What is Regulation for?

What is Regulation for? This question is clearly of some interest to the current Government – you could be excused for thinking that their answer is “nothing useful – it’s all a burden on business and is holding back economic growth”. The PM has launched the Red Tape Challenge – on the website there is a very large banner saying “it’s time to fight back and cut red tape” and “we need your help.”I’m surprised they haven’t wheeled out the picture of General Kitchener – “your country needs you” to cut red tape.

This is interesting in itself, but there’s more. The Govt have announced they are going to use “crowd-sourcing” to choose which Regulations (by which they mean Legislation as well as Regulation) to keep and which to ditch.

Gone are the days when double firsts from Oxbridge vied with each other to rise through the ranks of the Civil Service so they could put their finely tuned, classically-trained minds to the tricky task of devising brilliant solutions to the nation’s problems, through – you’ve guessed it – legislation and regulation. All that’s in the past now, a hopelessly out of date, fusty and outmoded approach. Now it’s the “wisdom of the crowd”, via Twitter or whatever, that will determine how things get done, how problems get solved etc. Tweet me if you think this is madness.

Back to the Red Tape Challenge! Here’s the letter from the PM: he lays out it in plain English. Regulations are bad for you and your country needs you to help identify into which category each and every Regulation (and Law) will be dumped, I mean put – here are the categories to put them in:

Regulations (and Laws) that:

• should simply be scrapped;
• have the right aim, but one which could be achieved without regulation;
• could be made simpler, better designed, or consolidated with other regulations
• could be implemented in a less burdensome way, or
• are well-designed, good ones that should be kept.

Do see what they’ve done? The implication is that all Regulations and laws are bad, the first 4 bullet points can be paraphrased as: 1) scrap 2) scrap 3) simplify 4) don’t enforce. Only the fifth point relates to laws etc that are doing well and should be kept.

But hold on a minute. Aren’t there some laws (and regulations) that aren’t strong enough, or are in theory well-designed but inadequately enforced? YES! I have a good example here, the Environmental Impact Assessment (Agriculture) (England) Regulation 2006 (number 2).

Only just last week I was informed of a farmer in Herefordshire who had bought some nice wildlife-rich meadows in 2009 and he has been busily destroying their wildlife, making them more productive. You might think there was a law to stop this sort of environmental destruction. There is, it’s the EIA (Agriculture) Regulation – it’s supposed to protect semi-natural or uncultivated areas (say a nice wildflower meadow) from significant effects of intensive agriculture. But it doesn’t work – it’s too weak and poorly enforced. There’s another case going on at the moment in the Peak District – a large area of wildlife-rich meadow. The EIA (regs) cannot help there either – so the meadows are getting damaged. Oh and there’s another case in Warwickshire where a county wildlife site is threatened with destruction – can the EIA (Agriculture) Regs help? Sorry, no.

Despite the inadequacies of the EIA (Agriculture) Regs, all the evidence points towards the fact that the environment has benefited from legislation to protect it; all the way back to the clean air acts, which saved thousands of lives. When Sites of Special Scientific Interest were first created in 1949, they had no protection – they were literally just lines on maps. Many many wonderful wildlife sites were tragically destroyed in the 1950s, 60s 70s and 80s because the legislation was ineffectual. It was only with the introduction of European legislation such as the Birds and Habitats Directives, which had to be enshrined in UK law, that SSSI protection was strengthened and the destruction started to slow down. Even into the mid-90s SSSI grasslands were still being ploughed up – it was the ploughing of Offham Down SSSI that led directly to the Countryside and Rights of Way Act in 2000, which further strengthened the protection of SSSIs. Just the existence of well-designed legislation acts as an effective deterrent, without cases being taken to court.

The truth is most of us are generally well-behaved, most of the time. Even if everyone was well-behaved all of the time, there will still be occasions when the weak or those without voices, need to be protected, by law. The environment has no voice, and is too often taken for granted or exploited – it needs to be protected, by laws. It’s just the same as laws that protect children, or vulnerable adults, from exploitation or cruelty.

So – what’s to be done? We could join in the crowd-sourcing, and that would probably be a good idea, otherwise it is likely that the main source of suggestions will be from libertarians claiming all legislation is bad. But we also need to point out that for the environment, legislation is good – it protects the environment when other approaches (education, advice and incentives) do not work.