In his classic book The Condition of the Working Class in England, Friedrich Engels describes ‘social murder’ – the systematic, routine deaths of workers and citizens in the horror of the emergence of industrial capitalism.1 It was these conditions which generated inter-and intra-class struggle for laws to regulate business and to mitigate their profit-driven, harmful effects. And so it is no coincidence that a system of social protection through regulation was put into place in Britain during the 1800s. As this chapter indicates, that system is now being thoroughly undermined. The chapter explores evidence for the undermining of social protections in three categories of ‘social murder’: deaths caused by environmental pollution; deaths caused by foodborne illnesses; and deaths caused by working.
There is good reason to be concerned about the undermining of protections in this ‘era of austerity’, since the scale of contemporary harm caused in those categories in contemporary Britain remains significant.
• An April 2016 House of Commons report on air quality estimated that up to 50,000 deaths every year are ‘brought forward’ by pollution.2
• According to the FSA, its ‘best estimate suggests that there are around a million cases of foodborne illness in the UK each year, resulting in 20,000 hospital admissions and 500 deaths’.3 Even these estimates of food-related illness are likely to understate the scale of the problem.
• There is now strong evidence that around 50,000 or so deaths in Britain per annum are caused by working.4
The chapter demonstrates that the system of regulation designed ostensibly to mitigate social violence has, in recent years, come under sustained political attack (see also Chapter 14 by Hilda Palmer and David Whyte). Initially, this was justified by neoliberal ideas – whereby regulation and enforcement were seen as a burden on business, and therefore to be minimised. More latterly, however, the sustained political attack on regulatory bodies has been ratcheted up in the context of austerity. Under state-imposed austerity, not only have regulation and enforcement been cut as part of the claimed need to shrink the state but they have become ever more counter-productive: if private business is to be the vehicle of recovery from recession or stagnation, then it must be ever freer of burdensome ‘red tape’.
This chapter provides an overview of enforcement trends in three fields of social protection: food safety, pollution control and worker health and safety. The declining levels of enforcement across these three regulatory functions are creating the conditions where social violence is less and less subject to challenge. As we shall see, this unfolding reality is the product of a policy choice for ‘better regulation’ coupled with the opportunism of austerity.
In 2004, Sir Phillip Hampton was appointed by Chancellor Gordon Brown to oversee a review of 63 major regulatory bodies as well as 468 Local Authorities. His subsequent report5 proved to be a watershed in the trajectory of business regulation and enforcement across Britain. The report formally established a concept of ‘better regulation’ in British government; a policy shift from enforcement to advice and education, a concentration of formal enforcement resources away from the majority of businesses on to so-called high risk areas, and consistent efforts to do what it called ‘more with less’. Then Chancellor Gordon Brown summed up this new approach to regulation and enforcement pithily: ‘Not just a light touch but a limited touch.’6
The following presents data, mostly generated from Freedom of Information requests, on two indices of enforcement – inspections and prosecutions. The time period covered was deliberately chosen – 2003/04 marks the rolling out of the Better Regulation agenda, 2014/15 is generally the year for which the most recent data is available. But this period is also marked by the 2007 financial crisis which was used, by the Coalition government from 2010 onwards, to justify austerity – so, as this chapter will show, there is concrete evidence of how both ‘better regulation’ and austerity have undermined regulation, and have done so in mutually reinforcing ways.
Between 2003/04 and 2014/15 food hygiene and food standards inspections fell by 15 per cent and 35 per cent, respectively, while there were 35 per cent fewer food prosecutions. In relation to occupational health and safety, between 2003/04 and 2014/15, inspections by both the national regulator, the Health and Safety Executive, and local health and safety inspectors7 fell by 69 per cent; and national prosecutions fell by 35 per cent, while local prosecutions fell by 60 per cent. Meanwhile, in the same period, Local Environmental Health Officers enforcing local pollution control law undertook 55 per cent fewer ‘Part B’ inspection visits (to 2013/14) and issued 30 per cent fewer enforcement notices.
The trends in enforcement are staggering in that they all point in the same direction – enforcement across these three areas is in rapid decline. These are, I have argued elsewhere, effects of ‘better regulation’ (see also Chapter 15 by Charlotte Burns and Paul Tobin).8 But they are also effects of austerity policies, imposed by the UK government since 2008/09.
In order to assess what this combination of the politics of better regulation overlain by austerity have meant on the ground, I interviewed 35 Local Authority frontline inspectors across five Local Authority areas in Merseyside (Knowsley, Liverpool, Wirral, St Helens and Sefton) during 2014 and 2015 as a way of examining the state of their enforcement capacities across food, pollution control and occupational health and safety.
In the context of business regulation and enforcement, Local Authorities are a particularly appropriate site of analysis – in the three spheres of social protection at issue here, the vast bulk of enforcement occurs at this level. Meanwhile, this is also the place where funding for regulation and enforcement has been reduced the most. Thus, from 2009/10, local government funding from Westminster came under pressure. Indeed, of all the cuts to government departments between 2010 and 2016, the Department for Communities and Local Government has been impacted most of all. Moreover, analyses of the distribution and impacts of these cuts indicate overwhelmingly that they impact most heavily upon poorer Local Authorities.9
Perhaps the clearest finding in my interviews across five Local Authorities was that each experienced significant reductions in staffing, notably in the latter part of the period under scrutiny. In every Local Authority, the numbers of frontline inspectors had fallen significantly between April 2010 and April 2015. Overall, total numbers across the three functions fell by over 52 per cent – from 90.65 FTEs to 47.78 FTEs (full-time equivalents). The declines were across all functions and authorities, with health and safety inspectors falling most starkly; indeed, in two authorities, Liverpool and Sefton, by 2015 there were no dedicated health and safety inspectors, while at the same date there were no pollution control inspectors in Knowsley.
Inspectors were in no doubt what these cuts in staffing meant. As one told me:
It’s going to come to the point where it’s going to affect the residents, the local population, in many ways we are at that point now, public health and protection is being eroded.
That view was mirrored almost exactly by another who told me:
We’re at the point where there is no flesh left, this is starting to get dangerous, a danger to public health.
With fewer staff, it is hardly surprising that the inspectors I interviewed raised the issues of a long-term decline in inspection, a long-term decline in the use of formal enforcement tools, and a decreasing use of prosecution. Time and time again, inspectors told me of increasing obstacles to the ability to prosecute. These obstacles 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 prosecuting. Moreover, these types of responses are indicative of a political context for regulatory enforcement where the idea of regulation is under attack, and are a powerful illustration of how discourses and policies at the national level can translate into barriers to enforcement at local levels.
While all of the Local Authorities had seen reductions in staff, this did not just mean a loss of overall resource, but the loss of a particular kind of resource, that is, expertise and experience: redundancies did not only mean that staff were not replaced but a loss of specialist expertise, alongside pressures for regulators to become generalists. As one inspector put it, ‘it’s the experienced staff who have gone, so we have lost numbers and expertise’. In fact, the shift from regulators being specialists to generalists was one consistent theme across the interviews, referred to by numerous respondents and in every authority: ‘People have had to become generalists’; ‘most of them are just thankful they’ve still got a job’.
The transformation of social protection is not simply about non-enforcement, which has longer-term origins. More latterly, under the political opportunity generated by ‘austerity’, it has involved a concerted effort to change the relationship between the state, the private sector and regulation. A paradigmatic instance of this transformation is the Primary Authority (PA) scheme. The PA scheme was originally introduced by the Labour government in 2009 – but given considerable impetus by the Coalition government from 2010 when it created the Better Regulation Delivery Office (BRDO) in 2012 to oversee its implementation.
The scheme has mushroomed in recent years. In April 2014, 1500 businesses had established PA relationships across 120 Local Authorities; by 3 October 2016, there were 16,757 ‘partnerships’ across 179 different Local Authorities. Moreover, PA now applies across a vast swathe of areas of regulation, including food safety, occupational health and safety and pollution control, and a wide range of regulators, from environmental health and trading standards departments to fire and rescue services and port authorities.
PA allows a company – and, since April 2014, franchises and businesses in trade associations – operating across more than one Local Authority area to enter an agreement with one specific Local Authority to regulate all of its sites, nationally. Thus, for example, a supermarket like Tesco may have stores in every one of the Local Authorities in England and Wales. Under the PA scheme, it can reach an agreement with one Local Authority to regulate its systems across all of its stores in every Local Authority for complying with a relevant body of law – occupational health and safety or food hygiene, for example. The company makes a payment to the Local Authority nominated as ‘PA’ and agreed through contract. The benefit for the company, of course, is the absence of effective oversight in the vast majority of its outlets. These can be visited in other areas, but any enforcement action needs to be undertaken through the Local Authority which is the PA. Should a Local Authority wish to prosecute a company in a PA agreement, for example, it can only do so with the permission of the Local Authority which is party to that agreement. Then, under the scheme, any consideration of a potential prosecution must entail prior notice being given to the company; the company can then request that the matter be referred to the BRDO for determination.10
PA is a classic Better Regulation initiative – and, at the local level, its key formal initiative. It places regulation in a market context: Local Authorities compete with each other to sign up large companies to the scheme, seeking to conclude contracts based upon monetary exchange. It is clear, however, that the scheme is proving highly problematic for local regulators. As one inspector put it, while ‘in theory it could work well, in practice it protects large companies from Local Authority enforcement’. Other inspectors elaborated upon these, and two clear problems emerged: first, that the scheme is largely paper based – ‘under PA they [companies] only have to demonstrate the existence of systems’; the second, then, is that PA schemes ‘protect companies from inspection and enforcement’. Notwithstanding these widely articulated concerns, however, many Local Authorities continue to compete for PA agreements in order to generate much-needed income.
While the PA is instituting marketised regulation across Local Authorities, some have taken this process even further. A handful have now formally privatised their environmental health regulatory functions. In October 2012, North Tyneside Council announced the transfer of 800 employees to Balfour Beatty and Capita Symonds as part of a privatisation deal; the transfer included environmental services. In August 2013, the ‘One Barnet’ model was unveiled. This entailed ‘business services’ being outsourced to Capita in a ten-year contract worth £350 million, with other services – including regulatory services – contracted to Capita Symonds, in a £130 million contract, also for ten years. And in January 2016, Burnley Council’s environmental health services were outsourced as part of a major privatisation package to another private company, Liberata.
Meanwhile, councils in Bromley, Chester West, Cheshire and Wandsworth have all publicly considered wholesale privatisation of regulatory services. Alongside full-scale privatisation, outsourcing of services is becoming increasingly common; outsourcing is an umbrella term which includes diverse arrangements such as the use of Strategic Service Partnerships (SSPs), Joint Venture Companies (JVCs), shared services and collaborative outsourcing.
Taken together, the trends set out above may mark the beginning of the end of the state’s commitment to, and ability to deliver, social protection. What began as a neoliberal policy turn to ‘better regulation’ then became turbo-charged under conditions of austerity, where the state claims it cannot afford to enforce law, and where business must be left to generate recovery. The subsequent institutionalisation of the non-enforcement of law sends a green light to business that its routine, systematic, widespread social violence is to be tolerated, allowing private business to externalise the costs of its activities on to workers, consumers, communities, the environment. It further diminishes the quality and longevity of the lives of those with the least choice about where they live, what they do for a living or where they buy foodstuffs. And it adds a further dimension to our understanding of the multi-dimensional violence of austerity – even if the story documented in this chapter is one which attracts little or no political attention. In short, we are witnessing the transformation of a system of regulation – social protection – which has existed since the 1830s. And, despite its political framing, this is not a story about rules, regulations, nor red tape, nor about the demands of austerity. It is a story about social inequality and avoidable business-generated, state-facilitated violence: that is, social murder.
Websites were last accessed 5 August 2016.
1. Friedrich Engels, The Condition of the Working Class in England, Moscow: Panther, 1845, reprinted in 1969.
2. House of Commons Environment, Food and Rural Affairs Committee, Air Quality, London: House of Commons, 2016, p. 3.
3. Food Standards Agency, Annual Report of the Chief Scientist, Food Standards Agency, 2012, p.11, available at: www.food.gov.uk/multimedia/pdfs/publication/csar1112.pdf
4. Steve Tombs, ‘Hard evidence: are work-related deaths in decline?’, The Conversation, 29 October 2014, available at: https://theconversation.com/hard-evidence-are-work-related-deaths-in-decline-33553
5. Phillip Hampton, Reducing Administrative Burdens: Effective Inspection and Enforcement, London: HM Treasury/HMSO, 2005.
6. BBC News, ‘Brown pledges law to cut red tape’, May 2005, p. 24, available at: http://news.bbc.co.uk/1/hi/uk_politics/4574229.stm
7. Occupational health and safety regulation and enforcement is divided between a national regulator – the Health and Safety Executive (HSE) – and local regulators, Environmental Health Officers (EHOs).
8. Steve Tombs, ‘Better regulation’: better for whom?’, Centre for Crime and Justice Studies, Briefing No. 14, London, 2016, available at: www.crimeandjustice.org.uk/publications/better-regulation-better-whom
9. Andrew Sparrow, ‘Councils in poorest areas suffering biggest budget cuts, Labour says’, Guardian, 25 August 2014, available at: www.theguardian.com/society/2014/aug/25/councils-poorest-areas-biggest-cuts-laboursays
10. Corin Williams, ‘Tesco gave green light to prosecution’, Environmental Health News Online, 10 April 2013, available at: www.ehn-online.com/news/article.aspx?id=8790