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How much legislation comes from Europe?

In debates about the EU a 2010 research paper of the House of Commons Library[1], which tried to answer this question, is frequently quoted and often misquoted. Here are key passages from it:

In the UK data suggest that from 1997 to 2009 6.8% of primary legislation (Statutes) and 14.1% of secondary legislation (Statutory Instruments) had a role in implementing EU obligations, although the degree of involvement varied from passing reference to explicit implementation.[2]

However, later on in the report it is noted:

These figures do not take account of EU “soft law” or the overwhelming majority of EU regulations, which apply uniformly across all member states, and are several times the number of directives.[3]

It also reports that in the UK, although some regulations are implemented by statutory instruments,

most (are implemented) by administrative rules, regulations, departmental notes and documents, guidelines on procedures etc.[4]

Furthermore,

All measurements have their problems and it is possible to justify any measure between 15% and 50% or thereabouts.[5]

According to the report, it is possible to,

estimate what proportion [of] EU regulations and EU-related UK laws form out of the total volume of UK laws, including all EU regulations, regardless of how or whether they are formally implemented.[6]

The proportion was 45% in 1997 and 53% in 2009.

Some other estimates are mentioned in the paper:

  • In 2002, the OECD estimated that 40 per cent of all new UK regulations with a significant impact on business were derived from EU legislation.
  • In 2005, the UK government estimated 9 per cent of all national law.
  • In 2006, the British government estimated that around 50 per cent of UK legislation with a significant economic impact has its origins in EU legislation.
  • In 2006, the British government estimated that about half of all UK legislation with an impact on business, charities and the voluntary sector stems from legislation agreed in Brussels.

One estimate showed that the influence of EU law varied widely by government department. Between 2003 and 2004, in reply to a parliamentary question, it became clear that the proportion varied between the Department for Environment, Food and Rural affairs at 57% and the Ministry of Defence and the Cabinet Office at 0%.

 

Estimates from other member countries

The paper directly quotes a similar study of the Netherlands which concluded that ‘clearly, a case can be made that the EU has a very large impact on national policies if all those ‘products’ of the European integration, formal and informal, are taken into account’.[7]

It also reviews similar studies in a number of other member countries. Their estimates of the proportion of national laws in their own countries which are based on EU laws ranged from around 6% to 84%. While the figures differ, it is clear that a high proportion of UK law is influenced to some degree by the EU.

 Caveats

Throughout the research, warnings are given about the difficulty of measuring legislation. They may be summarized as follows:

  1. 1. It is extremely difficult to measure the influence of EU legislation since it can be incorporated into UK law in different ways, either directly by legislation, or by amendments, or by administrative means. Moreover, EU regulations, unlike EU directives, are not usually transposed into legislation at a national level, but rather into quasi-legislative measures, administrative rules, regulations or procedures which do not pass through the UK national parliamentary process. How, then, can one be worked out as a proportion of the other?
  1. EU ‘soft law’ measures under the so-called ‘Open Method of Coordination’ are difficult to quantify as they often take the form of objectives and common targets. Analyses rarely look at such EU soft law, and the role of EU standard setting or self-regulatory measures.
  1. Governments might have intended to implement legislation in areas in which the EU decides to act, and might have legislated in anticipation of the adoption of an EU law. These do not then show up as EU-based, even though they might well have been EU influenced.
  1. The figures do not give an insight into the relative importance or salience of EU or national legislative acts, nor give information on how EU laws affect the daily lives of citizens or businesses – the relative material impact. There are EU regulations, for example, relating to olive and tobacco growing which are unlikely to have much impact in the UK.
  1. Statutory instruments as a measuring tool do not reflect the Europeanisation of policies in the Common Foreign and Security Policy or the former Justice and Home Affairs area, where the EU’s influence has largely not been exercised by legislation but by member states acting inter-governmentally.

One caveat may be added: there is a difference between laws, whether hard or soft, that are derived from EU regulations and directives, and those that are created domestically. The former cannot be repealed or amended easily. They are effectively irreversible without the approval of the other 27 members.

The Justice Secretary’s experience

The following is an excerpt from an article written by Michael Gove in The Daily Telegraph:

As a minister I’ve seen hundreds of new EU rules cross my desk, none of which were requested by the UK Parliament, none of which I or any other British politician could alter in any way and none of which made us freer, richer or fairer.

It is hard to overstate the degree to which the EU is a constraint on ministers’ ability to do the things they were elected to do, or to use their judgment about the right course of action for the people of this country. I have long had concerns about our membership of the EU but the experience of Government has only deepened my conviction that we need change.

Every single day, every single minister is told: ‘Yes Minister, I understand, but I’m afraid that’s against EU rules’. I know it. My colleagues in government know it. And the British people ought to know it too: your government is not, ultimately, in control in hundreds of areas that matter.[8]

Notes

[1] V. Miller, How much legislation comes from Europe?, House of Commons Library Research Paper, 10/62, October 2010, Available from: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/RP10-62#fullreport

[2] Ibid, p.1.

[3] Ibid, p.22.

[4] Ibid, p. 22.

[5] Ibid, p.24.

[6] Ibid, p.24.

[7] M. Bovens and K. Yesilkagit, ‘The EU as Lawmaker: the Impact of EU Directives on National Regulation in the Netherlands’, Public Administration, Vol. 88, No. 1, 2010, p. 23.

[8] M. Gove, ‘EU referendum: Michael Gove explains why Britain should leave the EU’, Daily Telegraph, 20 February 2016, Available from: http://www.telegraph.co.uk/news/newstopics/eureferendum/12166345/European-referendum-Michael-Gove-explains-why-Britain-should-leave-the-EU.html


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