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Transposing EU Directives into UK Law
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For over a year, Oakleigh Consulting have been involved in helping the Department for Environment Food and Rural Affairs (Defra) develop and apply programme and project management (PPM) to the "transposition" of EU Directives into UK law. We are helping to support transposition projects and are currently beginning to look into how well the approach could be used to provide support at the earlier negotiation stage.
Keen to share the knowledge and skills they have gained, Jonathan Robinson, a Senior Lawyer in Defra, talks about the rationale for using PPM to support transpositions and highlights the successes of one of the pilot projects to implement the Highly Active Sealed Sources Directive.
In the second part of this article, Oakleigh's Bob Lamb and Myles McClelland describe in a bit more detail the process Defra went through to develop a version of PPM for managing transpositions.
The Rationale for Using Programme and Project Management By Jonathan Robinson, Defra
The process of implementing European Directives is inevitably complex. Officials must turn the often broadly phrased objectives of a Directive into a workable system at national level. Yet that task often depends on coal-face knowledge they don't yet have. To do it well requires accurate crystal ball gazing about the effects of possible interventions. However, the crystal ball will yield different pictures as the process develops, knowledge is acquired and interests emerge. It requires the skills of policy officials, lawyers, and often economists and statisticians, each with different tasks to perform, at different times. Yet the work of one is frequently dependent on the work of others. The situation is further complicated as the power to implement Directives often lies not with central Government, but with the Scottish Executive, and the National Assembly for Wales.
These factors call out for a management model for transposition yet until recently the process was considered to be part of the inherent unwritten knowledge of the gifted amateur. Although the UK's record in implementing Directives is relatively good compared to other Member States, recent high profile cases have highlighted the fact that the process does go wrong, sometimes with serious consequences, not only practical but also political.
It was these factors which led Defra's Environment Directorate General and Legal Services Directorate to explore whether project management techniques could provide a management model to cope with this complexity, and reduce the risks of late or poor implementation.
A Directive on Highly Radioactive Sealed Sources was taken as a pilot project. It began with a workshop involving stakeholders, which flushed out early a number of issues, and helped the team plan the project. The discipline of agreeing a project initiation document forced early resolution of a number of issues (devolution, timing, scope, resources etc.) which otherwise can have a tendency to remain unresolved. It also forced decisions on governance arrangements, leading to clear responsibility and accountability.
Throughout the project regular project board meetings provided a forum for legal and policy managers to check progress, adjust forward plans, and resolve issues. Ongoing formalised assessment of risk and tracking of issues minimised the danger of surprises throwing the project off track.
The result was the Directive was implemented ahead of time, through a process which was generally welcomed by stakeholders as inclusive, and generated close team working between lawyers and policy makers.
The models developed in this pilot project were praised by the National Audit Office in their 2005 report "Lost in Translation? Responding to the Challenges of European Law". Defra is now working on improving these models, extending their application, and adapting them to the process of negotiating European law."
Managing Transposition - From Little Acorns...
By Myles McClelland, Oakleigh Consulting
As Defra found, adapting programme and project management (PPM) to support the task of managing the transposition of EU Directives into UK law brings significant advantages. These include more timely implementation and the reduction of fewer costly and time-consuming infringement proceedings (or infractions as they are known) as a result of late transposition.
Background to Defra Project
Many departments have to deal with the transposition of EU Directives into UK law. At Defra this has meant adapting a plethora of legislation which has been issued in recent years. The work volumes and resultant contention for limited resources that these demands caused led Donald Macrae, Solicitor and Director General Legal services, to approach the Defra PPM Unit to explore the extent that PPM techniques could help. From this acorn of an idea Defra undertook a journey that led to their approach to transposition being commended by the NAO.
As elsewhere Departmental policy teams are responsible for leading transposition activities with the Legal team acting as a service provider at various key points in the process. As all transposition activities involve Legal Services this sometimes meant the function became a bottleneck which could not always be resolved by bringing in outside resources.
Benefits of PPM.
The benefits of the adoption of PPM techniques by the policy teams were seen to be:
- better identification of the need for input from legal and other resources; and
- more emphasis on the outcomes of the legislative change rather than the process of transposition itself.
Oakleigh Consulting were therefore asked to help identify the potential for and feasibility of applying PPM to transpositions. Our first step was to undertake a study to compare the requirements of the established Defra processes for transposition to PPM tools and techniques. The processes reviewed included: policy making, Regulatory Impact Assessments, Statutory Instrument development and parliamentary processes.
The results of this study showed a close match between PPM techniques and the transposition process. Accordingly, Defra decided to pilot the use of PPM for transpositions.
PPM Pilot Exercise
Defra appointed a Programme Manager to develop the application of PPM to transposition. This was done as a joint venture between the Environmental Protection Directorate and Legal Services and was supported by the PPMU and Oakleigh Consulting. The pilot phase consisted of two main elements: the development of a version of PPM for managing Transpositions and its testing on several pilot projects.
In developing a version of PPM for transpositions Oakleigh worked with the Programme Manager and the PPMU to adapt PPM tools and techniques. One of the key elements of this development was a generic project plan which extended the scope of PPM into policy formation in Brussels and implementation through a delivery agent. This showed that PPM could be used across the whole lifecycle of legislative development. Other outputs of this work were a set of templates and guidance notes backed by a range of training materials that we developed.
To trial the use of PPM Defra identified a number of existing transpositions to be used to test the concepts and tools in a live situation. The projects included the Highly Active Sealed Sources, Bathing Water Directive and Emissions Trading Directives. Our role was to support these projects which included:
- providing advice and ongoing support on setting up and running the pilot projects; and
- refining the supporting tools and techniques in the light of practical experience.
Overall the results of the pilot projects were highly successful with recognition by the policy teams that they could operate effectively within a more controlled framework, meet their targets and still have room for creativity.
Building on the Success of the Pilot Projects
Having demonstrated the benefits of applying PPM to the transposition stage of implementing EU law, Defra decided to provide specialist PPM support to those managing transpositions and set up a small unit to do so. They also decided to look in more detail at extending the use of PPM into subsequent implementation and test out the applicability of the approach to the earlier negotiation stages. We believe PPM can help negotiations but no-one can be sure just how well the approach will work with hidden and changing objectives and regularly changing timescales. We hope to bring you the answer in a future edition of 5 in 5.
Conclusion
The initial acorn of an idea has now grown into a process which has brought substantial benefits to Defra. These include better risk management, fewer "infractions" due to late transpositions, less fire fighting, better resource management, better stakeholder engagement and buy-in and a better grip on emerging issues.
Defra have demonstrated what can be achieved by collaboration between policy makers, legal services, in-house PPMU and external professional support.
Oakleigh Consulting provided skills and resources and facilitated skills transfer to the Defra teams. However the learning has not been all one way, we in turn have recognised the differences that are needed to apply PPM in this specialist environment and are now well positioned to help other Departments make similar journeys.
If you have any questions about the subjects covered in this white paper or you would like to find out more about how Oakleigh Consulting could help your organisation, please contact us on 0161 835 4100 or email us.
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