Common Frameworks

UKELA (UK Environmental Law Association) comprises over 1,500 academics, barristers, solicitors and consultants, in both the public and private sectors, involved in the practice, study and formulation of environmental law. Its primary purpose is to make better law for the environment. It prepares advice to government and others with the help of its specialist working parties, covering a range of environmental law topics.

This response to the call for evidence has been prepared by UKELA’s Governance and Devolution Group, which aims to inform the debate on the development of post-Brexit environmental law and policy. This response does not necessarily, and is not intended to, represent the views and opinions of all UKELA members but has been drawn together from a range of its members.

This brief response makes some general observations on common features of the provisional Common Frameworks, not the detailed substantive content of each specific framework.

The provisional common frameworks are oblique in addressing the issue of non-regression of environmental standards, and commitments to environmental protection generally. They generally suggest that environmental standards are not to fall across the UK but do not provide a legal guarantee against non-regression of environmental standards. Some thought should ideally be given to the challenge that will be faced in the event of any deregulatory policy initiatives on the part of one constituent government of the UK whilst others are committed (by law or policy) to maintaining alignment with existing EU measures. One suggestion is to expand the ‘high-level principles’ to which Parties commit in the frameworks to include an express commitment to a high level of environmental protection across the UK. This would include commitment to the environmental principles that must inform policymaking in England, Scotland and Northern Ireland (which presumably includes informing the formulation of these common frameworks) under the Environment Act 2021 (once in force) and UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. Notably the principle of prevention should include prevention of transboundary harm within the UK as a principle that should inform these common frameworks. Such a commitment to non-regression is also in line with the obligations under article 391 of the EU-UK Trade and Cooperation Agreement.


The provisional common frameworks set out clear and detailed procedural arrangements, which are to be welcomed. However, in many ways, the real challenge arises before these procedures come into play, since there needs to be awareness of the possible implications for other parts of the UK from the very start of the policy formulation process in any of the areas covered by the common frameworks. Whilst, as noted above, there are commitments to agree on policy where possible, the processes for achieving this agreement will need to be very robust. Too often one sees policy proposals emerging from various parts of all the UK’s administrations which do not seem to have considered how these will sit with what happens elsewhere in the UK, despite the fact that the United Kingdom Internal Market Act 2020 means that any national rules may be overridden in practice by reliance on the mutual recognition and non-discrimination principles that Act establishes. Training for staff and perhaps some exchange of staff between administrations to raise awareness of the issues raised by multi-level governance is desirable.

It is not always clear how the procedural arrangements within common frameworks fit with wider governance arrangements. These include the inter-governmental structures announced in January in the Review of Intergovernmental Relations (Review of intergovernmental relations - GOV.UK (www.gov.uk)). Similarly, it is not wholly clear how the frameworks fit with the United Kingdom Internal Market Act 2020 and the role of the Office for the Internal Market (OIM). The terms of the frameworks do not necessarily raise incompatibilities with any of these, but a more explicit statement of how all of these elements go together would be welcome. In particular, in relation to the Internal Market Act, it should be indicated whether there are plans for the Secretary of State to exercise his power under section 10(2) and 10(3) of that Act to add the common frameworks, once finalised, to Schedule 1’s list of exclusions from the Act’s market access principles (as should be done for the frameworks to be effective).

Similarly, it is not clear how the developments under the frameworks will be subject to appropriate parliamentary scrutiny and the oversight exercised by the Office for Environmental Protection (OEP) and Environmental Standards Scotland (ESS). Parliamentary scrutiny at the legislative stage comes far too late, long after formative choices have been made and, to the extent that legislation is made at Westminster, offers no direct route for the Scottish Parliament (or Senedd or NI Assembly) to play a role. Equally, it is not clear how the proposed policy formulation processes will ensure compliance with the obligations for public participation under articles 7 and 8 of the Aarhus Convention and the obligations in relation to Transparency and Good Regulatory Practices and Regulatory Cooperation under the EU-UK Trade and Cooperation Agreement (arts 332-354). On all of these matters, showing more clearly how the frameworks fit within the broader governance structures would be helpful.

Finally, the intersection between the provisional common frameworks and the EU-UK Trade and Cooperation Agreement could be better developed. Whilst this link is acknowledged, this would be enhanced by reference to the environmental principles to which the UK has committed in the area of environmental policy (in matters affecting international trade and investment) and the policy decisions that should be made collaboratively across the UK in areas covered by the frameworks.

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