2 Over implementation of European
Union legislation
11. There is a commonly held view that the United
Kingdom regularly "gold-plates" European Union law,
leaving businesses subject to tougher regulations than competitors
in other European countries (see Figure 2). United Kingdom
Government policy is, however, to avoid unnecessary over implementation.[13]
12. There are two primary methods of transposing
European Directives: copy-out and elaboration. Copy-out involves
transcribing European legislation almost word for word into United
Kingdom law, and this was the most straightforward method. It
allowed the legislation to mirror the Directive. The alternative
is to provide some elaboration, usually to provide more detail
or clarification.
13. The Foreign and Commonwealth Office commissioned
a report on the "Implementation of European Legislation"
(the Bellis Report), which looked at implementation in different
Member States. It recommended that copy-out should be the preferred
method of transposition in order to avoid over-implementation.
In response, the Government in the pre-budget report of December
2004, stated that unless there was clear justification for elaboration,
the wording in United Kingdom legislation should mirror that in
the Directive. The Department confirmed that it started from the
perspective that copy-out was the preferred option, but it would
elaborate where necessary to make it clearer for those businesses
likely to be affected. Of the seven Directives reviewed by the
National Audit Office three were transposed using the copy-out
method, and four were transposed using a mixture of copy-out and
elaboration.[14]
14. The Department did not consider that providing
greater clarity through transposition led inevitably to extra
provisions and increased burden for those regulated. Equally DEFRA,
and MAFF its predecessor, had examples of over implementation
where the relevant Government had used the implementation of a
Directive to introduce policies of its own. An example of over
implementation is the Animal By-Products Regulation 1774/2002/EC
where additional requirements on record keeping have been included
for United Kingdom farmers, adding potentially to their costs
and reducing competitiveness. The Department denied this example
was unnecessary gold plating but argued the provisions were needed
to make monitoring of compliance possible.[15]
15. A further potential example is the Farming Code
of Practice for the Welfare of Pigs which some farmers considered
imposed higher welfare burdens on United Kingdom pig farmers than
elsewhere. Such Codes were known as statutory codes because procedures
for their making are laid down in legislation, including the requirement
that they must be debated in both Houses of Parliament. The Pig
Welfare Code was drawn up after full public consultation, including
meetings with the pig industry. The Codes were not statutory in
the sense of having the force of law, and their aim was to provide
guidance on good husbandry practice. The Codes might nevertheless
contain certain elements which reflected legislative requirements
where non compliance would be an offence. The Codes reflected
such requirements by using language such as "must" and
those since 2000 featured boxes which quoted the relevant legislation.
Recommendations which gave good husbandry advice acted as guidance,
and non compliance was not an offence. They might, however, count
as evidence in a relevant prosecution, such as where a farmer
was being prosecuted for causing unnecessary distress to livestock.
16. The Department confirmed that Ministers would
only be advised to go beyond a Directive if the benefits would
exceed the costs. Ministers saw the draft final regulations, a
completed regulatory impact assessment, a summary of issues raised
in consultation and the impact on the final regulations. Ministers
usually sought information on the action taken by other Member
States. The Department would expect to advise a Minister clearly
if it were going beyond the terms of a Directive.[16]
Currently, however, Departments do not advise Ministers on whether
copy-out or elaboration has been used as the transposition method.
17. The Department took the "Better Regulation:
Less is More" Agenda seriously and it was informing its approach
to implementation of Directives to minimise administrative burdens.
The quality of central guidance had improved, and the Department
looked closely at the effectiveness of the regulations for which
it was responsible.[17]
13 Qq 14-17, 54; C&AG's Report, para 1.13 and Figure
6 Back
14
Qq 27-33; C&AG's Report, paras 2.13, 2.19-2.20 Back
15
Qq 13-17, 25-26 Back
16
Qq 49-53 Back
17
Qq 18, 35, 39 Back
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