Why does the EU make law?

It’s back to a Leave campaign old chestnut today – here’s the argument: X% of our laws are made by unelected bureaucrats in Brussels (we haven’t mentioned the pesky –crats in a while…)

I’ve dealt with the “unelected” part of this statement in an earlier post. Today’s post deals more with the laws themselves. I intend to explain why:

  1. The EU has the power to make law.
  2. Estimating the amount of laws made by the EU is a fruitless and unhelpful exercise.
  3. The focus should be more on the quality of those laws, rather than the quantity.

Why does the EU have power to make law?

The Leave campaign’s complaints about the amount of law made by the EU seem to overlook why the EU actually has the power to make laws at all. There are two reasons in particular that are worth highlighting:

  1. To protect individuals such as consumers and workers – as I’ve mentioned here, the EU’s primary objective is to create an internal market, enabling the free movement of goods, services, people and capital. One of the benefits of this market is that the competition created by an even bigger market results in lower prices and/or improved choice for consumers. However, this market can also lead to disadvantages. For example, there is a risk that if businesses strive only to reduce costs in order to reduce the prices of their products, this could result in a reduction in standards – for example, in labour conditions and product safety. Therefore, regulation is needed that applies across the EU in order to ensure that those interests are protected. There is a need, for example, for legislation to protect workers’ rights and to ensure that goods moving freely between Member States are of sufficient quality.
  1. Certain objectives can be better achieved at EU level – leading on from my previous point, these types of regulations are better put in place by the EU, rather than being left to individual Member States. For example, if State A requires its goods to conform to certain safety standards, but State B requires goods to conform a different set of standards, businesses will struggle to sell their products in other Member States because they would need to adapt their goods to meet a different set of rules. In this situation, free trade is undermined.

    Also, to look at this from the perspective of a consumer – we might be concerned by the fact that goods produced in another country are subject to lower safety standards, and as a result we may be less inclined to buy them. Therefore, EU-wide rules on product safety ensure that goods can still be traded freely, but at the same time impose a basic level of quality that all goods within the EU should meet. This guards against the risk that the competition created by the EU’s internal market results in a reduction in quality.

    There are also other areas in which certain objectives can be better achieved at EU level. Take the area of environmental protection as an example – an individual country may be reluctant to take steps to reduce CO2 emissions, or to prevent pollution more generally, if other countries are not making the same commitment. Why? Because there is a risk that if they impose certain environmental standards, particularly on companies, these companies may decide to trade more in countries where this regulation is not in place. Therefore, an EU-wide standard on these areas makes it easier to ensure that countries make a joint effort to deal with these important issues. This is why, for example, there are EU rules that seek to reduce the amount of CO2 emissions levels on new cars registered in the EU.[i]

Estimating the amount of laws made by the EU relative to those made by the UK is a fruitless and unhelpful exercise

I have been a bit surprised by the fixation on the amount of law that is made by the EU. The first reason is that it is virtually impossible to work out an exact percentage of how many rules applicable in the UK are made by the EU. This is why the current claims range from 10-80%. The reason this calculation is difficult is because the outcome will depend on what types of EU and UK law you include in your calculation. Within both the EU and UK there are different types of law, and therefore the percentage calculation will vary depending on what types of law are included. [If you are particularly interested in this, there is a fantastic post on the difficulties in calculating the amount of EU/UK law produced written by Professor Kenneth Armstrong and Professor Michael Dougan here.]

In addition, any calculation that is made overlooks the importance of the respective laws. For example, it will not take into account the fact that a UK rule defining a certain act to be a crime is far more important than an EU rule on olive oil. Similarly, it will not take into account that an EU rule prohibiting discrimination is far more important than a rule that sets out at what times you are permitted to park on a certain street.

Therefore, percentage figures on how much law is made in the EU and UK respectively don’t really tell us much about the laws that have been passed. This leads to my next point…

Surely it is about quality, not quantity?

The second reason I am so surprised by this debate is that I think it asks the wrong question. Surely we should be focusing on the quality of these rules, rather than their quantity? Ultimately, if the law that is being produced is, on the whole, good for the UK, it doesn’t really matter how much of it is produced.

The quality of individual rules produced by the EU is something to be explored in later posts, but here are my thoughts in brief: in fairness to the Leave campaign, there have been some odd rules passed by the EU, but the exact same criticism can be made of our own government. In my view, the positive rules passed by the EU far outweigh the negative ones. To give you some examples, the EU has produced rules that have resulted in safer car seats for children, regulated the quality of toys sold throughout the EU to ensure they are safe for children, and conferred important employment protections in areas such as working hours and maternity leave.

The EU has also provided protections to our domestic industry by ensuring that certain products cannot be produced by just anyone. Under EU law, it is possible to apply for something called a PDO (Protected Designation of Origin) or a PGI (Protected Geographical Indicator) in respect of certain products. If this is granted, it means that another business cannot market the protected product under that name unless they produce it in the area registered with the EU, using the methods registered with the EU. To give you some examples:

  1. The UK has registered the term Cornish Pasty with the EU so that only products produced in accordance with their specifications can bear the name Cornish Pasty. For the (extremely detailed!) specification of a Cornish Pasty – see here.
  2. Cornish Clotted Cream can only be produced in Cornwall[ii] (I went to stay with family in Cornwall recently, can you see a theme here?!)
  3. The term Scotch Whisky is also protected by the EU to ensure that other products that are not produced in the same way cannot be passed off as Scotch Whisky.[iii] As a lover of whisky, this is a particularly important rule to me!

After some further searching, I discovered that there over 75 product names or designations that are in some way protected in favour of the UK – examples include: Wensleydale Cheese (Cracking Cheese, Gromit!), West Country Beef, Traditional Cumberland Sausage and Melton Mowbray Pork Pie (and at this point, I started to get really hungry. It’s probably just as well I was writing this whilst making dinner…)[iv]

So – the claim that X% of our laws are made in Brussels only serves to obscure the real issues. It is not possible to come up with a convincing percentage, and even if we could come up with one, surely we should be focusing on the quality of those laws, and whether we want them to remain a part of our law, rather than the quantity of such rules?

Footnotes (AKA things for the super keen)

[i] See, most recently, Regulation (EU) No 333/2014 of the European Parliament and of the Council of 11 March 2014 amending Regulation (EC) No 443/2009 to define the modalities for reaching the 2020 target to reduce CO 2 emissions from new passenger cars.

[ii] http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:266:0024:0025:EN:PDF

[iii] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/380284/techincal-guidance.pdf

[iv] http://ec.europa.eu/agriculture/quality/door/list.html?&recordStart=0&filter.dossierNumber=&filter.comboName=&filterMin.milestone__mask=&filterMin.milestone=&filterMax.milestone__mask=&filterMax.milestone=&filter.country=GB&filter.category=&filter.type=&filter.status=


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