The government have stated with much political gusto that they will be the first government ever to have cut the number of regulations on the statute book. This is part of their promise to cut red tape and bureaucracy. The loss of over 80,000 pages of regulations and guidance raises fundamental questions about the role and value of regulation and its potential impact on the built and natural environment. In this blog I want to look at the many faces of regulation and their role in supporting good policy and decision-making. In so doing I directly challenge the simplistic government view that regulation is bad for business and bad for growth.
Regulations comprise a diverse set of measures; legislation, licenses, circulars, permits, regulations, registrations, recommendations, administrative guidelines, directives and codes of practice, which are explicit interventions to protect the public interest and achieve desired outcomes. Their rationale is based on market failure where natural monopolies and external costs (environmental externalities) are the most prominent examples. In the UK context, regulatory agencies are established to address such potential abuses; e.g. the Environment Agency has permit procedures for water abstraction and fracking.
Regulation also involves the privatisation and contractualisation of the delivery of public policy. So for example government policy now enables local communities to take over local services and assets through the Localism Act (2011) and Public Services Act (2012).
Regulation also protects the public interest by the state authorising particular activities, premises or products through licensing, permission, registration, certification, accreditation and litigation. For example, the Forest Stewardship Council (FSC) requires certification from sustainable and equitable forestry practices right through to manufacture of finished forest-derived products; whilst in farming, the Organic Soil Association standard is well-known and independently verified.
Regulation is also used more to influence the way people interact within places and spaces. The use of zoning limits choice and influences behaviour so that people act in accordance with the desired regulatory 'zoning' or face sanctions. Here access to public and private space directly influences peoples' behaviour, whilst green belt zoning affects land use decisions. More subtle design can also help address crime reduction and anti-social behaviour.
Regulation can also act as an informational tool providing a framework to help people make better decisions. For example, disclosure e.g. fat content in food; surgeons mortality rates; school league tables. This is actively championed by the government.
Policy appraisal is very significant here although it is seen as a major thorn in the government's pro-growth agenda. Impact Assessment, Strategic Environmental Assessment and Environmental Impact Assessment form part of the policy appraisal family of tools that provide a legal basis to inform and support the development and implementation phases of legislation, plans, policy or projects. This involves an environmental assessment to test that the proposals are not having an adverse impact and if so to show how mitigation has been used. Many people perceive these tools as hurdles to jump through rather than as mechanisms to get the best decision.
My own finding is that this is best explained by too many decisions being made upfront without such tools and then using such tools retrospectively to try and justify that sub-optimal decision.
Regulation also involves the use of 'standards' such as emission and equipment standards, planning and building regulations). Standards ensure that minimum requirements are complied with as a means of regulating performance. Whilst this provides 'adequate' solutions, they are essentially limiting 'negative' aspects of an activity rather than promoting good practice. Furthermore, they can also restrict behaviour based on their primary function. For example, building regulations, with their focus on safety, have been criticised for a lack of emphasis on quality. The voluntary Passivhaus (2013) lower energy, design standard provides an interesting response to this by championing quality design with high sustainability performance. Ironically it is the very relaxation of design controls by the government in direct contravention to its own National Planning Policy Guidance on design that may now lead to inferior housing design in terms of window sizes.
I hope the preceding paragraphs have shown the many diverse faces of regulation that exist and illuminated the many ways that regulation is conceived to protect the public interest. So whilst it is welcome to see the abolishment of any regulation that duplicates, confuses or contradicts, there is something really worrying about the desire by this government to present regulation as the enemy of enterprise and anti-growth.
In my own research on the use of tools in policy and decision making we have come to a clear finding that there are conservable advantages of using regulation and incentives together in joined-up policy. In this way we can actually foster innovation and excellence which I think that is what we are all wanting from whatever side of the built environment we are operating in.
To conclude there are many areas of public policy that requires regulation to protect the public and the wider social and environmental justice agendas. It appears to me that this inconvenient truth is being swept under the economic growth red carpet in a policy focus that is both short term and inequitable.
For further information on our research please consult www.eatme-tree.org.uk