October 27, 2011 • 2:59 pm

“50 per cent of all our economic laws come from Europe.” Bill Cash MP (Conservative), House of Commons, 24 October 2011.

“EU legislation…accounts for around half of all new regulation.” Chuka Umunna MP, Labour Party press release, 25 October 2011.

“Only 7 per cent of primary legislation comes from the EU.” Polly Toynbee, The Guardian, 24 October 2011.

The recent Conservative backbench rebellion over a referendum on the UK’s future in the EU brought with it a barrage of claims concerning the extent to which Brussels is involved in forming UK laws.

Conservative backbencher Bill Cash, Labour’s Shadow Business Secretary Chuka Umunna and Guardian commentator Polly Toynbee all proffered their own claims on the subject, but which – if any – is correct? Full Fact investigated.

Analysis

The House of Commons Library has actually produced some research on just this topic, entitled ‘How much legislation comes from Europe?

As it explains, there are various options concerning what exactly we can measure to determine the proportion of UK law and regulation originating in Europe, which immediately complicates any straightforward answer to the question posed in the title of this document.

Broadly speaking, there are three types of legislation that we may want to take into account:

- Primary legislation – UK Acts

- Secondary legislation – Statutory Instruments (SIs)

- Regulations – Passed by the EU and immediately enforceable in the UK without the need for any additional legislation.

According to the House of Commons Library document, from 1980 to 2009, 186 out of 1302 UK Acts (14.3 per cent) “incorporated a degree of EU influence”. If we exclude those Acts which only included “passing reference” to the EU, this proportion reduces to 10.1 per cent. Polly Toynbee’s claim seems to be based on a shorter timeframe, from 1997 to 2009, during which time 6.8 per cent of primary legislation “had a role in implementing EU obligations”.

Most EU directives and regulations, however, require relatively little UK primary legislation to be enforced in this country. It may therefore be better to measure the proportion of secondary legislation which is passed to implement EU decisions.

The Library report calculates that, between 1997/98 and 2008/09, 9.1 per cent of SIs were made under the European Communities Act (ECA). If SIs that are non-ECA but nonetheless are in some way EU-related are included, this proportion rises to 14.1 per cent. This is roughly consistent with earlier estimates by Edward Page, who calculated that, from 1987 to 1997, 15 per cent of SIs (excluding local SIs unlikely to have anything to do with Europe) made reference to Europe.

Even this measure of secondary legislation, however, fails to capture the full extent of EU influence on UK law, as many of the regulations passed by the EU do not require any additional UK legislation to make them enforceable here.

To capture this, the following formula can be used to estimate the proportion of UK regulations and laws that stem from Europe:

(EU regulations & EU-related SIs) / (EU regulations & total SIs)

Using this it is calculated that: in 2007, 44 per cent of these laws and regulations stemmed from Europe; in 2008, 56 per cent did; and in 2009, 53 per cent did.

OpenEurope (a Eurosceptic think-tank) reached a similar estimate in its own research, claiming that between 1998 and 2008:

“The average annual proportion of the absolute number of regulations coming from the EU is 50.4 percent.”

This measure, however, has its own problems. To start with, it will include regulations that, although they apply to the UK, will have no direct application in the UK, such as those regulations covering olive and tobacco growing.

In addition (and this is a criticism that applies to all measures discussed so far), this measure provides only a quantitative evaluation of EU influence on UK law. It gives no indication of how significant they are relative to those laws drawn up in Westminster.

This is a problem that can be partially addressed by looking at the effect of EU regulation on particular sectors. Looking back a few years, we can find examples where politicians have made claims regarding just this.

In a written answer on the 14 November 2005, Lord Triesman, then the Parliamentary Undersecretary of State at the Foreign and Commonwealth Office, claimed that:

“Based on the analysis of regulatory impact assessments carried out on EU and domestic legislation, we estimate that around half of all UK legislation with an impact on business, charities or the voluntary sector emanates from the EU.”

He essentially reiterated this claim in the House of Lords on the 9 Jan 2006, making reference additionally to an OECD estimate that “40 per cent of all new UK regulations with a significant impact on business were derived from [European] Community legislation.”

Full Fact could find no further information on the source of this government estimate of 50 per cent. The OECD document (p.22), meanwhile does not, in fact, make its own estimate of 40 per cent of new UK business regulations coming from the EU, but instead just refers back to an earlier (unsourced) UK government estimate.

More recently, a British Chamber of Commerce report, ‘Worlds Apart: The EU and British Regulatory Systems‘, calculated that “this year [2008/09] the EU accounted for only 20% of IAs [Impact Assessments], a reduction from the previous level of about 30%”. It also, however, casts doubt on the counting of IAs as a measure of the effect of EU legislation on the UK, highlighting “the lack of connection between UK IAs, EU IAs and EU Directives and Regulations.”

This gives some reason to question the reliability of the method; this “analysis of regulatory impact assessments”, that Lord Triesman claimed was used to reach the government result mentioned above.

Conclusion

The degree to which British laws are influenced by goings-on in Brussels is one of those issues which repeatedly throws up wildly different claims. Full Fact itself has previously looked at whether or not three quarters of UK law is drawn up by the EU.

On this occasion however the estimates seem more reasonable. While none of the claims are the only way of looking at the issue, each stands up to scrutiny within its own terms of reference.

Indeed as the House of Commons Library concluded, it is “possible to justify any measure between 15% and 50% or thereabouts, depending on the approach.”

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