In the wake of our opponents making various lower claims about what percentage of new laws in the UK come from Brussels, I thought I’d take a quick look at the UKIP claim that ‘75% of new laws in this country start life in Brussels’. I apologise in advance that this is slightly more technical than most of my posts. In a sense it isn’t really a UKIP claim: it’s a claim from the EU Commissioner Viviane Reding which you can watch here for example. All we say in UKIP is that such a figure broadly chimes with the evidence. No two people will agree on exactly which ‘laws’ are actually laws, and in any case the figure changes from one year to the next.
Liberal Democrat leader Nick Clegg started his ‘political career’ as an MEP in Brussels. At that time, he wrote this in the Guardian (source here): “Probably half of all new legislation now enacted in the UK begins in Brussels. The European parliament has extensive powers to amend or strike down laws in almost every conceivable area of public life.” Back then it wasn’t fashionable to try to play down EU influence like he did on national television in debate with Nigel Farage, claiming the true figure was only 7%. The percentage can only have gone up in the intervening years: the Lisbon Treaty has been signed since then!
There are five sources of new law in the UK. There’s the one everyone knows about – Acts of Parliament. Then there are Statutory Instruments, which are administrative measures laid before Parliament and take effect if neither of the Houses of Parliament vote against them. Many of these can’t be called ‘new laws’, but some can. More on that later. From the EU, we have Regulations (which become law automatically in the UK without going through Parliament), Directives (which tell us an end result that we have to achieve, so the UK government may use an Act of Parliament or Statutory Instrument to introduce a Directive) and Decisions (the situation here is complicated, and not all of these are really laws).
A few years ago, Labour’s Richard Corbett came up with the claim that only 9% of our laws come from Brussels. Nick Clegg said 7% on live television in debate with Nigel Farage, and 14% is the other figure bandied about by our opponents at present. So what is the source of these figures, and are they correct?
The original 9% figure used by Richard Corbett and others comes from the UK Parliament’s Standard Note SN/IA/2888, which states that 9% of statutory instruments in 2004/2005 were used to enforce EU legislation.
The later 7% (6.8%) figure is taken from a misreading of Research Paper 10/62 of the House of Commons Library, written by Vaughne Miller. It says that 7% of Acts of Parliament have been used to enforce EU legislation, and gives a higher figure (14.1%) for the number of statutory instruments used to enforce EU legislation in 2009.
The paper itself (RP10/62) states:
“These figures are indicative of the impact of EU legislation on national law-making but they are not the full story. For example, they do not take account of EU “soft law” or the overwhelming majority of EU regulations, which can be several times the number of directives, and which are usually adopted in the Member States by measures other than laws.”
Likewise, SN/IA/2888 itself acknowledges that the 9% figure isn’t the correct one. It quotes Denis MacShane (then Europe Minister) admitting “It would entail disproportionate cost to research and compile the number of legislative instruments enacted each year in the UK directly implementing EU legislation. The picture is complicated.”
So the 6.8%, 9% and 14.1% figures cannot be taken as being an attempt to calculate the percentage of new laws in the UK which relate to the EU. An EU Regulation has to be seen as an ‘EU law’; it is binding upon the member state.
As the EU has moved from Directives to Regulations, the UK Parliament in Westminster is increasingly bypassed. Accordingly, the figures which show up in primary and secondary legislation must go down. Under the old proposed EU Constitution, regulations would (correctly) have been renamed as European Laws. This terminology was changed for the Lisbon Treaty, but the impact of Regulations and Directives remain the same. Since 2010 there have been at least 3,600 new EU Regulations which automatically become law in the UK. Not one of those would be counted in the ‘9%’ or ‘7%’ figure.
RP10/62 gives a 14.1% figure, whilst SN/IA/2888 gives just 9%. This difference is because RP/10/62 excludes at least some local Statutory Instruments, eg. the M4 Motorway (Junctions 17-18) (Temporary Prohibition and Restriction of Traffic) Order 2014.
Many Statutory Instruments cannot be seen as ‘new laws affecting the UK’. Neither RP/10/62 nor SN/IA/2888 takes this into account. These may be:
a) Annual, eg. the ‘Annual Tax on Enveloped Dwellings (Index of Chargeable Amounts) Order
b) Commencement Orders, Instruments which set a start date for part of a previous Act of Parliament
c) A minor amendment to an existing instrument, eg. the Parochial Fees and Scheduled Matters Amending Order 2014
d) Statutory Instruments may be budgetary regulations rather than legislative in nature
e) Those Statutory Instruments which deal with devolved matters, and apply in only one country of the United Kingdom
The Lisbon Treaty came into force in December 2009. Both SN/IA/2888 and RP/10/62 related to legislation before the time of the Lisbon Treaty, and before the EU had taken power over other areas of British law. These are out-of-date figures and underestimates. It is worth noting in passing that the number of Statutory Instruments rose substantially in 2010 following the adoption of the Lisbon Treaty:
It’s clear that to use the 6.8% or 9% or 14.1% figures are highly misleading. The German figure of 84% comes from Roman Herzog and Luder Gurken using a calculation including all German legislation and all EU legislation of any form: “From 1998 until 2004 a total of 18,167 EU regulations and 750 directives were adopted in Germany (including amending regulations or directives). During the same period the German Parliament passed in total 1,195 laws as well as 3,055 statutory instruments [Rechtsverordnungen are a form of secondary legislation].”
Such a calculation in the UK would be an underestimate, because many Statutory Instruments should not be counted as laws affecting the UK. Conversely, some EU Decisions should also be included. As the European Commission’s website states: “Decisions are EU laws relating to specific cases. They can come from the EU Council (sometimes jointly with the European Parliament) or the Commission.” In 2009 there were 901 such Decisions; 606 from the Commission and 295 from the Council.
RP/10/62 gives a percentage of 53% for 2009, taking into account only EU Directives/Regulations as compared with UK Acts of Parliament/Statutory Instruments.
We can safely say that the true figure must be much higher, but how much higher? We should take into account that:
1. One Statutory Instrument may transpose several Directives into UK law. For example, in 2007 the Motor Vehicles Regulations enacted a total of four Directives
2. EU Decisions affecting the UK are not included in these calculations for 2009
3. Many Statutory Instruments fall under a) to e) above
4. There may be a double-counting issue which would have moderately depressed the figures (an EU Directive enacted by Statutory Instrument should be counted as one EU law, not one EU and one UK law)
Time is not available to fully analyse these points, but a cursory analysis would suggest that perhaps half of the statutory instruments in RP/10/62 should not be included in such calculations. This, not taking into account points 1 and 2 above, would suggest a minimum figure of just over 69% of new UK laws starting life in Brussels.
An overall figure of 70%-75% would be broadly in line with taking into account points 1 and 2 alone, and the figure would be higher still if everything were included, but it’s difficult to make a meaningful estimate without making far too many assumptions. For example, not all of the 901 Decisions from 2009 should be included as some did not apply to the UK; this would therefore result in an over-estimate.
Finally, it’s worth noting that Open Europe found that 71.9% of the cost of regulation affecting British business is EU-derived.
75% is not a figure which is set in stone. But on the evidence at present, Viviane Reding’s figure is the only one that really matches the evidence.