Deregulation: Public Services and Health and Safety

Lord Whitty Excerpts

Thursday 13th July 2017 Lords Chamber

[Lord Whitty (Lab)]

My Lords, I congratulate my noble friend Lady Andrews and thank her for seeking and getting this debate. It is timely; in fact a lot of us would say it is seriously overdue. The noble Lord, Lord Patten, is correct to say that the mood for better regulation—or I would say, in many cases, less regulation—has persisted through several Governments, for about 30 years. I think that mood—that surge of anti-regulation—needs to be reversed, and my noble friend is correct that this is an ideological debate. She was very forensic in her approach; I will be somewhat broad-sweeping and pretty ideological in my response, because it is time for change, and the Bill that has appeared today shows us that we are going to have to take some very serious decisions about the future of British regulation post Brexit.

The first duty of the state is to protect its citizens. That used to be entirely about the Army, or possibly the police force, but it is about a lot more things in a complex society such as our own: the state also has the responsibility to protect its citizens from natural and man-made disasters and hazards, from exposure to unsafe substances, from disease, from unsafe buildings and workplaces, from economic and physical exploitation, from other people and sometimes, indeed, from themselves—not just the vulnerable but all of us.

This need also applies in the economic sphere. We need protection as well as freedoms for markets to operate. We need freedoms for businesses, consumers and workers, but we also need to make the capitalist system actually work. The state has stepped in here, from medieval weights and measures legislation to ensure fair trading, right through to the anti-trust legislation we now have. Regulation is not the enemy of the market: literally free markets end in oligopoly and monopoly. Without regulation, markets as properly understood would not work.

It is also true that, at various stages of history, there have been backlashes against regulation. Perhaps your Lordships should consider the House’s reaction to the Earl of Shaftesbury when he first started trying to stop people putting children up chimneys. We have a media which weep crocodile tears over natural and man-made disasters—as just recently—but on the opposite page are attacking the “jobsworths” who are attempting to apply the rules.

In the past three decades, there has been a torrent of abuse in the media and among politicians against the so-called nanny state. I am in favour of the nanny state. There are some bad nannies and some good nannies—so I am told—and the way the state operates needs review to assess whether regulation is right and whether regulators are acting fairly, but the principle of regulation should be a central duty of the state and a central theme of a modern society.

As some more elderly Members of the House will recall, as a Minister I was responsible for large swathes of regulation in transport, local government, health and safety, agriculture and environmental matters, and I still take an interest. I also served on the boards of two regulators. I readily accept the sort of point which the noble Lord, Lord Patten, made: that some regulations are overcomplex, some regulate the wrong thing and some fail to achieve what they were intended to. I also accept that—this is a feature of the British legal system, including within the Civil Service—there has been gold-plating in the UK transposition of certain EU regulations. But that is an issue of better regulation, not of reducing regulation, not even one that favours light-touch regulation. Over the past few years, people have been calling for less regulation and surreptitiously acting to ensure it. What started out as a fairly scientific approach to existing regulations through the better regulation initiatives under different Governments has ended up with the absurdity of “one in, three out”.

In parallel with all this, organisations such as the Environment Agency—set up by a Tory Government as an independent body from government—have had their independence undermined and their resources and powers limited. Similarly, the HSE’s powers have been diluted and the resources given to it cut. In local authorities, because many of these are non-statutory services, the cuts have fallen disproportionately on areas such as environmental health officers, trading standards, planning departments and building regulation departments. The net effect is that there has been not only less effective regulation but, in many cases, an absence of regulation.

We will shortly be faced with a decision on what we do about the so-called great repeal Bill. We are to transpose some key EU laws into the UK and, in some cases, into devolved legislative frameworks. That all sounded very simple and straightforward when it was first announced in the Lancaster House speech, but it will be extraordinarily complex. A whole range of legislation on the environment, agriculture, land use, animal health, food safety et cetera is actually primarily EU legislation at the moment and is enforced by the EU. Simply transposing the regulations does not deal with the issue of enforcement. Of course, we can give some powers to organisations such as the Environment Agency, HSE or, indeed, local authorities, but they are all increasingly starved of resources and expertise and having their powers cut or queried by attacks on the nanny state. If they are to take on what has hitherto been largely the enforcement role of the European Union, they will need to be bolstered, improved and respected by politicians and Governments and not undermined and denigrated. So we need to resist the call for attacks on the nanny state.

Last week, I participated in a debate on air quality. I called specifically for a new UK clean air Act because, at present, our regulations are primarily from the EU, which sets limits on air pollution locally and sets tests for polluting diesel vehicles and so forth. Theoretically, it has been the responsibility of national authorities to enforce those, but that has not happened; we have breached those limits, and the EU is about to take action. Without that threat of EU action and the fact that ClientEarth took cases to the UK courts in anticipation of that EU action, the Government would not have moved at all, and have still yet to deliver a proper and effective air quality strategy.

That is just one example of what we face, and it is crucial at this stage, before going into the debate of how we transpose EU laws into our own operations, that we face up to the need to sharpen up our own enforcement mechanisms and our own respect for the enforcers and those who play the game in industry and society, and who follow the regulations for the benefit of us all.

We are about to have a great debate on the repeal Bill. I accept that some of these negative effects started with very good intentions and delivered some good results. But, as we have seen of late, we start with attempts to simplify regulations, then we try to reduce the burden and cost on business, and then, as time goes on, we fail to keep regulations up to date with changes in use or in technology and society. Then we reduce the powers and cut the resources available to the national enforcement authorities. We put the burden of austerity cuts disproportionately on to local authorities, who then cut disproportionately the inspection and enforcement areas within their own remit. Then, of course, there is the deprioritising of that within both national and local government. As a result—surprisingly—unscrupulous individuals and firms, cutting corners, take advantage of inattentive public authorities and lack of resources for those authorities; and you end up with Grenfell Tower.