Will red tape reform start race to the bottom?

The government is targeting £1bn in savings from cutting ‘burdensome’ EU regulations. Can it do so sustainably? Nick Hughes reports.

Regulation has an image problem that no PR consultant could repair. Whether it’s the red tops bemoaning red tape or politicians deriding pointless bureaucracy, there appears little love within parts of the Westminster establishment for the system of rules designed to govern us and keep us safe from harm.

It’s become a regular feature of an electoral cycle for governments (largely of the right, it must be said) to declare a ‘bonfire’ of regulations in pursuit of virtues like efficiency and innovation, cheered on by their supporters in the media.

The recent Queen’s Speech to mark the opening of the parliamentary year provided the latest such salvo. A Brexit Freedoms Bill intends to “seize the opportunities of the United Kingdom’s departure from the European Union” to repeal and reform regulations on businesses. The government said the bill would enable the UK to be “the best regulated economy in the world” and create a regulatory environment that “encourages prosperity, innovation, entrepreneurship and the cutting of £1bn of burdensome EU red tape for businesses”.

Amid the unfolding cost of living crisis, £1bn in savings for businesses is not to be sniffed at, albeit should they materialise, these savings will have to be weighed against the additional costs businesses trading with the EU now face outside of the single market and customs union.

A large volume of current food law is a legacy of the UK’s EU membership meaning food is firmly on the government’s red tape radar. So which regulations could be under the microscope? And could a gung-ho approach to deregulation put the environment and consumer health at risk?

It’s fair to say that previous Whitehall plans for a bonfire of regulations have produced more of a flicker than a flame. Take the Cameron administration’s 2011 ‘red tape challenge’ which invited the public to help cut some of the 21,000 statutory rules and regulations the government had identified as being in force. A review three years later by the think tank Reform found that just 100 regulations had been removed while the estimated cost of regulation since the challenge was launched had actually increased by £3.1bn.

‘Messy’ laws

Brexit undoubtedly changes the dynamic by giving the government unilateral power to amend EU laws it dislikes. The government says it has identified over 1,400 pieces of retained EU law that have been automatically transferred into UK law. It says “many of these were agreed as a messy compromise between 28 different EU member states and they did not always reflect the UK’s own priorities or objectives”.

The prime minister has appointed Brexit cheerleader-in-chief Jacob Rees Mogg as the government’s new minister for Brexit opportunities and government efficiency; he told the BBC he would be working to "cut through the thicket" of red tape in his new role.

The government has also established the Brexit opportunities unit within the Cabinet Office which has commissioned all government organisations to set out what legislation they have which was retained from the EU and what plans they have to make amendments.

Food clues

Clues to some of the areas under scrutiny are to be found in January’s Cabinet Office benefits of Brexit whitepaperwhich includes some food-specific priorities. Among these is the opportunity to review the regulation of novel foods and move to a “transparent and effective system that is the best in the world for innovators, investors and consumers”. The process for getting new or ‘novel’ foods approved within the EU has long been a bugbear of many food businesses – one food lawyer describes the current regulation as “cumbersome and not fit for purpose”. It’s now within the government’s gift to simplify and streamline the process with responsibility for approving novel foods transferring to the Food Standards Agency.

The whitepaper cites sustainable protein as one area in which the government wants to encourage “safe innovation”, hinting at a future push to accelerate commercialisation of alternative proteins such as cultivated meat products or insects for human consumption. FSA chair Professor Susan Jebb is expecting applications for products like cultivated meat will soon be forthcoming from businesses. However, “first and foremost we need to make sure that these are safe”, she told the Footprint40 podcast, adding that “we shouldn’t just assume they are because these novel processes can generate unexpected and sometimes unintended consequences”.

The government also has an eye on “optimising” rules on food information, such as labelling, which have been copied over from EU law. A new approach to ensuring appropriate use of date labels, like use-by and best-before dates, to help prevent unnecessary food waste is one possible area for reform cited by the lawyer, while the government also continues to review its future approach to nutritional labelling. The new Health and Care Act gives the secretary of state in England and ministers in Wales and Scotland the ability to introduce new food and drink labelling and presentation requirements should they so choose. Don’t expect a government-led ecolabel anytime soon, though.

In certain areas the government has already taken steps to repeal EU law. It recently removed the requirement for VI-1 certificates on all imported wine into Great Britain, which had previously been required as proof that certain characteristics of the wine like its acidity had been subjected to an analytical test and authorised by a responsible party in the exporting country. Food minister Victoria Prentis described the wine certificates as “needless red tape” that are estimated to add 10p to the cost of a bottle.

Environmental reform

The government also has an eye on streamlining environmental regulations. The benefits of Brexit whitepaper notes how it is “reviewing and reforming the estimated 80% of our environmental law that came from the EU to ensure it is rational, cohesive and fit for the UK’s unique economy and natural environment”.

Earlier this month, the government published a draft environmental principles policy statement in which it set out a new approach to environmental protection. Ministers will need to consider five principles when making policy: the integration principle; the prevention principle; the rectification at source principle; the polluter pays principle; and the precautionary principle.

Significantly, the statement notes how “the principles are not rules and they cannot dictate policy decisions by ministers”. They must be applied “proportionately” and consider the environmental effects of a policy “in the context of the associated costs and benefits to society of the policy’s primary objectives, as well as the financial and economic costs and benefits”.

The statement has created unease among environmental campaigners who fear environmental risks will be deprioritised in future policy decisions. The fact Rees-Mogg openly mocked the precautionary principle in a session with MPs on the European scrutiny committee last month has done little to assuage their fears.

Greener UK, a coalition of 12 major environmental organisations, said it believes the government is downgrading to a US-style system where environmental regulation often plays second fiddle to other considerations. “This should be a watershed moment for the environment. Instead, the government looks set to water down common sense rules that protect nature,” said Ruth Chambers from Greener UK.

Gene editing

There is evidence the UK government is already taking a more laissez-faire approach to contentious policy issues. Last week, the Genetic Technology (Precision Breeding) Bill was introduced to parliament which will enable the development and marketing of precision bred plants and animals. The government said research into new gene editing technology has for too long been held back by the EU’s rules which it said “focus on legal interpretation rather than science – hindering the UK’s world leading agricultural research institutions”. Specifically, the EU has historically treated gene editing the same way it treats genetic modification (GM) techniques even though gene editing does not result in the introduction of DNA from other species (albeit the distinction is contested by some campaign groups).

Legislation for gene edited plants is being introduced initially with the potential for the new regime to extend to animals once a regulatory system has been developed to safeguard animal welfare.

Proponents believe precision breeding techniques can produce crops with fewer inputs, including pesticides and fertilisers, improving the sustainability, resilience and productivity of the UK’s food system. NFU Vice President David Exwood said the legislative change had “the potential to offer a number of benefits to UK food production and to the environment”.

Critics, on the other hand, claim gene editing is an attempt to apply a short-term technological fix to the long-term damage, such as poor soil fertility, caused by intensive farming methods. Meanwhile, anti-GM campaigners continue to express concerns around safety: “There is much that can go wrong and UK citizens have shown time and again that they want [gene editing] to be subject to proper safety checks,” said GM Freeze director Liz O’Neill.

The fact that the bill, if passed, will only apply in England points to another challenge with the deregulatory agenda: the potential to create inconsistencies between the home nations given that food and farming policy is largely a devolved issue. 

Sufficient scrutiny?

More broadly, there is concern that – untethered from the EU system of governance – changes to laws will be waved through without sufficient parliamentary scrutiny. The Brexit Freedoms Bill is intended to create new powers to strengthen the ability to amend, repeal or replace the large amounts of retained EU law by reducing the need to always use primary legislation to do so.

In a recent blog, Green Alliance’s Sophia Greacen detailed a trend for the government to restrict parliamentary scrutiny of legislation and fail to provide information on its impact or undertake adequate consultation. “Despite the promise that we would ‘take back control’ following the UK’s exit from the EU, it’s hard not to see the Brexit Freedoms Bill and wider patterns of government behaviour, as a means of the government grabbing power from parliament (whichever government that may be), rather than facilitating the return of power to the British electorate, which was the big pitch of Brexit,” she wrote.

It’s undeniable that, in this post-Brexit era, the latest drive to deregulate has more chance of succeeding (on the government’s own terms) than previous efforts. It also has the potential to divide opinion like never before, between those who revel in ripping up red tape and those who fear a race to the bottom.

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