Making 'Better Regulation'
Who could object to ‘Better Regulation’? In a sense, no-one. But the question that has to be asked is what is meant by the term or, indeed, for whom should regulation be better?
A 2005 report – Reducing Administrative Burdens: Effective Inspection and Enforcement – proved to be a turning point in the trajectory of business regulation and enforcement across Britain. It marked the consolidation of the establishment of what had already been termed ‘Better Regulation’, a formal 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 consistent efforts to do more with less. The Report was the work of Sir Phillip Hampton who was appointed, in 2004, by Chancellor Gordon Brown to oversee a review of Remit encompassed 63 major regulatory bodies - including the Environment Agency, the Food Standards Agency, the Health and Safety Executive, and the Financial Services Authority – as well as 468 local authorities.
Focusing on three areas of social protection – environmental, food and worker protection – my research indicates clear trends in enforcement practices over the ten year period since Better Regulation was rolled out. Thus, summarising inspection and enforcement data between 2003/04 – 2012/13, across three regulatory functions overseen by five sets of regulators, I found the following:
Local Environmental Health Officers enforcing food safety and hygiene law undertook:
- 12% fewer food hygiene inspections;
- 34% fewer food standards inspections;
- 28% fewer prosecutions.
Health and Safety Executive inspectors, the national Health and Safety regulator, undertook:
- 53% fewer inspections (on the part of Field Operations Directorate, the body within HSE which undertakes by far the vast majority of inspections;
- and 40% fewer prosecutions of Offences, resulting in 32% fewer convictions.
Local Environmental Health Officers enforcing health and safety law undertook:
- 90% fewer preventative inspections;
- 56% fewer total inspections;
- 40% fewer prosecutions, resulting in 38% fewer successful convictions.
Environment Agency officers engaged in national pollution control undertook:
- 52% fewer inspections
- and 54% fewer successful prosecutions, while issuing 42% fewer cautions
Local Environmental Health Officers enforcing local pollution control law undertook
- 48% fewer ‘Part B’ Inspection Visits
- and 30% fewer ‘Part B’ Notices
Taken in isolation, perhaps no one individual data set on any specific of enforcement activity data relating to any one regulator over a ten year period is particularly surprising. What is remarkable, certainly for a set of social scientific data, is that each set of data reveals precisely the same trend: that is, notwithstanding variations across regulators, the form of law being enforced, and indeed within regulators and specific forms of enforcement activity by year, each set of data unequivocally indicates a long term downwards trend in every form of enforcement activity.
Of course, this ten year period is also marked by the 2007 financial crisis which was used, by the Coalition Government from 2010 onwards, to justify austerity – so it is likely that within this data there is evidence of both politics and economics at play. And, indeed, ‘austerity effects’ are confirmed if we drill down to local authority level. Thus a case study of five local authorities’ regulatory efforts in these three areas of social protection reveals:
- Considerable reductions in staffing in these regulatory functions
- Declining enforcement activity
- An increasing reluctance to prosecute
- A widespread perception that enforcement capacity has been dangerously undermined.
On the last point, the following quotations, drawn from interviews with EHOs, were typical:
- “at present, we can’t meet our statutory duties”
- “to be honest we're now doing statutory stuff only”
- “there’s nothing left to cut now”
- “there is no padding left, we’re below the statutory minimum … there are no areas of discretion left”
- “there’s nothing else to be cut”
- “Where we are now, we’re at the point where worker safety is being jeopardized”
- “It’s going to come to the point where it going to affect the residents, the local population, in many ways we are at that point now, public health and protection is being eroded”
- “We’re at the point where there is no flesh left, this is starting to get dangerous, a danger to public health”
A further, worrying finding from the qualitative research reveals significant push factors towards contracting out or even wholesale privatisation of regulatory services – something which a handful of Local Authorities have now embraced. Taken together, these changes may mark the beginning of the end of the state’s commitment to, and ability to deliver, social protection. Yet this process continues apace, virtually without political, popular nor indeed academic comment.
 This figure refers to the period 1999/00-2008/09; the Environment Agency claimed it could not separate data for inspections to businesses from 2009/10 onwards.
 Notices rather than prosecutions are used, since the latter are so few as to render data almost meaningless.
The full article, Making better regulation, making regulation better?, was first published in Policy Studies, and can be found here: http://www.tandfonline.com/doi/abs/10.1080/01442872.2016.1157854