What triggered the eurofacts article was a piece in the monthly magazine Prospect (apparently, some people still read it), which trotted out the well-known line that less than 10 per cent of British legislation originate in Brussels. Actually, even that proportion would be too high, but, in any case, it is completely wrong, as the figures show, for one very good reason. Prospect does not take into account Regulations and Decisions.
The actual research paper shows
… that over the previous seven parliamentary sessions the number of statutory instruments laid under the European Communities Act 1972 represents about nine per cent of the total number of the total number of statutory instruments laid before Parliament during this period.One part of said picture that the editors of eurofacts do not mention is that numerous statutory instruments laid under other Acts of Parliament also introduce legislation that originated in Brussels though, as the research paper points out:
This, however, is only a relatively small part of the picture.
Although distinct from UK legislation, EC laws become part of UK law by virtue of the European Communities Act 1972. EC law also takes precedence over existing UK law, which must be amended if it is found to conflict with EC law.Furthermore, though Regulations are directly applicable, "for practical reasons, uniformity is not always possible without additional implementing measures, particularly in the area of agriculture. Thus, many agricultural regulations are in fact implemented in the UK by Statutory Instrument (S.I.)". These would not necessarily be counted as statutory instruments introduced under the 1972 Act.
I am inclined to agree with Vaughne Miller, the author of the research paper, in that “it is impossible to give an accurate answer to the question of how many laws orginate in Brussels”. Well, maybe not impossible, but very difficult, indeed.
The research paper, or Note, to give it its proper title, is extremely helpful and I recommend it to all our readers or, at least, those of them who are genuinely interested in working out the relationship between EU and British legislation.
It explains the three most important forms of EU legislation, how they are produced within the EU and how they are implemented into British law.
Pages 4 to 7 give figures of European legislation from 1980 to 2006, breaking them down according to whether they were passed by the Commission or the Council, with or without the European Parliament and according to what kind of legislation they were.
All the figures are of interest, but the last few years especially so, as we have been told repeatedly that the EU now aims to do less and to do it better.
Thus in 2002 the Commission produced 44 directives, 602 regulations and 610 decisions while the Council produced 149 directives (inc.36 with EP), 164 regulations (inc.24 with EP) and 57 decisions (inc.6 with EP). That makes a total of 193 directives, 766 regulations and 667 decisions, that is a grand total of 1,626 pieces of legislation.
The numbers in 2003 and 2004 went down, then started climbing again in 2005. In 2006, though they shot up again. The Commission produced 76 directives, 1,795 regulations and 781 decisions; the Council obliged with 101 directives (inc.38 with EP), 238 regulations (inc.43 with EP) and 264 decisions (inc.21 with EP). That gives us a total of 177 directives, 2,033 regulations and 1,045 decisions or, in other words, 3,255 pieces of legislation, most of which have not been implemented into British law yet and will not be for some time to come.
One of the things we must remember is that there is always a time lag between legislation passed in the EU, which in itself is a process that takes many years, disregarding such minor matters as elections, and their appearance in the British parliament or just in British life. By that time it is too late as the legislation is a done deal.
The paper does discuss the question of what proportion of British legislation comes from the EU and comes up with fudged answers, either because they are from departments that do not come under EU competence or come under it only partially or because the civil servants who write those replies play with words.
Lord Pearson of Rannoch asked in January 2006
Further to the Written Answer by Lord Triesman on 14 November (WA 117), why they will not provide a full estimate of the United Kingdom legislation which originated in the European Union since 1998, bearing in mind that the GermanFederal Department of Justice has estimated that 80 per cent. of German laws or regulations were so made over that period.The response was a masterpiece of obfuscation:
Many EU regulations have a purely technical or temporary effect. We estimate that around 50 per cent. of UK legislation with a significant economic impact has its origins in EU legislation. OECD analysis of regulation in Europe yields similar results. In 2002, they estimated that 40 per cent. of all new UK regulations with a significant impact on business were derived from Community legislation. Despite reports that 80 per cent. of German regulation emanates from the EU, the German Government estimates that the proportion is about 50 per cent.Who calculates what is a significant impact? Read the whole paper. It is very useful and instructive.
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