It’s interesting that even EU Commissioner Viviane Reding admits
that the true figure is at least 70%.
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
Restrction 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, 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:
