Better Regulation Executive

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European proposals

• Introduction
• When to do an RIA
• Consultation
• Negotiation
• Implementing European legislation
• Monitoring

When to do an RIA

• Prepare an initial RIA as soon as you know that the European Commission is thinking about a new proposal.
• Develop this into a partial RIA when the Commission produces its proposal.
• You will have to include this with ministerial correspondence seeking collective agreement on the negotiating line and the Explanatory Memorandum (EM) to the UK Parliament, as well as the formal consultation document.
• Whether you are working on EU or other international proposals, all stages of your RIA should be used to inform the negotiations as well as in the UK clearance/scrutiny process.
• All regulatory proposals likely to impose a major new burden on business require clearance from the Panel for Regulatory Accountability, chaired by the Prime Minister. This clearance must be given before you can proceed to collective agreement on the negotiating line and implementing options. If there are significant changes to a proposal, then further clearance will be required.
• Update your partial RIA when Council or the European Parliament put forward amendments.
• Refocus your RIA when you are at the transposition stage to set out options for implementation.

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Initial RIA

• Start by drafting a clear set of objectives.
• An initial assessment at the earliest stages of the development of a proposal will enable you to inform the early thinking of your minister, and will help in early contact with the European Commission, other Member States and those likely to be affected by the proposal.
• Involve your ministers at the outset to decide on your position. They will have political considerations to take into account, and may wish to guide or take an active role in early lobbying of the key EU institutions or ministers in other Member States.
• Seek the views of Whitehall and devolved administration colleagues as necessary.
• Seek the views of stakeholders. Informal consultation with those likely to be affected by a proposal will inform your range of options and their costs and benefits. It is also a useful way of mobilising others to take action to try to shape the proposal, particularly on how the proposal might work on the ground and what costs and problems it might cause UK industry. Early contact of this kind can often prevent implementation and enforcement problems later on.
• Encourage stakeholders to respond to any consultations that are conducted by the Commission. The Commission has said that its external consultations should be conducted at an early enough stage in the process to allow for the shape of proposals to be influenced.
• Maintain contact with Commission officials. If you are able to influence the Commission's decision whether or not to come forward with a proposal, consider whether the measures proposed at Community level are fully justified, and what will happen if the Commission does not take action. This will provide a base against which you can assess other options. Even at this stage you should be starting to work out the costs and benefits of all the options.
• Involve departmental lawyers at the outset. It is very important that you involve departmental legal advisers at an early stage in a legislative proposal. They will be able to advise on:
  • whether the Community has the legal competence to act in this area
  • whether the proposed legal base is appropriate
  • whether there is consistency within a measure and consistency between measures
  • the proposal's compatibility with the existing UK legal framework, what controls already exist that cover these issues, the extent of amendments necessary to accommodate it and whether it would work in practice (thinking about implementation and enforcement issues from the start is crucial - including the practicality of the proposed timescales and sanctions).
  • how far the proposal is the appropriate means of meeting the objective at which it is aimed and whether there are alternatives to legislation
  • whether to consult other lawyers, particularly those in the devolved administrations, where the legal system differs
  • when considering European draft legislation, if it is not feasible or appropriate to have 'sunsetting', those negotiating the directive should consider getting a commitment to review in the text of the directive itself. Through its Action Plan on Better Regulation the European Commission, without prejudice to its right of initiative, is committed to take steps to add, where appropriate, a review clause to its legislative proposals
• If the possibility of legislation arises, get in early. If you are aware that the Commission plans to propose new or amending legislation, early involvement before a proposal is formally made often gives you the best chance to influence the scope, cost and effectiveness of a new legislative proposal.
• Suggesting text can often work, but you should also consider using your RIA to influence Commission thinking.
• Use information gained from the informal consultation to work out the various options and discuss as appropriate with the Commission.
• Inform your departmental Better Regulation Unit (BRU ) and your departmental EU Division if the proposal looks as though it will have a high cost, or a disproportionate cost on a particular group. They will wish to discuss it with BRE.

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Partial RIA

• When the Commission issues its proposal for consideration by the Council and Parliament, you should be in a position to develop your RIA to consider more fully the costs and benefits and risks of each of your options.
• Your partial RIA will be used for four things:
  • to inform your minister's decision on a negotiating line
  • for major proposals, to obtain clearance from the Panel for Regulatory Accountability (you will need this before you proceed to collective ministerial agreement)
  • to seek agreement to your negotiating line from Cabinet, Cabinet Committees, No 10 or other interested ministers
  • to inform the UK Parliament of your negotiating strategy (your RIA should always accompany any Explanatory Memorandum (EM) you send to scrutiny committees)
• See the Europe section of the BRE website for further information.

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Assessing the costs and benefits

• Start thinking as early as possible about the costs and benefits of the options and how the measures would be implemented in the UK.
• Your ministers will want to consider the options, and the possible effect the proposal might have at national level. This might include a description of what it might mean for a typical large/small firm.
• Although the prime concerns are the costs and benefits of regulation to the UK, it would be useful to have this information for other Member States or the EU as a whole where such information is not costly or burdensome to obtain, or where the proposal has major cost implications.
• Take into account any figures put forward by the Commission in its impact assessment.
• Contact officials in other Member States to find out their views and what their priorities and constraints are. Where appropriate, you should share your early figures on costs and benefits with them.
• The European Secretariat also coordinates legislative issues, particularly where concessions in one area may impact on others. You should consult the Secretariat as necessary throughout the negotiating process, particularly where any UK difficulties might arise (for example, when there is an unresolved difference of opinion between departments on a key negotiating point).

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