18th January 2023
Nobody – really – is in favour of “red tape”.
It is instead the sort of thing which people are against.
In this way it is a bit like “complacency” as a thing which people are also against: nobody ever says “I think we should be more complacent”.
The very mention of “red tape” often prompts – and is intended to prompt – an adverse reaction, even jeers.
And, in turn, announcing a “crackdown” or “bonfire” or some other drastic-sounding word often prompts – and is intended to prompt – a positive reaction, and perhaps claps and cheers.
What sort pf person could possibly be against getting rid of “red tape”?
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But the problem is that much “red tape” has a purpose, and indeed is sometimes the consequence of that equal and opposite follies of our political discourse: “something must be done!” and “there should be a law against it!”
And so, like a perpetual motion machine, we have the following cycle:
1. An unwelcome phenomenon happens.
2. “Something must be done!” and “there should be a law against it!”
3. A thing is done and/or there is a law against it.
4. That thing or law becomes “red tape”.
5. “There needs to be a bonfire of red tape!”
6. And loop to 1.
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This is not to say that some regulations and rules are awful or redundant.
Indeed, there are many rules and regulations that any regulated person can think of without too much effort.
The problem is twofold.
First: there is no point in getting rid of a regulation without understanding its intended purpose, and also what would happen in respect of that intended purpose if that regulation was removed.
This means that repealing regulations – as with creating or modifying regulations – should be on a considered case-by-case basis,
Second: in a word, externalities.
Many areas of human activity are complex, and so removing (or adding or changing) one thing can have unexpected and unwelcome knock-on effects on other things.
This is obvious with a moment’s thought, for the very purpose of many regulations is to steer human activity in one direction rather than another.
In other words: the very intention of many regulations is to have knock-on effects.
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And now to the matter in hand: the reckless attempt by the current governing party to remove regulations inherited from our membership of the European Union.
You can tell almost no thought has gone into this exercise because of the superficial – indeed banal – contentions made in its favour.
It needs to be done, because of Brexit.
It matters not that many of these regulations may have been made for a good reason.
It matters not that some of these regulations were promoted by United Kingdom ministers and officials in our national interest.
It does not even matter that nobody is absolutely certain about how many regulations will be affected.
But it needs to be done, because of Brexit.
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What we have in this repeal bill is the combination of the older absurdity of “bonfire of red tapes” with the newer one of needing to have something – anything – to show for Brexit being worthwhile.
For in January 2023, most people – including those who have a close or passionate interest in Brexit – can point to little or nothing concrete as a benefit of Brexit.
It is all a bit silly and needless.
Perhaps there should be a law against it.
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…remembering, of course, that “red tape” is supposed to refer to those rules and laws and requirements considered by many to be excessive…
…and not just rules and laws and requirements that are, simply, rules and laws and requirements…
Many things become too complex over time and can be beneficially simplified. But that simplification is generally a deliberate, time-taking activity, not a glib claps-and-cheers-, headline-oriented one.
For the simplicity on this side of complexity, I wouldn’t give you a fig. But for the simplicity on the other side of complexity, for that I would give you anything I have.
Oliver Wendell Holmes
Reminds me of a conversation I had as a Law student many many moons ago (not in UK).
We had an informal competition to name the most useless piece of legislation we had come across. One of us proposed a Federal decree specifying the quality of paper that had to be used by Land Registries (no acid?). Unfortunately for him, his wife was a historian with an interest in good archival research and she insisted that this regulation was absolutely essential and necessary.
An excellent skewering of this ill-thought out attempt by various Tory headbangers to ‘get Brexit legally done’. There is certainly a case for revamping UK law now we’re out of the EU (whatever one’s views of Brexit) to make sure they are fit for purpose. But given the mountain of regulations to go through, attempting to do it within some artificial timeframe is shockingly shoddy behaviour. With potentially serious consequences if we abolish laws without working out whether they might be useful (or life-saving) first.
How much chaos is enough? The mixture of strikes, government incompetence, inflation, conflict with the EU, and economic stagnation is surely sufficient for any sane administration. For a cult that we have it is just normal madness.
The assumption that deregulating (at least in the product regulation space) will automatically assist businesses/ the economy is itself interesting.
1) In many cases, the EU product regulations basically say “follow the correct *international* standard and it must be safe”. The international standards are those produced by global bodies such as ISO, IEC etc. and those standards are usually the minimum for things to actually work. This structure means the EU doesn’t have to update laws often as the regulations themselves are regularly updated.
2) If you don’t refer to a technical standard, purchasing specifications and contracts are much longer documents as they must include all the detail normally held in the standard.
I wrote about this in more detail in: https://www.linkedin.com/pulse/brexit-technical-standards-what-happens-now-peter-whitworth
A bonfire of red tape resulted in Grenfell Tower, as shown by Peter Apps’ articles in Inside Housing, and now a book “Show Me The Bodies”, and an article today in The Guardian.
If Labour win the next election, could they pass a bill which reverses this and all the changes that were made as a result and subsequent to it?
I’m no lawyer, however I have had a career of asking ‘To what end’. Red-tape typically is a ‘by what method’. You must comply with x etc. The really important question is the former, and it is here you find the interdependence between many laws, regulations etc
As noted elsewhere, much EU red-tape is to act inline with international standards. Thus the EU-body can not worry about EU regs but can work on ensuring shared global regs are fit for purpose
My opinion is that the EU is far from perfect, but Brexit was the most stupid thing we could do as a nation, and now this ideological need to bonfire all EU laws and regulations layers upon that
‘To what end’ this regulation and what are the interdependencies is a question for the whole cannon of U.K. laws, not just EU derived, and an endeavour of such detail – even if just EU derived – that an arbitrary target illuminates the ideology behind it.
I rather enjoy being both healthy and safe and as such I have no qualms with the existence of health and safety legislation which helps me to remain both. I wonder whether those against it want themselves to be less healthy and safe.
I’ve always been fond of red tape. As Bernard Woolley once said: “Red tape holds the nation together”.
There is a similar phenomenon in relation to the management of the NHS.
Almost no one argues for the NHS to employ more managers, but few people think it makes sense for clinical staff – doctors and nurses and others – to spend their valuable time on back-office management tasks rather than treating patients.
Yet an organisation that employs over a million people and has an annual budget of £180 billion needs some management to make sure that it functions properly – equipment and supplies are bought and distributed, staff are recruited and rostered on shifts, patients are invited to appointments, etc. Failure to spend an adequate amount on management makes the organisation less efficient, not more.
In just the same way that abolishing regulations (aka “red tape”) can make the “market” less free, not more.
As always, this is so well put. Many modern regulations are there to prevent potential public harm caused by suppliers motivated solely by profit, and the inevitable temptation of the unscrupulous to cut corners. Regulation is a sign of an advanced society. A prime example of the effects of deregulation is the awful Grenfell fire and the ongoing fiasco of flat owners trapped in worthless properties.
Indeed in the field of public health & safety there are complex sets of rules & regulations built up over many decades and there is a truism that ‘behind every regulation lies a body’.
We tend to react to any rules that we think inconvenience us as individuals by demanding they are expunged, whilst expecting all those that seem neutral or helpful to remain. Irrespective of others views of those rules.
We hear exactly the same thing about bureaucracy even though those procedures are essential for a complex society to operate https://miller-klein.com/2020/10/26/you-hate-bureaucracy-but-what-is-your-alternative/
Rules, regulations and procedures need to checked periodically for redundancy, irrelevance, or unforeseen consequences, but loud shouts for ‘bonfires’ are always stupid.
When I was traveling through the former Yugoslavia many years ago, I got a hold of a dictionary of the language, which was SerboCroat. And it had a wonderful term for ‘red tape’. It was ‘biokratism’. Perfect.
I should mention that the Yugoslavs did not intend any postive or negative meaning to the term’s use in and of itself. The context indicated whether the term was being used positively or negatively.
And it’s all made even more complicated by ministers who put forward legislation that is unnecessary simply in order to make political statements, such as on boats crossing the Channel and on protesters blocking motorways.
All EU derived so-called ‘red tape’ would have been enacted for a presumably rational purpose. That rational may have changed and the ‘red-tape’ may or may not now be an unnecessary hinderance but surely the key issue is that stakeholders including businesses, regulators, consumers, and citizens have directly or indirectly organised their day-to-day and strategic activities around that red-tape. It is self-evident that any change to red-tape should involve discussions with the stakeholders. Moreover, all red-tape does not exist in individual isolation and each have mutually complex interactions.
It therefore seems irresponsible and kamikaze-style damaging to Britain plc to mandate in the bill a sunset clause to the effect that any one of the 2400 plus EU derived laws that isn’t specifically argued to be retained will automatically be sunset by the end of 2023.
However, Ministers have the power to extend the sunset to 23rd June 2026, and there is a provision that the sunset clause ‘does not apply to an instrument, or a provision of an instrument, that is specified in regulations made by a relevant national authority’. Perhaps this latter clause, and those on ‘relevant national authority’ powers neutralise the most damaging potential effects? Perhaps these clauses put the power to change the red-tape solely in Ministers hands. It is not clear to me, a non-lawyer.
I and no doubt many others already know how incompetent our politicians are, how party is put before country, how decisions are made for popularity and votes rather than national interest. (I hasten to add not every politician is guilty of the aforementioned.) The idea that each and every item of 40+ years of red-tape is going to be analysed and debated then amended or otherwise in the stakeholder and national interest before 23rd June 2026 never mind 31st December 2023 is, to put it mildly, laughable.
This Bill in its current form is likely to undermine UK businesses competitiveness (businesses need regulatory stability and a level playing field) never mind the potential loss of citizen, consumer, environmental, and a host of other, rights.
As ever, there will not be a big bang style failure, rather a slow decline through both direct and unintended consequences. The courts will no doubt be tied up for years with stakeholders fighting each other over their interpretation of the consequences.
We are over-regulated in this country, but generally as a result of laws and regulations passed on our initiative. Planning laws are generally cited as the most costly UK regulations.
But I suspect another important generator of our tendency to over-regulation lies the Health and Safety at Work Act 1974. It required that health and safety risks should be reduced “as low as reasonably practicable”, or ALARP as it is now widely known.
This concept was tested in court, and a judge ruled that cost was not grounds to find a risk-reducing measure impracticable, until that cost became “utterly disproportionate”. Or some such wording. The key point is that he put an intensifier in front of “disproportionate”, a folly similar to the “clearly” folly you observed in the football offside law a couple of days ago.
The consequence is that we now have to spend disproportionately on reducing health and safety risks at work, as we cannot argue against expenditure that is merely disproportionate, only if it is utterly disproportionate.
And since many people have jobs in which they have to observe these strictures, so we learn to go around reducing problems, even when the cost of it is disproportionate. Even when there wasn’t a real problem there in the first place. Because it has become ingrained that if we can reduce it, we must, and only stop when it is utterly disproportionate.
If we really want a bonfire of red-tape, done in a sensible and helpful way, I would start with the Health and Safety at Work Act 1974, or its amended successors, and find a wording that presents a more reasonably proportionality than “as low as reasonably practicable”.
As a reminder – before we had effective health and safety legislation, thousands of people were killed and injured at work each year. Perhaps you think that is a cost worth paying, but it is not by accident that most workplaces today are by and large much safer than they were even 40 years ago. Even so, in 2021/22 there were still over 100 people killed in the UK in work-related accidents: falls from height, people struck by vehicles or objects, etc.
As I understand it, the leading case on ALARP is Edwards v. National Coal Board [1949] 1 KB 704, in relation to a similar provision of the Coal Mines Act 1911. So this is nothing new. See https://www.hse.gov.uk/managing/theory/alarpglance.htm
and https://en.wikipedia.org/wiki/Edwards_v_National_Coal_Board
A man was killed when a structure at a coal mine collapsed. The NCB said it was not reasonably practicable (and in particular not cost effective) to make sure all of its structures were all safe. The main point was that the NCB had not done a risk assessment to determine where work might be required to shore its structures up, so could not really demonstrate what the cost would actually be. In the words of Cyril Asquith LJ:
“a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them—the risk being insignificant in relation to the sacrifice—the defendants discharge the onus on them”
Yep – health and safety gone mad.
Did Cyril Asquith LJ suggest how one would then judge how to measure balance between cost on the one hand and risk on the other? Not everything that counts can be counted and not everything that can be counted counts, to coin a phrase. How low would workplace deaths have to fall before someone would decide that diminishing returns had set in?
When I was at the margin of such discussions taking place within the Health and Safety Executive it was apparent that, at the end of the day, this had to be a political judgment.
As always, the Court of Appeal was giving its judgment on the law as applied to the case immediately before it. Can an employer wave their hands and say it would be too expensive to mitigate a known and serious risk without doing any work to quantify the size of the risk and the cost of mitigating it? Obviously not.
But the HSE guidance I linked above is pretty good about explaining how this exercise should be done:
“In essence, making sure a risk has been reduced ALARP is about weighing the risk against the sacrifice needed to further reduce it. The decision is weighted in favour of health and safety because the presumption is that the duty-holder should implement the risk reduction measure. To avoid having to make this sacrifice, the duty-holder must be able to show that it would be grossly disproportionate to the benefits of risk reduction that would be achieved. Thus, the process is not one of balancing the costs and benefits of measures but, rather, of adopting measures except where they are ruled out because they involve grossly disproportionate sacrifices. … in reality many decisions about risk and the controls that achieve ALARP are not so obvious. Factors come into play such as ongoing costs set against remote chances of one-off events, or daily expense and supervision time required to ensure that, for example, employees wear ear defenders set against a chance of developing hearing loss at some time in the future. It requires judgment. There is no simple formula for computing what is ALARP.”
This encapsulates the political judgment, that risks should be mitigated “so far as is reasonably practicable” or until they are “as low as reasonably practicable”.
Perhaps the wisest words in that guidance are: “It requires judgment.”
Interesting, thanks, but if I was running a company or a trade union I wouldn’t find it helpful in practice.
Intriguing assertions, but can you offer any examples?
Who is it that cites planning laws as the most costly UK regulations? Which planning laws and what are the costs and what are the benefits?
Can you give us examples of a few of the things carried out to comply with the Health and Safety at Work Act which you disagree with?
The claim on the high cost of planning laws appears to be a traditional assertion, rather than having any firm evidential basis. So, believe it if you will. I think there is some likelihood that the cost is large, but I can’t demonstrate it or quantify it. And nor, it seems, can anyone else. For example, in the 2015 White Paper, ‘Fixing the foundations: Creating a more prosperous nation,’ the Treasury wrote the “planning system [is] regarded by many as one of the most significant constraints facing the economy, bringing delay and inflexibility.” But they provide no evidence for that statement. Various people (who I wouldn’t trust as far as I could throw them) have repeated an assertion that Nicholas Crafts has shown that the planning system costs about 20% of GDP, but without a specific citation I can’t see if he really showed that and how. Crafts is leading economic historian who has written much on the origins of low productivity in the UK. But he doesn’t mention the planning system in any of those of his papers on the recent economic history of low productivity in the UK that are free to access. So I’m unable to verify whether he has shown it or not, or whether this is some kind of traditional misquotation.
I first came across ALARP when I did a study on the installation of TPWS on the railway, almost 20 years ago now. When John Prescott was transport minister, he was asked to choose between two proposals for reducing the risk of train collisions on the railway due to running red lights. The better system is Automated Train Control (or ATC), widely used on the continent, which protects about 95% of incidents. The alternative Train Protection and Warning System (TPWS) was a simpler, newly invented, British system, then estimated to protect about 70-80% of incidents, and afterwards found to be at the upper end of that range. It was estimated that TPWS could be installed for about 1/3 the cost of ATC. Prescott chose TPWS, which has been installed on our railway.
The project proceeded and got near to beginning installation, when the HSE (who then regulated railway safety) was asked to approve it. HSE insisted on an adjustment to the functionality of the system, which would turn the signal red if the fault detector in the track-based equipment detected a fault, as opposed to being picked up in weekly inspections. Since this required a much more complicated interface and second interlink between the track equipment and the signal cabinet, this would roughly double the cost. The gain in the number of incidents protected was perhaps about 1%. They did also insist on using TPWS to protect against incidents in a number of additional dangerous situations, aside from red lights, which was a reasonable extension of the system’s usage.
Mr Prescott was not asked for his consent to double the cost of the system for this small increment in safety. It made a complete mockery of his original decision. But it is strongly implicit in his original decision, that he would not consider this small increment in safety anywhere near worth the money. It was imposed after the event by the HSE, applying ALARP, rather than reasoned decision over what amount of money the government wanted to spend on a major safety system. I suspect if this had been understood at the start, we would have gone for ATC.
I think TPWS was a value installation, even after cost was doubled, plus the further cost overrun on it, that meant it cost about the same as ATC was originally estimated at. Doubtless ATC would have had a cost overrun too. But it it is wrong when an administrative rule completely runs roughshod over thoughtful governmental public decisions on how much what money is worth spending on what.
There are numerous examples of overly fussy small regulations, to solve problems that have never been shown to exist in any substantial reality. For example, we aren’t allowed to have washing machines in our bathrooms in this country, whereas it is normal on the continent. Is it actually a genuine problem to have washing machines in bathrooms? What’s the size of the problem?
Motorway gantries, eg for variable speed limit signs, are much more bulky and strongly built than on the continent, making them much more install in this country, in large part because they require much stronger foundations. A highways engineer told me that because there is a maintenance walkway on them, they are required to incorporate some of the standards of footbridges. Is there a genuine problem with the much lighter and cheaper motorway gantries on the continent? Or is it just H&S madness?
Are Germans and Swiss and Austrians and Dutch cavalier about safety in comparison to us? Logically they shouldn’t be because in their wealthier countries life has a higher economic value. They have better outcomes in their health services than ours, because they find it worth spending to achieve those. I really doubt they are more cavalier over safety than us, just better able to distinguish what are the real problems that need addressing.
Thank you to the poster who reminded me the phrase was “grossly disproportionate”. Surely the 1974 Act saved many lives, and surely that was quite right. But I’m saying that additionally it, and its broader influence on our safety culture, has resulted in a lot of disproportionate expenditure on small problems, that would be better spend on large problems, because of wording that goes too far. Wouldn’t it be nice if we could get the balance right, have more of the good and have less of the stupid? I realise that perfectly balanced regulations are a mirage, and often argue as much. But we seem to be so far out of kilter, in comparison to our neighbours, we can surely do much better.
It’s also worth noting Rees Mogg’s (remember his Grenfell victims lacked common sense) use of ‘bonfire’ in the context of Grenfell as pointed out in this piece yesterday.
https://www.theguardian.com/commentisfree/2023/jan/18/grenfell-tower-tories-eu-regulations?CMP=Share_AndroidApp_Other
Is it now time for a counterpart to the Something Must Be Done Act (2014)? Perhaps the Nothing Must Be Done Act (2023)?
I agree strongly with the initial post. Additionally, as a former Remain campaigner I would like to draw attention to an EU regulation concept that had little publicity. The EU used the off-putting word of ‘subsidiarity’; even the explanation was off-putting. It meant that a regulation should be made at the lowest applicable level. If a speed limit was needed in Weybridge the regulation should be made in Weybridge, or Surrey, but not in Brussels. But if businesses are competing for work across the EU they should be competing on a level playing field and should, for instance treat their workers fairly. If one company orders its workers to work excessively long hours, is it fair that it gets an important contract by that means? Similarly, if a business gets a subsidy from its home government is that a level playing field? Therefore it was reasonable for such regulations to emanate from Brussels, where there was such varied scrutiny that it was unlikely that foolish regulations would get approved.
Aware of an election coming up the present government is addressing ‘levelling up’. Realists may accept that where to distribute money might be influenced by marginal constituencies. In the EU days the deciding committee decided on more honest factors.