Re-regulation in action: ‘Better Regulation’
Re-regulation in action: ‘Better Regulation’
Abstract and Keywords
The chapter traces mechanisms through which the Labour Governments from 1997, then, from 2010, the Coalition Government, sought to embed a new regulatory agenda under the auspices of ‘Better Regulation’. What is described as a feverish and relentless programme of re-regulation consists of four central mechanisms: a long term rhetorical assault on regulation as burdensome, red tape and so on; the establishment of a plethora of institutions within and of Government; various legal reform initiatives which have delivered both de-regulation and re-regulation; and a constant stream of reviews of specific regulatory agencies and of the practice and purpose of regulation in general. Better Regulation is a concerted effort at re-regulation, an attempt to re-configure the relationships between state and private capital. Moreover, while the claimed effect is that capital is being set ‘free’, these processes in fact engender a deeper and more intense inter-dependence between state and capital.
The argument is not the old one – more regulation against less regulation. Our focus is on getting regulation right – better regulation…regulation that will improve, not hinder, business competitiveness. (Blair, 1998, 18)
We are sticking to the task. But that doesn’t just mean making difficult decisions on public spending. It also means something more profound. It means building a leaner, more efficient state. We need to do more with less. Not just now, but permanently.
As indicated in Chapter One, the Labour government, elected in 1997, set itself on a concerted effort to prove itself as the party of business in a way the Conservative Party, as capital’s natural representatives, have never had to do. Integral to this effort were two key, underlying convictions which underpinned its repositioning as the party of business.
The first was that Britain’s global economic competitiveness hinged upon the creation of a business-friendly environment. Behind this rationale was an apocryphal fear of capital flight; the idea that overregulation would result in the displacement of firms to more business-friendly foreign locations. On this basis, Blair sought to make Britain ‘A great place to do business. Labour is now the party for business, the entrepreneur’s champion’ (Blair, cited in Osler, 2002, 57). The second was the central conviction that private economic activity is inherently and necessarily better than public sector activity. New Labour bought into a set of neoliberal claims that proposed, on grounds of economy, efficiency and effectiveness, the private sector as the most appropriate provider of goods and services. The logical consequence of this is that private businesses can also deliver regulatory outcomes more effectively than government mechanisms.
(p.108) On entering office, those two rationales framed New Labour’s approach to the regulation of business and enabled regulation, as a necessary evil, to be repositioned along neoliberal lines. These rationales were to be rolled out within the over-arching rubric of ‘Better Regulation’, a concept which can be traced back to the 1990s, but which in the UK and in the EU received particular impetus from the first Blair government.
Blair emphasised the bases for ‘Better Regulation’ in 1998 in the context of Britain’s Presidency of the EU. In a Comment piece for the Financial Times, from which the quote at the head of this chapter appears, he set out his views on regulation – neither ‘old left nor old right’ (Blair, 1998, 18), in a classic articulation of the then-still fashionable ‘third way’ approach (Dodds, 2006, 526), and in terminology reminiscent of Ayres and Braithwaite’s opening up of the discursive space for responsive regulation.49
Thus he committed his Presidency of the EU to ensuring that better regulation becomes ‘a priority for Europe’ (Dodds, 2006). In fact, it was to be Blair’s second Presidency of the EU in 2004 which was to prove one of the pivotal moments in advancing Better Regulation through the EU (Wiener, 2006). So much so that, by 2007, one commentator was able to note that, ‘Better regulation has become “one of the most fashionable terms circulating in the corridors in Brussels”’ (Allio, 2007, 82, cited in Smith et al, 2015, emphasis in the original).
The European Commission’s vice-President Verheugen was clear on both the nature and the aim of Better Regulation in ‘a highly publicised press conference’ in 2005. There, he stated that ‘Better Regulation at all levels constitutes a central component in the Commission’s proposal for revitalising the Lisbon process’ (cited in Allio, 2007, 94) – the process which was being ‘revitalised’ to focus simply on ‘growth and jobs‘, jettisoning its original commitments when launched in 2000 to ‘sustainable economic growth, with more and better jobs and greater social cohesion and respect for the environment’ (European Commission, 2010, 2). ‘The equation is simple’, continued Verheugen: ‘less red tape = more growth and jobs’ (cited in Allio, 2007, 94).
In this chapter, I trace some of the mechanisms through which the Labour governments, then, from 2010, the coalition government, sought to embed a new regulatory agenda under the auspices of ‘Better Regulation’. To be clear upfront, this is not the most stimulating read, in the sense that it refers to initiative after initiative, most of which in isolation are hardly of great significance, many of which are essentially similar in substance and tone: but that, in a key sense, is the point. For what is being described here is a concerted programme of re-regulation, (p.109) with four central mechanisms, albeit that the significance and dominance of any one of these has changed at different points during this time period: a rhetorical assault on regulation as burdensome, red tape and so on; the establishment of a mass of institutions within and around government; various legal reform initiatives which have delivered both de-regulation and re-regulation; and a constant stream of reviews of specific regulatory agencies and of the practice and purpose of regulation in general. In short, and crucially, these forms of mutually compatible activity indicate that it would be mistaken to view Better Regulation as deregulation – what we have witnessed is a concerted effort at re-regulation, attempts to re-configure the relationships between state and private capital. Moreover, the claimed effect here is that capital is being set ‘free’ – but these processes are more accurately viewed as generating a deeper and more intense inter-dependence between state and capital.
Regulating for ‘better regulation’: 1997–2010
Institutions and legal reform
An early indication of New Labour’s enthusiasm for radical reregulation came from its first year of office, in 1997, with a series of early, key institutional initiatives. First, the Conservative’s flagship Deregulation Unit was consolidated as the ‘Better Regulation Unit’, with the Better Regulation Task Force (BRTF) established in the Cabinet Office. Then, the government formally launched its Better Regulation agenda, aiming to ‘minimise the burden of regulation’. Better regulation entailed three elements: ‘simplifying regulation by designing new regulations better and simplifying or removing old ones’; reducing ‘the administrative burden on business of regulation, that is, administrative activities businesses would not undertake in the absence of regulation’; and reducing ‘the burden on business of inspection and enforcement activity’ (NAO, 2008a, 6).
In 1998, the Better Regulation Guide (Cabinet Office, Better Regulation Unit, 1998) introduced Regulatory Impact Assessments (RIAs). In 1999, the Better Regulation Unit became the Regulatory Impact Unit, with a remit to ensure that RIAs were being implemented across government departments. RIAs were the key legal reform of this period: they claim to measure the costs and benefits on business of all proposed policy and legislative reforms. Yet they contain structural biases towards less rather than more regulation in at least two ways. First, since their very rationale is the need to consider ‘the impact of any new (p.110) regulations, before introducing them, to ensure any regulatory burden they add is kept to a minimum’ (BRE, 2008), their basis is in reducing regulation. Second, their economic form is likely to produce outcomes for less rather than more controls on business activity since the costs of meeting new regulatory requirements on the part of businesses are generally more calculable than are the economic or social benefits of such regulation (Cutler and James, 1996; Campbell, 2014).
RIAs, and the bias against regulation which they embed, proved to be central to a series of institutional structures established at the heart of governmental policy-making during the New Labour administrations. Meanwhile, one of the last acts of Labour’s first term of office was the passage into law, in April 2001, of the Regulatory Reform Act. Crucially, this provided for Regulatory Reform Orders (RROs), which enabled a Minister to remove regulation if it represented a burden (defined tortuously by the Act) (see Regulatory Reform Act, 2001, section 1), a move that had been ‘warmly welcomed by business organisations’ (Lea, 2006).
Subsequently, and again demonstrating a zeal for institutional change through which to embed better regulation across government, the BRTF was succeeded by the Better Regulation Commission (BRC) in 2006. The BRC acted upon the BRTF’s five principles: to ensure regulation and enforcement was proportionate, accountable, consistent, transparent and targeted. Its most significant contribution was to place ‘assessing and managing risk’ at the centre of the government’s Better Regulation agenda via two reports, Risk, Responsibility and Regulation – Whose Risk is it Anyway? (BRC, 2006) and Public Risk – the Next Frontier for Better Regulation (BRC, 2008a), where it was argued that it was unrealistic and undesirable to try to completely eliminate risk. In January 2008, The Prime Minister announced the establishment of the Risk and Regulation Advisory Council (BRC, 2008b). A year later, in 2009, the Regulatory Policy Committee was set up to ensure that proposals for regulation are ‘supported by a sound and robust evidence base’ in the form of RIAs (Regulatory Policy Committee, 2011, 8).
Moreover, alongside the BRC was established the Better Regulation Executive (BRE). Located within the Cabinet Office, this was ‘charged with driving through the government’s better regulation agenda’. Additionally, there existed ‘a Panel for Regulatory Accountability (PRA), a sub-committee of the Ministerial Committee on Regulation, Bureaucracy and Risk’; chaired by the Prime Minister, it was to consider ‘all new regulatory proposals likely to have substantial burdens on business’ (UK Parliament, 2006).
These institutional developments were accompanied by a long-term rhetorical assault on the idea of regulation. This in many respects continued a low level rhetoric that could be traced back at least through to the Thatcher governments which cast regulation as burdensome, red tape, a barrier to enterprise and so on. But it was in the early years of the second New Labour administration that this ideological attack on regulation was ratcheted up – as if by design, across a plethora of political and media sources, precisely to accompany the establishment and the report of the Hampton Review (on which, more below).
This period saw a key series of high profile speeches decrying the anti-entrepreneurial effects of regulation, the dangers of risk averseness for not just economic but also for social and personal development, and the need for a new, ‘sensible’ debate about the relationship between risk and regulation. These were played out against the backdrop of simultaneous ratcheting up of the anti-regulation thematic across print and broadcast media. Underlying much of this was often to be found a more or less thinly disguised anti-European, or EU, sentiment, the latter being seen as the source of a whole plethora of attempts not just to over-regulate Britain, but even to undermine ‘Britishness’. It also cohered with populist railing against so-called ‘political correctness’ (Heffer, 2004).
It is worth emphasising that, in isolation, any of these rhetorical interventions might appear irrelevant, spurious, or even downright silly (see, for example, Clarkson, 2004). But the issue is not at all any one speech, newspaper article or radio package in isolation – albeit some are significant, given their source; their significance is in their steady stream, seemingly ubiquitous, from senior politicians, civil servants and regulators through to a raft of media outlets, from tabloids to broadsheets, and across TV and radio outlets. From Tony Blair as Prime Minister and Gordon Brown as Chancellor of the Exchequer, across the Guardian (notably via Simon Jenkins and Simon Hoggart) to the Daily Mail and Daily Telegraph (especially through the writings of Simon Heffer), BBC Radio 5’s daily evening Drive show, and Clarkson’s Topgear,50 there was a constant drip, drip of undermining of the very idea of regulation – in effect, the sound of a new common sense being constructed, within which regulation was always-already illegitimate, irrelevant, nanny state-ish, counterproductive, burdensome, pernicious, anti-entrepreneurial and even, at the personal level, antithetical to ‘normal’ human development. As Campbell has put it, high level rhetorical interventions are key in framing that common sense:
(p.112) The foundation of any regulatory regime is set at the top. This is where the tone and expectations, guiding rules and procedures, and budgets – the regulatory culture – are established…[G]overnment’s laissez-faire attitude to regulation is reflected in its incessant use of the term ‘red tape,’ which implies that regulations are a burden on business rather than a legal mechanism to protect the public interest.
(Campbell, 2014, 24)
Many of the ‘regulatory myths’ (Almond, 2009, 354–60) propagated during this period tended to focus particularly on health and safety, which became the bête-noire of the over-regulation mantra, but had the effect more generally of undermining regulation and regulators. It is no coincidence that two of the most infamous stories can both be dated back to 2004, the year in which Hampton was appointed to undertake his major review of regulation: one, the claim that local councils had begun to ban hanging baskets, the other, that some schools had started to ban the use of conkers in their playgrounds (Almond, 2009, 355–56).
Thus it was that in the period leading up to the establishment of Hampton, and in that surrounding the publication of the Report, there was what appears to be a concerted political initiative around risk-aversion and the need for sensible regulation. In his budget speech as Chancellor of the Exchequer on 17 March 2004, Gordon Brown foreshadowed the deliberations of Hampton and the assault on inspection and enforcement by a commitment, ‘working with business’, to identify ‘further regulatory reforms in Britain and in Europe’, including the commitment to ‘review the burden of inspection and the overlap between enforcement regimes’ (HM Treasury, 2004).
A year later, Brown unveiled Hampton’s findings in his budget speech, in March 2005, stating that,
it is also right to lessen the burden of regulation and enhance our flexibility while still ensuring high standards. So instead of a one size fits all approach which can mean that unnecessary inspections are carried out while necessary ones are not carried out, the best practice risk-based regulation now means more inspection only where there is more risk and a light and limited touch where there is less risk.
(p.113) Brown also used the pages of the-then Labour-leaning Financial Times to continue to urge ‘a new, risk-based approach to regulation to break down barriers holding enterprise back’ (Brown, 2005a) For Brown, ‘a new trust between business and government’ was possible, founded on ‘the responsible company’ and ‘government concentrating its energies on dealing not with every trader but with the bad trader. This new risk-based approach has wide application from environmental health to financial services and even taxation’ (Brown, 2005a).
Also coinciding with the publication of the Hampton Report, Lord Hunt, then Health and Safety Minister, called for a common sense approach to risk management as he formally launched a debate on the causes of risk aversion in health and safety. Speaking at the launch organised by the HSE in the House of Lords he said:
We must concentrate our efforts on the big issues that cause real harm and suffering and remember that excessive risk aversion does damage too. It hits organisational efficiency, competitiveness, restricts personal freedoms and damages the cause of protecting people from real harm. We know that something is seriously wrong when we read stories of schools asking children to wear goggles to play conkers in the playground…It is my intention to bring about a balanced approach to risk that have at its heart an emphasis on the importance of communicating risk effectively.
HSE Deputy Director General Jonathan Rees said at the same meeting: ‘HSE’s approach to regulation is very much based on sensible risk management. Risk is ubiquitous. Some degree of risk, whether financial, environmental or in terms of safety, is necessary for progress.’51
Two months later, Blair made a crucial intervention in London, presenting essentially two versions of the same speech. What was to prove a key speech in the context of the EU’s embracing of Better Regulation, which by then was already said to be ‘sweeping’ through the EU (Wiener, 2006, 65), was titled ‘Risk and the State’ (Blair, 2005a), and was reformulated in the afternoon of the same day in a call for a ‘Common sense culture not compensation culture’ (Blair, 2005b). It is worth focusing on Blair’s speech(es) in a little more detail. As Prime Minister, it is notable that he recycles well-worn myths which by that time had attained the status of truths and were being reiterated ubiquitously. Blair framed the ‘issue’ as something which, ‘if it goes wrong, has the capacity to do serious damage to our country’.
(p.114) It is what I call a sensible debate about risk in public policy making. In my view, we are in danger of having a wholly disproportionate attitude to the risks we should expect to run as a normal part of life. This is putting pressure on policy-making, not just in government but in regulatory bodies, on local government, public services, in Europe and across parts of the private sector – to act to eliminate risk in a way that is out of all proportion to the potential damage.
While in fact Britain ‘compares favourably with its competitors on regulation’, Blair illustrates some of the dangers of regulation:
something is seriously awry when teachers feel unable to take children on school trips, for fear of being sued; when the Financial Services Authority that was established to provide clear guidelines and rules for the financial services sector and to protect the consumer against the fraudulent, is seen as hugely inhibiting of efficient business by perfectly respectable companies that have never defrauded anyone; when pensions protection inflates dramatically the cost of selling pensions to middle-income people; where health and safety rules across a range of areas is taken to extremes.
yHe then slips between perception and reality, citing a ‘compensation culture’ as dangerous for the belief that one exists despite there being no evidence for its existence (Blair, 2005b), before invoking some infamous regulatory myths:
You may recall the stories of the girl who sued the Girl Guides Association because she burnt her leg on a sausage or the man who was injured when he failed to apply the brake on a toboggan run in an amusement park…Public bodies, in fear of litigation, act in highly risk-averse and peculiar ways. We have had a local authority removing hanging baskets for fear that they might fall on someone’s head, even though no such accident had occurred in the 18 years they had been hanging there. A village in the Cotswolds was required to pull up a seesaw because it was judged a danger under an EU Directive on Playground (p.115) Equipment for Outside Use. This was despite the fact that no accidents had occurred on it.
Having thus rolled together civil law, public bodies, local authorities and the EU as part of the problem, he urges that we cannot then ‘regulate to eliminate risk’, for ‘we pay a price if we react like this’, namely, ‘We lose out in business to India and China, who are prepared to accept the risks’ (Blair, 2005b). Thus ‘practical steps’ to address this problem, via Better Regulation, were to be forced through UK - and EU-based law and regulators. Taking this forward would ensure ‘a proper and proportionate way of assessing risk and the response to it. Government cannot eliminate all risk…A risk-averse business culture is no business culture at all’ (Blair, 2005b).
Dodds has summarised such claims, and interventions made on their basis, in terms of the establishment of a new risk tolerance. As he notes, this had been discursively established by the middle of the decade, and found support on both the political right and left (Dodds, 2006). It had also found academic justification in the ‘third way’ and New labour theorist, Giddens, who promulgated a view of this where state activity was circumscribed, so that individuals, while more aware of risk, were also ‘more sceptical of the state’s ability to control them’ (Dodds, 2006, 538).
The term ‘risk averse’, and the newly calibrated balance towards risk tolerance which it required, had by this time become well established as code for over-regulated. More generally, during this period, it is no exaggeration to say that a new language emerged through which to speak of regulation, a language most sharply honed in the context of ‘health and safety’. It is at once familiar, and part of a spectrum, one which derides the illegitimate demands of state bureaucracies (‘bad’) upon private enterprise (‘good’), and invokes a plethora of ‘conkers bonkers’ type tales which now pervade political and popular discussion – such as the nonsense peddled, not least, by former PM Blair. Health and safety has gone mad. We need a more balanced approach. Less regulation, less enforcement. This is all so familiar that it circulates relatively unchallenged – who, after all, can argue for more burdens, more red tape, more bureaucracy, when these are always-already negatives?
The kinds of stories re-cycled by many including no less than the Prime Minister may be ‘frivolous’ – lacking ‘objective seriousness’ and with a ‘derisive tone’ (Almond, 2009, 354). But in isolation and combination they raise the spectre of regulators enforcing in overzealous ways, focus attention not on any potential offender or offence but on the inappropriateness of regulation, and thus (re)inforce the (p.116) chasm of good sense between the ‘ordinary man’ and ‘a powerful, impersonal regulatory bureaucracy, thereby establishing the essential “otherness” of regulators’ (Almond, 2009, 353–4).
Reviews: the Hampton agenda
Gordon Brown’s appointment of the Chairman of Sainsbury’s, Philip Hampton, to lead a wholesale review of business regulation in 2004 should have attracted some controversy. Hampton had been British Gas Group’s Financial Director at the time one of the Group’s subsidiaries, Transco, caused a gas explosion in Larkhall that killed a family of four. Transco was later fined a record £15 million. The judge presiding in the trial noted Transco’s ‘serious maintenance failure’, following significant cuts to the company’s maintenance budget. Hampton had also been Finance Director of Lloyds TSB during the period that the Bank was embroiled in a ‘stripping’ scheme in which it falsified its records to mask transactions from Iranian and Sudanese banking clients in violation of US law. The company was forced to pay fines and forfeiture totalling $350 million in a deferred prosecution settlement with the New York District Attorney’s Office (Tombs and Whyte, 2010b).52
The Hampton Review was charged with considering ‘the scope for reducing administrative burdens on business by promoting more efficient approaches to regulatory inspection and enforcement without reducing regulatory outcomes’ (Hampton, 2005). Its remit encompassed 63 major regulatory bodies – including the Environment Agency, the Food Standards Agency, the Health and Safety Executive, and not to forget the Financial Services Authority (Hampton, 2005, 13) – as well as 468 local authorities (Hampton, 2005, 3); in other words, every agency which played a role in the mitigation of and response to corporate crime and harm. There is no little irony that in what was to prove to be a searing critique of existing regulators and their practices, Hampton singled out the Financial Services Authority as ‘a model regulator, consolidating functions and using thoroughgoing risk profiling/assessment’ (Hampton, 2005, 62), an assessment repeated two years later – the same year as the financial crisis began to unfold – in an NAO review of its work (NAO, 2007).53
Hampton’s report – Reducing Administrative Burdens: Effective Inspection and Enforcement, published in 2005 – called for more focused inspections, greater emphasis on advice and education and, in general, for removing the ‘burden’ of inspection from most premises. Specifically, Hampton called for the reduction of inspections by up to a third – across all regulatory agencies, this would equate to one million fewer inspections (p.117) - and recommended that regulators make much more ‘use of advice’ to business. The report drew upon risk-based claims as the basis for withdrawing regulatory scrutiny from those who, in the terms used in the Hampton Report, had ‘earned’ their ‘autonomy’. The ‘consensus’ established in and through this review and report (Vickers, 2008, 215) marked the consolidation of the era of Better Regulation, the triumph of the policy shift from enforcement to advice and education, a concentration of formal enforcement resources away from the majority of businesses onto so-called high risk areas, and the consistent efforts to do more with less, bolstered by (somewhat Orwellian) claims that less is more (Vickers, 2008).
As we saw in our review of the regulatory orthodoxy in Chapter Four, this risk-based, targeted model of regulation relies upon a series of assumptions: that most businesses are law-abiding; that they are likely to comply when faced with a combination of persuasion and market incentives; and, therefore, that only the minority of recalcitrant businesses need to be monitored via inspection regimes. Moreover, this risk-based model assumes that businesses are capable of, and given the correct information and advice, are likely to, comply with the law. It also assumes that regulators can know who the law-abiding businesses are – and, more generally, have sufficient intelligence on which to base their judgements of relative risk. As we shall see in Chapters Six and Seven, this latter claim appears ever more spurious to the extent that regulators have less and less contact with businesses.
Taken together, these claims and assumptions have proven to be materially and discursively crucial. On the basis of these, Hampton prescribed a series of ‘Principles of Inspection and Enforcement’:
• Regulators, and the regulatory system as a whole, should use comprehensive risk assessment to concentrate resources on the areas that need them most.
• No inspection should take place without a reason.
• Regulators should provide authoritative, accessible advice easily and cheaply.
• All regulations should be written so that they are easily understood, easily implemented, and easily enforced, and all interested parties should be consulted when they are being drafted.
• Businesses should not have to give unnecessary information, nor give the same piece of information twice.
• The few businesses that persistently break regulations should be identified quickly, and face proportionate and meaningful sanctions.
(p.118) • Regulators should recognise that a key element of their activity will be to allow, or even encourage, economic progress and only to intervene when there is a clear case for protection.
• Regulators should be accountable for the efficiency and effectiveness of their activities, while remaining independent in the decisions they take.
• Regulators should be of the right size and scope, and no new regulator should be created where an existing one can do the work.
• When new policies are being developed, explicit consideration should be given to how they can be enforced using existing systems and data to minimise the administrative burden imposed. (Hampton, 2005, 7)
In isolation and in total, these cement the notions that regulation: is always-already somewhat illegitimate; is at best inefficient and at worst parasitic; must be minimised; and impinges upon the freedoms of law-abiding businesses. Hampton marked the key moment when the practices, and indeed the very idea, of regulation were pushed decisively on the back foot.
Reviews: the problem of local enforcement
Hampton had also explicitly addressed issues of local enforcement – recognising, indeed, that most enforcement (in terms of businesses regulated, numbers of regulators and so on) operated at this level. His starting point was with the frequently raised ‘problem’ at local level – inevitable, perhaps, given the hundreds of local authorities – of inconsistency in enforcement. Immediately, he identified this as a lack of any uniformly utilised risk assessment which, he claimed, produced not merely inconsistency but ‘over-inspection at local level’ (Hampton, 2005, 5). This inconsistency took many forms and ‘generated several difficulties’, namely: ‘difficulties arising from the lack of effective priority-setting from the centre; difficulties in central and local coordination; cross-boundary problems; inconsistency in local authorities’ application of national standards; variations in activity’ (Hampton, 2005, para 4.86)
Indeed, regulation itself was identified as a cause of business lawbreaking:
the regulatory environment is so complex, but the very complexity of the regulatory environment can cause business owners to give up on regulations and ‘just do their (p.119) best’. This is particularly true in respect of small businesses, many of whom, through pressure of time, take a conscious decision to avoid finding out about regulation.
(Hampton, 2005, 35)
In this context, the Review expressed concern that inspectors might enforce the law rather than advise on compliance, that is, ‘prioritise inspection over advice’ (Hampton, 2005, 36).
Moreover, while accepting that local authorities had their own priorities, so that variations across authorities were inevitable, the ‘inconsistency’ this generated created ‘unfair burdens upon businesses’, and thus needed eradicating via more effective national control and coordination (Hampton, 2005, 4.100–4.106). It was in this context that the ‘Rogers Review’ was established, turning attention ‘to the Trading Standards and Environmental Health professionals in local authorities who, considered together, form the country’s largest body of enforcement officers’ (Rogers, 2007, 5). The ‘key aim’ of the Review was to ‘help solve’ the difficulties with local enforcement which Hampton had identified (Rogers, 2007, 8). To effect this, Rogers sought to identify a series of national enforcement priorities which would inform the work of all local authorities regulators. In so doing, Rogers assembled a mass of evidence attesting to the harm which enforcement failures in each of these areas of social protection generated (Rogers, 2007, 59–63, 97–183). He first identified 61 priority areas, reducing these to 24, before reaching the final six. Of the evidence invoked, ‘some was descriptive, some explanatory; many policy areas were supported by good qualitative data but there was limited quantitative data in certain areas. Despite this, identifying those policy areas that met the criteria for national enforcement priority was, for the most part, relatively straightforward’ (Rogers, 2007, 57). The enforcement priorities so determined were as follows:
• air quality, including regulation of pollution from factories and homes;
• alcohol, entertainment and late night refreshment licensing and its enforcement;
• hygiene of businesses selling, distributing and manufacturing food and the safety and fitness of food in the premises;
• improving health in the workplace;
• fair trading (trade description, trade marking, mis-description, doorstep selling).54
(p.120) They were to be significantly disrupted by a quite different set of priorities, determined during the first year of the subsequent, coalition government.
Reform and review: after Hampton
Also in the same month as the Hampton Report, March 2005, the Cabinet Office’s Better Regulation Task Force published its review of regulation, Less is More: Reducing Burdens, Improving Outcomes (BRTF, 2005). This tellingly entitled document proposed a crude mechanism for controlling the regulatory ‘burden’: a ‘one in, one out’ approach to regulation, whereby all new regulations were to be accompanied by the withdrawal of existing regulations (BRTF, 2005, 7). It was also in this document that ‘The Five Principles of Good Regulation’,55 first outlined by the BRE in 1998, but now to become all pervasive across the UK re-regulatory agenda – were to be established most firmly (BRTF, 2005, Annex B, 51–2).
Many of the recommendations of these reports came together in the Legislative and Regulatory Reform Act, which passed into law in November 2006. The stated aim of the law was to ‘enable delivery of swift and efficient regulatory reform to cut red tape’ (Cabinet Office, 2006). The Act further facilitated removing or reducing burdens resulting from legislation, with a much clearer, and indeed very broad, definition of ‘burden’ than the 2001 Act, namely as ‘a financial cost, an administrative inconvenience, an obstacle to efficiency, productivity or profitability, or a sanction, criminal or otherwise, which affects the carrying on of any lawful activity’ (Legislative and Regulatory Reform Act 2006, S1(3)(a)–(d)). Here, and more generally in this Act, we see a clear codification of the Hampton reforms which had at their heart a very carefully constructed rationale which defines regulation first and foremost in terms of its economic burden on business. This represented – in legislation and in policy – a very open statement of a direct relationship between the shift towards self-regulation and a neoliberal profit-maximising agenda.
The explicit economic rationale at the heart of the Hampton reforms reached a new level in the new Regulators’ Compliance Code, published in December 2007 (BERR, 2007), by the newly formed Department for Business, Enterprise and Regulatory Reform (BERR), the creation of which was one of Gordon Brown’s first initiatives when he finally made it to Number 10 in the summer of 2007. This Regulatory Code was introduced to address how ‘the few businesses’ (Para 8) that break the law should be handled. In general, regulators were advised (p.121) to facilitate compliance through a positive approach (Para 8), ‘to reward those regulated entities that have consistently achieved good levels of compliance’ (Para 8.1), and to take account of the difficulties small businesses may have in complying with law (Para 8.1). But most crucially, the new realities of regulation could not have been made clearer when it emphasised that ‘[r]egulators should recognise that a key element of their activity will be to allow, or even encourage, economic progress and only to intervene when there is a clear case for protection’ (Para 3). In this specific requirement, the scope and reach of the burdens on business agenda is foregrounded directly in the day-today work of inspectors, further marginalising their enforcement role.
Also, by 2006, the Treasury had already begun to review the extent to which the recommendations of the Hampton Report were being implemented (HM Treasury, 2006). In 2007, it established the Local Better Regulation Office (LBRO) to ‘ensure that local authority regulatory services, including trading standards, environmental health, and licensing are included within the scope of the Hampton Code of Practice. Like national regulators they will need to have regard to the Code when setting their enforcement policies’ (HM Treasury, 2006, 4). What followed was a torrent of oversight activity. A series of ‘Hampton Implementation Review Reports’ were conducted on the work of 36 national regulators. Phase 1, completed by the NAO by December 2007, covered the five ‘most significant in this country. The Environment Agency, Financial Services Authority, Food Standards Agency, Health and Safety Executive and Office of Fair Trading [which] regulate millions of businesses, covering some key areas of economic activity, while protecting the interests of us all’ (NAO, 2008f, Foreword; see also NAO, 2008a; 2008b; 2008c; 2008d; 2008e). Phase 2, up to December 2009, assessed the Hampton-compliance of 31 further regulators, while the aim was to begin a second round of reviews of the first five (Phase 1) regulators, although only one was completed prior to the general election of 2010 (BIS, BRE, 2010).
Such was the energy directed at re-regulation by the Labour governments that the last56 OECD report on member countries,57 ‘Regulatory Management Systems’ (OECD Regulatory Policy Committee, 2009), indicate both that the UK was ‘a leader in terms of regulatory management’ – better or re-regulation – and that it was an early if not the earliest starter on almost every indicator of such (see also OECD, 2010; Jacobzone et al, 2007). Moreover, so well cemented was this new common sense regarding the limits to be set upon regulation in a globalised world that, as has been seen in earlier chapters, it was not even to be undone by the near collapse of the (p.122) financial services sectors which dominated the last two and a half years of the Labour government.
Re-regulation under the coalition: 2010 onwards
Following its establishment in May 2010, the coalition government moved quickly not just to continue, but to accelerate, acting on the consensus around the burden of regulation in general. Again, the four forms of mutually reinforcing initiatives – a rhetorical assault on regulation, the establishment of a plethora of institutions within and of government, various legal reform initiatives and a constant stream of reviews of regulation – were clearly in evidence.
Just three weeks into the new government, Vince Cable, who in opposition had been a key advocate of more interventionist financial services’ regulation, established a Reducing Regulation Committee when installed as Business Secretary; its aim was to put an ‘end to the excessive regulation that is stifling business growth’. As Cable put it, ‘The deluge of new regulations has been choking off enterprise for too long. We must move away from the view that the only way to solve problems is to regulate’ (BIS, 2010).
The rhetoric against regulation was consistent, and often coming from the highest level of government, notably from PM Cameron. A few highlights suffice to make the point of the level of vitriol aimed at regulation and regulators. On 6 August 2011, disorder broke out in Tottenham, North London, following a demonstration at the police shooting of a young black man, Mark Duggan. Within three days riots followed across many London boroughs, towns and cities in the West and East Midlands, as well as in Bristol, Liverpool and Manchester. Three men were killed in Birmingham, another two in London, hundreds of millions of pounds of damage was caused to businesses and homes, shops were looted, police lost control for periods of major urban centres and within a week over 1,000 people had been arrested. In other words, this was a major series of incidents. Nine days after the killing of Mark Duggan which had triggered the first outbreak of disorder in North London, the Prime Minister made his first major, set piece speech to comment upon these events. Quite incredibly, in that speech in Birmingham, on 15 August 2011, Cameron decided to include references to health and safety regulation. He ‘announced’ that the government would ‘review every aspect of our work to mend our (p.123) broken society’, including focusing upon ‘the obsession with health and safety that has eroded people’s willingness to act according to common sense’. Indeed, what he went on to call ‘the human rights and health and safety culture’ was a source of ‘damage [to] our social fabric’ (Conservative Home, 2011). Weeks later, at the Conservative Party conference, he continued the theme, in a fashion that would be funny were it not a signal of virtual hatred for a key element of social protection:
one of the biggest things holding people back is the shadow of health and safety. I was told recently about a school that wanted to buy a set of highlighter pens. But with the pens came a warning. Not so fast – make sure you comply with the Control of Substances Hazardous to Health Regulations 2002. Including plenty of fresh air and hand and eye protection. Try highlighting in all that. This isn’t how a great nation was built. Britannia didn’t rule the waves with arm-bands on…At long last common sense is coming back to our country.
In January 2012, Cameron made a ‘New Year’s resolution’
This coalition has a clear new year’s resolution: to kill off the health and safety culture for good. I want 2012 to go down in history not just as Olympics year or Diamond Jubilee year, but the year we get a lot of this pointless time-wasting out of the British economy and British life once and for all.
(Cited in politics.co.uk, 2012)
It was a resolution to be repeated the following January, when he derided the fact of ‘Health and safety rules stopping children getting work experience in companies’:
We need to encourage businesses to offer that work experience, we need to simplify health and safety rules, we need to say to schools, ‘every school should have a plan for how you are going to teach children about enterprise and business’.
(Cited in Hope, 2013)
More latterly, he has invoked regulatory myths as he previewed a new Deregulation Bill, enacted in 2014 (below). Thus he told the Federation of Small Businesses,
(p.124) This government has already stopped needless health and safety inspections. And we will scrap over-zealous rules which dictate how to use a ladder at work or what nosmoking signs must look like. We’ve changed the law so that businesses are no longer automatically liable for an accident that isn’t their fault. And the new Deregulation Bill will exempt 1 million self-employed people from health and safety law altogether.
Weeks into the life of the new government, it launched a review of 900 ‘quangos’ (formally, Non Departmental Public Bodies, NDPBs), which reported in October 2010 that ‘192 quangos were to be abolished’ (www.bbc.co.uk/news/uk-politics-11405840) as the start of its attack on what was now widely referred to as ‘the quango state’ (Maer, 2011, 1). In 2011, the Cabinet Office produced guidelines for Triennial Reviews of all main national regulators (Cabinet Office, 2011). These stipulated that all ‘Non Departmental Public Bodies’ should be reviewed ‘at least once every three years’ (Cabinet Office, 2011, para 4.1), with reviews having two ‘principal aims’:
(i) to provide a robust challenge of the continuing need for individual NDPBs – both their functions and their form; and (ii) where it is agreed that a particular body should remain as an NDPB, to review the control and governance arrangements in place to ensure that the public body is complying with recognised principles of good corporate governance.
That guidance provides a checklist of ‘delivery options’ to be considered when reviewing the work of any such agency – ‘Departments are encouraged to think creatively when reviewing how functions might be delivered’ – with the first listed such option being to ‘abolish’ (Cabinet Office, 2011, Annex A).
By July, the government had also established a ‘Your Freedom’ website, claimed to be a forum for the public to suggest regulation that they think should be removed or changed. Deputy Prime Minister Clegg claimed, ‘For too long new laws have taken away your freedom, interfered in everyday life and made it difficult for businesses to get on’ (Prime Minister’s Office, 2010).
(p.125) Also within weeks of its formation, the new government appointed Lord Young to investigate ‘concerns over the application and perception of health and safety legislation, together with the rise of a compensation culture over the last decade’ (Hope, 2010). The appointment of Lord Young to oversee this ‘review’ was of no little significance. As a life peer at the heart of Thatcher’s government, central to the construction of the idea of the ‘enterprise culture’ (Morris, 1991), he had overseen two deregulatory White Papers, Lifting the Burden (Cmnd 9571), in 1985, and Building Business – Not Barriers (Cmnd 9794). His report, Common Sense, Common Safety, was published in October 2010, with a series of recommendations aimed ‘to free businesses from unnecessary bureaucratic burdens’ (Young, 2010, 9). Close reading of Young’s report is instructive, since his report was merely the latest in a line of futile government searches for the existence of a ‘compensation culture’. Young concluded that ‘The problem of the compensation culture prevalent in society today is, however, one of perception rather than reality’ (Young, 2010, 19).
Then, in March 2011, the Löfstedt Review was established by the Prime Minister, with a remit to ‘look into the scope for reducing the burden of health and safety regulation on business’ (DWP, 2011a). Due to its attempt to bring together a broad range of stakeholders (small and large business, trade unions, academics and politicians), it was arguably the most significant attempt to engineer a consensus around a new anti-regulation and enforcement agenda (Almond, 2015).
The government then launched, in June 2011, its ‘Red Tape Challenge’. At the launch, Employment Minister Grayling noted, ‘This is an opportunity that every beleaguered business leader, incredulous community group or outraged newspaper reader has been waiting for – a chance to directly change the laws underpinning Britain’s health and safety culture’ (HSE, 2011). In fact, health and safety was only one focus of the ‘Challenge’, which invited visitors to a website to submit their views on cross-cutting, general areas of regulation on a series of themes, in turn, within a five week window – the other five areas chosen for what the government termed its ‘spotlight’ being ‘Equalities’, ‘Employment Related Law’, ‘Company and Commercial Law’, ‘Pensions’ and ‘Environment’. It is notable that both health and safety was foregrounded in Grayling’s announcement (see Chapters Six and Seven) and that ‘food safety’ or a broader reference to ‘consumer safety’ were absent here, although there was coverage of these in the more detailed themes that proceeded within each ‘spotlight’, notably within the theme ‘hospitality, food and drink’.58 Responses to the Red Tape Challenge would allegedly feed into government departments (p.126) making ‘proposals to the Reducing Regulation Committee’ and seeking ‘policy clearance’ for removing specific legal coverage.59
During the same summer, a ‘Transforming Regulatory Enforcement’ consultation was held, to access ‘the most pressing concern for millions of businesses: the day to day experience of regulatory enforcement at the front line’. The stated aim, then, was to ‘hear, first-hand from businesses, views on where reform of enforcement was needed and where the state’s methods of enforcing regulation could be lightened or made to work in more constructive ways with business’ (BIS, 2011, 5).
When the Löfstedt review reported, in November 2011, it in essence concluded that the current framework of health and safety regulation was not in need of a fundamental overhaul but did propose a range of recommendations for reform. Among those it identified as ‘key’ (Löfstedt, 2011, 9) were a series of recommendations for further review, for example of all existing Approved Codes of Practice, of a series of sector-specific regulations, and of regulatory provisions that impose strict liability. Notably, it also recommended ‘exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others’ (Löfstedt, 2011, 3); and that ‘health and safety inspection and enforcement activity’ be directed ‘to ensure that it is consistent and targeted towards the most risky workplaces’ (Löfstedt, 2011, 5).
Taken together, the report stated that its proposed reforms and reviews would, ‘help to ensure that all key elements of the regulatory and legal system are better targeted towards risk and support the proper management of health and safety instead of a focus on trying to cover every possible risk and accumulating paperwork’ (Löfstedt, 2011, 7).
The Löfstedt report’s focus on ‘low-risk’ proved to be crucial, however. In fact, the report used the phrase ‘low-risk’ in four senses: ‘low-risk’ work activities, ‘low-risk’ businesses, ‘low-risk’ sectors and ‘low-risk’ workplaces. Now, although the report notes the difficulty of defining what constitutes ‘low-risk’ (Löfstedt, 2011, 36), none of these concepts are actually defined in any useful sense – curious, given that Löfstedt is Professor of Risk Management and Director of one of the UK’s foremost university centres of risk management. In fact, such a vague, flexible use of this phrase proved highly useful for a government which went on to use this report as the catalyst for formal removal of enforcement from ‘low-risk’ sectors (James et al, 2013; and see below). In its formal response to the report, the government accepted all of its recommendations (DWP, 2011b). Lofstedt subsequently raised concerns in public about the withdrawal of inspection legislated for by government on the basis of his report (SHP Online, 2012).
(p.127) The following year, in December 2012, a ‘Focus on Enforcement Review’ was unveiled, aimed at allowing business to tell government where enforcement can be improved, reduced or done differently; inspectors across regulatory agencies were to be encouraged to ‘have regard for growth’ (http://discuss.bis.gov.uk/focusonenforcement/). This is not to be confused with the ‘Business Focus on Enforcement’, announced by Michael Fallon in March 2014, inviting business ‘to help run an initiative that puts driving the reform of regulatory enforcement in the hands of business’. As part of the initiative, bids for government grants were invited to help businesses and trade associations prepare cases ‘to challenge problems like duplicated paperwork, inconsistent advice or unhelpful guidance and present the case for change directly to regulators and ministers – who will be required to respond to the evidence industry presents’ (BIS, 2014).
The key overall regulatory strategy document for the new coalition government was its Reducing regulation made simple: Less regulation, better regulation and regulation as a last resort (HM Government, 2010a). This document was notable for setting out post-implementation reviews (PIR) and ‘sunsetting’ requirements, both ostensibly designed to reduce regulation.
Post-implementation review (PIR) refers to reviews of regulation which complement the ‘ex-ante appraisal contained in the impact assessment’ (HM Government, 2010a, para 47). Sunset provisions ‘build on’ these processes (HM Government, 2010a, para 48). In practice, ‘sunsetting’ refers to several processes and procedures: one is the use of a ‘review clause’, that is, ‘a statutory duty to carry out a review of the relevant regulation on a specified timescale but does not provide for automatic expiry’; a sunset clause per se ‘provides for automatic expiry after a specified period’; (HM Government, 2011, 7). Where any review recommends that regulations be maintained, this recommendation must be passed to the Reducing Regulation Committee for approval; meanwhile, sunsetting is ‘mandatory for new regulation introduced by Whitehall departments, where there is a net burden (or cost) on business or civil society organisations’ (HM Government, 2011, 3). Further, all Departments are required to conduct thematic reviews of regulations – ‘to undertake reviews of their existing “stock” of regulation to identify opportunities to remove or revise regulations’ (HM Government, 2010a, para 52), such as those of health and safety regulation.
(p.128) In addition to these processes and procedures, the document also sets out the need for ‘streamlining’ systems of enforcement (HM Government, 2010a, para 3.4), including ‘developing co-regulatory approaches’ (HM Government, 2010a, paras 63–5), since ‘More needs to be done to ensure that, where businesses have a good track record of compliance, this is taken into account by regulators, who will then reduce the inspection burden for them’ (HM Government, 2010a, para 64). These co-regulatory approaches are explicitly defined as giving ‘appropriate recognition to a business’s own efforts to comply with regulation’ (HM Government, 2010a, 63).
One initiative, by the Department for Business, Innovation and Skills (BIS), was to introduce the ‘one in, one out’ policy, in September 2010, first trailed under the previous government, as noted above. This required any government department introducing one new regulation that imposed a direct net cost on business to remove or modify another regulation at equivalent cost (BIS, 2010). This itself was superseded by ‘one in, two out’: from January 2013, every new regulation that imposes a new financial burden on firms must be offset by reductions in ‘red tape’ that will save double those costs (BIS, 2012a).
On 1 April 2011, the government had introduced a three-year freeze on new UK regulation for businesses with fewer than ten employees, including start-up businesses. What was originally known as the ‘microbusiness moratorium’ was extended in June 2013 to ‘small businesses’, those with up to 50 employees (BIS, 2012b; 2013b).
Changes in inspection regimes also gathered pace under the coalition. In March 2011, health and safety inspections were reduced drastically in an act of fiat by employment minister Chris Grayling. Claiming that Britain’s ‘health and safety culture’ was ‘stifling business and holding back economic growth’ (DWP, 2011a), he announced that proactive inspections by HSE were to be severely limited, ‘by one third, around 11,000 inspections per year’ (DWP, 2011d, 9), while at local level these would be ended completely, amounting to a reduction of 65,000 inspections per annum (DWP, 2011d, 10). Each soon became policy (HSE and Local Government Group, 2011; HSE and Local Authorities Enforcement Liaison Committee, 2013). These were workplaces in the sectors deemed to be ‘low risk’ – that is, all local authority regulated sectors and, for HSE, the following: agriculture, air, bricks, cement products, ceramics, clothing, computer products, concrete products, courier services, docks, electrical engineering, electricity generation, electronic products, emergency services, fabricated metal products, footwear, glass and glazing, health care, laundries, leather, light engineering, mineral industries, optical products, other food and (p.129) drink, other manufacturing industries, paper and board, plastics, postal services, printing, prisons, quarries, road haulage, rubber, social care, textiles, and the transport sector (O’Neill, 2011).
Furthermore, in October 2011, Deputy Prime Minister Clegg unveiled a policy on enforcement to small business leaders, stating that ‘bodies responsible for inspection…need to understand that their job is to make your life easier, not harder. So there will be a major shake-up of business inspection – going through the regulators, asking ‘Are they still necessary?’; ‘Should they still exist?’ (Winnett, 2011). Then a further government report, published in November 2011, proposed to review all regulators, seeking: ‘to make sure each one is making the fullest possible use of the range of alternatives to conventional enforcement models, working with business and others and reducing state activity wherever possible. We will expect to see a significant reduction in state-led enforcement activity’ (BIS, 2011, 6). It urged a ‘transparent and light-touch risk-based system’ (BIS, 2011, 7–8).
The torrent of legal reform did not end there; 5 April 2013 was announced as ‘Freedom Day’ for Business, with a package of deregulatory reforms introduced by Michael Fallon claiming that these would set ‘business free from the restrictions that hold back enterprise [and] is a compulsory step on the road to growth. We’ve listened to firms and taken prompt action where regulation presents barriers – but there is a huge amount still to do’ (BIS, 2013a). Later that month, the Enterprise and Regulatory Reform Bill passed through Parliament, and within a year, in February 2014, a further Deregulation Bill extended exemptions from regulatory law and its enforcement. The final legal reform to be made during this period was perhaps the most significant. A further (2014) revision to the Regulators’ Compliance Code embedded and extended the exigence in the 2007 version (above), namely that ‘[r]egulators should recognise that a key element of their activity will be to allow, or even encourage, economic progress and only to intervene when there is a clear case for protection’. The 2014 version was based on the so-called growth duty: that is, ‘Point 1’ of the new Code emphasised that, ‘Regulators should carry out their activities in a way that supports those they regulate to comply and grow’ (BRDO, 2014b, 3).
With this renewed urgency to reducing regulation, a more complex institutional configuration was developed inside government. Installed into each department was a ‘Better Regulation Minister’ – ‘challenging (p.130) policy-makers to meet the government’s reducing regulation commitments’ (HM Government, 2010a, para 14) – supported by Board Level Champions (BLCs), senior officials ‘who champion the new approach within their departments’ (HM Government, 2010a). The latter, in turn, are ‘supported by a network of working level contacts in Better Regulation Units (BRUs) within departments who…support their policy colleagues in making the changes needed’ (HM Government, 2010a, para 15).
Sitting ‘above’ these was a Better Regulation Strategy Group (BRSG), ‘representing business (both employers and employees), consumers and government’ and which ‘acts as an advisory group to government right across the regulation agenda’ (HM Government, 2010a, para 18). Further, the Reducing Regulation Committee was given ‘an enhanced role in the new government’s plans to introduce a new approach to regulation’ (HM Government, 2010b). As a Cabinet sub-Committee, it would ‘take strategic oversight of the delivery of the government’s regulatory framework’. Its ‘broad terms of reference’ included ‘scrutinising, challenging and approving all new regulatory proposals as well as proposals for transposing EU obligations’ (HM Government, 2010a, para 30). This strengthened remit was to be overseen by Business Secretary Cable (Regulatory Policy Committee, 2011, 7).
In January 2012, an Independent Regulatory Challenge Panel was also established. This would investigate complaints regarding advice given by HSE or local authority inspectors which applicants consider to be incorrect or going beyond what is required to control the risk adequately.60
Reviews: the problem of local enforcement re-visited
As discussed earlier, the Rogers Review had, in the wake of Hampton, turned to local authorities to ‘help solve’ the problem of enforcement at that level (Rogers, 2007, 8). Rogers identified five enforcement priorities, around air quality and pollution, alcohol and licensing, food hygiene and safety, workplace health and fair trading – based upon a review of a considerable amount of evidence attesting to the harm which failures in regulation around each generated.
Four years later, during the first year of the subsequent, coalition government, this work was jettisoned, on the basis of adherence to a quite different methodology and set of rationales. In 2011, the last Act of the LBRO was to publish its Priority Regulatory Outcomes Final Report (LBRO, 2011). This noted that Rogers had established (p.131) his priority enforcement areas through working with an expert user group of local authorities, professional bodies, national regulators and central government departments (LBRO, 2011, 6). The LBRO reported that it had, in contrast, having worked with the Institute of Local Government Studies, University of Birmingham, and seven local authorities, concluded that, ‘the priorities did not take sufficient account of the importance of local priorities and the need for regulatory services to effectively demonstrate how they were contributing to locally important outcomes’ (LBRO, 2011, 6).
In ‘refreshing’ the national enforcement priorities, LBRO in fact abandoned them. Thus, a new set of ‘priority regulatory outcomes were determined’, as follows:
• support economic growth, especially in small businesses, by ensuring a fair, responsible and competitive trading environment;
• protect the environment for future generations including tackling the threats and impacts of climate change;
• improve quality of life and wellbeing by ensuring clean and safe neighbourhoods;
• help people to live healthier lives by preventing ill health and harm and promoting public health;
• ensure a safe, healthy and sustainable food chain for the benefits of consumers and the rural economy. (LBRO, 2011, 7)
It further argued that, ‘The regulatory system as a whole, and local regulators individually, should tailor their approaches to support businesses into compliance in a way that meets their needs’ (LBRO, 2011, 11). This, and the first stated priority above, both accord with the first duty to be enshrined in the later (2014) Regulators’ Compliance Code, the so-called Growth Duty (BRDO, 2014b).
Also crucial to note here is that the term ‘enforcement’ had been entirely removed from these regulatory priorities, quite explicitly so:
Given the pressure on public finances, it is even more important to look for evidence of what works – which activities will deliver maximum impact and progress towards improved outcomes.
The shift away from the terminology of national enforcement priorities towards priority regulatory outcomes serves to reflect the breadth of activity local authority regulatory services and partner organisations carry out to support business compliance and prosperity and to (p.132) protect citizens, workers and the environment. Delivering outcomes depends on the careful allocation of resources across a range of regulatory activities.
(LBRO, 2011, 22, emphasis in original)
Thus, following Hampton, the efficient use of resources should be based on ‘risk, taking into consideration differing customer needs and use of alternative approaches to regulation’ (LBRO, 2011, 22) and thus targeted (LBRO, 2011, 22–3). With this document, the LBRO was dissolved, to be replaced by the Better Regulation Delivery Office (BRDO) as the key coordinating body for local regulatory services, on 1 April 2012. This would enhance working relationships between businesses and regulators and thus ‘strengthen the overall package of regulatory reform by bringing these two elements together within government’ (Local Government Lawyer, 2012). BRDO describes its aims as
working towards a regulatory environment in which businesses have the confidence to invest and grow and citizens and communities are properly protected. We do this by operating Primary Authority [on which more later, Chapter Six] to ensure consistent regulation, improving the professionalism of front-line regulators, and giving businesses a say in their regulation.61
But to be clear, what this LBRO document also did, as indicated in the final quotation from it, above, was to remove enforcement from the lexicon of local authority regulatory priorities. This, alongside the statutory removal from enforcement for swathes of businesses by type and sector, indicated elsewhere in this chapter, are clear indices of the institutionalisation of a new form of regulation: regulation without enforcement.
This chapter has traced some the key mechanisms through which both Labour and coalition governments up to 2014 have sought to embed a new regulatory agenda under the auspices of ‘Better Regulation’. There have been four different mechanisms deployed consistently throughout this period, across three governments, as has been noted: a rhetorical initiative, the creation of re-regulatory institutions, various (p.133) legal reforms and incessant reviews of regulation in general. This has been a period of intensive re-regulation.
These initiatives have had an impact, variously, upon the idea of regulation, as well as the policies and practices of regulation. I would argue that key to understanding the effects of these is in their synergistic rather than isolated effects. In short, and crucially, these forms of mutually compatible activity indicate that it would be mistaken to view better regulation as a form of mere state withdrawal or simple deregulation – what we have witnessed is a concerted effort at reregulation, attempts to re-configure the relationships between state and private capital. Moreover, the claimed effect here is that capital is being set ‘free’, even if the effect is actually to generate further interdependence between state and capital.
Several concluding observations follow.
First, it is noteworthy that the trajectory, if not priority attached to, these initiatives traverses not just several governments but, crucially, the period leading up to, during, and then subsequent to the financial crisis. This remarkable consistency of anti-regulation can only be understood within several broader contexts: in terms of the longer term assault on the idea and practices of regulation, associated with the emergence of neoliberalism in its specific UK variants (Chapter Two); on the basis of the ways in which the crisis was framed, and specifically how this framing excluded the regulatory antecedents of the crisis but instead cast it as over-extension by bloated, inefficient and meddlesome states bureaucracies, so that ‘recovery’ was at the same time framed as setting free an entrepreneurial, growth-giving private sector (Chapter Three); and, in terms of a logical compatibility between a political and an academic consensus regarding feasible and desirable forms of regulation – and, concomitantly, the necessary limits upon these – forms of consensus and compatibilities which, for all their differences, are located upon pro-market, liberal-pluralist terrains (Chapter Four).
Second, the nature of the effects of these various initiatives within and across forms of regulation clearly varies. Some have significant ideological effects, the most obvious instances here being the rhetorical onslaught against the idea of regulation, encapsulated in the stream of anti-regulatory rhetoric that characterises political and popular references to the issue. Also with important ideological effects are various reviews of regulation, as well as the plethora of institutions designed to control or check regulation; both are dependent upon, but also feed further, the common sense that there is too much regulation, that it is counterproductive, to be resisted and so on. Equally both of these types of initiative have more or fewer real, practical effects – (p.134) because reviews and institutions lead to changes in the volume and nature of regulation, albeit often not to the degree that may be claimed for them. Finally, legal reforms have predominantly material effects, that is, they alter the regulatory landscape, in terms of what regulators can do, where they can do it, and how they can do it. All of these changes, I would add, alter the balances of power between the regulated and the regulators, undermining capacities of and/or creating crises of confidence among the latter, and thus emboldening the former.
This latter point links into a third observation to be drawn here. Once regulation has been has been so thoroughly defined as a problem, indeed over a long period, so consensually and broadly, then it is difficult to disrupt the amplification processes that are generated and fuelled by this new common sense. If regulation is always-already problematic, then there would seem to be no logical limits on the extent to which this problem must be addressed. The legal reforms from a ‘one-in, one-out’ to ‘one-in, two-out’, the extension of businesses covered by the ‘micro-business moratorium’ on new regulation, and the 2007, then 2014 revisions to the Regulators’ Compliance Code, noted above, each illustrate and encapsulate this logic.
Fourth, while the detail presented in this chapter has been selective only, it should be clear even on the basis of the coverage herein that while regulation in general has been subjected to various forms of reform and assault, one specific form of regulation in particular, namely that associated with occupational health and safety protection, has been by far the most vigorously targeted. This is clear, for example, in the rhetorical attacks on regulation. While these are often aimed at regulation in general, as we have seen above, the illustrations provided there also faithfully reflect the fact that, where specific forms of regulation are highlighted for verbal opprobrium, these are, latterly at least, almost exclusively and most vehemently reserved for health and safety law and its enforcement. We find this particular focus on health and safety regulation reflected in governmental reviews – both Young and Löfstedt, for example, were established within a year of the coalition government being formed; and HSE also has been subjected to two triennial reviews of its functions and fitness for purpose. Further, legal reforms have proceeded most thoroughly in this area – so that, for example, the formal institutionalisation of low-risk has seen proactive inspections across the vast majority of workplaces formally prohibited. In other words, and consistent with the analyses in the following two chapters, health and safety regulation has been a specific target within generalised initiatives upon the idea and practices of regulation.
(p.135) It remains, finally, to be noted, albeit not discussed in this chapter, that regulation has been subject to reform via central government (and local authority) spending priorities, decisions and allocations. There is a tendency of course to view reductions in expenditure, certainly since 2008, as responses to a fiscal crisis of the state (notwithstanding the mystified origins of that crisis – see Chapter Three). While reductions in government expenditure in general have some bases in economic and fiscal policy, they are clearly at the same time, if not more usefully viewed as, political initiatives (Gamble, 2015). Thus as Prosser has noted, citing the Treasury Select Committee on the Chancellor’s first (June 2010) budget statement, George Osborne had ‘been explicit that his aim is not only to reduce debt, but to rebalance the economy away from the public and toward the private sector’ (cited in Prosser, 2011, 597). Thus, the 2010 Spending Review was explicitly presented as part of ‘a radical programme of public service reform’, thereby ‘incorporating goals other than economic management’ (Prosser, 2011, 598) – it was the basis of what was to become the mantra of the Conservatives during the coalition years, namely of the need to ‘shrink the state’ and, in particular, to systemically reform the welfare state (Taylor-Gooby, 2012). Here, the politics of Better Regulation, and the institutionalisation of a new form of regulation without enforcement, dovetailed perfectly with the economics of government policy, a suggestion that will be developed in the following chapter. (p.136)
(49) Ayres and Braithwaite defined their task as seeking ‘creative options to bridge the abyss between deregulatory and pro-regulatory rhetoric’ (Ayres and Braithwaite, 1992, 15). This recognised that, during the 1980s, ‘whatever country one examines, the mixed and somewhat Pyrrhic victories conservatives have won on the question of deregulation can give cause for gloom on the right’ (Ayres and Braithwaite, 1992, 12), while rejecting the claims of ‘the gloom-mongers of the Left’ who would ‘see capital as structurally impregnable’ (Ayres and Braithwaite, 1992, 12).
(50) Certainly since its 2002 relaunch.
(p.219) (51) Cited in OSHWORLD, News. July 2005 (www.sheilapantry.com/oshworld/news/2005/200507.html)
(52) Hampton was subsequently knighted for his services to business in 2007 – although in his budget speech, in March 2005, Gordon Brown had already referred to him as ‘Sir’ Philip Hampton (www.independent.co.uk/news/business/analysis-and-features/the-interview-man-on-a-mission-has-quangos-quaking-6150293.html). A year later, in 2008, Hampton was appointed as chairman of UK Financial Investments Limited, the firm set up to manage the UK government’s shareholding in banks following the bailouts.
(53) ‘The FSA is highly regarded within the financial services industry in the UK and internationally and its risk-based approach is increasingly seen as a model to follow by other regulators’ (NAO, 2007, 5).
(54) An additional sixth, time-limited enforcement priority of ‘Animal and public health, animal movements and identification’ was identified.
(55) To reiterate, these were: proportionality, accountability, consistency, transparency and targeting.
(56) And, at the time of writing, still the most recent.
(57) OECD member countries are Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States.
(59) The 2013 Budget speech announced a second phase of the Red Tape Challenge.