factorfiction4 Is most of the UKs law made in Brussels?

The claim
Most of our national law is now made in Brussels.”
Lord Pearson, leader of the United Kingdom Indepdence Party, Sky News, 6 April 2010

The background
It is a familiar lament, and one Lord Pearson was keen to repeat. European Union legislation does become UK law by virtue of the European Communities Act 1972, but is Pearson right that most of our laws are now coming out of Brussels?

The analysis
Ironically, the United Kingdom Independence Party’s claim comes from Germany. FactCheck was told by UKIP the claim was based on some comments made by one-time German president Roman Herzog.

In January 2007, Herzog said 84 per cent of Germany’s national laws were made in Brussels. He called it an “inappropriate centralisation of powers away from the member states towards the EU”.

According to UKIP, the 84 per cent figure was based on research by the German Ministry of Justice, which compared the legal acts adopted by the Federal Republic of Germany between 1998 and 2004; with those adopted from the EU in the same period.

UKIP told FactCheck that it took the 84 per cent figure drawn from this research, and adjusted it down to 75 per cent for the UK in light of the fact Britain did not join the single currency.

The party said the downward adjustment of 9 per cent was not based on any empirical research, but an estimate assisted by “senior political experience” within its ranks.

Leaving aside the fact UKIP’s figure was derived from Germany rather than the UK – and the inherent methodological problem that creates – it is worth having a closer look at precisely how the German percentage was worked out.

The German research showed that between 1998 and 2004; 18,187 EU regulations and 750 directives were adopted in Germany. Herzog worked out that during the same time around 3,500 German legislative acts were passed – leading to the claim that 84 per cent of all German laws came out of Brussels, as an obvious proportion.

But as Professor Anthony Arnull, an expert in European law at Birmingham Law School explained to FactCheck, to truly make an assessment you would have to look beyond the numbers, at a more precise level of UK legislative detail.

He said that because of the UK’s remaining jurisdiction over key areas such as health, education and defence – as well as the sheer difficulty in measuring the UK/EU law balance – it meant the 75 per cent claim was unlikely to be true.

Prof Arnull added: “The claim, in a sense, is meant to sound like a negative by UKIP, but often we [the UK] would have implemented these laws anyway, or even initiated them – so that would need to be taken into account too perhaps.

“While if you have a piece of legislation with 200 sections, and one section comes from the EU, does the whole act then get defined as ‘from Brussels’?”

It’s also important to keep in mind that the EU’s powers are mainly regulatory, as opposed to budgetary. So the volume of laws might not always translate into impact and importance either.

Seemingly providing a stat at the other end of the spectrum from UKIP, a research paper undertaken by the independent House of Commons library found just 9 per cent of statutory instruments passed in the UK Parliament between 1998-2005 were implementing European legislation. It is a figure Caroline Flint, former Europe Minister, has been happy to use to reject as “utter rubbish” the jibe that the UK is now ruled from Brussels.

However, the report was candid enough to note that using statutory instruments was not necessarily the best barometer for assessing the EU-UK law balance, stating: “This note does not work out scientifically how this would affect the percentage of EU-based UK laws, but the number of Regulations can be two or three times the number of Directives (or sometimes more). The proportion of EU based laws could therefore be as much as 30-40 per cent or more.”

In fact, this 40 per cent figure is close to a stat quoted by Lord Malloch-Brown in a parliamentary response  on the same issue, although he goes in the opposite direction to the Library report, by saying the overall proportion could be “much lower”. Confused? FactCheck thinks you should be.

Lord Malloch Brown told the Commons: “It has been estimated that around half of all UK legislation with an impact on business, charities and the voluntary sector stems from legislation agreed by Ministers in Brussels, but this is a category of legislation which is more likely than legislation in general to have originated in the EU. It is likely that the overall proportion is therefore much lower.”

To add further complications, the same response links to a blog by then Labour MP Richard Corbett, which claimed the affect of EU law in the following countries was at just “6.3 per cent according to the Swedish parliament, 12 per cent according to the Finnish parliament, and between 12 and 19 percent according to the Lithuanian parliament” by way of a comparison.

The verdict
The fact the UKIP figure was based on a six-year old German analysis, which in itself had flaws, is enough to suggest this claim is a step too far.

Clearly this is a complex issue, and difficult to prove, but there is a lack of evidence to suggest 75 per cent, or even half, of the UK’s laws now come from Brussels.

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