Responsive Regulation? the risks of the new politics of regulatory enforcement in the UK

1. Responsive Regulation?the risks of the new politics of regulatory enforcement in the UK Paper to LeahurstZoonoses Conference, July 6th Dr David Whyte, University of Liverpool

2. Responsive Regulation? • ‘Responsive regulation’ as a particular form of common sense that has emerged to dominate the literature in regulation. • rejection of a ‘strict enforcement’ model. “the intellectual stalemate between those who favour strong state regulation of business and those who advocate deregulation”. (Ayres and Braithwaite, 1992: 3). •  what are the practical impacts of responsive regulation strategies in economies that have never approximated an ideal-typical model of strict enforcement?

3. Responsive Regulation, ‘Better’ Regulation • From ‘deregulation’ and privatisation strategies to‘better regulation’….. • Hampton: Reducing Administrative Burdens: Effective Inspection and Enforcementcalled for • more focused inspections, greater emphasis on advice and education • removing the ‘burden’ of inspection from most premises (by a third across the board (equating to one million fewer inspections) • November 2006: Legislative and Regulatory Reform Act  • December 2007: ‘Compliance Code’ guidance “Ayres and Braithwaite believed that regulatory compliance was best secured by persuasion in the first instance, with inspection, enforcement notices and penalties being used for more risky businesses further up the pyramid.“ (Hampton, 2005, 27)

4. ‘Responsive Regulation’ and Hampton Report Key Assumptions in ‘Responsive Regulation’ literature and and Hampton Report • because enforcement strategies are resource intensive, regulatory agencies can no longer be expected to maintain current levels of inspection and enforcement. • reduced inspection and enforcement does not necessarily led to less effective regulation; • effective regulation can be achieved by a ‘risk-based’ approach. “all regulatory activity should be on the basis of a clear, comprehensive risk assessment” which should be based upon “past performance and potential future risk.” It is conceded at this point that regulation should include “a small element of random inspection”. (Hampton, 2005: 33).  4. most businesses are law-abiding corporate citizens; This new approach will “help move us a million miles away from the old belief that business, unregulated, will invariably act irresponsibly” (Gordon Brown, 2005).

5. Figure 1: Environment Agency Inspections

6. Figure 2:Environment AgencyEnforcement Action

7. Figure 3: HSE Field Operations Directorate Inspections

8. Figure 4: HSE Prosecutions

9. Figure 5: HSE Enforcement Notices

10. Figure 6: Food Safety and Food Standards Inspections

11. Figure 7: Food Safety and Food Standards Prosecutions

12. Figure 8: Food Safety Enforcement Notices

13. The Hampton Effect: Becoming ‘Responsive’? It is important to understand how responses to Hampton variedacross those regulatory fields. • Environment Agency shift from inspections to audits • HSE as cheerleader for Hampton FSA: 1 Board (in contrast with HSE) recognizes declining number of prosecutions as a problem 2 Downward trend is by no means a uniform trend. 3 Differences across agencies in responses to the post-Hampton Reforms.

14. Figure 10: Inspections Across Three Regulatory Activities

15. Figure 11: Prosecutions by 3 Different Types of Regulatory Authority

16. Conclusion: A Credible Threat of Enforcement? • How can academic commentaries define a ‘credible’ threat of enforcement in a regulatory context where inspections have declined to as much as a third the rate they were ten years ago in the agencies we have analysed? • In this context how can we ‘know’ about the success or otherwise of regulatory enforcement? • We can no longer ignore those trends as if they were inconsequential