assessed? “

Assessments on both the risk and impact of divergence were undertaken by the departments who own those policy areas against a standardised questionnaire developed by Cabinet Office to guide departments and ensure a uniform assessment. 

Departments were asked to consider if the absence of a Framework posed a risk to the JMC(EN) Principles. In assessing the risk of divergence they were also asked to assess how cooperation between the governments was being maintained, what drivers for divergence were foreseen and whether any of the risks required new intergovernmental relations. Additionally, departments were asked to consider any broader interdependencies that the policy area might have with cross-cutting issues, and which might act as a driver for divergence.

For the impact of divergence, policy teams assessed whether divergence would be harmful or would impact on other areas, for example existing Common Frameworks. Where the possibility of divergence was identified (or already existing) in some areas, it was judged that the impact of divergence was minor and could be monitored through existing intergovernmental arrangements.

The devolved governments were consulted and carried out their own assessments to satisfy themselves that no Frameworks were currently required. The classifications of these policy areas represent a jointly agreed position. 

Question 2 - “The Framework Analysis 2021 report suggests that no anticipated divergence, or risk  of significant impact from divergence, is sufficient reason for not producing a  framework. However, the JMC Principles that established the Common Frameworks  do not require divergence for a framework to be created. Were the alternative  objectives of frameworks as set out by the Principles – especially including to support  the UK internal market – considered in areas where divergence was not thought  likely?”

Abiding by the JMC (EN) Principles was a foundational consideration in each decision as to whether an individual policy area required a new UK Common Framework or not. Departments confirmed for all policy areas that the absence of a Framework did not pose a risk to the JMC(EN) Principles. It is important to recognise that Common Frameworks are new working arrangements that set how the UK Government and devolved governments intend to work together in line with the JMC(EN) Principles. However, Common Frameworks are not the only way to support this effective intra-UK joint working in former areas of EU law that intersect with devolved competence, nor are they the only way of achieving the objectives set out in the JMC(EN) Principles.

Common Frameworks have established consensual arrangements between the UK Government and the devolved governments that support regulatory coherence, whether that leads to divergence or not. The focus on divergence in assessing policy areas where no Framework is required is to provide further assurance that any arrangements in place are appropriate for that policy area. Should circumstances change, new Frameworks can be developed if new arrangements would better help to achieve a common approach or is more suitable to fulfil the JMC(EN) Principles.

Annex A Additional rationales for No Framework Required policy areas.

•  Driver Hours and Tachographs (DfT) 

Departmental Response-

DfT policy teams actively communicate with NI colleagues on relaxations who are then able to take a view as to whether relaxations would also be appropriate in their territory.  Our communications on relaxations make clear that the territorial extent is only within Great Britain.  Note that relaxations within the EU are similarly done at the member state level and not normally implemented EU wide.

• Security of Supply (Gas) (BEIS)

Departmental Response-

NI, GB and IE operate their gas networks and markets independently, however they are closely aligned in regulatory terms. Gas markets regulation is not covered by the Protocol on Ireland/Northern Ireland, therefore there will not be any divergence between GB and NI on gas markets regulation as a result of the Protocol, but gas policy, including security of supply, is largely devolved to NI. The NI and IE gas markets are both reliant on imports from GB, primarily via the uni-directional Moffat interconnector pipeline, which branches off to both NI and IE and there are transportation agreements between system operators in GB, NI and IE to cover this.

UK officials and senior officials meet regularly with IE and NI counterparts to discuss gas policy, including security of supply, with specific security of supply and emergency planning meetings taking place every six months between IE, NI and UK officials, and relevant Transmission System Operators and regulators. Policy divergence is not likely to manifest as system changes or changes to the Network Codes take a long time and there is little incentive to do so. Additionally, the EU-UK TCA supports future cooperation between the parties on security of gas supply, allowing countries to work together as needed on emergency planning and risk preparations.

• Maritime – Public  Service Contracts/ Obligations, and financial assistance for shipping services which both start and  finish within Scotland/ to, from and within  Wales. (DfT) 

Departmental Response-

The DfT assessment concluded, with respect to domestic services, that both the risk and impact of divergence are constrained by geographical factors and the limited number of ferry routes. While the Scottish Government already diverge in the manner in which they subsidise ferry services within Scotland, this divergence pre-dates EU Exit. In addition, there is also no English comparator from which the Scottish Government could diverge; the only comparable English services (Isle of Wight and Scillies) are profitable in normal circumstances and not usually subsidised. There are no comparable ferry services in Wales or Northern Ireland.

For international services, any question of divergence is limited by the small number of practical services that could be offered, and generally the Scottish Government has upheld a policy of fair competition in the wider interest of market efficiency despite lobbying; but for a notional case where the Scottish Government did subsidise a commercial service in competition with existing England-Continental services any divergence should be constrained by both the existing devolution settlements and UK wide subsidy control arrangements.  While the new Subsidy Control regime is not yet in place, DfT recognises the need to continue to monitor this policy area, as is the case for all NFR policy areas.

• Charging of HGVs (DfT) 

Departmental Response-

The risk of divergence is low, because there are laws in place governing what forms of HGV charging can be introduced in the UK. Prior to the UK leaving the EU, Directives governing HGV charges were transposed into UK law (Regulations 2009/1914 and 2014/2437). These regulations were retained and made free-standing after exit (Regulations 2018/1352). These regulations set rules for what types of HGV charging can be introduced in the UK, and describe how those charges must be set. Furthermore they prevent a road user charge and a toll from being in place simultaneously (Regulation 11 of 2009/1914). Given that the UK government has legislated for a national road user charge for HGVs in the HGV Road User Levy Act 2013, it is not possible for devolved administrations to introduce HGV charging at the same time, except for bridges and tunnels where this is allowed.

• Police and Criminal  Justice Cooperation – Agencies - CEPOL (Home Office)

Departmental Response-

As an EU Member State, the UK opted out of CEPOL (the European Agency for Law Enforcement Training). As such, the UK is not a member of CEPOL. Consequently no intra-UK divergence is possible and no intergovernmental arrangements are needed. 

14 February 2022