EU Competences
Brief on the balance of competences UK v EU – March 2016
Introduction
Much has been written on this subject but all studious rapporteurs have one thing in common and that is that all admit to the difficulty of comparing the structure of EU law with that of the UK.
FOR EXAMPLE:
Structure of EU laws
Article 288
(ex Article 249 TEC)
To exercise the Union’s competences, the institutions shall adopt:
Regulations
Directives
Decisions
Recommendations
Opinions
· A regulation shall have general application. It shall be binding in its entirety and be directly applicable in all Member States.
· A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
· A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
· Recommendations and opinions shall have no binding force.
Structure of UK laws
PRIMARY LEGISLATION
UK Public General Acts
UK Local Acts
Acts of the Scottish Parliament
Acts of the National assembly for Wales
Measures of the National assembly for Wales
Church Measures
Acts of the Northern Ireland Assembly
Acts of the Old Scottish Parliament
Acts of the English Parliament
Acts of the Old Irish Parliament
Acts of the Parliament of Great Britain
Northern Ireland Orders in Council
Measures of the Northern Ireland Assembly
Acts of the Northern Ireland Parliament
SECONDARY LEGISLATION
UK Statutory Instruments
Wales Statutory Instruments
Scottish Statutory Instruments
Northern Ireland Statutory Rules
Church Instruments
UK Ministerial Orders
UK Statutory Rules and Orders
DRAFT LEGISLATION
UK Draft Statutory Legislation
Scottish Draft Statutory Instruments
Northern Ireland Draft Statutory Rules
IMPACT ASSESSMENTS
UK Impact Assessments
Then the ‘value’ of the law must be considered, for example; a Regulation about olive or tobacco growing matter would not be as ‘valuable’ as an SI transposing an agricultural pesticide ban.
There are also UK originated laws that are made so as not to infringe existing EU regulation, as they must under the Treaty of Rome.
From the foregoing it will be obvious that to compare the two sets of legislation numerically could provide an incorrect conclusion. So various authors have tried to do so objectively but using different methods..
Preamble
UKIP Presentation
Stuart Agnew MEP uses a Powerpoint slide, headed “Reality Check” in his presentation(s) prepared by the Rev. Philip Foster who used data extracted from Lindsay Jenkin’s book, “The last Days of Britain” to present a ‘feel’ for the legal competences by bar chart. These data have not changed since 2001 but are difficult to refute: reading the following extracts and raw data will provide the reason why.
Counting the uncountable
Amy Sippitt writes (in Fact Check)
“It makes little sense to treat major Acts of Parliament such as the 457 page Health and Social Care Act 2012 which reformed the whole NHS the same as, say, three pages of technical regulations on VAT fraud. On the other hand, there's no way to quantify the importance and impact of laws generally.
The House of Commons Library warned that "there is no totally accurate, rational or useful way of calculating the percentage of national laws based on or influenced by the EU."
So no set of figures can give us a good measure of the influence of the EU on law in the UK, though all sides agree it's significant.
15 to 50%
In 2010, the House of Commons library published a comprehensive analysis of the variety of ways this percentage can be calculated. There are difficulties with all measurements, but they concluded "it is possible to justify any measure between 15% and 50% or thereabouts".
The figures depend on which UK law is included in the calculation, and the extent of 'EU influence' that we look at. There is no single interpretation of UK law, it can include: Acts put in place by the UK Parliament; rules and regulations drawn up by Ministers; and regulations produced by the EU which apply here in the UK.
A combination of these interpretations results in the following estimates:
1: Acts put in place by UK Parliament with EU influence — accounts for 10-14%
2: Regulations influenced by or related to the EU — accounts for 9-14%
3. EU regulations and regulations influenced by or related to the EU — accounts for 53%
Mix-ups with the European Parliament
Sometimes a figure of 70% is used — including in February 2014 by Viviane Reding, the Vice-President of the European Commission — but this is actually the percentage of EU laws that the European Parliament (elected representatives of each EU country) and the European Council (representatives of the governments of each EU country) have had an equal say on.
The rest are either decided solely by the Council, or with Parliament giving the Council consent to them being passed. In other words, it's the percentage of EU law that the politicians we elect to the European Parliament have as much say on as our national government.
The official position of the European Parliament is that "a big portion of the laws adopted by the House of Commons and House of Lords actually are EU-laws that are made into national laws by the national parliaments". When we asked for their source, they cited the House of Commons Library research we present here as well as examples from elsewhere in Europe.
Acts, UK regulations and EU regulations — what's the difference?
The first thing to say is that simply counting up the variety of 'EU influenced' UK laws, which vary from Acts to protect against terrorism through to regulations on olive growing, does not provide a conclusive picture.
Acts put in place by our Parliament (10-14%)
The first method considers Acts which have "incorporated a degree of EU influence". This varies from ones which make only a passing reference to EU obligations to ones where the main purpose of the Act is to implement EU obligations. The lower percentage in this case is reached by looking only at those implementing EU laws or measures.
UK regulations (9-14%)
Most EU regulations or orders do not need our Parliament to pass an Act. The form of law where EU influence shows more is in regulations produced by individual departmental Ministers, which tend to look in more detail at a subject area.
The estimates consist of regulations called Statutory Instruments which are made as part of the European Communities Act — which authorises the Government to implement EU law by Acts or forms of regulations — as well as regulations of the same type which relate to the EU.
EU regulations (counted with UK regulations, 53%)
Some EU initiatives do not need to be made into laws at a national level, but are implemented through 'EU regulations'. EU regulations have binding legal force throughout every Member State. This method therefore considers EU regulations alongside the EU-related regulations from method 2.
Aside from problems of definition, these calculations are based on a search of national law databases and the EU's EUR-Lex database and therefore have immediate problems in terms of how robust the search terms were and whether all 'laws' were inputted to the database. Incorporating or excluding EU regulations - some of which relate to things such as olive growing regulations and therefore will not directly impact on the UK - are likely to either overestimate EU influence or underestimate it. Counting these things alone does not tell us enough about where the power lies.”
In Business for Britain, Tim Philpott’s “7% or 75% The EU’s influence over British Law: the definitive answer” stated:
Between 1993 and 2014, 64.7 per cent of UK law can be deemed to be EU -influenced. EU regulations accounted for 59.3 percent of all UK law. UK laws implementing EU directives accounted for 5.4 per cent.
This body of legislation consists of 49,699 exclusively ‘EU’ regulations and 4,532 UK measures which implement EU directives.
This figure is important because EU regulations are transposed into national law without passing through Parliament. Hence, they do not appear in the recent calculation by the House of Commons Library which estimates the proportion of EU legislation at 13.3 per cent. This 13.3 per cent figure is a huge underestimate of the amount of ‘EU’ law introduced in to the UK.
Summary of Competence by assessed percentage
Fishing and Farming: EU has 100%
Trade: EU has 100%
Legal supremacy: EU has 100%
Making law: EU has over 60%
Criminal justice: EU has 100% (52011DC0573COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law /* COM/2011/0573 final */)
Police: EU has virtually 100% because of the ECJ involvement in JHA matters post Lisbon.
See Criminal justice above.
Economy: EU has little control as the UK did nots sign up to the tsg
Budget:
The EU does not exert control directly over the UK budget as we did not sign the EU’s Fiscal Compact( formerly TSCG)
Local Government:
Business red tape:
Tax:
Foreign policy:
Defence: see above
Social health and education policy:
General
The UK has a ‘veto’ by virtue of Unanimity voting in the following cases:
- common foreign and security policy (with the exception of certain clearly defined cases which require qualified majority, e.g. appointment of a special representative)
- citizenship (the granting of new rights to EU citizens)
- EU membership
- harmonisation of national legislation on indirect taxation
- EU finances (own resources, the multiannual financial framework)
- certain provisions in the field of justice and home affairs (the European prosecutor, family law, operational police cooperation, etc.)
- harmonisation of national legislation in the field of social security and social protection.
This UK Parliament briefing paper summarises the variety and complication of this subject.:
Conclusion
Using statistics from national law databases and the EU’s EUR-Lex database, it is possible to estimate the proportion of national laws based on EU laws. In the UK data from these sources provided estimates that suggest that over the twelve-year period 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. Sectoral studies suggest that the agriculture forms the highest area of EU influence and defence the lowest. The British Government estimates that around 50% of UK legislation with a significant economic impact originates from EU legislation.
All measurements have their problems and it is possible to justify any measure between 15% and 50% or thereabouts. To exclude EU regulations from the calculation is likely to be an under-estimation of the proportion of EU-based national laws, while to include all EU regulations in the calculation is probably an over-estimation. The answer in numerical terms lies somewhere in between the two approaches. The limitations of data also make it impossible to achieve an accurate measure. We do not know, for example, how many regulations have direct application in the UK - olive and tobacco growing regulations are unlikely to have much impact here, but the UK implements such regulations along with olive and tobacco-growing Member States.
Even if an accurate numerical calculation of all EU-based national measures were feasible, a more useful evaluation of the EU’s influence would include an analysis of the purpose and relative impact of EU measures and the nature, scope and implementation methods of the national measures which implement them. This however would be a vast and subjective exercise, which might not stop the debate.
References
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