30 June 2017

By Steve Tombs, Professor of Criminology, Open University

Since 2010, the Coalition, then the Tories, have both continued and significantly extended some of the ‘reforms’ initiated by Blair and Brown under the Better Regulation initiative from 2004 onwards; and, significantly, these approaches to regulation in general and to health and safety law and enforcement in particular, have been pursued in the context of austerity and the attempt to shrink the state. The effect of these trajectories has been to unravel the levels of social protection for workers and local communities. Health and safety law is being undone, undermined and is under attack.

There are three keys ways in which attack this has proceeded: first, through a constant stream of reviews of regulators and of regulation in general; second, through various legal reform initiatives which have delivered both de-regulation and re-regulation; third, via the ratcheting up of a long term rhetorical assault on regulation as burdensome, red tape and so. These, alongside austerity cuts to national and local regulatory services, have combined to undermine health and safety law enforcement to the point where it lacks credibility.

First, specific regulatory agencies and the very practice and purpose of regulation in general is under constant scrutiny via review. 2011 saw the Priority Regulatory Outcomes Review, which eradicated the word “enforcement” from the working priorities of local authority regulators, instead committing inspectors to “support economic growth, especially in small businesses, by ensuring a fair, responsible and competitive trading environment”. This has been accompanied by a whole series of (often quite populist) reviews of regulators or regulation or both, including: the review of 900 ‘quangos’, announced in 2010; ‘Red Tape Challenge’; ‘Transforming Regulatory Enforcement’; ‘Your Freedom’; ‘Focus on Enforcement Review’; ‘Business Focus on Enforcement’; and, most recently in 2016, ‘Cutting Red Tape!’. None of this is to mention two ‘Triennial’ Reviews of the HSE where the very existence of the regulator is on the line, and two further, major reviews of health and safety law per se, namely, in 2010, The Young Review, followed quickly by, in 2011, The Löfstedt Review.

These initiatives have been accompanied by a series of institutions, set up in or around the heart of Government, designed to provide a level of oversight that restricts the development of regulation. These in fact stretch back at least to the establishment by the first Blair Government, in 1997, of the Better Regulation Unit, since when a torrent of bodies have been created, all with the aim of mitigating any tendency to regulate, these including, amongst others, the Better Regulation Task Force, Regulatory Impact Unit, Better Regulation Commission, the Risk and Regulation Advisory Council, the Regulatory Policy Committee, Better Regulation Executive, Panel for Regulatory Accountability, Ministerial Committee on Regulation, Bureaucracy and Risk, Local Better Regulation Office, Better Regulation Delivery Office, Better Regulation Strategy Group. Independent Regulatory Challenge Panel, Regulatory Delivery and, last but not least, a Better Regulation Minister in every Government Department, supported by Board Level Champions themselves supported by Departmental Better Regulation Units. Phew!

Second, there has been a plethora of regulatory and legal reforms - too numerous to mention. But crucial here are not just Acts of Parliament per se, but apparently ‘technical’ reforms or developments which are central to the re-fashioning of regulation and enforcement. One example of these is the use of Regulatory Impact Assessments, which require every law that might affect business to be costed in terms of its costs and benefits prior to enactment. First introduced in 1997, they were used, in 2010, as the basis for a One-In, One-Out approach to regulation, whereby the costs of any new law for business had to be offset by a similar saving in the form of the withdrawal or regulation; this saving had to be doubled with the onset of One-In, Two-Out in 2013 and then trebled in 2016 when Government announced a One-In, Three-Out policy, one which “raised the bar” in an economy which already has the lowest burden of regulation in the G7.

A third plank in the assault on regulation in general and health and safety law and enforcement in particular has been via the ratcheting up of a long term rhetorical assault on regulation - as burdensome, anti-entrepreneurial red tape. This has a long history in the UK, and can be traced back to Thatcher’s attempt in the 1980s to unleash an ‘enterprise society’. But since 2010, both the Coalition and then the Tories have missed few opportunities to rhetorically undermine health and safety law. Examples abound, with some of the more recent vitriol espoused by Cameron when PM being recalled in the light of the disaster at Grenfell Tower – not least his stated desire to kill off health and safety culture for good. Regulation has been at best derided, at worst an object of class hatred.

In combination, these three processes have undermined the idea and practice of regulation. They have also fuelled by the cuts unleashed in the name of austerity. Caught within the pincer of these ideological and material processes has been the capacity for law enforcement, at both national and local authority levels, upon which any effective system of health and safety protection depends.

This capacity has been dramatically eroded in the UK under the Coalition and the Tories. So, for example, in 2010 there were 1,311 frontline HSE inspectors; but by the end of 2016, there were just 980, a decline of 25%. In April 2010, there were 1050 local authority health and safety EHOs (FTEs holding appointments under S19 of HSW Act); by April 2016, there were 711, a decline of 32%.

Given these declines in staffing - and the demoralisation to which inspectors have been subject - it is hardly surprising that, from 2010/11 to 2015/16, all forms of health and safety enforcement activity, at national and local levels, have been in sharp decline. This much is indicated by the fact that the very basis for any enforcement activity – that an inspector actually enters a workplace – is becoming a rarity. Between 2010 and 2016, inspections by Health and Safety Executive (FoD) inspections fell by 38%; at local authority level, inspections by Health and Safety EHOs fell by 69% and preventative inspections by EHOs fell by 96%. To provide some indication of what this means, in 2015/16, HSE inspected 18,000 of the 900,000 premises for which it is responsible – meaning that the statistically average workplace could expect to see an HSE inspector once every 50 years.

In short, we have a system of health and safety protection systematically under attack to the point where its enforcement capacity lacks credibility. But there is no inevitability in this. Some very simple, achievable changes to the current framework for regulating workplace health and safety could change the situation radically. What is mostly needed is the political will to break from what has become a consensus about regulation as “red tape”. Such changes form part of the IER’s recent proposals for reform of Labour Law under a Corbyn-led administration. For safety’s sake, that cannot come too soon.