There have been many attempts to quantify the extent to which EU law (primary, secondary, Regulations, Directives, ECJ judgements etc) really determines what happens in the UK. It is inherently hard to come to an agreed answer given the combination of a) the sheer scale and complexity of EU law’s entanglement with domestic law over decades including things like domestic court interpretations of ECJ judgements, b) different definitions of regulation and the units of measurement, c) the desire of the civil service to obscure the issue, and so on.
You – ministers and spads – can contribute something valuable to this debate in a way that will help the NO campaign at a crucial time.
For those not in government reading this… One of the basic mechanisms of government is the ‘Cabinet write round’ system. This involves Secretaries of State being given lots of documents every night in their box from other departments. The SoS is supposed to read these documents and tick the relevant box on the attached form signalling assent, disagreement, comments etc. (When I find a copy of one in my papers I’ll post a photo.)
For entirely domestic things, this process can lead to disagreement and negotiation. An interesting aspect of our membership of the EU is that a large fraction of the documents concerning future law and administrative action come from the EU. For reasons that are opaque, the civil service continues with the write round system. It is, of course, a Potemkin system as ministers do not have a real power to oppose anything – the document in question will become law regardless of how the minister fills in the chitty. Still, the chitties are sent around so everybody can pretend they are in charge. This is a depressing process for some ministers but perhaps the Cabinet Office regards it as a Pavlovian exercise – ministers become habituated to simply tick everything without engaging their brains or ethics.
When occasionally a SoS refuses, the first step is the Private Office asks whether a mistake has been made. No? Are you sure minister? Off the chitty goes to the Cabinet Office (‘very courageous minister’). Step 2 is that the Cabinet Office emails to say – ‘Was your SoS drunk again last night, he seems to have rejected the EU Directive on XXX, better go and tell him to withdraw his objection pronto or Jeremy [Heywood] will be on it.’ This is normally enough to get SoS scuttling to retract his objection. Stage 3 is unusual – it involves the SoS not giving in at Stage 2. What happens then is that the SoS is informed by the private office that Ed Llewellyn has said that the Prime Minister agrees with Jeremy and insists on measure X. This flattens practically all objections. I have witnessed the very unusual Stage 4 – the SoS sends back a message asking for a meeting with Jeremy. Jeremy arrived. ‘This is EU law so there is no basis for us to object.’ Gove: ‘Why do we get sent these stupid forms to fill out then if we can’t stop these awful things, this is going to waste hundreds of millions of pounds for nothing?’ Jeremy [a chuckle]: ‘Haha, yes, so I’ll inform the Prime Minister that you agree after all, we will mention to European officials that ministers have grave concerns, I’m sure Oliver will look at it further, goodbye Michael.’ Game Over: ‘All your base belong to us’, as the old video game said…
The fairy tale that Britain still has Cabinet government involves maintaining this Potemkin process.
I have asked No10 spads a few times over the years what proportion of things they see come from the EU. The estimates have been 50-60%. When I was in the DfE, I would occasionally do surveys of Gove’s box, going through every single paper in it, to see the proportion of EU stuff. I would estimate the same – typically about half, though sometimes much more (though obviously volume does not equate to importance).
With the referendum coming, this will be an important question. The usual surveys will not answer the question. So what could you do?
From now, start collecting stats on a daily basis of the proportion of EU stuff in the box. Spad, create a GoogleDoc – obviously do not use the official system – so that the minister can simply fill in the box on the grid for each day. For the minister (or you) to jot ‘x%’ each day and fill in a GoogleDoc grid will take no more than a few seconds per day, less than a minute per week, less than an hour in a year. (If they are technically hopeless just get him to jot a figure and you fill it in.) Also, you could take a few photos of some of the boxes (‘This one was 80% EU stuff’) and save them to Dropbox for future use. Keep copies of the 1% most stupid, irrational, and wasteful things. Add ECHR/HRA stuff too – that is all relevant particularly given Cameron is going to do nothing at all about the Charter of Fundamental Rights (NB. this is the EU thing, not the ECHR). No officials will know you are doing it. Neither Heywood nor Llewellyn will be able to know you are doing it.
After Cameron returns from the EU proclaiming triumph and some of you resign, you will then have a record of contemporaneously collected stats on the real importance of EU affairs in Government. You will be able to publish this. It will be recorded over a year or so and therefore have hundreds of data points. Much more than other surveys on this question, people will take it seriously – particularly when you explain it at a press conference holding up some photos and copies of the most stupid documents. It will be impossible for No10 to rebut it effectively. They will not be able to publish documents that could refute it. Heywood will give a statement saying that your claims are wrong but nobody will believe him.
This is a simple thing that could have a significant impact at the right time. You all know how much EU stuff is hidden by Whitehall and how much effort goes into pretending that ministers decide things that were really decided by some lobbyist in a Brussels hotel years ago. You know these Kafka-esque bureaucratic processes, redolent of the dying days of the Austro-Hungarian Empire, that characterise modern Whitehall. DO SOMETHING ABOUT IT!
Lots of you now won’t know whether you are going to resign but you can do this without anybody knowing so you have something useful if you do decide to resign; if you don’t you can delete it all, no harm done. Boris, we know you read this blog, you could do the same thing in the Mayor’s office and surely there will be some committees Cameron puts you on shortly to try to keep you quiet…
Please suggest ideas about how to improve this process,