Today it is a tragedy that the European Union – that body long ago established with the high and noble motive of making another war impossible – is itself beginning to stifle democracy, in this country and around Europe. If you include both primary and secondary legislation, the EU now generates 60% of all the laws that pass through Westminster.
Boris Johnson, writing in The Sun, April 21
Among the headline-grabbing claims repeatedly made by campaigners for the UK to leave the EU is that a substantial majority of British law is now imposed by Brussels – providing crucial “evidence” to back up their core arguments about a loss of sovereignty and an assault on democracy.
This particular claim varies as regards both the alleged figure and its supposed source. UKIP has again and again asserted that Brussels makes 75% of UK law – a figure that appears based on nothing more than some unsubstantiated press remarks from EU Commissioner Viviane Reding. Appearing before the House of Commons Treasury Committee in March, Boris Johnson cited what he called new evidence that put the true number at 60%. This turned out to be a gross misrepresentation of House of Commons Library research dating from 2014, though as can be seen from the quote at the beginning, he is still repeating it.
Perhaps the most important and influential backing for the Leave campaign’s claims comes from a Business for Britain report of March 2015. Touting itself as “definitive”, it decreed that between 1993 and 2014, 64.7% of UK law was EU-influenced, and EU regulations accounted for 59.3% of all UK law.
But closer analysis reveals that this report is utterly flawed and misleading. BfB included in its calculations all EU regulations without distinguishing between legislative regulations and non-legislative ones.
EU legislative regulations are comparable to primary legislation in the UK, but they are relatively few in number. Certain EU non-legislative regulations are comparable to statutory instruments in the UK – such as many of the “delegated regulations” adopted under Article 290 of the Treaty on the Functioning of the European Union – so they too could in principle be included in any attempt to quantify the domestic impact of EU law.
But the great bulk of EU non-legislative regulations are adopted in order to implement technical, administrative decisions at the EU level This includes things such as updating the scientific registers of chemicals and food additives; adjusting specific anti-dumping duties on cheap imports from third countries; confirming the regular continuance of UN sanctions on named individuals suspected of involvement in terrorism; and entering specific foodstuffs in the register of protected designations of origin.
It is simply not credible to include such measures in any purported calculation of the volume of UK law which derives from the EU. Or at least: if BfB counted those EU regulations in its sums, it should also include their proper domestic comparators – the vast numbers of UK decisions taken by public officials in a wide range of public bodies across the entire country. This would surely render the EU component of any statistics on the volume of “UK law” virtually negligible. As it stands, this is comparing apples with pears.
To be fair, any competent legal scholar would confirm that attempts to quantify the amount of “UK law”, or the amount of “EU law”, let alone the statistical relationship between the two, could never be anything more than an inaccurate guess guided by contestable research methods.
But there is a broader and more fundamental point here. This is far from the only example of the Leave campaign relying on and then reiterating claims which have proven upon closer inspection to be partially or even wholly false.
Think of Michael Gove’s rosy but entirely spurious vision for the UK’s post-withdrawal trade relationship with the EU. Or watch the fantastical claims of Vote Leave’s Dominic Cummings falling apart under the slightest scrutiny by the Treasury Committee. Those following the referendum debate from a perspective of informed expertise may rightly feel frustrated and dismayed by such blatant skulduggery.
The only way to produce a figure anywhere approaching 60% for the amount of British law that comes from the EU is to follow a seriously flawed methodology. If this sort of work were submitted for academic peer review, it would be rejected at the first hurdle as manifestly unscientific. The real worry is that substituting the dissemination of misleading propaganda for honest evidence-based argument, on an issue of fundamental importance for the future of this country, risks further undermining public trust in our political institutions as well as inflicting serious damage upon the quality of our national democracy.
Kenneth Armstrong, Professor of European Law, University of Cambridge
Fans of The Big Bang Theory will be familiar with Sheldon Cooper’s webcast Fun with Flags. The EU referendum campaign has brought us Fun with Fractions with Boris Johnson suggesting that the percentage of UK law that emanates from the EU is “60%”.
The 60% figure derives from a methodology reported by the House of Commons Research Library, and as the report’s author admits “it is impossible to achieve an accurate measure”. The methodology includes EU “regulations” which can have immediate effect in UK law without being implemented by Westminster, the idea being that a methodology which only focused on directives and decisions that require formal adoption into national rules would underestimate EU influence. But as our commentator notes, this also risks including a large number of technical regulations and amendments.
As Sheldon would claim, methodology matters. The mere fact that methodologies are contestable does not mean that any given one is wrong, unless it is wrong in terms of the question asked. Is it a narrow question of how much EU law is implemented or are we evaluating broader EU influence? Does volume equate with significance? And how do we factor in change over time? Does anyone really care? Distractions with fractions.