Common frameworks: outline framework for Hazardous Substances Planning

Operational detail

Section 3: Proposed operational elements of framework

8. Decision making

The MoU or equivalent will be drafted in cooperation with the devolved administrations – the UKG will pull together an initial draft which will be sent out for comment, with each party then feeding in. The common framework will only be put in place once there is unanimous agreement. We will also involve HSE, HSE NI, and other stakeholders with an interest. The overarching principles were agreed at official level at the ‘deep dive’ meeting with all administrations.

Ministerial clearance will be sought on the principle of proceeding with a non-legislative framework, as well as the final framework agreement itself.

Once this has been taken forward all decision making under the relevant devolved competences (within the scope of the framework) will fall to the UKG and the DAs within their respective territories, taking into account the principles set out in Section 6. The framework will also link into any future arrangements for the maintenance of the UK Internal Market. Currently the arrangements for coordinating work on the implementation of the Seveso III Directive are ad hoc. Usually, HSE acts as the coordinator for implementing new requirements from revision of, or amendments to the Directive and engage with planning representatives from the various administrations to coordinate implementation. As other issues arise, again contact is made on an ad hoc basis to seek to resolve these. Ministers responsible for planning individually sign off implementing legislation or changes to procedures.

To facilitate the sharing of information where appropriate, and as a forum to discuss wider policy issues, it is envisaged that a working group of the policy leads in each administration will hold a six-monthly telephone conference to discuss any issues and share learning. This would not rule out issues being raised for consideration by the working group between meetings if necessary.

9. Roles and responsibilities of each party to the framework

See key principles (section 6).

10. Roles and responsibilities of existing or new bodies

HSE and HSE NI are government agencies and the key existing bodies relevant to this framework. Under the Hazardous Substances regulations they act (in conjunction with the Environment Agency in England, the Scottish Environmental Protection Authority in Scotland, Natural Resources Wales in Wales and the Northern Ireland Environment Agency in Northern Ireland) as the COMAH competent authority. They advise hazardous substances authorities (local planning authorities) across the four territories on the nature and severity of the risk to persons in the vicinity and the local environment arising from the presence of a hazardous substance at an establishment.

They have the lead for the UK on the Seveso III Directive, and post-Exit will be taking up several of the functions that currently sit with the European Commission in relation to COMAH, this will include the responsibility for advising on any changes to the lists of controlled substances or other policy updates that may impact the hazardous substances regime. Changes in their policy, e.g. on risk or the way they engage in the planning system ultimately rest with the UK Secretary of State for Work and Pensions.

In relation to hazardous substances they will continue in their current role and with their current responsibilities after Exit and have been kept informed throughout the process of developing this framework.

11. Monitoring and enforcement

As no legislative arrangements are considered necessary then enforcement measures are not appropriate. In place of formal monitoring measures there will be regular meetings to review the framework (see sections 8 and 12.)

12. Review and amendment

We propose having a review meeting two years after the day the framework comes into effect, to consider the ongoing application of transposing domestic legislation across the different administrations. The meeting would focus in particular on any issues encountered, and allow parties to provide a forward look of any changes that they are considering. This would not rule out an earlier review if required. After this initial review a more permanent arrangement for recurring meetings on this framework will be decided based around a timeframe that is considered appropriate.

13. Dispute resolution

The intention under this framework is that there will be a regular group at working level to discuss and work through any issues at an early stage.

This approach to dispute resolution largely reflects the current decision-making approach mentioned in section 8. i.e. matters proceed via policy leads, with senior managers and Ministers within each administration brought in to agree a course of action as appropriate. We have not previously had disagreements in this area that have warranted engagement between senior officials or Ministers of the different administrations. There is no particular reason to suppose that EU Exit will make the need for that level of engagement any more likely. Therefore whilst we think disagreement is unlikely it is appropriate to have a procedure in place in the event it is needed. This process would be as follows:

Policy leads. Where officials become aware of potential issues or areas of disagreement via any means the first step will be to seek to resolve this amongst policy leads without escalation. This will usually be resolved via discussion with equivalents in other administrations to determine the source of the disagreement, to establish whether it is a material concern and to work through possible solutions to the satisfaction of all parties. It is expected that most disagreements would be resolved at this point.

Director level/Chiefs of planning. Where disagreements cannot be resolved amongst policy leads the next stage will usually be to escalate the issue to director level. At this stage directors can decide whether it would be appropriate to arrange a meeting with counterparts across administrations. Alternatively, or after such a meeting, directors may determine that the issue cannot be resolved at this stage at which point the involvement of ministers will be required.

Ministers. This is expected to be a last resort for only the most serious issues and where all alternatives have been exhausted. In very extreme cases the Secretary of State has step-in powers, already built into Devolution settlements, although we do not envisage these forming any part of the framework.

HSE/HSE NI. They may be included at multiple stages of the process, either flagging potential issues, or providing advice on potential solutions.

It does not always follow that where disagreements emerge these will need to be escalated or a ‘solution’ need to be established. This framework will not prejudice the right of administrations to ‘agree to disagree’ in certain circumstances.