European proposals
Implementing European legislation
- Your RIA should be refocused at this stage to consider options for implementation, some of which will already have been considered during the negotiations.
- For example, a directive might state that an activity must be licensed but, depending on the risk involved, it might be appropriate to issue a ten-year licence rather than an annual one. This would significantly reduce the administrative burden on industry while still achieving the directive's objective.
- Thinking about the practicalities early enough allows you to negotiate a degree of flexibility into the wording of a directive or regulation to help it fit with existing UK mechanisms, and reduce the costs of implementation to both the public and private sectors.
- It is a requirement of Community law that EC legislation should be implemented in an effective, timely and proportionate manner.
- Where directives are concerned, the Government's policy is to transpose so as to achieve the objectives of the European measure, on time and in accordance with other UK policy goals, including minimising the burdens on business.
- Your RIA should cover all the options for implementation, highlighting any risks attached, including the consequences of legal challenge, and the potential economic and other impacts.
- Get legal advice on whether each option will achieve the results required by the directive.
- Identify areas of uncertainty in interpretation in the directive itself.
- Where there is doubt about the precise legal obligation, you should present ministers with options and the risk attached to each, not just the lowest risk route.
- When considering the options, the 'do nothing' option should still be mentioned. It will rarely be a feasible option because the requirements of the European legislation will not usually be fully met in the UK. However, the figures you will have worked out for the 'do nothing' option in advance of negotiations will serve as a baseline for all other options to be measured against.
- Ensure adequate consultation with stakeholders about the options, in particular where decisions are yet to be taken in committees designated to adopt implementing measures. Such measures might include decisions on the detailed implementation of Community laws, decisions on managing Community policies, and technical adaptation or updating of legislation.
- Your RIA should take into account the decisions made in such committees as these can have a significant effect on the impact of legislation.
- You should work closely with any relevant enforcement agencies.
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Over-implementation
- Try to avoid instances of over or under-implementation.
- There may be pressures to preserve the existing domestic legislative framework; to provide legal certainty and avoid possibilities of challenge in the courts; and to implement different parts of a directive in different ways where it covers the responsibilities of more than one domestic department.
- These pressures can lead departments towards 'over-implementation' and in particular to 'gold-plating' or 'double-banking'.
- Be aware of options which may lead to over-implementing or 'gold-plating' EU directives. This is when implementation goes beyond the minimum necessary to comply with a directive. It is government policy not to gold-plate directives unless there are exceptional circumstances, justified by a cost benefit analysis and consultation with stakeholders. Any gold-plating must be explained in the RIA.
- 'Double-banking' is when European legislation covers the same ground as existing domestic legislation, though possibly in different ways and to a varying extent.
- You will find further information on gold-plating and double-banking in the Cabinet Office Transposition Guide [PDF 288KB, 34 pages]
Transposition checklist
- It is important that UK legislation implementing European legislation is simple, transparent and easily understood.
- The transposition checklist on page 20 of the Cabinet Office Transposition Guide [PDF 288KB, 34 pages] takes officials through ransposing European legislation in the best possible way.
- It covers the important issues in the transposition process, allowing officials to make sure that they have taken all necessary action, from identifying policy goals to the legal risks.
Consultation on draft implementing legislation
When you have drafted your implementing regulations (and it has been cleared through Cabinet Committee) you will need to consult on them, in accordance with the Cabinet Office Code of Practice on Consultation [PDF 202KB, 13 pages]. Guidance on drafting is available on the Europe section of the BRE website and from Cabinet Office Legal Advisers.
Full/final RIA
- You should update your RIA in the light of the results of your consultation and any further information and analysis. Chapter 4 outlines what your full RIA should cover.
- Implementation of European legislation is usually via a UK legislative route and so your minister will need to sign off the full RIA.
Transposition Notes
- Since November 2001 it has been a requirement that all legislation laid before the UK Parliament that transposes any European directive must be accompanied by a Transposition Note (TN).
- The TN should show how the main elements of the directive have been, or will be, transposed into UK law. The introduction to the TN should also include a comment on whether any over-implementation has taken place.
- See the Europe section of the BRE website for more information on TNs.
Guidance
- Consider creating practical guidance on implementation.
- This can help avoid Commission infraction proceedings and national court cases based on alleged inadequate or incorrect implementation or enforcement of EC legislation.
- Any such guidance should form part of your department's entry on the Direct Access Government website [External website]
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