No European directive should be enacted or enforced by secondary legislation in a stricter way than is the practice in any other European country deemed compliant for that directive by the European Commission.

It is estimated that over two thirds of new laws and regulations are linked to European Union directives. British people and businesses are fairly long suffering and will accept most regulations as part of the burden of living in a democratic society. However the area that most arouses their fury is when they perceive that under the cloak of European requirements the British Government legislates in a way that is significantly more onerous than is the case in other member states.

EU directives typically set out a minimum level of standards on the particular issue in a directive of a few pages. However the responsibility for citizen and consumer protection is that of individual Governments and therefore European directives have to be translated into national legislation.

UK Parliamentary time is scarce and it is difficult for departments to get more than a couple of legislative slots per year. The main opportunity for departmental initiatives is therefore through Statutory Instruments and the most fruitful reason for these is European directives.

A particular UK concern is that of “gold plating” which is where the UK goes beyond the minimum required by a European directive in promulgating a UK regulation whose basis is that directive. In the UK the authority for making such regulations derives from Section 2(2) of the European Communities Act 1972. This Section authorises regulations to be made for the purpose of

• “implementing any Community obligation of the United Kingdom”, or
• “dealing with matters arising out of or related to any such obligation”.

This very broad power can be used to over-ride or amend existing Acts of Parliament and this machinery to amend the law is very attractive to officials since the Statutory Instrument procedure is subject to much less Parliamentary scrutiny than a Bill. Therefore the use of regulations under Section 2(2) of the 1972 Act has ballooned enormously over the years and many important or controversial changes to the law are made by this route.

The vastly increased use of section 2(2) to make important changes to domestic law makes a mockery of the assurances which were given to the House of Commons by the Government in the course of the debates on the 1972 Act, when it was said that any important changes would be made by Bill rather than by subordinate legislation.

Since then there have been more than 15,000 uses of clause 2(2).

These regulations and other EU matters are meant to be reviewed in the Commons by a special Select Committee called the European Scrutiny Committee. However the Committee does not have the power to take any substantive votes. The Committee itself described its role as solely “sifting EU documents on behalf of the House”. It deliberates in secret, except when interviewing ministers and other non-members and this makes it harder for other MPs and the general public to know what is happening. Even if a proposed document is referred to one of the three European Standing Committees then this is likely to have little EU expertise and usually a low attendance.

Currently the EU produces around four pieces of secondary legislation each week, which means that with the UK Parliament not sitting for more than half of the days in the year, there is more than one new piece of EU legislation every Parliamentary day. There is also a great deal of other documentation coming from Brussels which can affect UK citizens or businesses. In total about 1,200 documents a year are classed as EU ones and subject to scrutiny (more than seven per Parliamentary day). Parliament is in complete recess for around 16 weeks a year, whereas the European Commission only shuts down for August. According to a Parliamentary written answer, in 2005 alone there were 68 occasions where the Council of Ministers adopted proposals which had not been reviewed by the Scrutiny Committee because the House of Commons was in recess (or was prorogued for the general election).

It is therefore proposed that the European Scrutiny Committee be reformed so that it can publicly review all proposed EU legislation before it is enacted and each departmental Select Committee be given the power to recommend agreement or rejection as appropriate of each Statutory Instrument to ensure that it is not being used for any purpose not required by the original EU directive.