The Government has been accused of 'gold-plating' in its attempts to adopt European legislation. Lawyers can report instances of over-implementation, writes June O'Keeffe

To quell the cries from British business that it has not stuck to its commitment of cutting red tape, the UK government has announced an independent review into over-implementation of European legislation in this country.


A case in point is the 12-page abattoirs directive that the UK government took on itself to transform into 96 pages of implementing regulations, while the French were able to do it in seven. With European legislation accounting for more and more of all legislation in the UK, the time is ripe for an assessment of whether this level of detail is really necessary.


At EU level, the tendency in recent years has been away from bold new initiatives towards simplification of the existing legislation with the maxim 'less but better'. Nonetheless, if you read the British press, you could be forgiven for thinking that Brussels (which is portrayed as an interfering bogeyman) has nothing better to do than devise legislation requiring pigs to have toys in their pens and fisherman to wear hairnets.


While it might be convenient for governments to blame Brussels for all manner of things, the truth is that governments are directly involved in the negotiations on every piece of legislation that emerges. Although the UK government is only one voice out of 25, it plays an active role in discussions leading up to the adoption of legislation.


However, the story does not end there. Governments' responsibility extends to ensuring that European legislation is properly implemented within the deadlines agreed. Failure to do so can lead to actions in the UK courts against the government such as the notable Factortame case (on the ownership of sea-faring vessels) on state liability.


Although criticising European legislation is seen as fair game, less attention tends to be focused on what happens to it once it is agreed. UK legislative drafting tends to be of a very high standard. The same cannot always be said for European drafting, which is a different animal based on the result of political compromises between 25 member states working simultaneously in 20 official languages (with the addition of Gaelic as an official language as of next year and the prospect of adding Bulgarian and Romanian to the pot in the near future).


The solution identified in the Bellis report (December 2003) was to export aspects of the UK drafting system to Europe by having specialist draftsmen in every department, akin to parliamentary counsel, as a senior member of the team with sole oversight of the drafting. While the UK system may not be perfect, it could perhaps avoid such messy texts as the recent version of the Services Directive that emerged from the European Parliament in its vote in mid-February.


The UK government in implementing European legislation has often been accused of 'gold plating'. This innocent-sounding phrase means to add to legislation - invariably directives - by elaborating on the original text. There are good reasons why the UK chooses to do this, usually to improve on the clarity of the text in question and to ensure it fits within the UK system and/or to provide remedies.


In practice, such an approach can lead to curious results, to say the least. One example is the directive on the transport of live animals, where the UK draftsman expanded the category of animals in the text and made it an exhaustive list. He then added the phrase 'and any other animals', which lead to the absurd situation of oysters being entitled to rest breaks.


However, there are occasions when governments use European legislation to further their own domestic agendas, taking advantage of the fact that it is mostly secondary legislation that is used to give effect to European legislation, thus leading to low levels of scrutiny.


The Second Money Laundering Directive immediately springs to mind. The purpose of this directive was to combat money laundering and to prevent professionals such as solicitors being used to launder the proceeds of crime. While this is all very laudable, the UK implementation is less so. The burdens imposed on UK solicitors are second to none in the EU in terms of the identification and reporting obligations as well as the erosion of legal professional privilege. The government went far beyond the terms of the directive by creating an extremely onerous regime that rightly has led to a great deal of criticism. A quick glance around the EU reveals that solicitors in the UK are subject to much more rigorous rules than their counterparts - as witnessed by the thousands of reports to the National Criminal Intelligence Service compared to the handful that have been reported in most other EU countries &150; thus putting them at a competitive disadvantage.


This is one of the issues that will be raised by the Law Society in its response to the Davidson review - the consultation launched in early March aimed at seeking feedback on how European legislation is implemented in the UK. The review, spearheaded by Neil Davidson QC, runs until the end of May and is focusing in particular on over-implementation by the UK government.


Lawyers who can think of any examples of over-implementation or other issues raised by the Davidson review should contact the Law Society's EU committee, e-mail: june.o'keeffe@lawsociety.org.uk.


June O'Keeffe is the head of the Law Society's Brussels office


Link: www.cabinetoffice.gov.uk/regulation/documents/davidson_ review/evidence.pdf