Briefing 14

April 2016

‘Better Regulation’: Better for whom?

Professor Steve Tombs

Centre for Crime and

Justice Studies
2 Langley Lane Foreword
London SW8 1GB
[email protected] This Briefing by Professor Steve Tombs places the spotlight on the lack of effective regulation of
www.crimeandjustice.org.uk
pollution, food safety and workplace health and safety standards in the UK. An estimated 29,000
©Centre for Crime and deaths each year in the UK are attributable to the effects of airborne pollution. Some one million cases
Justice Studies of foodborne illness in the UK each year result in 20,000 hospital admissions and 500 deaths. Around
April 2016 50,000 people die each year as a result of injuries or health problems originating in the workplace.
ISBN: 978-1-906003-50-0

Registered charity No. 251588

These staggering figures are probably underestimates. The litany of lives shortened and health impaired
to which these figures bear witness are also largely avoidable. Yet as Professor Tombs points out, the
A company limited by guarantee rate of inspection and enforcement actions for environmental health, food safety and hygiene, and
Registered in England No. 496821 health and safety have all been falling. In the case of health and safety inspections by local authorities,
for instance, the average business can now expect to be visited only once in every 20 years.
The views expressed and the data
used in this document are those
of the author and not necessarily This is not just a problem of infrequent inspections and lax enforcement. In the name of cutting red
those of the Centre for Crime and tape, governments of all political persuasions have, for over a decade, undermined independent and
Justice Studies. effective business regulation. Budget cuts under the austerity programme have compounded the
problem. So too have moves to outsource and privatise regulatory and enforcement activity. Private
companies are increasingly involved in ‘regulating’ themselves. Taken together, Professor Tombs
argues, these changes may ‘mark the beginning of the end of the state’s commitment to, and ability
to deliver, social protection’.

We are taught that the greatest harms faced by citizens are crimes dealt with by the police, courts and
other criminal justice agencies. Professor Tombs’ Briefing makes clear that this is far from the case. The
harms he writes about are the result of political and economic decisions. They are not random
happenings. The story the Briefing tells is one of ‘avoidable business-generated, state facilitated
violence: social murder. And, quite remarkably, it proceeds, daily – met only by academic, political and
popular silence’.

This Briefing is a contribution to breaking this silence. It reflects the Centre for Crime and Justice
Studies’ commitment to informing public understanding of the role and limitations of criminal justice
processes, and to fostering a greater knowledge of the harms faced by citizens, and of how they might
best be regulated and reduced.

Richard Garside, Director, Centre for Crime and Justice Studies

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Regulation is widely derided, a dirty word now agencies formed in Victorian Britain created the
equated with red tape, rules, burdens and basis of regulatory regimes through to the present
bureaucracy. Yet we would do well to recall that day (see Box 1). The nature and level of business
regulation of business emerged ostensibly to regulation has since been a site of contest; the
provide some levels of ‘social protection’ for Victorian regime was chronically under-staffed,
workers, consumers and communities from the while social protection through regulation
worst excesses of the industrial revolution. Thus, probably reached its high point in the 1970s/80s.
from the 1830s onwards, a rapidly industrialising Then, the emergence of neo-liberalism provided
Britain became the site of the earliest forms of the context for a concerted attack on regulation in
social protection, won through inter- and intra- the name of freeing business from the burdens of
class conflict and compromise. The regulatory red tape.

Box 1: The emergence of the ‘Social Protection State’ in Britain

In 1802, the Health and Morals of Apprentices Act was and was to prove ‘a powerful catalyst for the development of
designed specifically to regulate the working conditions of local government’ (Fee and Brown, 2005).
‘Poor Law’ apprentices in the textile industry. 1863 saw the first thoroughgoing attempts to install and
From 1831 onwards, a series of Factories Acts were passed enforce environmental protection regulation, through the
– regulating the hours and conditions of young workers and 1863 Alkali Act (and, subsequently, of 1874, 1881, and 1892).
women, extending across industries and workplaces of In 1875, the passage of the Sale of Food and Drugs Act, to
different sizes, until the consolidation of existing legislation be enforced through the Local Government Board, was the
in the Factory Act of 1878. culmination of the struggles of social movements for pure
In 1842, Chadwick’s government-commissioned report food, drugs and drink.
into sanitation - The Sanitary Conditions of the Labouring
Population - was published. It directly linked living and In sum, this was a key period in the emergence of central
working conditions with illness and disease. Chadwick’s pillars of social protection, at least in the context of public
report was implemented via the Public Health Act of 1848, health.

As we shall see in this Briefing, in the past 15 Overall, these developments have left workers,
years, virtually without political, public nor consumers and local communities more vulnerable
academic comment, this ‘social protection state’ to business-generated harms (see Box 2), while
has been radically transformed. Specifically: exacerbating economic and social inequalities.

● Regulation now proceeds virtually without

enforcement, a result of a political initiative,
‘Better Regulation’, rolled out by Labour,
The politics of
Coalition and Conservative Governments better regulation
● The politics of anti-regulation have been Despite the 18 years in which Conservative
overlain by the economics of austerity Governments had regulation in their sights, it was the
● Austerity has particularly impacted upon second New Labour Government which most
regulation and enforcement at the level of zealously set about the task of transforming regulation
local authorities and enforcement. In 2004, Chancellor of the
● Private businesses are increasingly involved in Exchequer Gordon Brown, established the Hampton
the business of regulation Review, with a remit to propose ways to reduce
● The agencies of social protection – such as the regulatory ‘burdens on business’ across all (63) major,
national Health and Safety Executive or Local national regulators, as well as 468 local authorities
Authority Environmental Health Offices - have (Hampton, 2005). The review came in a period in
been radically transformed to the extent that which anti-regulatory rhetoric had been considerably
they are either unable to perform their ratcheted up amongst senior echelons of government
statutory duties, or now perform protection for and the civil service, and across a range of print and
rather than from business, or both. broadcast media outlets (Almond, 2009).

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Box 2: Business harms as ‘social murder’

Business harms are routine, systematic and, crucially, According to the most recent report from the Chief
avoidable: they are a form of violence. In fact, the harms Scientist, ‘Our best estimate suggests that there are around
indicated below are so widespread that they are a form of a million cases of foodborne illness in the UK each year,
what others have called ‘social murder’ (Chernomas and resulting in 20,000 hospital admissions and 500 deaths’
Hudson, 2007) – communities, consumers and workers put (Food Standards Agency, 2012). Even these estimates of food
in a position that ‘they inevitably meet a too early and an related illness are likely to understate the scale of the
unnatural death’, day-by-day, year-in, year-out (ibid). problem (Food Standards Agency, undated).
It is this inevitability which has been mitigated by There is now strong evidence that around 50,000 or so
regulation and enforcement. deaths per annum are related to working in Britain. Most of
The scale of contemporary harm is significant: those deaths are caused by diseases that may cause many
The UK Committee on the Medical Effects of Air Pollution years of illness before their victims die (Tombs, 2014).
(COMEAP), looking at the effects of poor air quality effects In each of these areas, the majority of these deaths
at a population level, has estimated that 29,000 deaths every originate in profit-making businesses.
year are ‘brought forward’ by pollution, albeit this is thought
to be a significant under-estimate (Bosely, 2015).

Hampton’s subsequent 2005 report – Reducing that commitment with a feverish intensity. The
Administrative Burdens: Effective Inspection and current Conservative Government shows no sign
Enforcement – proved to be a turning point in the of slowing down the attack on regulation – quite
trajectory of business regulation and enforcement the opposite, in fact.
across Britain. It marked the consolidation of the
establishment of what had already been termed The effects of Better Regulation can partly be seen
‘Better Regulation’, a formal policy shift from via some headline data on enforcement trends in
enforcement to advice and education, a three key protective fields in the sphere of social
concentration of formal enforcement resources regulation in Britain – food safety, occupational
away from the majority of businesses onto so-called health and safety, and pollution control (see Box 3).
high-risk areas, and consistent efforts to do more Regulation here is something of a patchwork of
with less. Notwithstanding the question begged by national and local responsibilities, albeit most
this initiative – who on earth would want worse businesses across these areas are regulated at the
regulation? – in 2005, Brown summed up this new local authority level. Food safety enforcement in
approach to regulation and enforcement pithily; the UK operates almost entirely at the local level,
these were to be characterised by ‘Not just a light overseen by the national body, The Food Standards
touch but a limited touch’ (cited in Furness, 2012). Agency (FSA). Local functions are divided between
Environmental Health Officers (EHOs) and
Five years later, at the General Election of 2010, Trading Standards Officers. Food EHOs oversee
changes to law coupled with downward pressures food safety and food hygiene, enforcing law across
on inspection and formal enforcement meant all forms of retail food business organisations
that, both nationally and locally, much in the (restaurant, shops, and so on), as well as food
regulatory landscape across Britain had been processing and food manufacturing outlets.
transformed. Of course, in the intervening years, Occupational health and safety regulation is
the financial crisis had erupted across much of divided between a national regulator, the Health
the world, not least in Britain, resulting in and Safety Executive (HSE), and Health and Safety
massive state bailouts and a tide of criticism of EHOs at a local level; the division is based on the
the level of regulation of ‘the banks’. Yet, quite main activity of any premises. Pollution control is
remarkably, the political consensus, at least in also divided between a national regulator, the
Britain, remained that business was over- Environment Agency, while at local level, pollution
regulated – and all three mainstream political control EHOs enforce regulation of businesses
parties campaigned on manifestos to further operating ‘Part B’ premises, as well as significant
reduce regulation. The five years of coalition areas of non-business activity such as littering and
government which followed went on to act on fly-tipping.

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Box 3: Regulation without enforcement?

Below is summary data of trends in inspection and Local Environmental Health Officers enforcing health and
enforcement, 2003/04-2012/13. This period is deliberately safety law undertook:
chosen. The start date marks the rolling out of the Better ● 90% fewer preventative inspections
Regulation agenda. But this period is also marked by the ● 56% fewer total inspections
2007 financial crisis which was used, by the coalition ● 40% fewer prosecutions, resulting in 38% fewer
government from 2010 onwards, to justify austerity – so it is successful convictions
likely that within this data there is evidence of both politics
and economics at play. Environment Agency Officers engaged in national pollution
control undertook:
Inspection and Enforcement Trends between 2003/04 – ● 52% fewer inspections (1999/00-2008/09; the
2012/13: Environment Agency claimed it could not separate data
for inspections to businesses from 2009/10 onwards)
Local Environmental Health Officers enforcing food safety ● and 54% fewer successful prosecutions, while issuing
and hygiene law undertook: 42% fewer cautions
● 12% fewer food hygiene inspections
● 34% fewer food standards inspections Local Environmental Health Officers enforcing local
● 28% fewer prosecutions pollution control law undertook
● 48% fewer ‘Part B’ Inspection Visits
Health and Safety Executive inspectors, the national health ● and 30% fewer ‘Part B’ Notices (Notices rather than
and safety regulator, undertook: prosecutions are used, since the latter are so few – there
● 53% fewer inspections (on the part of Field Operations were five in 2013/14 and three the previous year – as to
Directorate, the body within HSE which undertakes by far render data almost meaningless)
the vast majority of inspections)
● 40% fewer prosecutions of offences, resulting in 32% (Tombs, 2016)
fewer convictions

Now, taken in isolation, perhaps no one were 81,000 of these in 2014/15 in the context of
individual data set on any specific of enforcement some 1.7m registered business – meaning that
activity data relating to any one regulator over a only about five per cent of businesses that might
ten year period is particularly surprising. What is be visited in any one year actually received a visit.
remarkable, certainly for a set of social scientific Put differently, the average business can expect to
data, is that each set of data reveals precisely the be visited by a local health and safety inspector
same trend: that is, notwithstanding variations once every 20 years.
across regulators, the form of law being enforced,
and indeed within regulators and specific forms Second, then, this data indicates that for all of
of enforcement activity by year, each set of data these regulators, prosecutions are indeed the
unequivocally indicates a long-term downwards formal enforcement action of last resort:
trend in every form of enforcement activity.
● For food EHOs, 340,000 visits generated 361
There are two further observations which might prosecutions – a rate of approximately one
be made on the data underlying these trends. prosecution for every thousand inspections
and audits
First, while the trends in relative declines are ● In health and safety, 81,000 visits prompted
striking, indeed uniformly so, this should not be 164 prosecutions, at roughly one prosecution
allowed to obscure the fact that for the most part per 500 inspections
the data also indicates some absolutely low levels ● Pollution control EHOs generated 64
of enforcement activity. Enforcement and Prohibition Notices in the
course of over 11,000 inspections – or one
So if we take the example of health and safety notice for every 176 visits
visits by local authority EHOs, we see that there

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Such prosecution levels surely tell us more One of the most deprived regions in the UK is
about an approach to enforcing law vis-a-vis Merseyside – and the remaining sections of this
business than about the level of compliance on Briefing draw upon a case study of regulation and
the part of those businesses, not least in the enforcement in the local authorities which make
context of what we know about the levels of up this region. Merseyside is a populous
social harm they generate. conurbation: the combined population of the five
local authorities under examination here –
What this data indicates, in short, is an institu- Knowsley, Liverpool, St Helens, Sefton and
tionalisation of regulation without enforcement as a Wirral – is 1.4 million. There are some 40,000
sustained political initiative. businesses registered across these authorities.
Merseyside is also one of the poorest regions in
England, if not the poorest. The Index of Multiple
From the politics of Deprivation is a ranking of all English local
authorities, where 1 is the most and 326 the least
better regulation to the deprived local authority, based upon
economics of austerity government’s measurement of 38 indicators
During the latter half of the period under across seven domains of deprivation. On the 2015
examination in the above section, it is clear that Index, Knowlsey is the second poorest local
the politics of Better Regulation became authority area in England, Liverpool the fourth
substantially over-determined by the ‘economics’ poorest. All five local authorities are ranked
of austerity. The macro-level trends to which the among the ten per cent most health deprived
previous section has pointed are barely districts in England (Liverpool City Council, 2015).
insignificant. Yet beyond stating that these create Moreover, all have higher than the national
greater freedom from oversight for private average of unemployed, and benefit claimants,
business, and thus facilitate greater business have higher than the national ratio of part-time to
harm, their effects are often hard to gauge. The full-time jobs, a higher percentage of public sector
remainder of this Briefing drills down to local jobs and a lower than national average of jobs in
authority level as a means of examining what the private sector. In general, these observations
these new politics of regulation mean in the all indicate a local population which is particularly
context of unfolding austerity. reliant upon the local state for a range of welfare,
social and public services, as well as employment
By way of context, funding for local authority opportunities, so that changes in any of these
services had been progressive under at least the impact disproportionately upon local people, as
first two New Labour Governments (Lupton et al., residents, consumers, and workers (Centre for
2013). However, from 2009/2010, local Local Economic Strategies, 2014).
government funding from Westminster came
under pressure. Indeed, of all the cuts to No two local authorities nor regions are
government departments between 2010-2016, the identical, so there is no claim here regarding
Department for Communities and Local representativeness. And it is certainly the case
Government (DCLG) is impacted most of all. that a poor region such as Merseyside will be
particularly affected by austerity from a baseline
Analyses of the distribution and impacts of these of already very low per household spending by
cuts indicate overwhelmingly that they impact local authority. But at the same time, there is no
most heavily upon poorer local authorities: reason a focus on Merseyside cannot enhance
our understanding of how the politics and more
Councils covering the 10 most deprived areas of latterly the economics of Better Regulation might
England – measured according to the index of impact upon local authority enforcement efforts.
multiple deprivation – are losing £782 on
average per household, while authorities
covering the richest areas are losing just £48 on
average. Hart district council in Hampshire,
Local better regulation:
the least deprived local authority, is losing £28 insights from the front-line
per household, while in Liverpool District B, the In a series of interviews with 35 Environmental
most deprived area, the figure is £807. Health Officers (EHOs) across Merseyside,
(Sparrow, 2014) during 2014-15, it is perhaps unsurprising that

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the strongest, most consistent theme to emerge over the years of coalition – but prior to the
focused around ‘the cuts’. The effects of these election of a Conservative Government set on
are starkly illustrated in Table 1, which sets out even more swingeing funding reductions for
EHO staffing levels across the five authorities local government.

Table 1: Merseyside local authorities’ Environmental Health Officers (full-time equivalents), by principal responsibility, 2010-20151

1 April, 2010 1 April, 2013 1 April, 2015

Knowsley

Food safety and hygiene 1.85 1.6 1

Health and safety 1.65 1.4 2.6

Pollution control 2.7 1.2 0

Total 6.2 4.2 3.6

Liverpool

Food safety and hygiene 14 12

7.6
Health and safety 4 2

Pollution control 21 13 9

Total 39 27 16.6

St Helens

Food safety and hygiene 5 5 4

Health and safety 3 3 2

Pollution control 2 2 1

Total 10 10 7

Sefton

Food safety and hygiene 5.5 5

7.58
Health and safety 3 3

Pollution control 6 4 3

Total 14.5 12 10.58

Wirral
Food safety and hygiene 8.95 9.15 6.5

1 Sources: F2016.01.1883 - Health and safety 5.0 2.0 1.5

Freedom of Information Request,
Pollution control 7.0 6.30 2
Freedom of Information Request
F2014-12-864; Freedom of Total 20.95 17.45 10
Information Request 357573
Response; FOI - Sefton
Environmental Health Officer
Numbers; FOI 856837 - Steve This staffing data demonstrates clearly that staffing safety EHOs – rather, food EHOs would ‘keep an
Tombs - Environmental Health levels across each of the functions across all of the eye out’ for health and safety issues. This decline of
Staffing; Liverpool City Council,
local authorities have, virtually across the board, health and safety resource was no doubt partly an
Freedom of Information Act
Request 424218, 9 December been radically reduced. It is worth noting the effect of a change, in May 2013, to HSE’s National
2015; Sefton, Freedom of absolutely low numbers of staff resource at issue Enforcement Code which had effectively banned
Information Request, here, in any authority in any year, but notably by the preventative health and safety inspections at a local
9 December 2015; St.Helens final year for which data is provided, that is, 2015. level (Department for Work and Pensions, 2013).
Council Freedom of Information
At its most extreme, Knowsley had no dedicated
Request ref: 20151125-00153-1;
Wirral FOI 980631, 27 pollution control EHOs by April 2015, and neither This data certainly coheres with what were
November 2015. Liverpool nor Sefton had any dedicated health and remarkably similar phrases used to describe the

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state of regulatory and inspectorial resources in such as those presented in Box 4 provide a stark
the course of interviews (Box 4), 35 of which illustration of what funding cuts mean in
were conducted with Environmental Health practice for regulation and enforcement (see
Officers (EHOs) across Merseyside. Phrases also UNISON, 2012).

Box 4: What do the ‘cuts’ mean in practice?

‘At present, we can’t meet our statutory duties’ ‘Where we are now, we’re at the point where worker safety is
being jeopardised’
‘To be honest we’re now doing statutory stuff only’
‘It’s going to come to the point where it going to affect the
‘There’s nothing left to cut now’ residents, the local population, in many ways we are at that
point now, public health and protection is being eroded’
‘There is no padding left, we’re below the statutory
minimum … there are no areas of discretion left’ ‘We’re at the point where there is no flesh left, this is starting
to get dangerous, a danger to public health’
‘There’s nothing else to be cut’

There are various dimensions to these staffing expertise and experience. Most notably,
reductions – as well as other pressures on local redundancies did not only mean that staff were
authority enforcement – which are worth greater not replaced but a loss of specialist expertise,
exploration. alongside pressures for regulators to become
generalists. As one respondent put it, ‘the last
two years have been a nightmare’, the authority
Increased obstacles had lost staff and expertise – ‘it’s the experienced
staff who have gone, so we have lost numbers
to enforcement and expertise’. In fact, the shift from regulators
With fewer staff, it is hardly surprising that many being specialists to generalists was one
interviewees raised the issues of a long-term consistent theme across the interviews, referred
decline in inspection, a long term decline in the use to by numerous respondents and in every
of formal enforcement tools, and a decreasing use authority: ‘People have had to become
of prosecution. On the latter, another clear generalists’; ‘most of them are just thankful
message from the data was of increasing obstacles they’ve still got a job’.
to the ability to prosecute. The latter included: a
lack of staff time; fear of losing cases; lack of
support from legal services departments to
prosecute; and an increased political risk (‘flak’) in
A lack of training
prosecuting. Moreover, these types of responses Moreover, the loss of staff combined with a shift
are indicative of a political context for regulatory from a specialist to generalist inspection focus
enforcement where the idea of regulation is under had made re-training necessary. However, another
attack, and are a useful illustration of how clear theme to emerge from the interviews was of
discourses and policies at national level can declining opportunities for training – at the time
translate into barriers to enforcement at local levels. when most needed. As one Regulatory Services
manager put it to me, ‘We have a training budget,
but it is now business hardened’ – by which he
The loss of expertise meant that there was ‘little access’ to training,
‘except to free online courses’. An EHO translated
It should also be noted that, if all of the local this into the effects on an individual: ‘I used to go
authorities had seen reductions in staff, this did on six to ten courses a year, now perhaps one or
not just mean a loss of overall resource, but the two, I’m supposed to do ten hours of CPD a year
loss of a particular kind of resource, that is, but am struggling to manage that’.

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The reach of the private content of degrees more private–sector friendly’.

This process had already begun as a result of
sector into public service local authorities’ inability to offer paid placements
Alongside the resource constraints within which for students, while students require placements in
local authorities are struggling to meet their order to complete the main assessment on their
statutory duties as regulators, is a related degree course. Several respondents told me that
development – the creeping influence of the local authority funded students simply no longer
private sector in those regulatory efforts. Here we exist – the one student EHO I interviewed was
find clear instances of politics meeting economics working in the authority part-time, unpaid. More
– and, in their combination, changing the role of commonly, since students still have to undertake
local regulation and enforcement, perhaps a placement, they now take these where they can
irrevocably. This not only undermines the idea be paid, or at least receive expenses, that is, in
that regulation is something which is aimed at the private sector; Asda, Sainsbury’s and Tesco’s
controlling business, but it creates an increasing were all mentioned as significant sites for such
democratic deficit, as public services designed for placements in the food sector. Obviously, and as
social protection come under ever increasing was said to me, this also means that the values
private influence. and perspectives of the private sector, the
regulated, are prioritised for the student EHO
Educating EHOs over those of the regulator. In such subtle ways
are the mind-sets and thus practices of a
We can see the creeping influence of the private profession shifted.
sector in changes to the education of EHOs.
EHOs attain professional status through a
university degree course accredited by the
The Primary
Chartered Institute of Environmental Health Authority scheme
(CIEH). In 2011, the curriculum was over-hauled, The transformation of social protection is not
partly, in the words of one interviewee, a simply about non-enforcement – it also involves
programme leader of one such course at a North a concerted effort to change the relationship
West University, to reflect ‘the shift in the between the state, the private sector and
profession from not being seen as inspection regulation. Indeed, this changing relationship is
focused’. In the words of another respondent, a increasingly one in which the private business,
student EHO, ‘CIEH is increasingly making the ostensibly the object of regulation, becomes a

FOOD
Chart 1: Food inspections and audits, UK Chart 2: Local authority prosecutions, number of establishments, UK

35,000 Food hygiene Food standards

500

30,000 450
400
25,000
350

20,000 300
250
15,000
200

10,000 150
100
5,000
50

0 0
2010/11 2011/12 2012/13 2013/14 2014/15 2010/11 2011/12 2012/13 2013/14 2014/15

Sources: Food Standards Agency Freedom of Information Request FOI 1573/1033/2014, 11 June 2014. Food Standards Agency Freedom of Information Request FOI 1131, 20 February 2012. Food Standards Agency (2015),
Annual Report on UK Local Authority Food Law Enforcement 1 April 2014 to 31 March 2015, London: Food Standards Agency. Food Standards Agency (undated), Monitoring Data by Year, www.food.gov.uk/enforcement/
monitoring/laems/mondatabyyear. Purcell, N. (2016), UK Local Authority Food Law Enforcement Annual Report 2014/15. Food Standards Agency FSA 16/01/05 Board Meeting – 28 January 2016,
www.food.gov.uk/sites/default/files/fsa160105.pdf

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HEALTH AND SAFETY POLLUTION CONTROL

Chart 3: Total health and safety visits by local authorities, GB Chart 6: Local authority pollution control enforcement activities,
Part B Installations, England and Wales

20,000 Inspection visits:

18,000
20,000
16,000
18,000
14,000
16,000
12,000
14,000
10,000
12,000
8,000 10,000
6,000 8,000
4,000 6,000
2,000 4,000
0 2,000
2010/11 2011/12 2012/13 2013/14 2014/15 0

Chart 4: Preventative health and safety visits by local authorities, GB 2009/10 2010/11 2011/12 2012/13 2013/14

Total notices served:

12,000
4,500

10,000 4,000

3,500
8,000
3,000

6,000 2,500

2,000
4,000 Note:
1,500 The data
for 2013/14
2,000 1,000 was not
available
500
0
0
2010/11 2011/12 2012/13 2013/14 2014/15
2009/10 2010/11 2011/12 2012/13 2013/14
Chart 5: Health and safety prosecutions and convictions by local authorities, GB
Enforcement and prohibition notices:
Prosecutions Convictions 120
300

250 100

200 80

150 60

100 40

50 20

0 0
2009/10 2010/11 2011/12 2012/13 2013/14
2010/11 2011/12 2012/13 2013/14 2014/15

Sources: Freedom of Information Request, HSE Response, 2016/01002, 19 January 2016. Freedom of Sources: Defra (2014), Defra Official Statistics Release: Local pollution control statistics in England and
Information Request, HSE Response, 2014060117, 2 July 2014. Health and Safety Executive (2015), Wales, 2003 to 2013, London: Department for Environment, Food and Rural Affairs. Defra (2014),
Prosecutions in Great Britain (2014/15p). Enforcement action taken by HSE, local authorities and, in Scotland, Statistical release, 25 June 2014, London: Department for Environment, Food and Rural Affairs.
the Crown Office and Procurator Fiscal Service (2014/15p), www.hse.gov.uk/Statistics/prosecutions.pdf Hartley McMaster Ltd (2012), Local Pollution Control Statistical Survey: management summary, London:
Department for Environment, Food and Rural Affairs. Hartley McMaster Ltd (2015), Local Pollution Control
Statistical Survey: management summary, London: Department for Environment, Food and Rural Affairs.

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key vehicle in that regulation. A paradigmatic was introduced by the Labour Government in
instance of this is being achieved through the 2009, but given considerable impetus by the
Primary Authority(PA)scheme, itself illustrative coalition government from 2010, notably
of how the economics and politics of Better following the establishment of the Better
Regulation have combined to produce a Regulation Delivery Office (BRDO) in 2012, for
fundamental shift in the practice and principles which oversight of the scheme was a key priority
of regulation and enforcement. The PA scheme (see Box 5).

Box 5: The stated rationale for the Primary Authority scheme

According to the BRDO, the scheme allows businesses to be of partnerships is a matter for the parties concerned. A
involved in their own regulation. It enables them to form a primary authority can recover its costs (Better Regulation
statutory partnership with one local authority, which then Delivery Office, 2014).
provides robust and reliable advice for other councils to take When this statement was issued, in April 2014, 1500
into account when carrying out inspections or addressing businesses had established PA relationships across 120 local
non-compliance. The general aim is to ensure that local authorities (ibid). By April 2016, there were 10,105 such
regulation is consistent at a national level, but sufficiently partnerships across 175 authorities.
flexible to address local circumstances. The business can
decide what level of support it requires, and the resourcing (https://primaryauthorityregister.info/par/index.php/home).

PA applies across a vast swathe of areas of example, it can only do so with the permission
regulation, including food safety, occupational of the local authority which is party to that
health and safety and pollution control, and a agreement. Then, under the scheme, any
wide range of regulators, from EHOs and consideration of a potential prosecution must
trading standards to fire and rescue services and entail prior notice being given to the company;
port authorities. It is a classic Better Regulation the company can then request that the matter be
initiative – and, at local level, its key formal referred to the BRDO for determination
initiative. It allows a company – and, since April (Williams, 2013).
2014, franchises and businesses in trade
associations, to be further extended through the In interviews with two civil servants at the BRDO,
Enterprise Bill currently going through parliament it was claimed that the PA scheme is ‘a big
- operating across more than one local authority success’, referring to the numbers of businesses
area to enter an agreement with one specific which had entered agreements with local
local authority to regulate all of its sites, authorities, and ‘what businesses say about it,
nationally. Thus, for example, a supermarket like the savings it has generated’, as well as the fact
Tesco’s may have stores in every one of the local that ‘every major business has been snapped up’.
authorities in England and Wales. Under the PA
scheme, it can reach an agreement with one It’s clear, however, that the scheme is proving
local authority to regulate its systems across all highly problematic for local regulators, even as
of its stores in every local authority for they sought to enter into PA agreements in order
complying with a relevant body of law – to generate income – ‘this is why we are really
occupational health and safety or food hygiene. pushing the PA scheme’. Another referred to
To regulate its systems, the company makes a ongoing negotiations with a company, stating
payment to the local authority, agreed through that although she’d ‘always been opposed to the
contract. The benefit for the company, of course, scheme’, it ‘would generate about £18,000 in the
is the absence of oversight in the vast majority first year when systems and so on are being set
of its outlets. These can be visited in other up, this is peanuts for a multinational but half a
areas, but any enforcement action needs to be job for us’. So although one regulatory services
undertaken through the local authority which is manager noted that the scheme ‘did not really
the PA. Should a local authority wish to work’, he and his local authority were constantly
prosecute a company in a PA agreement, for pursuing PA partnerships (see Box 6).

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Box 6: Local EHO views of the Primary Authority scheme

‘In theory it could work well, in practice it protects large In general, then, as one enforcement officer noted, ‘Primary
companies from local authority enforcement’ Authority has had a real impact on what we can and cannot
do’; the claim was made at length that businesses ‘pick and
‘Under PA they [companies] only have to demonstrate the choose’ which local authorities to enter into PA agreements
existence of systems’ with, with the insistence that ‘they wouldn’t pick an
authority like Liverpool’, they will pick the ‘no-one knows
Local authorities have a ‘disincentive to take enforcement anything authority’, that is, local authorities with no
action because PA schemes are a source of income’ experience of the industry/business.

PA schemes ‘protect companies from inspection and Moreover, in the processes of negotiation to draw up the
enforcement’ contract which represents the PA agreement, local
authorities are at a distinct disadvantage – there is an
They operate ‘in my experience at the level of a tick-box ‘asymmetry of expertise’ (Social Enterprise UK, 2012)
rather than real co-operation or taking responsibility’ between local authority negotiators and private companies
in such contractual negotiations, as well, of course, as a
PA schemes ‘work on paper only, there are hundreds of structural power accruing to private companies operating
businesses in the scheme and I can’t see how these can all across numerous authorities to drive down the terms of
be genuine’. contract with any one local authority.

Outsourcing and years’. Those who expanded upon this rather dis-
spirited response indicated that the function
privatisation would become marketised or privatised or likely
The PA scheme represents a fundamental shift in some hybrid of the two – reflecting more general
the nature of local regulation and enforcement. It prognoses of how local authorities would respond
is a classic vehicle of Better Regulation, since it to the pressures of funding cuts (Hastings et al.,
reduces inspection, exacerbates the power 2013).
imbalance between regulators and regulated,
builds in checks against regulation and Such indications are hardly pure speculation
enforcement, and operates on a marketised, (See Box 8).
contract-based system. Discussion of the PA
scheme was, then, inevitably used as a way of These wholesale shifts from public to private
discussing the future trajectories of local provision are the mere visible tip of a significant
regulatory services. And, when respondents were iceberg. Councils in Bromley, Chester West,
asked where they thought their service might be Cheshire, and Wandsworth have all publicly
in five to ten years, responses were a variation on considered wholesale privatisation of regulatory
a theme, encapsulated pithily by the response, ‘I services (Wall, 2015a). Moreover, recent research
don’t know if I’ll be here in one year let alone five by the New Economics Foundation for the Trades

Box 7: PA as Better Regulation

Primary Authority schemes are a classic Better Regulation ● Provide a source of income for increasingly cash strapped
initiative. As indicated, they: local authority services

● Are a form of marketisation of the relationships between ● Entail shifts in the balance of power from the regulator to
regulator and the regulated the regulated

● Entail contractual relationships based upon an imbalance ● Further remove the practice of inspection from
of expertise and resources regulation.

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Box 8: The wholesale outsourcing of regulatory functions

October 2012: North Tyneside Council announced the benefits administration, and customer and support
transfer of 800 employees to Balfour Beatty and Capita services – have been out sourced to Capita in a ten-year
Symonds (BBC News Online, 2012). contract worth £350m. A range of other services –
including regulatory services – were contracted to its
August 2013: The London Borough of Barnet saw off a legal subsidiary Capita Symonds, in a £130m contract, also for
challenge to a contract to hand over its services to two ten years (Smulian, 2013).
wings of Capita, under what has become known as the
‘One Barnet’ model. Business services – estates, finance, January 2016: Burnley Council’s environmental health
payroll, human resources, IT, procurement, revenues and services were outsourced to Liberata (Wall, 2015b).

Union Congress (TUC) calculated that,

‘Environmental and regulatory services is the
How much ‘better’ can
sector with the second biggest proportion of better regulation get?
expenditure paid to external contractors, at 44 per Once regulation is successfully cast as a
cent’ (TUC and New Economics Foundation, problem, to be reduced, a drain on state
2015). The arrangements under which this resources, private entrepreneurship and
outsourcing proceeds are complex and opaque, economic growth, and once that view is furthered
confounding accountability and often even through regulatory, legal and institutional reform,
transparency (under clauses of ‘commercial then the momentum against regulation becomes
confidentiality’), and include diverse arrangements virtually unstoppable – if less state regulation
such as the use of Strategic Service Partnerships and enforcement is always to be preferred, then
(SSPs), Joint Venture Companies (JVCs), shared how little is little enough?
services, and collaborative outsourcing (ibid).
This issue emerged in interviews with two staff at
It was no surprise, then, when one of my the BRDO. For each of these, they were clear that
interviewees noted that, in contexts where all Better Regulation was established to ‘restore
possible savings had been made, notably in trust’ on the part of business with regulators, a
terms of in-house staff, that there would likely relationship which one described as having been
be more merging of functions and more ‘broken’. Of interest was the view, even after over
outsourcing – claiming that ‘the Capitas of this a decade of Better Regulation initiatives, that
world’ would take over functions and make regulators failed to understand that ‘regulation
savings by ‘driving down pay and conditions’, and economic development and prosperity go
so that there would be left ‘a rump of people hand in hand’, rather viewing the former ‘as a
working for a council who commission matter of enforcement’ – and claiming that this
services’. Several respondents noted that the was especially problematic at the level of local
most likely scenario was to become a regulation. Thus, for each, the Better Regulation
commissioning authority. Indeed, this was also message had not been effectively received at local
a view held by the one elected member whom I level: ‘Most [EHOs] didn’t know and many still
interviewed, a Labour Councillor. In his words, won’t where their local Economic Development
given resource constraints and the fact that ‘it’s programme sits within the authority’. Thus the
the Council’s duty to set a legal budget’, task was still to get regulators ‘to see themselves
‘nothing is off the table’, so that what he called in a different light in relation to business, to
‘the Barnet privatisation … might be something reposition themselves in terms of businesses’.
we’d consider in the future’. Another This ‘requires a commercial mindedness that
interviewee raised these two developments most local authority regulators simply do not
critically, arguing that ‘enforcement should be have’ – albeit there was optimism that newer
kept in house’, and explicitly raising ‘the recruits were more likely to be imbued with this
problems’ of ‘a private company enforcing attitude, and thus to embrace Better Regulation.
against private companies’ – this was, in her Such views found echoes amongst some of my
words, ‘a conflict of interest’. interviewees (see Box 9).

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Box 9: Local regulators’ views on Better Regulation

‘We need to be more business friendly and get our customer ‘Increasingly we’re told that our main job is to facilitate
focus right’ business, industry and so on’

‘I am in the business of collaborative regulation … there

must be growth, and that is the context in which we must
support business to comply with the law.’

Better Regulation has continued, and will continue,

apace. It is a long-term political initiative,
Better regulation:
effectively designed to break the link between from social protection to
regulation on the one hand and inspection or social harm
external oversight on the other. To paraphrase What we are witnessing is the transformation of a
Fooks’s prescient analysis of financial regulation of system of social protection which, for all of its
the City of London in the 1990s (Fooks, 1999), limitations, has existed in the UK since the 1830s.
what we are witnessing is a shift from the Under conditions of advanced neo-liberalism,
regulation of business to regulation for business. recent UK Governments of all political stripes
have sought to roll out a politics of Better
As one analysis of the effects of spending cuts on Regulation – via ceaseless initiatives on a range of
Local Authorities has concluded, these will lead to mutually reinforcing political, institutional, legal,
a ‘repositioning’ of authorities in relation to and discursive fronts – which effectively entails
‘individual well-being and quality of life as well as creating regulatory regimes in key areas of social
economic leadership’ (Hastings et al., 2013) with: protection from which enforcement is increasingly
absent. Moreover, at national level, all major
A renewed emphasis on developing and regulators face a statutory review every three years
managing economic growth as a means both of their existence and mandate, and all are likely
to generate income and to develop the to face further reductions in government funding.
economic competitiveness of the local authority This may be hands-off government as far as
and its region in the longer term. (ibid) business goes, but it’s hardly hands-off as far as
regulatory agencies are concerned. They are under
There is good reason to suggest that regulatory constant, critical scrutiny.
functions will likely be increasingly re-cast as part
of growth initiatives – that is, as part of Indeed, according to the political logic of Better
permissive and facilitative regulatory regimes Regulation, perhaps no better captured by its ‘less
(Bernat and Whyte, 2014). is more’ leitmotif, there is no logical end point to
this drive towards regulation without
In 2007, the Regulators’ Compliance Code – which enforcement. Once regulation and enforcement
governs the work of regulators both nationally are defined as ‘too much’, and once the argument
and locally – had already been amended under that regulation can proceed without enforcement
the Labour Government in a way that made clear is won, it is impossible to perceive when there will
the new realities of Better Regulation as they were be ‘little enough’ of either or both. Better
then unfolding, so that ‘ [r]egulators should Regulation might thus mark the beginning of the
recognise that a key element of their activity will end of the state’s commitment to, and ability to
be to allow, or even encourage, economic deliver, social protection.
progress and only to intervene when there is a
clear case for protection’ (BERR, 2007). A new, More latterly, these political initiatives have been
2014 version made the so-called growth duty its turbo-charged by the political economy of
first principle: that is, ‘Point 1’ of the new Code austerity. And, as we have seen, the effects of
emphasised that, ‘Regulators should carry out central government funding reductions and
their activities in a way that supports those they changes can be witnessed most clearly at the level
regulate to comply and grow’ (BRDO, 2014). of local authorities, via the DCLG bearing the

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brunt of central government cuts – funding for vehicle for private growth and profitability. At local
local government fell in real terms over 50 per levels, as we have seen, this shift has been stark,
cent between 2010-11 to 2015-16 (Tinker, 2015). with local authorities increasingly servicing private
Moreover, this aggregate figure masks the fact business rather than providing public service, and
that within this, some local service provision is even with public provision being replaced
protected – so that unprotected areas, such as wholesale by private regulation of private capital.
regulatory services, suffer disproportionately.
In other words, what is at issue here is not just
As has also been indicated in this Briefing, the reducing, but changing the shape and nature of,
rationale for regulation has shifted during this local government (Box 10) – even if any focus on
period – from one ostensibly claimed to deliver local responsibilities for social protection is often
some level of social protection to regulation as absent from even critical analyses of this process.

Box 10: Changing the state

From the mid-1980s to 2010, the mass sell-off of council local governance the final shape of which is now beginning to
housing, the denuding of powers of local education authorities, appear in view.
the commissioning out of services under the rubric of (McMahon, 2015)
‘compulsory competitive tendering’ and then so-called ‘best
value’ under ‘new public management’, the effective We are sticking to the task. But that doesn’t just mean making
privatisation of public assets under the Private Finance difficult decisions on public spending. It also means something
Initiatives and the creation of cabinet government and mayors more profound. It means building a leaner, more efficient state.
have all been part of a steady progression to a new form of We need to do more with less. Not just now, but permanently.
(Cameron, 2013)

At both national and local levels, the process of generating further political inequality at local
Better Regulation continues apace. The process is levels. But the effects will be also to exacerbate
one which will generate further harms whilst economic and social inequalities.
creating an increasing democratic deficit, through
which Local Authorities evade local accountability The repercussions for local and regional
for their failures to provide some of those services inequalities could be enormous, potentially
on the basis of which elected governments claim entrenching divides between north and south
legitimacy. and more and less prosperous areas. Already
struggling areas with low business activity could
In November 2015, Chancellor of the Exchequer be left with dwindling funding.
George Osborne’s spending review committed the (Hood, 2015)
government to abolishing the central government
grant to local authorities by 2019-2020 – under This is not a story about rules, regulations, red
the sham of localism and devolution, councils will tape. It is a story about social harm and social
be forced to fund all services through business inequality – lives lost and shortened, the health of
rates. Funding local government entirely through communities, workers, consumers made poorer.
private companies shifts even further the local This is avoidable business-generated, state
balance of power between business on the one facilitated violence: social murder. And, quite
hand and elected representatives on the other, remarkably, it proceeds, daily – met only by
again creating a greater democratic deficit, academic, political and popular silence.

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Biography Department for Work and Pensions (2013), Press

Release. New code curbs unnecessary council safety
Steve Tombs is Professor of Criminology at The checks, 29 May, www.gov.uk/government/news/
Open University. His most recent publication is new-code-curbs-unnecessary-council-safety-checks
Social Protection After the Crisis: Regulation without
Enforcement (Bristol: Policy Press, 2016), based Fee, E. and Brown, T.M. (2005), ‘The Public
on research funded by The Leverhulme Trust via a Health Act of 1848’, Bulletin of the World Health
Research Fellowship, RF-2011-173. Organization, 83, 11, pp. 866–867.

Food Standards Agency (2012), Annual Report of

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At the Centre for Crime and Justice Studies we advance public understanding of crime, criminal
justice and social harm. We are independent and non-partisan, though motivated by our values.
We stand with those most vulnerable to social harm. We believe that the United Kingdom’s over
reliance on policing, prosecution and punishment is socially harmful, economically wasteful, and
prevents us from tackling the complex problems our society faces in a sustainable, socially just manner.

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