‘Smarter’ regulation or simply deregulation in disguise?

12 July 2023, Louise Hosking, CIEH Executive Director of Environmental Health

Hand placing a wooden block which reads 'Regulation' into a set of building blocks

Let’s talk about regulation. Regulation is essential to protecting public health and is a key tool in the arsenal of environmental health professionals working in the varied fields of environmental health.

Regulation ensures there are minimum standards the public can expect to keep them safe, whether that’s in the food we eat, the air we breathe, the homes we live in or in the places we work.

Retained EU Law (Revocation and Reform) Bill

However, over the past 9 months, the Government have gone on a journey of placing regulatory standards in the UK under threat. Most notably through the Retained EU Law (Revocation and Reform) (REUL) Bill, which originally aimed to review, repeal, or replace thousands of items of retained EU law by 31st December 2023. This would have resulted in thousands of pieces of regulation, vital to public health protection, to cease to exist. Thankfully, because of lobbying efforts from CIEH Health and Safety alliance partners and others, the UK Government shelved its plans to sunset all retained EU by this date. While the Government has halted plans to sunset thousands of EU regulations by the end of the year, 600 items of retained EU law remain under threat, including the National Emissions Ceiling Regulations. This legally mandates the UK Government to report on progress made towards reducing emissions of the five major pollutants. CIEH are continuing to work with our partners in the Healthy Air Coalition to highlight the importance of these regulations in promoting air quality.

Smarter regulation

So, with the immediate threat posed by the REUL Bill seemingly nullified, is it now a case of job done? Not quite.

A less high-profile, yet potentially as threatening, UK Government policy has recently been published, entitled ‘Smarter Regulation to Grow the Economy’ and it is essential CIEH, and our members, consider how these proposals may potentially pose a risk to the regulatory standards we all care about.

Published in May 2023, the Government said these proposals represent a new approach to regulation in that it will ‘deliver rules that are proportionate to the outcomes they are trying to achieve’ and that some of the ‘current regulatory standards inherited from the EU are based on an overly restrictive and often disproportionate interpretation of the precautionary principle’.

The reforms are aimed at ‘ending the default expectation of government departments that regulation is a first choice’, tasking government departments to come up with non-regulatory policy solutions before regulation is even considered. If regulation is to be considered as a policy option, it must ‘align with UK interests’ and will be subject to assessments as to its impact on business, trade, competition, and innovation.

We are asking, is this Government trying to significantly reduce the regulatory burdens on business by weighing regulation against economic factors in a form of balancing act between public health protections on one side and economic benefits on the other?

This dichotomy of “health vs wealth” paints a skewed picture of regulation as being a burden to economic growth. As we all know, a healthy population is vital to a thriving economy, with poor health outcomes being incredibly costly to society and to the economy. For example, a 2018 study by Public Health England (now UK Health Security Agency), found that between 2017 and 2025, the total cost to the NHS and social care in England of air pollution is £1.6bn annually. The Health and Safety Executive found that in 2018/19, work-related accidents and ill health cost the UK £16.2bn, £3.2bn of which was borne by employers. A 2020 paper from the Food Standards Agency found that foodborne disease costs society approximately £9.1bn annually.

In other words, strong public health protections, in the form of robust regulatory standards, supports rather than hinders a thriving economy.

Concerningly, these proposals go further, as government departments will also be subject to additional scrutiny in that they will have to provide clear justification as to why regulatory options are being pursued as well as having to share early-stage criteria for monitoring and evaluation to determine how successful regulation has been in practice. In short, government departments not only will have to make cost-benefit assessments on new regulations, but they must also justify the effectiveness of existing regulations in accordance with economic, rather than public health outcomes.

Amidst these challenges, there is a very real risk that government departments, struggling to make economic arguments for their regulatory powers, may simply divest regulatory responsibilities to local authorities, many of whom are already significantly under resourced. Such a move, without significantly greater funding and resource capacity, would overstretch our already overburdened local authorities.

While the Government has stated that it will not reduce or eliminate regulations that are essential to protect public health, it is not clear how the government will define "essential". It is possible that some regulations that are currently considered essential could be reduced or eliminated in the future. We will be making representations to the Government seeking clarification on how exactly it intends to implement these proposals in practice, how it will be defining regulations ‘essential’ to protect public health, and to confirm whether these proposals are intended to result in the widespread removal of regulation.

What happens next?

We will be consulting with our members via our expert advisory panels and continue to raise our concerns with the government. We are concerned these proposals are simply REUL via the backdoor, and this another attempt of the current government to pursue a deregulatory direction of travel. Our role is to amplify your voice by bringing these concerns to government and to persuade policymakers that a healthy population protected by good regulation and a thriving economy are not in competition, but are instead, reliant upon one another.

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