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Lawyers In For Britain: The UK and the EU: Benefits, misconceptions and alternatives banner

To say that EU legislation emanates from “Brussels” is a misconception. EU legislation is made by the EU institutions, in which the UK plays a full role (see the response to Question 1).

It is difficult to quantify the number of UK laws that are adopted on the basis of EU legislation but the House of Commons library has estimated that only 6.8% of UK primary legislation and 14.1% of UK secondary legislation from 1997 to the end of 2009 made direct or passing references to EU law.[1] But the number of laws, taken alone, does not indicate whether the EU is overregulating.

  • Most EU rules are of a highly technical nature regarding matters such as the standards to be met before cars, chemicals or toys can be sold to consumers.[2] Other laws relate to the Common Agricultural Policy or environmental standards. Regulatory intervention in areas of this kind will always be required and, if the UK were to leave the EU, it is likely that many, if not most, EU rules would need to be replaced rather than repealed. As in other areas, the likelihood is that UK legislation would be closely modeled on EU law in order to maintain the UK’s trading rights with the remaining EU Member States.
  • Outside areas such as the CAP, many EU laws are adopted in the form of “directives”.[3] These set out the objectives to be achieved but leave it to the UK and other EU countries to determine the form and methods of achieving those objectives. There is evidence to support the belief that, on occasion, the UK government has implemented EU directives in an unnecessarily complex and detailed manner. This is sometimes known as “gold-plating”.[4] Take bats, for example. They are a European protected species and under the relevant EU directive,[5] the UK is required to “establish a system of strict protection” for bats.[6] Derogations apply. The directive has left it to the UK to implement this objective. Under UK regulation,[7] if there is a risk of disturbing bats a licence, monitored by a licensed ecologist, is required. If bats are found, the mitigating requirements under UK legislation can be costly and time consuming to carry out. These detailed requirements are prescribed by UK, not EU, law.
  • In most instances, the adoption of harmonised regulation common to the Member States of the EU reduces unnecessary red tape by replacing 28 different sets of national laws and procedures with a set of common rules. As the Freight Transport Association has said “the EU rules are infinitely better than 27 variants all designed to protect the home markets of indigenous producers”.[8]
  • Nonetheless, the EU has recognised the risk of overregulation and that there is scope to improve – the EU institutions are actively working on removing unnecessary bureaucracy on the basis of the “do less and do it better” principle.
  • Notably, the European Commission has committed to improving how it goes about proposing new laws through an enhanced “Better Regulation” programme.[9] The programme restates the importance of compliance with subsidiarity and proportionality and commits itself to better (and earlier) impact assessments in which the economic and social impacts of a draft proposal are identified and quantified.
  • In relation to existing laws, the Commission started, in 2013, with a new Regulatory Fitness (REFIT) Platform.[10] Under the programme, the Commission considers, in consultation with Member States and taking account of the public’s views, whether current laws are still fit for purpose and whether they should be repealed or simplified.
  • In practice, and partly at the insistence of the UK Government, the flow of new EU legislation has lessened. During the last year, the Commission has pledged to assess at the earliest stage the reasons for any legislative proposal, the options available and the impact of each option.[11] It has also been proposed that EU legislation should include review clauses and “sunset” clauses.[12] Much will depend on how these principles are given effect in practice.
  • The recently agreed Settlement recognises the need to reduce red tape even further, stating that the EU institutions and Member States should “make all efforts to fully implement and strengthen the internal market” and take “concrete steps towards better regulation”, for example by “lowering administrative burdens” in particular for “small and medium enterprises, and repealing unnecessary legislation”.[13]

 

  1. http://researchbriefings.files.parliament.uk/documents/RP10-62/RP10-62.pdf. Business for Britain, a campaign group that favours the UK leaving the EU, believes that 64.7% of UK law comes directly from, or is “influenced” by the EU – http://businessforbritain.org/2015/03/02/definitive-study-reveals-eu-rules-account-for-65-of-uk-law/.
  2. See Benefits 1.
  3. EU laws may also be adopted in the form of “regulations”, which apply automatically, and “decisions” which are addressed to individuals, companies and governments. Regulations are a typical feature of areas where the Commission has been given executive powers by the Member States to administer a particular policy area such as the CAP or competition policy.
  4. HM Government, Review of the Balance of Competences between the United Kingdom and the European Union – The Single Market, Financial services and the Free Movement of Capital Summer 2014, paragraph 3.70 – https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/332874/2902400_BoC_FreedomOfCapital_acc.pdf.
  5. Bats are listed as a European protected species of animals in the European Union’s Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora – http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31992L0043.
  6. Article 12, Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora – http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31992L0043.
  7. In England and Wales the relevant legislation is: the Wildlife and Countryside Act (1981) (as amended) – http://www.legislation.gov.uk/ukpga/1981/69; the Countryside and Rights of Way Act, 2000 – http://www.legislation.gov.uk/ukpga/2000/37/contents; the Natural Environment and Rural Communities Act (NERC, 2006) – http://www.legislation.gov.uk/ukpga/2006/16/pdfs/ukpga_20060016_en.pdf; and by the Conservation of Habitats and Species Regulations (2010) – http://www.legislation.gov.uk/uksi/2010/490/pdfs/uksi_20100490_en.pdf. In Scotland, the key legislation is: Conservation (Natural Habitats &c.) Regulations 1994 (as amended) – http://www.legislation.gov.uk/uksi/1994/2716/contents/made. In Northern Ireland the relevant legislation is: Schedule 2 of the Conservation (Natural Habitats etc.) Regulations (Northern Ireland) 1995 – http://www.legislation.gov.uk/nisr/1995/380/contents/made..
  8. HM Government, Review of the Balance of Competences between the United Kingdom and the European Union – Transport, February 2014, paragraph 2.82 – https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/278966/boc-transport.pdf.
  9. http://ec.europa.eu/smart-regulation/index_en.htm.
  10. See the European Commission’s decision of 19 May 2015 establishing the REFIT Platform, http://ec.europa.eu/smart-regulation/better_regulation/documents/c_2015_3261_en.pdf.
  11. Inception Impact Assessment, May 2015 – http://ec.europa.eu/smart-regulation/roadmaps/index_en.htm.
  12. Interinstitutional Agreement on Better Law-Making, December 2015 – http://ec.europa.eu/smart-regulation/better_regulation/documents/20151215_iia_on_better_law_making_en.pdf.
  13. European Council, European Council meeting (18 and 19 February 2016) – Conclusions – Section B: Competitiveness, EUCO 1/16, Brussels, 19 February 2016, page 15 – http://www.consilium.europa.eu/en/meetings/european-council/2016/02/euco-conclusions_pdf/.