"Gold plating"
194. Agreed EC directives specify an implementation
date by which they must be transposed into national law. Directives
often set minimum legal requirements and may be formulated in
fairly general terms, which leaves Member States room for manoeuvre
in implementing them.
195. In the UK, the House of Lords Merits Committee
on Statutory Instruments has the role of reporting to the House
on any Statutory Instrument that it considers to have inappropriately
implemented an EC directive. We welcome the work of this committee,
but note that only a very small number of Statutory Instruments
have been drawn to the attention of the House for this reason
(one during the 2004/05 parliamentary session and three during
the 2005/06 session).
196. A common accusation, which we heard again
during our Inquiry is that the UK sometimes implements measures
far beyond what directives actually require as a minimum—a
tendency popularly referred to as "gold plating". The
FSB's Mr Tyrrell presented us with a number of examples of
this, including that of the Part-Time Workers Directive: "It
provided that part-time workers should be treated not less favourably
than other workers employed by the same employer under the same
contract. The UK Government transposed that in regulation from
'under the same contract' into 'any contract'". This, Mr Tyrrell
concluded increased the scope of the Directive considerably. (Q 81)
197. Miss Jane Whewell, Director of European
Strategy and Labour Market Flexibility at the DTI, responded by
outlining to us the reason why there was often a perception of
gold plating: "I think there is a tension particularly inherent
in EC law where it tends to be drafted in a very broad brush manner,
there is a lack of detail and we are caught in the middle. It
is perfectly possible for us to copy out the directive and say
'that is the law', and say to industry 'now get on with it'. I
do not think they would be terribly happy because just as much
as they are saying please do not gold plate, and we try very hard,
they also ask us for the maximum flexibility under the directive.
They ask us, above all, for clarity. Clarity is not a predominant
feature of a lot of European law, so we do our best to make the
law as clear as possible for business. Sometimes people feel that
this is gold plating. One could debate that for a very long-time
but we do our best and there is a programme now looking at large
parts of UK legislation, both domestic implementation of European
law and UK law, about can we simplify it? Can we make it easier?
How can we help business?"(Q 170)
198. Miss Whewell's explanation was consistent
with the final report of the independent Davidson Review Implementation
of EU Regulation[44].
This concluded that "Inappropriate over-implementation may
not be as big a problem in the UK—in absolute terms and
relative to other EU countries—as is alleged by some commentators."
The review found firm evidence of gold plating to be lacking.
Criticism sometimes arose because of concern about the fact there
is a regulation at all rather than the details of its implementation.
Moreover, similar concerns were found to be expressed by business
representatives in other Member States suggesting that complaint
about regulation was simply a widespread fact of economic life.
199. We are persuaded that the current social
partnership consultation arrangements for formulating EU legislation
have an exclusive "two sides of industry" feel.
200. We recommend, therefore, that the Government
should support UK small business organisations in finding means
to ensure that social dialogue in the EU includes a wider representation
of interests, in particular representatives of the small business
sector. This would seem the most appropriate way of making sure
that the EU matches up to the spirit of its treaties which state
that the EU should avoid imposing administrative, financial and
legal constraints on small and medium sized enterprises.
201. We recognise that the perception remains
strong that the UK "gold plates" EC directives relating
to employment. However, we have seen no conclusive evidence to
support this view and indeed the final report of the Davidson
review suggests that the perception is exaggerated. We recommend
no further action on this matter.
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