A common framework is an agreed approach to a particular policy, including the implementation and governance of it. The aim of common frameworks is to manage divergence in order to achieve some degree of consistency in policy and practice across UK nations in areas formerly governed by EU law.

In its October 2017 communique on common frameworks, the Joint Ministerial Committee (EU Negotiations) (JMC (EN)) 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.

Joint Ministerial Council (EU Negotiations), 16 October 2017, Common Frameworks: Definition and Principles

The Scottish Government indicated in 2019 that common frameworks would set out:

• the area of EU law under consideration, the current arrangements and any elements from the policy that will not be considered. It will also record any relevant legal or technical definitions.

• a breakdown of the policy area into its component parts, explain where the common rules will and will not be required, and the rationale for that approach. It will also set out any areas of disagreement.

• how the framework will operate in practice: how decisions will be made; the planned roles and responsibilities for each administration, or third party; how implementation will be monitored, and if appropriate enforced; arrangements for reviewing and amending the framework; and dispute resolution arrangements.

However, the Food and Feed Safety and Hygiene Law framework outline considered by the session five Health and Sport Committee noted that:

the framework itself is high level and commits all signatories to early, robust engagement on policy changes within scope.

Framework Outline Agreement and Concordat, 30 November 2020

The framework outline went on to note that the framework:

is intended to facilitate multilateral policy development and set out proposed high level commitments for the four UK Administrations. It should be viewed as a tool that helps policy development, rather than a rigid template to be followed.

As such, it is likely that there will be significant variation between frameworks in terms of whether they set policy or set out how decisions on policy within the scope of the framework will be taken.

There are, however, similarities between frameworks in terms of their overall structure, with the agreements setting out the roles and responsibilities for parties to the framework, how the framework can be reviewed and amended, and how disputes are to be resolved.

During its membership of the European Union, the UK was required to comply with EU law. This means that, in many policy areas, a consistent approach was often adopted across all four nations of the UK, even where those policy areas were devolved.

On 31 December 2020, the transition period ended, and the United Kingdom left the EU single market and customs union. At this point, the requirement to comply with EU law also came to an end. As a result, the UK and devolved governments agreed that common frameworks would be needed to avoid significant policy divergence between the nations of the UK, where that would be undesirable.

The Joint Ministerial Committee (JMC) was a set of committees that comprises ministers from the UK and devolved governments. The JMC (EU Negotiations) sub-committee was created specifically as a forum to involve the devolved administrations in discussion about the UK’s approach to EU Exit. Ministers responsible for Brexit preparations in the UK and devolved governments attended these meetings.

In October 2017, the JMC (EN) agreed an underlying set of principles to guide work in creating common frameworks. These principles are set out below.

Frameworks are inter-governmental agreements between the UK Government and the devolved administrations.

They are approved by Ministers on behalf of each government prior to being sent to all UK legislatures for scrutiny.

The UK Government Cabinet Office is coordinating the work on developing common frameworks.

Common frameworks go through four phases of development before implementation at phase five. The stages are set out below. The parliament receives frameworks for scrutiny at phase four.

Scottish Parliament Information Centre

Frameworks which have reached phase four are available to be considered by the Scottish Parliament. Subject committees can consider frameworks which sit within their policy areas.

Each legislature in the UK can consider common frameworks. Issues raised by legislatures during this scrutiny are fed back to their respective government. Governments then consider any changes which should be made to frameworks in light of scrutiny by legislatures before implementing the framework. Changes in light of scrutiny are not, however, a requirement.

The Constitution, Europe, External Affairs and Culture Committee has an oversight role in relation to frameworks and will lead on cross-cutting issues around transparency, governance and ongoing scrutiny.

The Scottish Government has previously acknowledged the ongoing role of the Scottish Parliament in relation to frameworks:

Consideration will also need to be given to what role the Parliament might have in the ongoing monitoring and scrutiny of frameworks post-implementation.

Scottish Government response to the session five Finance and Constitution Committee report on common frameworks, June 2019

The way in which common frameworks have been developed and will operate raises some significant scrutiny challenges for the Scottish Parliament.

• Common frameworks are intergovernmental agreements and the scope for parliamentary influence in their development is significantly limited with scrutiny taking place at phase four.

• The ongoing operation of frameworks will take place at an official level between government departments. It is therefore unclear how much information the Parliament may be able to access to scrutinise the effect of frameworks on policy-making.

• The Scottish Government and the UK Government have differing objectives in relation to frameworks. The UK Government is seeking “high levels of regulatory coherence”.¹Finance and Constitution Committee, The Scottish Parliament. (2021, February 12). Legacy Expert Panel Report to the Finance and Constitution Committee 12 February 2021. Retrieved from <a href="https://archive2021.parliament.scot/S5_Finance/General%20Documents/Legacy_Finaldoc(1).pdf" target="_blank">https://archive2021.parliament.scot/S5_Finance/General%20Documents/Legacy_Finaldoc(1).pdf</a> [accessed 13 December 2021] The Scottish Government believes that they are about “allowing legitimate policy choices”.¹Finance and Constitution Committee, The Scottish Parliament. (2021, February 12). Legacy Expert Panel Report to the Finance and Constitution Committee 12 February 2021. Retrieved from <a href="https://archive2021.parliament.scot/S5_Finance/General%20Documents/Legacy_Finaldoc(1).pdf" target="_blank">https://archive2021.parliament.scot/S5_Finance/General%20Documents/Legacy_Finaldoc(1).pdf</a> [accessed 13 December 2021]

• The interconnected nature of common frameworks and the UK Internal Market Act 2020 (see section on the UK Internal Market Act).

• The impact of common frameworks on the Scottish Government’s stated policy position of keeping pace with EU law.

• The fact that most frameworks have been operating on an interim basis since 1 January 2021 in spite of being unavailable for scrutiny by legislatures³Scottish Parliament . (2021, June 4). Common Frameworks in the new Parliamentary Session. Retrieved from <a href="https://spice-spotlight.scot/2021/06/04/common-frameworks-in-the-new-parliamentary-session/" target="_blank">https://spice-spotlight.scot/2021/06/04/common-frameworks-in-the-new-parliamentary-session/</a> [accessed 13 December 2021].

The legacy expert panel report to the session five Finance and Constitution Committee noted these scrutiny challenges. The Committee had previously recommended that the Scottish Government should have to report on the operation of each common framework, noting interactions with cross-cutting issues such as keeping pace with EU law, on an annual basis.

This section provides information on scrutiny of the framework at other legislatures.

The House of Lords Common Frameworks Scrutiny Committee is responsible for scrutinising and considering matters relating to all common frameworks. A previous version of the Food Compositional Standards and Labelling framework was considered by the Committee. The Committee made several observations about the framework and sought a number of clarifications in correspondence to the Secretary of State for Environment, Food and Rural Affairs, George Eustice MP, on 21 May 2021:

We are deeply concerned about the interaction between this framework and the UK Internal Market Act 2020 and the Protocol on Ireland/ Northern Ireland. We look forward to seeing more detail on how these cross-cutting issues will be addressed in due course.

Similarly, the Committee highlighted the challenges it experienced with the scrutiny process for this framework:

This Provisional Framework was produced without a Framework Summary being sent in advance to the Committee as part of the previously agreed scrutiny process for frameworks. As a result, the department has not to date provided our Committee with a list of stakeholders consulted in the preparation of the Framework.

Further issues on domestic legislative arrangements and the review and amendment process were also discussed in the letter to the Secretary of State for Environment, Food and Rural Affairs. This briefing covers these issues raised by the Committee in the sections on Scope and Review and Amendment, respectively.

As highlighted in the summary of this briefing, the framework was first published on 23 March 2021 and was then updated and re-published on 17 February 2022.

The covering material provided with the framework documents from Minister for Public Health, Women's Health and Sport Maree Todd MSP to the Health, Social Care and Sport Committee on 22 February 2022 noted:

The main differences in the framework since the summary was shared with the last legislature relate to the addition of agreed text on international relations and trade, which in essence reflect the intersection of this framework, those issues and the devolution settlement. Minor amendments have also been made to the scope section in order to better align with other food frameworks for which the policy lead is Food Standards Scotland.

The UK Internal Market Act 2020 was introduced in the UK Parliament by the UK Government in preparation for the UK’s exit from the EU. The Act establishes two market access principles to protect the flow of goods and services in the UK’s internal market.

1. The principle of mutual recognition, which means that goods and services which can be sold lawfully in one nation of the UK can be sold in any other nation of the UK.

2. The principle of non-discrimination, which means authorities across the UK cannot discriminate against goods and service providers from another part of the UK.

The Act means that the market access principles apply even where divergence may have been agreed in a framework.

The introduction of the UK Internal Market Act had a significant impact on the common frameworks programme because of the tension between the market access principles contained in the Act and the political agreement reached that “common frameworks would be developed in respect of a range of factors, including "ensuring the functioning of the UK internal market, while acknowledging policy divergence"."ⁱAfter Brexit: The UK Internal Market Act and Devolution, Scottish Government, 8 March 2021. Note that footnote 27 in this document provides an incorrect reference. The correct reference is JMC (EN) Communique, 16 October 2019.

UK Government Ministers have the power to disapply the market access principles set out in the Act where the UK Government has agreed with one or more of the devolved governments that divergence is acceptable through the common frameworks process.

Although UK Ministers can disapply the market access principles in such circumstances, they are not legally obliged to do so.

On 2 December 2021, Angus Robertson MSP, Cabinet Secretary for Constitution, External Affairs and Culture wrote to the Convener of the Constitution, Europe, External Affairs and Culture Committee to give an update on the common frameworks programme.

The letter indicated that at a recent Ministerial quadrilateral, agreement had been reached between the UK Government and the Scottish Government and other devolved administrationsⁱⁱSee letter from the Counsel General and Minister for the Constitution to the Senedd’s Legislation, Justice and Constitution Committee dated 25 November 2021. on an approach to "securing exemptions to the Act for policy divergence agreed through common frameworks".

The meeting agreed an approach to securing exemptions to the Act for policy divergence agreed through common frameworks, and endorsed the text of a statement that UK Ministers will shortly make to the House of Commons. This will give effect to firm commitments made to the UK Parliament during the passage of the Bill that “…divergence may occur where there is agreement under a common framework, and that such divergence could be excluded from the market access principles. Regulations to give effect to such an agreement can be made under Clauses 10 and 17. In those cases, the Secretary of State would be able to bring to the House a statutory instrument to exclude from the market access principles a specific agreed area of divergence.

This would follow consensus being reached between the UK Government and all the relevant parties that this is appropriate in respect of any specific defined topic within a common framework.

Letter from the Cabinet Secretary for Constitution, External Affairs and Culture, 2 December 2021

The UK Government and devolved administrations have agreed a process for considering exclusions to the market access principles of the UK Internal Market Act 2020. The process was published on 10 December 2021.

The process requires that if a party to the framework wishes to seek an exclusion to the market access principles, it must set out the scope and rationale for this. The proposed exclusion is then considered by the appropriate framework forum, taking into account evidence including about the likely direct and indirect economic impact of the proposed exemption. If the exemption is agreed, it is for UK Ministers to introduce a draft instrument to the UK Parliament to give effect to the exclusion. The UK Parliament will then consider the draft instrument.

The process is set out in full below.

The updated Food Compositional Standards and Labelling common framework ("the framework") has reached phase four and has, as such, been received by the Scottish Parliament for scrutiny.ⁱAn initial version of the framework was published on 23 March 2021. Formal scrutiny by UK legislatures was delayed in anticipation of an updated version of the framework.House of Lords Common Frameworks Scrutiny Committee. (2021, May 21). Letter from Baroness Andrews to George Eustice MP on Food Compositional Standards and Labelling Provisional, 21 May 2021. Retrieved from https://committees.parliament.uk/publications/5998/documents/67971/default/ [accessed 10 February 2022] Scrutiny will be undertaken by the Health, Social Care and Sport Committee.

The framework has also been received by other UK legislatures.

This briefing is intended to facilitate scrutiny of the framework by the Scottish Parliament.

The policy area under consideration is food compositional standards and labelling (FCSL). This encompasses policies and regulations relating to:

• Food information to consumers

• Fish labelling (consumer information and traceability)

• Dairy designations and spreadable fats (labelling elements)

• Caseins and caseinates

• Cocoa and chocolate products

• Coffee extracts and chicory extracts

• Condensed milk and dried milk

• Fruit juices and fruit nectars

• Honey and honey products

• Jam and similar products

• Lot marking

• Natural mineral, spring, and bottled water

• Specified sugar products

The FCSL policy area is covered by harmonised retained EU law and associated domestic legislation in each of the four nations within the UK. FCSL policy areas fall within the competence of devolved governments. The enforcement of these regulations is delegated to local authorities and powers for enforcement are provided by domestic legislation in each of the four UK nations.

Some variation in policy approaches already exists between UK nations in circumstances where divergence in application within individual nations was permitted through EU Directives and Regulations. Policy changes are to be considered outside scope of the framework where provisions relate to the enforcement and execution of retained EU or other domestic law (i.e. where retained EU law provides flexibility for the law to be applied in different ways, this will, the framework asserts, be maintained).

The framework and its processes should be used by any one (or more) of the parties proposing amendments to or entirely new legislation in these policy areas as well as amendments to EU directive-derived legislation affecting the commodities associated with the policy area.

The framework notes the following interdependencies and exclusions:

• When referring to Food Information to Consumers, Fish Labelling and Food Composition, this framework does not cover:

  • Nutrition Labelling policy and the Nutrition Related Labelling and Compositional Standards Framework.

  • Allergen Labelling policy and the Food and Feed Safety and Hygiene Framework.

• Marketing standards issues that pertain to dairy designations are expected to be covered by the Agricultural Support Framework. However, policy changes relating to the labelling elements of dairy designations are within the scope of the FCSL framework.

There are also several areas of FCSL policy which were not covered by EU legislation and are legislated for domestically. These areas include:

• Rules on Bread and Flour;

• Rules on products containing meat;

• Rules for curds and mincemeat.

The framework notes these areas are within the scope of the framework, although not subject to its dispute resolution mechanism. The House of Lords Common Frameworks Scrutiny Committee queried this in correspondence dated 21 May 2021. George Eustice MP, Secretary of State for Environment, Food and Rural Affairs responded to the committee on 25 June 2021:

To your question about the partial inclusion of domestic, non-retained EU legislation in the framework document. It was considered sensible when drawing up the framework to include for discussion items that, while important for the smooth functioning of the internal market, were not part of retained EU legislation and therefore not within the scope of the framework programme. Because they were outside of the scope of the framework programme, resolution of any disagreement or dispute would need to be pursued through other channels, as they are now and were during our EU membership. This is a limited number of provisions, including the Bread and Flour Regulations, the Jam and Similar Products Regulations, the Products containing meat etc. regulations and the Spreadable Fats (Marketing Standards) and the Milk and Milk Products (Protection of Designations) (England) Regulations 2008.

The wider domestic context was raised in the covering material provided with the framework documents from Minister for Public Health, Women's Health and Sport Maree Todd MSP to the Health, Social Care and Sport Committee on 22 February 2022:

Scottish Ministers fully support the Common Framework programme and consider that frameworks are all that are needed to manage any potential legislative divergence in future. However when the UK Government introduced the Internal Market Act in 2020, the Act’s market access principles could in many instances undermine any policy divergence agreed in a common framework. Whilst Scottish Government continue to view the Act as a direct assault on devolution, a process has been developed to ensure policy divergence agreed in frameworks is excluded from the Act’s market access principles. UK Ministers must now act to ensure that they honour the principle of the common frameworks exclusion process in practice.

While the rest of the UK is able to set its own regulatory regime in the FCSL policy area, EU legislation will continue to be directly applicable in Northern Ireland because of the operation of the Protocol on Ireland/Northern Ireland. The following paragraphs of Annex 2 of the Northern Ireland Protocol are relevant to this framework:

• 8 Goods – General provisions

• 29 Food – General

• 31 Food – Ingredients, Traces, Residues, Marketing Standards

• 33 Food – Other

The framework is intended to be a four-country agreement that allows Northern Ireland to contribute to the development of FCSL policy within the framework's process and governance structures. As such, the arrangements set out in the framework are expected to apply when regulations change in Northern Ireland as a result of EU alignment and when any other party to the framework (i.e. the UK Government, the Scottish Government or the Welsh Government) proposes changes to FCSL policy. Northern Ireland is able to initiate the review of any issues or impacts through the joint decision-making and dispute resolution mechanisms set out in the framework.

The international obligations that apply to this area are:

International trade

Trade agreements usually intend to reduce bureaucratic barriers (e.g. through mutual recognition of another country’s food safety or environmental standards). The UK and the respective countries or trading blocs it enters into trade negotiations with are likely to seek robust assurances on food standards before signing trade agreements.

While FCSL policy areas are devolved matters, international trade is reserved. This creates an area of overlapping interests where UK trade negotiations and implementation may intersect with devolved matters.

It is the responsibility of the UK Government to ensure that the UK complies with its international trading obligations.

International compositional standards and food labelling standards

The UK is required to base its food standards on international standards, guidelines and recommendations as part of its World Trade Organisation membership. The Codex Alimentaris is the relevant set of standards for this policy area.

The framework documents indicate that the framework has been designed to ensure that the UK can fulfil these international obligations (e.g. Codex and WTO membership).

• Food Standards Scotland (FSS) is the independent public sector food body working to protect public health and wider consumers' interests in relation to food in Scotland.

• Food Standards Agency (FSA) is the independent government department working to protect public health and consumers’ wider interests in relation to food in England, Wales and Northern Ireland.

• The Department for Environment Food and Rural Affairs (Defra) is the UK government department responsible for safeguarding the UK’s natural environment, supporting its food and farming industry, and sustaining the rural economy.

• The Concordat which forms part of the framework documents is a multilateral political agreement, which indicates a common line of action.

The framework comprises non-legislative arrangements. Although the framework does not require additional legislation to operate, there is significant legislation and international obligations that are associated with the FCSL policy area. The need for any additional legislation to support the effective functioning of the framework is expected to be limited to bespoke areas as agreed by all four administrations.

Defra, FSS, and the FSA in Wales and Northern Ireland agreed that the framework approach is required to meet the Section 1 of the JMC(EN) Frameworks Principles. Specifically, parties to the framework agree that the proposed approach is sufficient 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.

The framework agreement indicates that collaborative working is part of the proposed approach and the framework therefore describes governance structures for discussing and managing the impact of any proposed policy changes made by one or more governments for the whole of the UK.

It is expected that when negotiating trade deals non-UK countries will seek robust assurance on food standards. The framework suggests this agreement will provide the basis of transparent communication of these standards and ensure that future trade agreements can be completed on a UK-wide basis.

The covering material provided with the framework documents from Minister for Public Health, Women's Health and Sport Maree Todd MSP to the Health, Social Care and Sport Committee on 22 February 2022 sets out the stakeholder engagement that has taken place in the development of the framework. The covering material notes:

Initial informal engagement took place with stakeholders between 13 and 27 November 2020. Only one comment was received by a Scottish stakeholder. The Royal Environmental Health Institute for Scotland (REHIS) was generally supportive of the arrangements outlined and their comments around clarifying the scope of the framework and the decision making process have helped develop the current text of the framework.

This was followed up by an online engagement session which took place on 17th June 2021 involving food manufacturers, general food retail, bakery, butchery, wholesale and enforcement interests. Issues raised mirrored those which have been raised in other framework discussions, namely stakeholders asked about the operability of the framework and the Internal Market Act 2020 and the Northern Ireland Protocol.

No changes were made to the framework directly as a result of this engagement; however minor refinements in relation to Northern Ireland and the wider legislative landscape have been made in the interim.

One of the proposed responsibilities of the new Food Compositional Standards and Labelling Officials Group, is to coordinate the FSA and FSS Boards as well as parliamentary and stakeholder engagement.

The framework is not clear on the exact nature of the intended parliamentary engagement or how it will be conducted in practice. However, there are some indications of where and how stakeholder engagement will take place. For example, in line with the collaborative working approach, the framework indicates:

There is a need for continued robust policy development with the involvement of, and technical expertise from, all four nations, including the need to fully assess the potential impacts of legislative changes on all affected stakeholders.

The framework also sets out how parties to the framework can engage with stakeholders in the interests of developing an evidence base for decision making, reviewing the framework and resolving disputes:

If policy officials require additional evidence to aid decision-making, external stakeholders may be requested to submit evidence or input to consultations. This will include any industry or consumer stakeholders as appropriate. Policy officials will agree policy proposals to the FCSL Officials Group prior to embarking on external consultation. The outcomes of any agreed changes to FCSL policy in either one or more UK nations will be communicated to stakeholders in an appropriate manner.

This section provides information on the legislation associated with the framework.

A number of areas of FCSL policy, such as the compositional standards of certain meat products, are covered by existing domestic legislative arrangements across each of the administrations. Relevant domestic legislation across each of the four administrations and within the scope of the framework is listed in Annex A.

The covering material provided with the framework documents from Minister for Public Health, Women's Health and Sport Maree Todd MSP to the Health, Social Care and Sport Committee on 22 February 2022 listed the following Statutory Instruments that have received the consent of the Scottish Parliament:

• The Environment, Food and Rural Affairs (Amendment) (EU Exit) Regulations 2019

• The Food (Amendment) (EU Exit) Regulations 2019

• The Food and Drink (EU Exit) Regulations 2020 (replaces the Food and Drink (EU Exit) Regulations 2019);

• The Food (Amendment) (EU Exit) Regulations 2020

• The Food and Drink (Misc. Amendments etc) Regulations 2021

• The Food, Natural Mineral Water, Spring Water and Bottled Drinking Water (EU Exit) (Scotland) (Amendment) Regulations 2021

• The Food, Natural Mineral Water, Spring Water and Bottled Drinking Water (EU Exit) (Scotland) (Amendment) Amendment Regulations 2021

A Concordat between the UK Government, Scottish Government, Welsh Government and the Department of Health in Northern Ireland provides the basis for governance arrangements, working arrangements and maintaining commonality in approach and minimum standards. The Concordat forms part of the framework documents.

This section sets out the roles and responsibilities of each party to the framework.

The parties to the framework include the officials, senior officials and Ministers (including Senior MinistersⁱA senior minister in the Scottish Government is likely to be a Cabinet Secretary. A Secretary of State is likely to be considered a senior minister in the UK Government. where there is a distinction) from each of the four governments.

The framework notes that information sharing between parties to the framework is expected. Specifically, it is expected that each government will aim to provide each other with full and open access to scientific, technical and policy information (including statistics and research), and where appropriate, representations from third parties.

The main forum for official level discussion and decision making will be the Food Compositional Standards and Labelling (FCSL) Officials Group.

The role of this group set out in its Terms of Reference is to:

• be a forum for all UK nations to examine proposed amendments to, or entirely new legislation in the area of food compositional standards and food labelling;

• provide the opportunity to review UK wide impacts and whether or not a policy is appropriate to take forward on a single nation or UK wide basis;

• provide a co-ordinated UK position on food compositional standards and labelling policy, resulting in clear and consistent messaging for consumers and industry;

• facilitate multilateral policy development;

• sek, where agreeable, to develop and agree upon common policy approaches;

• manage potential divergence in a way that respects the Devolution Settlements;

• coordinate the FSA and FSS Boards;

• coordinate parliamentary and stakeholder engagement and communication;

• review and amend the framework as per the review and amendment mechanism;

• escalate issues as per the dispute avoidance and resolution process.

The FCSL Officials Group will meet on a quarterly basis (as set out in its Terms of Reference). However, officials are also expected to hold day-to-day discussions on the policy area covered by framework and put advice to Ministers with the rationale for the approach taken within the policy area (e.g. whether a UK or GB wide approach should be taken), or why divergent policies may be necessary.

Officials across administrations are expected to convene to discuss policy issues as appropriate and to keep colleagues regularly informed of any impacts that policy may have across administrations. Where officials are unable to agree on decisions at a working level, issues can be escalated to senior officials in line with the framework’s dispute avoidance and resolution mechanism.

The role of senior officials set out in the framework is to provide strategic direction on the policy area and take key operational decisions.

Senior official meetings will be convened on a regular or ad hoc basis.

Senior officials may also convene to discuss issues or disputes raised at the official level. Senior officials can also escalate issues to Ministers as part of the dispute resolution mechanism if necessary.

It is expected that many of the issues considered through the framework process will be routine and technical. The FSA and FSS will consider on a case by case basis whether the matter being discussed is something that their Boards will need to consider. Where the Boards of FSS and the FSA do consider a matter, they will review available evidence and finalise recommendations resulting from the operation of the framework prior to Ministers being informed. It is, however, unlikely that the Boards would be involved before advice is provided to Ministers on issues which are routine and technical.

Ministers may receive advice and approve proposals from their officials either concurrently across governments as issues arise, or in the course of business as usual work for individual governments.

Ministers also have a role in the joint decision making process and dispute resolution process to review and discuss issues that are escalated to ministerial level.

This section sets out the roles and responsibilities of any bodies associated with the framework which already exist, or which are to be created.

The FCSL Officials Group is listed as a new body in the framework.

Decisions, including changes to legislation and policy within the FCSL area, can be made at a Ministerial level by individual governments. The framework expects the key joint decisions parties may take will include:

• policy decisions;

• resolution of issues;

• reviewing and amending the framework;

• referring issues to the overarching dispute avoidance and resolution mechanisms at Official and Inter-Ministerial level.

The framework sets out that for any decision, parties should first reach a consensus on the anticipated impact of a policy change or decision and make efforts to resolve any disputes. The framework also notes that:

Harmonised retained EU legislation provides scope for national measures to achieve common outcomes and so divergence is already possible e.g., national rules for curds and mincemeat provided for in regulations relating to Jam and Similar products.

Additionally, the framework explains that certain policy changes within the scope of the framework should be considered subject to impact assessment and evidence. The respective policy changes include:

• one or more governments seeking to make a change in or review an area of returning powers, within the scope of the policy area (including any changes to requirements previously set out in EU Regulations and Directives and implemented separately in national law but does not include enforcement and execution of retained EU law);

• where different requirements are proposed for establishments within one nation placing products on the market solely within the territory of that nation (i.e. establishments are based in and supplying the local market only); or

• where different requirements are proposed for products produced in and placed on the market solely within the territory of one nation(i.e. products are produced and consumed exclusively in the local market only).

For the purposes of building an evidence base for assessing the impact of policy changes, the framework suggests the following:

• commissioning further evidence from analysts;

• commissioning further evidence from legal teams;

• seeking advice from consumers and other external bodies;

• engagement with industry (possibly through consultations, working groups etc).

The primary forum for joint decision making is the FCSL Officials Group. The framework anticipates that most decisions will be made at Official Level. The joint decision making mechanism is designed as follows:

1. Initial assessment: one or more governments submit an initial assessment and summary of a proposed change to the FCSL Officials Group.

2. Evidence consideration: policy officials develop and consider more detailed evidence following initial notification.

   1. The governments agree not to launch a public consultation, or progress in any other material way, on the proposed change during this time.

   2. If required the FCSL Officials Group can agree to create a working group consisting of officials from each of the governments to further discuss cross-cutting issues within an agreed timeframe. These sub-groups can also be created at the request of one nation to assist in further policy development. It is expected working groups will prepare a policy paper on the specific issue under consideration for the FCSL Officials Group.

3. Submit conclusions: after an agreed period, officials submit their conclusions to the group.

4. Agreement from officials: in the event officials agree on the potential impact of the change and raise no concerns with the proposed change, the considerations of the FSA and FSS Boards should be included. The agreed proposals can then put to Ministers.

5. Disagreement between officials: In the event officials disagree on the potential impact of the change (or even agree on the potential impact of the change but disagree with the proposed change), there are two options in the decision making mechanism:

   1. Option one: the governments can decide not to proceed with the change

   2. Option two: if intending to proceed with the change, the governments should notify the FCSL Officials Group and the dispute resolution process will begin.

The framework indicates that the FCSL Officials Group will meet quarterly to monitor the framework. The framework also indicates that monitoring will occur on an ongoing basis as part of routine business. The purpose of monitoring is to assess:

• intergovernmental cooperation and collaboration as a result of the framework;

• whether parties are implementing and complying with the framework;

• whether divergence has taken place in contravention of the common framework principles; and

• whether harmful divergence has taken place that impacts on the policy area covered by the framework.

The outcomes of the monitoring process are expected to be used to inform joint decision-making and the review and amendment process. If there is an unresolved disagreement, the dispute avoidance and resolution mechanism should be used.

The review and amendment mechanism (RAM) is intended to ensure the framework remains fit for purpose and is able to adapt to changing policy and governance environments. The design of the RAM set out in the framework is led by the FCSL Officials Group, with engagement from senior officials and Ministers. Moreover, the framework indicates the process is intended to rely on consensus of the relevant Ministers for the policy area at each stage of the process.

At the outset of the review stage, the parties must agree timelines for the process, including the possible amendment stage. The framework allows for third parties to be involved in an advisory capacity at the invitation of any party to the framework. These include other government departments or bodies as well as external stakeholders such as NGOs and interest groups. If a decision is not reached in either the review or amendment stage, parties to the framework can raise it as a dispute through the framework dispute avoidance and resolution process.

The framework stipulates that an initial review should take place one year after the framework is implemented to determine if the arrangements are functional. However, the implementation section of the framework indicates that the framework is already being implemented on a provisional basis. Therefore, it is unclear when this initial review will take place (i.e. whether it will be one year after provisional implementation or one year after confirmation of the framework).

Following the initial review, there are two types of review that can take place. The process for agreeing amendments should be identical regardless of the type of review and is set out in the framework as follows:

Review stage

• Periodic review: the operation of the framework should be reviewed every three years and held in line with official or ministerial level meetings.

  • The period of three years starts from the conclusion of a periodic review and any amendment stages that follow.

  • During the periodic review, parties to the framework will discuss whether the governance and operational aspects of the framework are working effectively, and whether decisions made over the previous three years need to be reflected in an updated non-legislative agreement.

• Exceptional review: an exceptional review of the framework is triggered by a ‘significant issue’.

  • A significant issue must be time sensitive and fundamentally impact the operation or the scope of the framework.

  • This kind of review may include a review of governance structures if all parties agree it is required. Otherwise, these issues are handled in the periodic review.

  • The same significant issue cannot be discussed within six months of the closing of that issue.

The amendment stage can only be triggered through unanimous agreement by Ministers. If parties agree that no amendment is required, the relevant time period begins again for both review types (i.e. it will be 3 years until the next periodic review and at least six months until the same significant issue can trigger an exceptional review).

The House of Lords Common Frameworks Scrutiny Committee raised its concerns on this aspect of the RAM process during scrutiny of a previous version of the framework:

Concerning periodic reviews of frameworks, we are increasingly concerned that not permitting the discussion of a significant issue that has been resolved, within six months of a resolution, places harsh limitations on discussion and adds operational complexity to the review process and framework. Can you clarify the justification for this approach?

This specific aspect of the RAM process was left unchanged in the updated framework. George Eustice MP, Secretary of State for Environment, Food and Rural Affairs responded with the reasoning for this in correspondence published by the committee on 25 June 2021:

I note your concerns regarding the way the framework deals with significant issues, triggering an exceptional review of the framework. It is important that any exceptional review of the framework comes to a resolution that is agreed between all parties. To re-open the same issue immediately would be indicative that such a resolution has not in fact been achieved and the ability to do so would, I believe, render the framework unmanageable.

Amendment stage

Following the parties jointly deciding to enter the amendment stage, parties will enter into discussion around the exact nature of the amendment. This can either be led by one party to the framework or all.

If an amendment is deemed necessary during either type of review, the existing framework will remain in place until a final amendment has been agreed.

All amendments to the framework must be agreed by all parties and a new framework signed by all parties. If agreement cannot be reached on whether or how a framework should be amended this may become a disagreement and, as such, could be raised through the framework dispute avoidance and resolution mechanism.

This section considers the dispute resolution process set out within the framework.

The framework sets out that the dispute resolution process should be only be used if:

• agreement cannot be reached on the anticipated impact of a policy proposal; or

• agreement cannot be reached on a common recommendation regarding an application, request, or policy proposals; or

• one or more party considers the terms of reference or parameters agreed for the governance framework have been breached; or

• one party considers that a JMC(EN) principle has been broken, or undue weight has been placed on one JMC(EN) principle (or part of a principle) at the expense of another.

There is a three-level process for resolving disagreements that is similar to the Decision-Making arrangements and follows the Roles and Responsibilities of Parties outlined in the framework. As such, there is an official level, senior official level and Ministerial level for resolving disagreements before the matter would then be escalated to intergovernmental structures in the event of no agreement.

The parties to this framework have agreed that if there is a disagreement on a decision, an effort will be made to resolve this issue at the lowest possible level. This means the majority of issues are likely to be resolved through the FCSL Officials Group. The views of senior officials will be solicited where necessary and it is expected escalation to Ministers will only occur when official level agreement cannot be reached. At each stage further evidence may be requested from the preceding forum before the disagreement is discussed. Any issues between parties will be recorded to help inform the review and amendment mechanism.

The framework dispute resolution process consists of the following escalating steps:

1. FCSL Officials Group is informed of a disagreement.

   1. The position of each party in the disagreement, resolution options and criteria for an agreed outcome is established. If required, FCSL Officials Group will convene any relevant party to the framework, including members of any working groups, and any governments involved. Requests for any further evidence to be commissioned can be considered here. Any additional representation required at the meeting will be agreed in advance by members of the Officials Group.

   2. An agreement is reached. The proposing nations implement the desired change.

2. If an agreement is not reached at official level:

   1. Senior officials from each nation will be nominated to participate in dispute resolution meetings. FSA and FSS Board considerations will be included here as appropriate.

   2. An agreement is reached. The proposing nations implement the desired change.

3. If an agreement is not reached at senior official level:

   1. The dispute is referred to Ministers to consider evidence presented during official level discussions when attempting to resolve disputes. This could be a bilateral discussion between the parties involved in the dispute, or if appropriate a multilateral discussion between Ministers from all four governments and any other relevant organisations.

   2. An agreement is reached. The proposing nations implement the desired change.

4. If an agreement is not reached at Ministerial level within the framework.

   1. The dispute is referred to intergovernmental dispute resolution mechanisms. This is intended to only be a final resort measure for when issues cannot be resolved within framework governance structures.

It is anticipated that recourse to resolution at Ministerial level will be as a last resort and only sought where dispute resolution at official level has failed. Disputes which reach Ministerial level will be resolved through intergovernmental dispute resolution mechanisms. Relevant intergovernmental disputes may concern the "interpretation of, or actions taken in relation to, matters governed by […] common framework agreements".

Intergovernmental dispute resolution mechanisms were considered as part of the joint review on intergovernmental relations. The conclusions of the joint review were published on 13 January 2022 and set out a new approach to intergovernmental relations, which the UK Government and devolved governments have agreed to work to. The joint review created a new three-tiered system for intergovernmental discussions, doing away with the old Joint Ministerial Committee structure.

The lowest and middle tiers have specific responsibilities for common frameworks. At the lowest tier, interministerial groups (IMGs) are responsible for particular policy areas, including common frameworks falling within them. At the middle-tier, the Interministerial Standing Committee (IMSC) is intended to provide oversight of the common frameworks programme.

The new IGR dispute resolution process follows on from the process at the official level. If a dispute cannot be resolved at the official level as set out in individual frameworks, it is escalated to the Ministerial level. The diagram below illustrates the general dispute resolution process for frameworks, including discussions between officials (square) and Ministers (triangle).ⁱA slightly different dispute resolution process applies for disputes of a financial nature, which involve the Finance Interministerial Standing Committee.

Scottish Parliament Information Centre

At the lowest level, interministerial groups comprising portfolio Ministers attempt to resolve the disagreement. If their attempts are unsuccessful, the issue can be escalated to an interministerial committee. If the interministerial committee is unsuccessful in resolving the issue, it can either agree to disagree, in which case each government makes a statement to their legislature to or escalate the dispute further. If a dispute is escalated to the highest level, third-party advice or mediation should normally be sought and made available to the Council. If the Council fails to find agreement, it is again required to make a statement to their legislatures.

The new process includes more extensive reporting requirements about disputes. The IGR secretariat is required to report on the outcome of disputes at the final escalation stage, including on any third-party advice received. Each government is also required to lay this report before its legislature.

The Office for the Internal Market (OIM) can provide expert, independent advice to the UK Government and devolved governments. Its advice and reports may, however, be used by governments as evidence during a dispute on a common framework.

Rachel Merelie of the OIM explained the position whilst giving evidence to the House of Lords Common Frameworks Scrutiny Committee in November 2021:

The OIM is not involved in dispute resolution. We are here to provide advice to government, using our economic and technical expertise…It is of course possible…that our reports are considered in some shape or form as evidence in support of that process, and we remain open to being used in that way.

The framework was provisionally confirmed by the JMC(EN) and published on 23 March 2021. An updated framework was published on 17 February 2022. This updated framework is being implemented on a provisional basis.

UK legislatures now have the opportunity to scrutinise the framework and raise any concerns with their respective government. If scrutiny and any subsequent reappraisal of the framework leads to significant changes, the provisional framework may need to undergo further collective agreement before final confirmation. The framework also notes as a next step that the Concordat between the four governments will be signed.

The Food Compositional Standards and Labelling (FCSL) framework aims to maintain comparable standards for clear and accurate food information between the UK Government, Scottish Government, Welsh Government and the Northern Ireland Executive.

The policy areas covered by the FCSL framework are noted earlier in this briefing . The FCSL policy areas are covered by harmonised retained EU law and associated domestic legislation in each of the four nations within the UK. The retained EU regulations in this policy area that intersect with devolved competence cover:

• Definition of food products.

• Provision of food information to consumers.

• Indication of the provenance of ingredients.

• Traceability of fishery products.

As noted previously, the framework does not cover nutrition and allergen labelling, as these are included in other frameworks.

The framework highlights two principles that should underpin decisions made within the relevant policy areas:

• Consumers have the right to clear and accurate food information, to make informed, healthy, and safe choices.

• Compliant businesses should be supported to trade across the UK with minimal barriers.

Food Standards Scotland (FSS) is Scotland’s public sector food body working to protect public health and wider consumers' interests in relation to food in Scotland, and is Scotland’s policy lead on the FCSL framework.

Under the UK/EU withdrawal agreement, Northern Ireland remains in the UK customs territory but remains aligned with EU regulations. If the rules around food compositional standards and labelling change in the EU, then Northern Ireland will have to realign with them, possibly leading to divergence from the rest of the UK. The Scottish Government has also expressed its desire to remain aligned with EU law where appropriate. The framework sets out the structures and processes for managing the impact of such changes should they occur.

In discussing two other frameworks the Minister for Public Health, Women’s Health and Sport, Maree Todd MSP explained how frameworks would enable potential policy divergence:

It is clear that, if there is a change in EU law, that will apply in Northern Ireland. That will need to be considered through the framework processes. The Scottish Government set out its view that, although we are not in the same situation as Northern Ireland, we are pretty keen to remain aligned with EU law where such alignment is appropriate and in Scotland’s best interests. That is the reason for the potential in the framework to enable policy divergence between the four nations.

Health, Social Care and Sport Committee, 2022

The Food Compositional Standards and Labelling (FCSL) framework includes in scope some policy areas that have always been subject to domestic rather than EU law. These cover rules on bread and flour, curds and mincemeat, and products containing meat. The UK Government stated these domestic arrangements were included in the FCSL framework “for the smooth functioning of the internal market”. Their inclusion means that the FCSL framework parties will discuss any proposed policy changes with a view to making joint decisions, even in cases where they would have had autonomy to regulate differently when the UK was a member of the EU. However, resolution of any disputes arising from proposed changes to these domestic arrangements would not be covered by the FCSL framework. If a common approach cannot be not found, the market access principles of the UK Internal Market Act would apply.

When the UK was a member of the EU, the regulations for the domestic policy areas now covered by the FCSL framework included preferential mutual recognition provisions for food from EU/EEA states. Following EU exit, UK administrations have begun to remove these provisions to comply with World Trade Organisation (WTO) rules. The UK Internal Market Act and the FCSL framework have underpinned this work. In the process of making the necessary amendments to rules on bread and flour, curds and mincemeat, spreadable fats, and products containing meat, Food Standards Scotland (FSS) notes in its consultation document:

FSS has worked closely with all the other UK administrations to jointly consider and align necessary changes across the UK as far as possible to prevent divergence in recognition that trade is significantly integrated within the UK internal market.

Although FCSL policy areas are devolved matters, obligations relating to international trade are the responsibility of the UK Government. Future international trade negotiations may therefore intersect with devolved FCSL policy. The FCSL framework expresses the aim that all parties will work closely in such instances, and states:

These [Common Framework] principles were established in the context of an ambition for close working between all Parties on reserved matters that significantly impact devolved responsibilities in Common Frameworks. Common Frameworks will allow the parties, in a timely manner, to ascertain the impact of international trade on managing UK policy divergence.

• Food Information Regulations 2014

• Food Information (Scotland) Regulations 2014

• Food Information (Wales) Regulations 2014

• Food Information Regulations (Northern Ireland) 2014

• The Country of Origin of Certain Meats (England) Regulations 2015

• The Country of Origin of Certain Meats (Scotland) Regulations 2016

• The Country of Origin of Certain Meats (Wales) Regulations 2015

• The Country of Origin of Certain Meats Regulations (Northern Ireland) 2015

• The Fish Labelling Regulations 2013

• The Fish Labelling (Scotland) Regulations 2013

• The Fish Labelling (Wales) Regulations 2013

• The Fish Labelling Regulations (Northern Ireland) 2013

• The Spreadable Fats (Marketing Standards) and the Milk and Milk Products (Protection of Designations) (England) Regulations 2008

• The Spreadable Fats, Milk and Milk Products (Scotland) Regulations 2008

• The Spreadable Fats (Marketing Standards) and the Milk and Milk Products (Protection of Designations) (Wales) Regulations 2008

• The Spreadable Fats (Marketing Standards) and the Milk and Milk Products (Protection of Designations) Regulations (Northern Ireland) 2008

• Natural Mineral Water, Spring Water and Bottled Drinking Water (England) Regulations 2007

• Natural Mineral Water, Spring Water and Bottled Drinking Water (Scotland) (No. 2) Regulations 2007

• Natural Mineral Water, Spring Water and Bottled Drinking Water (Wales) Regulations 2015

• Natural Mineral Water, Spring Water and Bottled Drinking Water Regulations (Northern Ireland) 2015

• Cocoa and Chocolate Products (England) Regulations 2003

• Cocoa and Chocolate Products (Scotland) Regulations 2003

• Cocoa and Chocolate Products (Wales) Regulations 2003

• Cocoa and Chocolate Products Regulations (Northern Ireland) 2003

• Coffee Extracts and Chicory Extracts (England) Regulations 2000

• Coffee Extracts and Chicory Extracts (Scotland) Regulations 2001

• Coffee Extracts and Chicory Extracts (Wales) Regulations 2001

• Coffee Extracts and Chicory Extracts Regulations (Northern Ireland) 2001

• Fruit Juices and Fruit Nectars (England) Regulations 2013

• Fruit Juices and Fruit Nectars (Scotland) Regulations 2013

• Fruit Juices and Fruit Nectars (Wales) Regulations 2013

• Fruit Juices and Fruit Nectars Regulations (Northern Ireland) 2013

• Honey (England) Regulations 2015

• Honey (Scotland) Regulations 2015

• Honey (Wales) Regulations 2015

• Honey Regulations (Northern Ireland) 2015

• Jam and Similar Products (England) Regulations 2003

• Jam and Similar Products (Scotland) Regulations 2004

• Jam and Similar Products (Wales) Regulations 2018

• Jam and Similar Products Regulations (Northern Ireland) 2018

• Specified Sugar Products (England) Regulations 2003

• Specified Sugar Products (Scotland) Regulations 2003

• Specified Sugar Products (Wales) Regulations 2003

• Specified Sugar Products Regulations (Northern Ireland) 2003

• Caseins and Caseinates (England) Regulations 2017

• Caseins and Caseinates (Scotland) (No. 2) Regulations 2016

• Caseins and Caseinates (Wales) Regulations 2016

• Caseins and Caseinates Regulations (Northern Ireland) 2016

• Condensed Milk and Dried Milk (England) Regulations 2015

• Condensed Milk and Dried Milk (Scotland) Regulations 2003

• Condensed Milk and Dried Milk (Wales) Regulations 2018

• Condensed Milk and Dried Milk Regulations (Northern Ireland) 2018

• Food (Lot Marking) Regulations 1996

• Food (Lot Marking) Regulations (Northern Ireland) 1996