EU law: definitive stupidity

03/03/2015

Published yesterday by Business for Britain is a piece of work that purports to settle the question of how much UK law is "made in Brussels" – and which gets it spectacularly wrong.

In the first of its many errors, the think-tank selects the arbitrary period of 1993 to 2014, a total of 22 years, as the basis for its comparison. But the UK has been making laws for centuries, and the EU (in all its previous forms, including the Coal and Steel Community) has been making laws for over 60 years. This means that BfB is providing only a limited and partial snapshot, not a complete picture.

Secondly, it makes the mistake of taking the number of EU regulations and directives promulgated, year-by-year, and adding them together to furnish a total of 49,699 for the 22-year period. What is not realised is that much EU regulation is short-lived. A huge amount – for instance most of that relating to the CAP – applies only for the year to which it relates. These regulations then lapse and are replaced by the next tranche.

The measure, therefore, cannot use the total number of regulations promulgated. It has to use the number in force at any one time. The basis of BfB's estimation is fundamentally and irrevocably flawed.

Next, the Elliotties make another basic mistake. They assume that, because EU regulations have direct effect, and therefore do not have to be incorporated into the UK statute book in order to apply, that necessarily they are not incorporated into the statute book.

In fact, many of the regulations are transposed into UK law. They have to be in order to build them into an enforcement and penalty framework, and sometimes in order to link provisions to other instruments, some UK generated. Some even implement non-EU treaty or technical packages.

A good example of this process is the Food Hygiene Regulations 2006 which provide for the execution and enforcement of Regulation (EC) No. 852/2004 on the hygiene of foodstuffs; Regulation (EC) No. 853/2004 laying down specific hygiene rules for food of animal origin; Regulation (EC) No. 854/2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption; Commission Regulation (EC) No. 2073/2005 on microbiological criteria for foodstuffs; and Commission Regulation (EC) No. 2075/2005 laying down specific rules on official controls for Trichinella in meat.  Five separate EU regulations are packed into one set of UK regulations. 

Thus, at two levels the Elliott figure is wrong. It vastly over-estimates the amount of regulation and then it double counts some (an unknown) number of regulations. These errors further invalidate any calculations.

Fourthly, for some unknown reason, the think tank under-records the amount of UK legislation passed. In 2013, for instance, Business for Britain records 1,234 Acts and Statutory Instrument, yet the government website gives us 3,004. For 2012, BfE has 1,146. The official figure is 3,025.

Thus, given the massive errors, the headline figure of 64.7 percent (including directives) offered by Business for Britain as the proportion of UK law "made or influenced" by the EU is worthless. It has no merit whatsoever. 

Furthermore, even attempting to assess the degree of penetration of EU law is futile. Making numerical assessments is comparing chalk and cheese. For instance, of the UK Statutory Instruments produced in a typical year, a huge majority are road traffic orders or administrative instruments of a purely technical nature, with no equivalents in EU law. By way of illustration, the UK legislative database reveals the: 

• Financial Services (Banking Reform) Act 2013 (Commencement No. 4) Order 2014; 
• Non-Domestic Rating (Levy and Safety Net) (Amendment) Regulations 2014; 
• Marriage of Same Sex Couples (Use of Armed Forces' Chapels) Regulations 2014; 
• Air Navigation (Restriction of Flying) (Jet Formation Display Teams) (No. 3) Regulations 2014.