“How much of what we could describe as the “Robens world”…remains? I think that the only possible answer to the question is…very little.” (John Rimington, 2008: http://www.rospa.com/occupationalsafety/memorial/info/john-rimington.pdf)
As the previous blog post discussed, the Health and Safety at Work etc. Act 1974 remains the foundation-stone of the contemporary regulatory regime, and many who work in the area still pay homage to the enduring ‘Robens philosophy’ as a guiding set of assumptions (see the British Safety Council’s Safety Management feature on the ‘HSWA at 40’: https://sm.britsafe.org/hswa-40-act-changed-our-working-lives). But the HSWA is arguably no longer the unifying force that it once was. Rimington, a former Director-General of the HSE, argued that times had moved on since Robens due to the shift of policy-generating capacity from Whitehall to Brussels, a decline in the extent of the problems (a lack of unified regulation, high injury rates, a hazardous heavy industry sector) that Robens set out to address, and the erosion of a common-sense government consensus on the issue by the emergence of a ‘nannying tendency’. Which of these factors have most tangibly influenced subsequent developments is a matter for debate; for now, two perhaps merit a closer look.
Firstly, while it has undoubtedly hugely influenced the UK’s system, the contrast between EU and UK approaches to health and safety regulation is arguably overstated, contributing to the misguided impression that the UK is forced to give effect to an alien regulatory regime. Since the surge of EU health and safety legislation from 1989 to 1992 (the UK implemented the ‘Six Pack’ on January 1st 1993), EU policymakers have opted for the ‘route of less regulatory intervention’ (see Wright: http://www.bailii.org/uk/other/journals/WebJCLI/2008/issue1/wright1.html), with soft law methods such as ‘awareness raising’ and ‘social dialogue’ being increasingly engaged (as outlined in The Health and Safety at Work Strategic Framework 2014-2020). This, together with the fact that EU-issued health and safety directives rarely prescribe the precise methods Member States must adopt to comply, suggests that the UK’s hand is far from being forced. Although there are differences in approach to health and safety regulation among Member States (e.g. in the structure of insurance systems and responsiveness to risk-based tools), the EU and UK approaches are perhaps not as dramatically different as they are often portrayed. The EU’s regulatory approach is frequently characterised in terms of the precautionary principle, erring on the side of caution and overregulation. This is in stark contrast to the UK’s perceived approach, with its apparent focus on regulatory impact assessment and tendency towards minimalism.
However, the deregulatory, burden-lifting agenda is not limited to the UK. Even Article 118A of the Single European Act itself, seen as key in facilitating European health and safety legislation, insists that: ‘Such Directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium sized undertakings’. The establishment of the High Level Group on Administrative Burdens, the ‘Stoiber Group’, is yet another guard against the ‘burdens’ of regulation. Indeed, the economic rationale behind health and safety regulation is increasingly being cited in EU circles, mirroring the UK’s demands for greater economic rationality in governance. While the extent of the EU’s influence could not have been anticipated by the Robens Committee, the charge that it has distorted the UK system beyond recognition is arguably misplaced.
Secondly, since 1974, HSE and the HSWA have been subject to repeated review processes, which have given a sense of how health and safety relates to shifting government priorities. In 1994, a major review conducted by HSC restated support for the Robens approach, but concluded that the regulations had once again become too numerous, requiring simplification. It led to greater use of cost-benefit analysis, audit, and the closer management of regulatory activities; this occurred against the backdrop of the Major government’s wider reforms of public sector accountability and ‘Next Steps’ agencies. Concerns about accountability gave way to those about efficiency when HSE was discussed as part of the Hampton (2005) and Macrory (2006) reviews of risk-based regulation and enforcement; the agency was seen as a leading exponent of ‘better regulation’ practices but was pushed to take greater account of economic concerns in rationing its use of resources, reflecting the wider ‘burdens on business’ agenda within the New Labour government of the time.
Lastly, the more recent Young (2010), Lofstedt (2011), and Temple (2014) reviews of health and safety have shown government taking an interest in the substantive content and character of health and safety regulation, demanding that the way in which regulation is done, and the substantive outcomes it achieves, should change. They suggested that there are areas where health and safety has gone too far and in which it should be curtailed (particularly low-risk workplaces, the self-employed, and areas of social life) because the idea of health and safety regulation, and not just the process, was in question. Whether this is reflective of a fundamental shift in legitimacy, or just an increasing governmental desire to manage public perceptions, remains to be seen.