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The Reforming Regulation Initiative:
deregulatory déjà vu?

February’s statement by (the then Chancellor) Sajid Javid, to the Financial Times, that today’s Budget statement would include the announcement of yet another ‘Red Tape Challenge’ brought with it a sense of déjà vu.

March 2020

In recent years we have seen a succession of reviews driven by a political appetite for deregulation – some have been instigated from outside Government (for example the 2019 Oliver Letwin-led Red Tape), or the European Commission-instigated reviews of the Birds and Habitats Directives (2015) and the Water Framework Directive (2019), and some from within Government (for example the 2011 ‘Red Tape Challenge’). Some have looked at a wide range of legislation (like the 2012 – 2014 Foreign Office-led Balance of Competences Review) while others have targeted environmental legislation in general (for example Defra’s 2012 Smarter Environmental Regulation Review) or taken aim at the protection of nature in particular (like the2012 Review of the Implementation of the Birds and Habitats Directives in England which was kicked off by another Chancellor (George Osborne) in another Budget statement).

Red tape challenges are intended to cut costs, stripping back burdens on business. Yet reducing costs is exactly the reason that regulations are introduced in the first place: to avoid social, environmental or wider economic costs. With a single-minded approach to cutting regulation, Governments run the risk of transferring and multiplying costs from businesses to society at large. Think of the cost to communities downstream if landowners disregard flood risk reduction rules, or the cost to public health and future generations if car companies flout emissions limits. Think of Grenfell. A small saving for business can become a big cost to society.

So, the real challenge is to identify costs that are truly unnecessary, or costs that have fallen on the wrong party. Through this lens we see that efficiencies can sometimes be found, but overall, the green tape of our environmental laws is a valuable safety belt that protects us from danger or guides us toward a greener future.

In fact, we consistently find that it is a lack of effective regulation, poor implementation, or weak enforcement that adds up to the biggest costs. Voluntary initiatives like the Government’s pesticides forum, or the New York and Amsterdam deforestation goals, or the voluntary approach to reducing peat burning and abstraction habitually fail, incurring years of environmental costs before Government steps in. When statutory agencies like Natural England and the Environment Agency lack the wherewithal to enforce the law, society is left to pick up the costs.

The findings and implications of previous reviews have been remarkably reliable: they have revealed widespread support from NGOs and industry for good regulation and recommended improved implementation rather than revocation of those regulations. Unfortunately, most of those recommendations have not been implemented.

Take for example the various reviews of the Birds and Habitats Directives – EU laws which were largely inspired by UK Governments. These have secured a proud legacy of demonstrably effective protection for our most important wildlife sites (for example see here) against the backdrop of the precipitous and ongoing declines of nature across the UK, and the protection they provide is now enshrined in UK law so that this continues post-Brexit, in line with the UK Government’s promises that Brexit will not result in any weakening of environmental protections. The most recent review of these laws echoed the findings of the last domestic review in 2012 that ‘in the large majority of cases the implementation of the Directives is working well, allowing both development of key infrastructure and ensuring that a high level of environmental protection is maintained’. The 2012 review ‘identified four key areas where change will improve the implementation of the Directives for the benefit of both the economy and the environment’ and made 28 individual recommendations. However, despite Government commitments to act on those recommendations, some were never implemented while others, although started, were subsequently abandoned or side-lined.

So, how can the Government ensure that this review delivers real benefits, without ousting valuable green rules? There are four potential causes for optimism:

First, the review previously advertised as a ‘Red Tape Challenge’ and a key element of the forthcoming budget failed to make any appearance in Chancellor Rishi Sunak’s statement to Parliament, and instead had to be located buried within the underpinning budget report and under a new title of the ‘Reforming Regulation Initiative’ (see Section 2.267 of the report) The accompanying text makes reference to the essential role of good regulation and the need to balance support for business with protection for people and the environment…. what a difference a few weeks can make!

Second, this will be the first review undertaken since Parliament declared a nature and climate emergency, and in the context of welcome commitments by Government not only to ensure that the there is no weakening of environmental protections as a result of Brexit, but also its expressed desire to become a world leader on the environment.

Third, there is no lack of evidence. The conclusions of those previous reviews should be used to inform this one. And the Government’s response to the Coronavirus and its recent and most welcome change of approach to the control of Bovine TB in cattle and badgers (in response to the recommendations of an independent review) would suggest that there is a willingness within Government to be led by robust evidence.

And fourth, when trailing the initiative formerly known as the Red Tape Challenge, Mr Javid was clear that the Government would be asking the public and others stakeholders to identify EU rules that the Government should “improve or remove” – an explicit recognition that ‘diverge’ does not equal dilute, and that there are areas where laws carried over from our membership of the EU will need to be not only banked but also built upon. This is very relevant in the area of environmental protection where the value of EU-derived legislation had been proven time and again, and yet much more is needed to halt and reverse the overall decline in the state of nature.

To justify another review, Government must factor in social and environmental costs and benefits of regulation, and be prepared to follow the evidence where it leads, and they should not be surprised if that evidence points to the need for stronger environmental regulation, robust enforcement action, and increased investment in tackling the nature and climate crises. And if Government were to act on the recommendations of the review that would make a refreshing change!

Richard Benwell, CEO, WIldlife and Countryside Link
Kate Jennings, Head of Site Conservation Policy, RSPB

Follow @RSBenwell & @KeasdenKate

The opinions expressed in this blog are the author's and not necessarily those of the wider Link membership.