Regulatory Surrender?

November 2010

The Law Commission’s Consultation Paper 195 raises issues concerning the use of criminal liability as a deterrent when trying to regulate corporate bahaviour. In this IER Response , the authors, Professor Steve Tombs and Dr. David Whyte record their dissent from many of the claims, assumptions and proposed directions set out in the consultation document.

As the authors note, these claims and assumptions for the most part follow from the organising assumption of the document, namely that:

“in regulated fields, reliance on the criminal law as the main means of deterring and punishing unwanted behaviour may prove to be an expensive, uncertain and ineffective strategy” (para 1.8).

The authors point out that while not unfamiliar, the frequency with which such a claim is made stands in the place of the evidence upon which such a claim may be made. That evidence is lacking.

The authors then go on to identify more specif areas of concern, linking their criticisms of the proposals to their specific area of expertise – that of health and safety.

In their response the authors rely heavily on a larger piece of their work, published by the Institute entitled Regulatory Surrender: Death, Injury and the non-enforcement of law

The Law Commission’s Consultation Paper is available here