Economic Growth (Regulatory Functions) (Amendment) Order 2024

Lord Johnson of Lainston Excerpts

Monday 15th April 2024 Lords Chamber

Moved by

[Lord Johnson of Lainston]

That the draft Order laid before the House on 6 March be approved.

Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee. Special attention drawn to the instrument.

[The Minister of State, Department for Business and Trade (Lord Johnson of Lainston) (Con)]

My Lords, I direct noble Lords to my register of interests. I do not believe I have any specific conflicts, but I am a shareholder in various companies and so on, and it is important for me to highlight that point at the start.

The Economic Growth (Regulatory Functions) (Amendment) Order 2024 and draft guidance, issued under Section 110(1) of the Deregulation Act 2015, were laid before the House on 6 March 2024. I am aware of the amendment that has been tabled, to which I will respond in due course. I also reassure the House that I have responded to the SLSC, following a submission from Wildlife and Countryside Link, which, again, I will cover in due course.

Regulators play a vital role in shaping the UK economy through the way in which they regulate. Regulators set strategies and make decisions that significantly affect the types, the scale and the locations of economic activity in important sectors of the economy. It is therefore critical that regulation is cognisant of the requirements of growth. Efficiencies from improved regulation can translate into lower input costs and higher economic growth overall. I will be publishing a White Paper shortly that addresses the relationship of regulation and growth in greater detail; I look forward to discussing that with many noble Lords in the future.

The instrument and guidance we are debating today relate to the growth duty, a duty that requires specified regulators to have regard to the desirability of promoting economic growth when exercising certain regulatory functions. The instrument extending the growth duty will support an increase in the productivity of our businesses, drive economic performance, and grow our economy. By extending the growth duty to Ofgem, Ofcom and Ofwat, we will ensure that these critical regulators have regard to the need to promote economic growth.

It is clear that regulators can affect growth through their policy decisions. However, regulators can also affect growth through the approach they take to regulation and the wider environment that they establish, including in their relationships with regulated businesses. A good regulatory environment, emerging from the attentive and responsive stewardship of an effective regulator, can create the conditions for business confidence and investment, sensible risk-taking and innovation.

The growth duty currently applies to more than 50 regulators and came into statutory effect alongside the relevant statutory guidance on 29 March 2017 under the Deregulation Act 2015. Currently, the growth duty does not apply to the Office of Communications, also known as Ofcom; the Office of Gas and Electricity Markets, Ofgem; and the Water Services Regulation Authority, Ofwat. This instrument will extend the duty to these three regulators. These regulators oversee industry sectors which alone account for 13% of annual private UK investment and around 4% of UK GDP.

In extending the growth duty, the department has also taken the opportunity to refresh the related statutory guidance, to provide greater clarity to support regulators in their application of and reporting against the growth duty. The refreshed guidance has identified “drivers of growth” and “behaviours of Smarter Regulation”, which will assist regulators to better support sustainable economic growth. I hope that noble Lords have had a chance to read the guidance, which is an extremely well-written document.

I will talk about some of the key drivers of economic growth. I will list them, if I may: innovation, infrastructure and investment, competition, skills, efficiency and productivity, trade, and—very importantly, please take note—environmental sustainability. I understand that there is a perception that the growth duty is in conflict with environmental duties or protection of the environment. I assure all noble Lords that nothing could be further from the truth. The refreshed growth duty statutory guidance sets out in the opening paragraph the importance of ensuring

“adequate protections for consumers and the environment”.

It goes on to state:

“Natural capital and the ecosystem”


in which we live

“are fundamental to economic growth”

and therefore need to be safeguarded for economic growth to be sustained. The growth duty does not legitimise non-compliance with other duties or objectives, and its purpose is not to achieve or pursue economic growth at the expense of necessary protections.

Together, the extension of the growth duty and revised guidance will support the positive shift in the way that regulation is delivered, driving growth and paving the way for businesses to start to grow. An economy that promotes growth is one which is better able to attract businesses to our shores, to innovate and to serve households, and delivers prosperity across our nation.

The extension of the growth duty expands the remit of what Ofgem, Ofcom and Ofwat should consider when exercising their regulatory functions. Requiring these regulators to consider the growth duty will empower them to consider other areas which may not be reflected or may be only partly reflected in their duties, such as promoting innovation or trade. The growth duty is not prescriptive. It does not mandate particular actions; nor does it create a hierarchy over existing regulatory duties. The draft statutory guidance is clear that it is for regulators to balance their duties. We recognise that decisions on growth will need to be carefully considered along with other duties. The Government have also committed to review the impact of the extension of this SI within the related impact assessment and will consider the impact and effectiveness of the growth duty on investment growth, the environment and other factors in detail at the committed review point.

The refreshed guidance outlines drivers of sustainable economic growth supported by case-study examples to provide clarity to regulators within scope of the duty and help them to promote growth. For the purposes of this debate, I refer noble Lords to the previous sets of guidance, which I found to be limited in terms of the sorts of ambitions that we have, particularly when it comes to making sure that regulators understand the balance of their different duties.

The guidance also identifies behaviours that contribute to good regulatory decision-making and smarter regulation. The purpose of the guidance is to assist regulators to give appropriate consideration to the potential impact of their decisions on economic growth within the sectors they directly regulate and the broader UK economy alongside or as part of consideration of their other statutory duties. Decisions on growth will involve consideration of a regulator’s other duties; for example, they may relate to environmental or consumer protection, and there may be a need to balance multiple objectives. As independent and experienced bodies, regulators are best placed to balance their decision-making in this regard, and the revised guidance intends to encourage transparency and accountability for growth across regulators, attracting investment and, we hope, creating jobs.

Before concluding, I turn briefly to the regret amendment in the name of the noble Baroness, Lady Bakewell of Hardington Mandeville. The amendment is concerned that the growth duty could impact Ofwat’s ability to take enforcement action against polluting companies. We are aware that water pollution levels are totally unacceptable, so we expect Ofwat to take the right decisions to protect our waterways. I reassure the House that it is not a case of growth versus the environment.

First, I confirm to the House that the growth duty does not, has not and will not legitimise non-compliance with existing protections and does not prevent Ofwat taking enforcement action. This includes environmental responsibilities and this is explicit in the revised statutory guidance. The purpose of the growth duty is to ensure that specified regulators consider the potential impact of their activities and decisions on economic growth alongside their other statutory duties. The statutory guidance is clear that this does not legitimise non-compliance with existing duties. Further, it specifically lists environmental sustainability as a driver of economic growth and reiterates that the Government are committed to the net-zero and environmental targets in the Climate Change Act 2008 and the Environment Act 2021. A well-protected and healthy population and environment lead to higher productivity and growth. Therefore, we consider that there is no tension between a regulator’s protection duties and the growth duty.

Secondly, the guidance does not in any way set restrictions on regulators about how their enforcement can and should operate. We can all agree that non-compliant activity or behaviour that undermines protections to the detriment of the environment needs to be appropriately dealt with by regulators. Regulators operate independently from the Government and are free to make enforcement decisions based on the evidence presented to them. The growth duty does not prevent any enforcement. I want to be clear that degradation of the environment does not support long-term growth, and it is not something that the growth duty seeks or permits.

In conclusion, this statutory instrument is necessary to ensure that the energy, water and communications sectors strive for maximum efficiency over a sustained period. A well-regulated system will deliver efficient outputs and drive economic growth and productivity. The refreshed guidance makes it clear that regulators should work with businesses on, among other things, the environment, trade, investment and skills to ensure sustainable medium to long-term economic growth. This ensures that current-day economic growth can be achieved without undermining the ability of future growth. Applying the growth duty to the regulators of the energy, water and communications sectors will help ensure an efficient system by encouraging pro-growth regulatory practices where these are compatible with existing duties. The refreshed growth-duty guidance will support regulators in their application of and reporting against this growth duty. The guidance will assist regulators in discharging their responsibilities under the growth duty and provide clarity for stakeholders as to what they should expect of regulators.

Amendment to the Motion

Moved by