John Raine

A recurrent theme of the political rhetoric from successive governments in recent times has been ‘deregulation’, ‘cutting bureaucracy and red-tape’.  Indeed the notions of ‘Smaller Government’ and of ‘curbing the nanny state’ have been key elements in the present Coalition Government’s programme since the outset in 2010.  But while perhaps politically canny to talk of ‘bonfires of regulations’ and sounding off about freeing individuals and businesses from the maize of red-tape and state bureaucracy, the reality, of course, is that governments mostly augment, rather than diminish, the ‘regulatory mountain’.  And why not?  After all, most of us would expect government to be acting in our collective interests to protect our health and wellbeing and to minimise our exposure to exploitation and harm.  The making and enforcement of regulations is something government must surely do in fulfilling its legitimate and important ‘guardian’ role.

The last few days have brought shocking reminders of the consequences of regulatory failure.  First the revelations of extraordinary lapses in public sector patient care and an awful catalogue of avoidable loss of life at Stafford hospital.  Now an unfolding saga of trading standards breaches and food safety concerns in the wake of the discovery of horse meat in some of our supposed beef products.  Exactly how long such fraud has been going on, and how widespread is the extent of contamination, remains to be seen.  But, understandably, questions are already being asked about the role of the regulators – in health care, trading standards and food safety, and both at national and local levels.  Could and should the malpractices have been identified earlier?  Are the inspection processes sufficiently robust and reliable?  At Stafford, we now know for sure that they were absolutely not; with the horsemeat scandal, we can presently only speculate, but given a scaling-down year-on-year in the intensity of regulatory inspection work generally, we might realistically suspect a similarly inadequate verdict.

That scaling-down trend – affecting both national regulatory bodies (e.g. the Health and Safety Executive, the Food Standards Agency and the Environment Agency), and local authority regulatory departments (e.g. for Trading Standards and Environmental Health) alike, has inevitably been fuelled by financial austerity and public sector budgetary parsimony.  But it has also been justified (at least internally by the regulatory organisations themselves) by developments in risk assessment that have claimed legitimacy for more targeted inspection programmes.  In essence, they have supported a shift from universally-applied regimes to approaches that focus on those particular activities and businesses where the consequences of serious harm (when things to go wrong) are greatest and/or where the track-record of compliance has been least impressive.

Rational-sounding though the idea of such risk-based regulation might sound, the recent scandals clearly bring into question their reliability in providing the level of public protection we might expect.  Indeed, because of the scaling-down of inspection regimes, increasingly it seems, regulatory interventions depend less on the watchful eye of the inspector and much more on public reporting of problems or whistle-blowing. More and more, they follow, rather than anticipate, the harms that the regulatory regimes were originally instituted to prevent.

And there is a growing body of research to evidence and substantiate all this.  Our own research (Raine and Lloyd, 2013), for example, conducted over the past three years on regulatory processes in local authorities of England and Wales, revealed a considerable transformation away from generally frequent, intensive and more or less universal inspection visits to local businesses to a regime that, for the vast majority of firms, is now characterised by infrequency, light-touch and selectivity.  Indeed, our research also identified a significant shift from ‘inspection visits’ as the prime mode of regulatory oversight to ‘self-assessment/self-regulation’ – something that, perhaps unsurprisingly, the business sector in the UK has long advocated.  Now, rather than the routine six-monthly, annual or biennial inspection, the typical business might perhaps expect to receive an occasional ‘self-completion/self-assessment questionnaire’ probably less frequently than annually – the value of which, in any case, would leave much to the conscientiousness and integrity of the respondent.

Even such ‘paper-based’ approaches to regulatory oversight seem, according to our research findings to be on the wane because of budgetary pressures.  In the case, for example, of trading standards in one rural county that we looked at, the use of self-assessment questionnaires (that had been in use for some time for all businesses categorised as “low risk”) was suddenly cut in 2008 to apply to new businesses only – meaning that, since that year, less than seventy returns per year have been received from the county’s portfolio of several thousand businesses.

Moreover, the reality of this less intense form of regulatory oversight was only reinforced in findings from a survey we undertook of a sample of businesses in the same county, and from which we found that hardly more than a third of retail businesses (34 per cent) recalled contact with a Trading Standards official in the previous three years.

Of course such results tell us very little about the actual consequences (or key outcomes) of such scaling-down in regulatory inspection work – for example of the extent of non-compliance, loss of protection or harm caused.  However, local regulators themselves reported to us on a sizeable increase in the incidence of ‘prima facie’ criminal breaches of Fair Trading legislation (by both “low and medium” risk businesses) over the same three year period, something they regarded to be a direct consequence of the lower-key regulatory approach.  With reduced levels of face-to-face contact with businesses, they pointed out, there is simply less opportunity for regulators to observe the problems first-hand, to explain the importance of compliance with standards or to reinforce messages verbally to business managers about the potential consequences.

Might Stafford and the horsemeat scandals be just the tip of an iceberg?  How concerned should we be about the scaling-down, if not abandonment of traditionally intensive regulatory inspection regimes?  Probably there will be a range of views on such questions.  But we surely can’t have it both ways; we can’t on the one hand grumble about ‘elf-n-safety’ red-tape and layers of governmental regulatory bureaucracy while, on the other, being shocked at further accounts, when finally uncovered, of abuses of standards, breaches of rules, injuries and worse.

John Raine is Professor of Management in Criminal Justice at INLOGOV.  He has been involved in criminal justice research, consultancy and teaching at Birmingham for some twenty-five years and has a strong track record of commissions for the Home Office, Lord Chancellor’s Department/Department for Constitutional Affairs/Ministry of Justice on aspects of policy and practice within the criminal (and civil) justice sectors).