The UK has two governments for the price of three. Ministers are busier these days, because so much of what they do entails checking the EU government will let them do what they wish, or requires endless negotiation of new laws and requirements with their European partners.
I was asked yesterday to explain how Uk Ministers interact with the EU government. Ministers have to attend Council of Ministers meetings to discuss EU policy and the introduction of new EU laws with fellow Ministers from the other member states. Each new EU proposal for a law is drafted and introduced by the Commission, the permament government of the EU. The Commission needs the approval of both the Council of Ministers and the the European Parliament to introduce a new law, but has extensive powers to administer and enforce the large corpus of established EU law. Most EU laws are passed by qualified majority in the Council of Ministers, which means if the UK wishes to block a proposal it needs to find a number of like minded states to vote against.
A UK Minister faced with a new proposal for a law is wise to bring it to the UK Parliament. Parliament can debate it and offer advice to the Minister on what the UK’s negotiating position should be. Parliament’s best chance to influence and scrutinise occurs before the law is passed by the EU. Once passed by the EU the UK Parliament has no option but to co-operate in the law’s introduction into the UK, short of seeking exit or renegotiation of our relationship with the EU.
Most major EU laws pass in the form of Directives. These are instructions to national governments to pass into their national laws a new law meeting at least the minimum requirements laid down in the EU Directive. The UK Parliament has a role to supervise the Minister’s translation of the Directive into UK law. The Parliament can, for example, seek to limit gold plating, requiring the Minister to do the minimum necessary for compliance. Alternatively Parliament can ask the Minister to go further than the Directive where this is permitted. The EU also puts through Regulations, which are directly acting and do not need UK Parliamentary approval in the way a Directive does.
Usually a Directive is transposed into UK law as a Statutory Instrument. This limits Parliament’s ability to debate and prevents amendment. Parliament votes on a take it or leave it basis, under the pressure of knowing that the UK has no option but to introduce the law as required. Parliament could vote the Statutory Instrument down, demanding a rewrite, but this does not usually happen. The only way Parliament could refuse to implement the Directive would be by means of amending the European Communities Act 1972, which would presumably be part of exit from the EU or part of a renegotiation of our relationship.
Ministers also face officials advising them that things they wish to do in the UK in the normal course of government business might be illegal under EU law. Such advice is a matter of opinion, seeking to second guess the possible legal actions of the EU. It encourages a caution in the governing system which some will like and others will find frustrating, as the easiest thing to advise is to do nothing for fear of EU displeasure. Ministers rightly have to live under the law in the UK as well, but here Ministers have the power to amend the law for the future if the courts interpret it in ways that do not seem sensible from government and Parliament’s viewpoint. If the UK government falls foul of a perverse interpretation of EU law Ministers have no similar power to change the law for the future so they can carry out their legitimate business.
The EU has made huge changes to our constitution. One of the biggest is Parliament now regularly binds its successors,by rubber stamping EU law which a future UK Parliament cannot repeal. Another major change is Ministers are now not only beneath the law, but in the case of European law cannot change the law for the future when it gets in the way of good UK government (Unless the Commission, the European Parliament and other member states agree)