Sir John Bourn, head of the National Audit Office, reported today on the mixed success with which the Department for Environment, Food and Rural Affairs (Defra) is transposing European legislation uinto UK law and preparing for its implementation. Defra deals with more European legislation than any other government department, and its mixed success demonstrates how difficult it is to get things right the first time. Alongside more problematic examples, the NAO found a number of mostly more recent cases where Defra did well. The Department needs to build on this good practice and continue working to improve the overall quality and timeliness of transposition through better and more consistent management of the process, identifying and managing key risks as far in advance as possible, and engaging specialists, including lawyers, early on.
Defra is responsible for around 30 per cent of all legislation coming from Europe, covering a range of topics including environmental quality and animal welfare. The Department is obliged to transpose European law accurately and in a timely fashion, while balancing the needs of stakeholders in the UK and avoiding over-implementation. The consequences of getting the balance wrong can be serious. For example, problems in interpreting the Regulation dealing with the removal of ozone depleting substances from fridges led to the fridge mountains of 2002 which cost £46 million to deal with.
When the European Commission believes Defra has not acted appropriately it will launch infringement proceedings. Defra was the subject of 61 new infringements proceedings between 1 January 2002 and 31 December 2003. These proceedings can take a long time to resolve and create additional uncertainty. In the case of the Nitrates Directive, an infringement due to the misinterpretation of the Directive by the Department lasted for almost ten years until the Commission was satisfied that the UK had correctly implemented the legislation. Better planning and monitoring of transpositions may help reduce the number of infringements Defra receives from the Commission. On the Emissions Trading Directive the Department dealt very effectively with a short timetable by proactively managing the consultation phase and working with the devolved administrations to meet the deadline. As a result the UK was the only Member State to transpose this Directive on time.
Providing more certainty where possible can help industry and consumers, and Defra can achieve this by issuing clear and timely guidance to those affected. In the case of the Animal By-Products Regulation, guidance notes were issued to key industry sectors a year after the legislation had come into force. Uncertainty also prevents industry from preparing for changes. On the Landfill Directive some details about waste acceptance criteria have still to be finalised and yet these criteria come into force in July 2005. On the other hand, the Water Framework Directive provides a good example of how Defra identified uncertainties in advance, set out a timetable for their resolution and communicated this to key players.
A desire to provide greater certainty needs to avoid over-implementation. The general rule set by the Cabinet Office is that the objectives of European Law should be achieved in a timely manner but should not go beyond the minimum requirements unless the benefits are greater than the costs. A dilemma for Member States is whether “to copy-out” European legislation (by direct translation or a simple cross-reference to the original directive) or “elaboration” (by adding detail in the domestic legislation). The more common approach in the UK is to elaborate as a way of providing greater clarity and certainty.
Compared to other EU member states the UK has a good track record in transposing European legislation. The high volume of legislation dealt with by Defra means that improvements there will have a significant overall effect and will provide lessons and good practice from which other departments can learn. There are a number of steps Defra can take to more consistently achieve the high standards already evident in some cases looked at by the NAO. These include:
- issuing more timely guidance to provide more certainty to those affected by new legislation;
- adapting Programme and Project Management tools to better deal with the phases and challenges of European legislation;
- reinforcing the value of Regulatory Impact Assessments as a useful tool for planning and implementation;
- increasing senior management oversight of transposition and implementation; and,
- improving co-ordination with devolved administrations to provide a timely response to legislation.