Better Regulation Turns Into Less Deregulation

This is a long one but deliberately so - no-one else seems to have picked up on this, so why not me?


On the 16th January 2008, Gordon Brown announced the establishment of the Risk & Regulation Advisory Council (RRAC). The Government spun it in such a way it was presented as an attempt to end the ‘nanny state’ culture – a popular move given the levels of public concern over ‘health ‘n safety’ concerns blocking normal, everyday life.

Yet the new body is actually the successor to the Better Regulation Commission (BRC), a body which held the Government to account for many of its regulatory cock-ups. It was actually the BRC itself who recommended the establishment of the RRAC – though how voluntarily it did this is perhaps open to question.

Having been forced to dig their own grave, the BRC then had to suffer the added slight that little mention was made of the RRAC’s role in reducing regulation. For example, the four Forums identified for the RRAC to focus on initially were all grouped as “Public Risk”: food and superbug scares, animal disease outbreak, under-pensioned citizens and obesity. All are the responsibility of individual Government departments. Why does the RRAC need to focus on these areas?

The important role the BRC played in highlighting Government incompetence caused by over-regulation has now been lost. Amongst the warnings it gave were that there should not be hasty and inappropriate action taken in response to the Stern Report on Climate Change. They went on to point out that climate change should not be used as an excuse for other policy actions. A very sensible viewpoint – and one that the Government will not be held to account for necessarily.

The BRC also delved in great detail into the implementation of the 2003 Licensing Act. It found that the Act had not delivered the regulatory benefits the Government had promised. It accused the Government of “allowing the Act to stray from its original objectives”. The Government was forced to respond and amend policy accordingly.

It also participated with Dutch and German bodies to initiate action on reducing the regulatory burden emanating from the European Union – never a bad thing.

It also criticised the Government’s plans for HIPs, arguing that proposals for delivering energy performance certificates along with HIPs did not represent regulatory best practice.

Most importantly, all government Departments (and many public bodies) were obliged to submit their ‘simplication plans’ to reduce regulation to the BRC for comment. Departments were then obliged to act on those comments if they were negative. The Commission promised “A move to a more radical approach, where incremental reductions have been exhausted” in a bid to encourage Departments to go the extra mile to cut their red tape. Departments will no doubt be relieved that that obligation has now been ditched.

All told, the BRC was one of those organisations that ferrets around the detail of Government activity. Bit by bit, it rooted out examples of over-regulation. You might say it was like King Canute holding back the sea, but it was one of the few public bodies seeking to hold back an over-weening state.


The Better Regulation Commission had produced a number of reports in recent years critical of the Government. Publicly-released, they enabled the media report them, and demand public responses from those Government departments criticised.

Gordon Brown has now moved away from this model. In their Public Risk Report, (7 January 2008), the BRC states that

“The style of the new RRAC would move away from the traditional recommendation-led reports of the BRC and its predecessors towards discursive, broadly participative workshop-based programmes”.

This says it all really.

It goes on to state that;

“Should Ministers feel persuaded as a result of the workshops to embark on a reprise of the policies under scrutiny then the RRAC can play a critical role in supporting success”.

“Should Ministers feel persuaded …”. I would not bet on that happening.

These comments alone clearly indicate that the level of outside scrutiny will be reduced. The RRAC will only exist for 18 months – and its existence will then be reviewed. It has set itself a number of clear tasks to be completed, rather than to act as a continual watchdog. Many of the BRC’s important activities will be lost, as they themselves warned:

“Assuming that the Government is willing to make the necessary commitment to success and we move ahead, we would remain concerned that this change will result in a number of current BRC activities that are valued by both internal and external stakeholders being ‘orphaned’ and we have urged Government to ensure that new homes are found, notably for the BRC’s EU-related work on administrative burdens and independent scrutiny of the Government’s various Better Regulation programmes”.

It has been recommended that the RRAC have a budget of £600,000 per annum. Whilst the expenditure on the BRC is not clear, it had a secretariat of 12, and the Commission members were all voluntary – so I doubt it would have reached £600,000. If nothing else, it didn’t have to organise all these workshops.

Even the BRC in its farewell document entitled Passing the Baton expresses concerns that its work on EU reform and on the scrutiny of departmental simplification plans will disappear.

Whilst the parallel Better Regulation Executive (BRE) remains, it is explicitly a unit inside Government, rather than an independent commentator, driving the implementation (r otherwise)of Government commitments. The BRC’s importances lies in the very independence which the BRE lacks.

The BRE seems more interested in gimmickry. Its website gives users an opportunity to submit proposals for specific deregulatory measures – and then records whether the ideas are taken forward or not. One related to pet shops is described as being ‘taken forward’ yet the idea amounts to nothing more than “Consult with those of us in the business, not those who think they know the business[1]”. Hardly difficult to take forward, since all they have promised to do is place the person on an email database for future consultations.

In sum, there is now no independent body within Government able to hold them to account on their specific target of a 25% reduction in ‘red tape’, as well as fulfilling a wider role to scrutinise Government activity and specific elements of it (e.g. the Licensing Act).

The BRC diplomatically described its abolition and replacement with the RACC as a ‘natural progression’. Yet their last Annual Report spoke at length of its aims in the years to come – and showed no indication that the BRC’s remit was about to be smothered.

It stated:

“There is still much to be done:
● The flow of new legislation is not showing signs of abating – there were 29 Bills in the Queen’s Speech.
● Diligent and probing Regulatory Impact Assessments are still the exception and not the rule.
● The Simplification Plans are a good start, but we need to see action. More specifically, we want to see leadership and a commitment to culture change in the weaker departments.
● Provisions that do not meet our Principles of Good Regulation continue to be implemented, e.g. late amendments made to the Companies Act 2006”.

There are many bodies seeking to diminish regulation. Only one has the independence to achieve that. It has now been abolished.


http://archive.cabinetoffice.gov.uk/brc/upload/assets/www.brc.gov.uk/public_risk_report_070108.pdf

[1] http://www.betterregulation.gov.uk/idea/details.cfm?proposalid=b0c25012c9cc4493b40634cd2f3c977a