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Regulation: a pointless debate

Richard North, 27/10/2012  


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For some time now, we have been hearing the listless drone of government propaganda about "cutting red tape", matched only by the incessant whingeing of the loss-making Guardian and other statist organs, which see official regulation as an unalloyed good.

Latest in this mind-numbing litany is a complaint today that the government is ordering a review of "regulations covering building standards, including fire safety and wheelchair access". These, says the Guardian, "could be torn up in a government plan to cut costs for the construction industry and boost the economy".

But actually, it is extremely unlikely that any regulations will be "torn up", and especially those which deal with wheelchair access and matters to do with disability.

The reasons for this are not very hard to find. Even with superficial research, it becomes apparent that such issues are bound up with the European Union and the UN Convention on the Rights of Persons with Disabilities, along with the anti-discrimination provisions of the ECHR.

At an EU level, disability issues are currently under review, with the launch of the European Disability Strategy in 2010. There, the EU Commission calls in aid the Treaty on the Functioning of the EU (TFEU), which it says "requires the Union to combat discrimination based on disability when defining and implementing its policies and activities (Article 10)" and "gives it the power to adopt legislation to address such discrimination (Article 19)".

This, on top of EU case law, ECHR judgements and the United Nations Convention on the Rights of Persons with Disabilities – to which the EU subscribes – means that the UK is no longer a free agent when it comes to defining law relating to the treatment of disabled persons.

Should the Government attempt to row back on law already in place (much of which has been enacted to meet EU and UN requirements), it will doubtless find itself having to deal with the EU commission. It will also become embroiled in legal cases through the ECJ (which has been a major player in this field), and the Court of Human Rights in Strasbourg, doubtless driven by state-financed NGOs, which are adept at using such provisions to block change.

The point at issue here is that, nowhere in the the endless government propaganda or the whining of the Guardianistas, do you find any reference to the famous "elephant in the room". In the current Guardian piece, and 390 comments (at the time of writing), there is not a single mention of the EU.

There is absolutely no merit, though, in having a debate about regulation - and what the government might or might not do - without first addressing what the government is able to do within the constraints of EU and international law.

This, of course, also applies to government statements, and politicians who are raising quite unrealistic hopes of "cutting red tape", seemingly unaware that their freedom of manoeuvre is extremely limited. Generally speaking, Governments (of whatever colour), have lost the power to remove regulation.  Their "power" exists only to frame regulation at the behest of others.

Thus, there is simply no point in ministers making commitments to cut regulation until they have gone through the process of determining precisely what they are able to do. Otherwise, all we get are optimistic statements, followed by the inevitable disappointments, as the realisation creeps in that nothing can be done.

That, to an extent is why William Hague's "audit of EU competences" is being carried out. But I now fear that the huge complexity of this exercise is going to defeat its best intentions. To write what amounts to a "Doomsday Book" of the powers of modern government, and where they lie, seems beyond the capability of this administration.

But, until or unless this is done – and done properly – there is absolutely no point in having a debate about cutting regulation. It is a complete waste of time and effort.

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