How to be a Civil Servant
This is the fourth of five notes which:
There are, broadly speaking, six different sorts of regulation (see separate note), of which one important category is regulation which confers rights and/or provides protection. Much health and safety and employment protection legislation falls into this category, and much of it comes from Brussels. And Ministers find that they need to reconcile a number of possible tensions when it comes to transposition - that is incorporating European Directives into UK law.
One source of tension arises from understandable concern that the Government should not "gold-plate" - that is add unnecessary aditional detail or rules to - European legislation. But this is in tension with the concern, of those who are to be regulated, for regulatory certainty. Those concerned about gold-plating applaud the French and Italian approach. Their legislation often says little more than "This directive shall apply:- You sort out the detail". But many UK citizens are reluctant to accept laws as interpreted by officials, whilst small firms in particular do not want to have to go to court to resolve ambiguities or to find out how the law applies to unusual circumstances. So even if Directives themselves are not very detailed (and they often are), UK Ministers usually ask civil servants to draft to cope with every eventuality, whereupon everyone complains about the length and complexity of your proposal. It is truly a no-win situation.
As an example, I understand that DTI did indeed once merely "copy out" a Directive to do with personal protective clothing - only to be told by the relevant trade body that "copying out" was in fact "copping out"!
"Goal-based" regulation is sometimes used as a compromise route between gold plating and regulatory certainty. One good example is the HSE's requirement that health and safety should be assured "so far as is reasonably practical" (SFAIRP). This avoids excessive detail, whilst allowing common sense regulatory decisions to be taken in the light of the circumstances of the individual business. But see further below.
Another tension arises when it is necessary to define the businesses, employees and activities that are within the scope of the UK regulation. EU legislators often kindly leave such decisions, within limits, to national governments, but this can be a poisoned chalice. If Ministers spread their net too wide then they will again be accused of over-regulating and “gold-plating” the Directive. But if they err on the side of exempting things which they could have caught, they are then likely to face legal challenge from the Commission or from someone who might have benefited from a wider interpretation.
A third tension is caused by the suspicion of the European Commission and/or other member states that we may be seeking to slide out of our comunity obligations. There was a particularly worrying example of this in the infraction proceedings that were taken in the European Court of Justice (the ECJ) against the UK Government, represented by the Health and Safety Executive (HSE). The problem, in short, is that European law imposes close to an absolute duty upon employers to safeguard their employees' health and safety whereas, in the UK, the HSE requires employers to safeguard health and safety "so far as is reasonably practical" (SFAIRP). This is a classic example of "goal-based" regulation, of which the HSE is justifiably proud, as is evidenced from this quote from an HSE document:
But the European Commission believed that we were trying to wriggle out of the responsibilities imposed by the relevant European law, and referred the UK to the ECJ. The case took years to get to court, but the UK eventually emerged victorious (in June 2007) from what had been a very important piece of litigation - though probbaly not the last in this area.
The most thorough review of whether the UK has over-implemented European legislation was carried out by a team led by Lord Davidson QC. They reported in November 2006 and, disappointing many, "concluded that over-implementation may not be as widespread in the UK as is sometimes claimed". But they did find some examples, and made a number of useful proposals.
Further detailed advice on transposition is on the the Cabinet Office website.
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