Why Rules Don't Work

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  • Why Rules Dont Work Robert Baldwin

    In virtually all fields of regulation and administration there are large numbers of rules that are regularly ignored or disobeyed. In spite of statutes, regulations and codes, rivers continue to be polluted, discrimination still takes place and many workplaces remain unsafe. Why do rules fail to work? How might rules be designed so as to work more efficiently? What is it that impedes the making of effective rules? These three questions are my central concern. The particular scheme of regulation I look at in detail is that applicable to workplace hazards in Britain. I attempt to draw broad lessons from that study and, in examining the way that rulemakers can and might behave, look at the insights offered by certain approaches to policy analysis.

    First though, the objects of study should be described. Rules can come in many different shapes and forms. They can also be used in association with a number of different regulatory strategies. These variations should be noted before the limitations of different rules in health and safety regulation are outlined.

    The Dimensions of Rules

    A rule may be defined as a general norm guiding conduct or action in a given type of situation. In this article the word rule refers to all written general statements, be they in primary legislation, code of practice or guidance note, be they of full legal force or merely advisory. It should also be noted that enforcement here refers to all forms of compliance-seeking , not merely the application of formal prosecutions.2

    A first, and important dimension of a rule is its degree of specificity or prec i~ion.~ Thus, the regulator who wishes to ensure the availability of emergency fire exits may state that reasonable provision for escape should be made or may say that a fire door measuring 6 x 4 must be made available within 100 of each employee. The extent OT inclusiveness of sets of rules may also vary. Thus, a set of regulations or a code may set out to control selected aspects of a working practice or it may seek to regulate all its facets. The accessibility and intelligibility of rules is another ~ a r i a b l e . ~ Rules may be physically accessible (for example by being cheap to buy and well-disseminated) or they may be expensive and difficult to obtain. They may be phrased in everyday language, be concise and easily understood, or may be voluminous, highly technical and couched in jargon, legalese or polysyllables. The status andforce of the rule offers another set of choices to the admini~trator.~ A rule may purport to have full legal status and force; it may claim to have evidential value or to summarise good practice; it may exhort or

    *Lecturer in Law, London School of Economics and Political Science. I would like to thank the following for their help with this article: Martin Loughlin, Christopher McCrudden, Angela Duncan, Donna Baston, Fenella Tookey, Belinda Pritchard, Vanessa Finch, members of the Regulation Group, the Centre for Socio-Legal Studies, Oxford, and staff of the Health and Safety Executive and H.M. Factory Inspectorate.

    1 2

    3 4

    W. Twining and D. Miers, How to Do Things With Rules (2nd ed.) (1985) p127. On compliance-seeking see K. Hawkins, Environment and Enforcement (1984) and B. Hutter, An Inspector Calls: The Importance of Proactive Enforcement in the Regulatory Context, (1986) 26 B.J. Crim 114. See C.S. Diver, The Optimal Precision of Administrative Rules (1983) 93 Yale L.J. 65. See C.S. Diver, loc cit.

    5 See R. Baldwin and J. Houghton, Circular Arguments: The Status and Legitimacy of Administrative Rules [1986] Public Law 239.

    The Modem Law Review 53:3 May 1990 0026-7961 32 1

  • The Modem Law Review [Vol. 53

    merely advise. The type of prescription or sanction involved in a rule is a final major variable. Thus, the rule may command a particular course of action or offer advice; it may set out a fixed sanction for non-compliance or it may not; the sanction may be a fine at law or an administrative response; it may involve a warning or not.

    Turning to regulatory objectives, it is clear that rules may be designed to (or may in fact) do different things. They may be devised, for example, to control oficials or enforcers (for example an internal rule advising on prosecution policies) rather than directed towards the broader public.6 They may, on the other hand, be used so as to facilitate prosecution of offenders in court (if this is the favoured method of seeking compliance) or the rules may be designed to educate regulatees or to inform andpromote and so to raise consciousness and increase voluntary compliance more generally. The rules may thus be addressed to either the enforcement officials or the regulatees or to both - where the rules are seen as a basis for negotiation between controllers and ~ontrolled.~ Awareness of the various dimensions and objectives of rules points to some difficult questions: Is a good rule good for all purposes? Can rulemakers design rules effectively without anticipating enforcement strategies? The answer to both questions, I will argue, is No.

    The Limitations of Rules: A Case Study

    Health and safety at work is regulated in Britain by the Health and Safety Commission (HSC) and its Executive (HSE) which were set up in 1974 and 1975 respectively.s The system of health and safety regulation in existence today owes much to the Report of the Robens Committee of 1970-72.9 For present purposes it is Robens approach to regula- tory rules that is of particular interest. That committee found that health and safety at work was governed by nine separate groups of statutes, with 500 subordinate statutory instruments administered by five central government departments through seven inspectorates. Robens argued that the sheer mass of law was counter-productive. It had an all-pervading psychological effect that led people to see health and safety at work as a matter of detailed rules to be imposed by external agencies.O Apathy, said Robens, was the dominant factor in accidents. The way forward was not through ever more regulations and inspectors but through self-regulation, shared responsibilities and voluntary action. Extensive use of legal sanctions was said to run counter to Robens general philosophy. The new rules, argued Robens, should be marked by accessibility and clarity rather than detailed instruction. There was to be a movement away from fragmented and complex rules towards a combination of statutory regulations and voluntary codes, a combination that was clear in principle, intelligible and constructive rather than prohibitory. Robens said that no statutory regulation should be used if an objective could be achieved by a non-statutory standard or code of practice.I2 This approach was adopted in the Health and Safety at Work Act 1974 (HSWA 74), section l(2) of which provided for progressive replacement by the HSC/Es of existing statutory provisions with a new system of regulations and approved ~ 0 d e s . I ~ A hierarchy of rule-types was thus created. Sections 2-9 of the 1974 Act laid down general statutory duties and section 15 allowed the Secretary of State to make regulations. Sections 16 and 17 introduced the approved code of practice (ACoP),

    6 7 8

    9 10 1 1 12 13

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    On rules and the structuring of discretion see K.C. Davis, Discretionary Justice (1971) Chapter 4. See K. Hawkins, op cit Chapter 7. For a review of the HSC/E as an agency see R. Baldwin, Health and Safety at Work; Consensus and Self-Regulation in R. Baldwin and C. McCrudden, Regulation and Public Law (1987). See Safety and Health at Work, Report ofthe Committee 1970-2, Cmnd 5034 (1972) (Hereafter Robens). Robens, para. 28. Robens, paras, 13, 28, 255.. Robens, para. 142. See N. Selwyn, Law of Health and Safety at Work (1982) Chapter 3.

  • May 19901 Why Rules Dont Work

    a device designed to give practical guidance in relation to the Act or regulations. The lowest tier of HSC/E rulemaking comprises guidance notes and advisory leaflets. These have no formal legal significance but aim to assist employers and others to comply with the law and to minimize hazards.

    The task of the enforcing inspectorate is to secure compliance with the rules - which may be combined in packages comprising different rule-types. These packages may deal with hazards in a particular industry or, more commonly, with a particular type of hazard. A series of packages may thus apply to each employer. In seeking compliance, field inspectors utilise a number of enforcement techniques. This research looked at the enforcement work of the Factory Inspectorate (FI) and involved field observations, interviews and analysis of records and secondary sources.I4 To understand the limitations of rules in this kind of regulatory scheme it is necessary to look at the regulatory strategies used by enforcement officials and to consider the effect that choice of rule or rule-type has on enforcement and compliance. Inspectors have considerable discretion in organising their work in spite of being subject to a variety of rules. What I focus on here, however, is not the extent to which enforcement activity is structured by rules but the extent to which the chosen strategies of enforcement (however these are selected) are helped or hindered by the kinds of written rules employed. (I will argue below that choices of strategy tend to be made independently of the available rule-type even though implementation of the selected strategy is often influenced by rule-type.) My primary objective is not to explain why certain strategies are used but I do offer a classification of enforcement strategies that is based on interviews and on observing inspectors visits to a wide variety of premises. The following strategies were found to be used singly or, more usually, in combination.

    (i) Prosecutions and Notices Prosecutions are comparatively rarely used in seeking compliance, largely because of resource implications, but Improvement, and Prohibition Notices (which order respectively remedial actions to be taken to a timescale or work to be stopped pending such actions) are used more frequently. When, however, prosecution is the chosen strategy, does the type of rule that has been breached affect the difficulty of securing compliance? An argument made by some inspectors is that control is the first thought and that, given the existence of a major hazard, they will prosecute irrespective of, say, the specificity of the relevant legal rule. The majority of inspectors, however, do see a difference between prosecuting under old fashioned rules involving absolute duties and under newer broader-based rules incorporating reasonableness tests. The post HSWA 74 rules differ from their predecessors in offering wider coverage through the general duties imposed by the Act but many inspectors see it to be more time-consuming and more difficult to prosecute under these less specific rules. One experienced inspector expressed the prevalent view:

    Prosecution is very infrequent. Prosecutions under precise regulations are thought by inspectors to be less likely to be defended. If a widely-drawn general duty or reasonably practicable test is involved, an occupier will be more likely to argue their case - they may not be more likely to win but there is more scope for debate. Its time-consuming so it does make the inspector think twice.

    Considered purely from the point of view of formal legal action, specific and absolute rules thus appear attractive to inspectors. The main disadvantage of such rules is seen as narrowness of application. The implication to be drawn is that less specific forms of rule using reasonableness tests give more effective coverage (greater inclusiveness) as

    14 This study arises out of work with the regulation team at the Centre for Socio-Legal Studies, Oxford from 1983-7.

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    well as greater across-the-board consistency of standards, but that their utility decreases as enforcement in any particular area depends on formal prosecutions.

    (ii) Persuasion / Negotiaiions This strategy is used when inspectors seek to have a situation remedied and to overcome a degree of resistance. They often do this by making reference to the employers self interest, to morality or to the law. Inspectors adopt a variety of approaches to persuasion and negotiation. These approaches are mainly determined by the inspectors assessment of the employer and the type of hazard at issue. Four broad categories of employer and three varieties of hazard appear to be used by inspectors as bases for action.

    The first category is that of the well-intentioned and well-infomzed employer. This occupier is generally a large business employing its own safety staff. It is usually seen as well- disposed to comply but not necessarily wholly efficient in putting its good intentions into unprompted effect. Negotiations with such occupiers are usually unproblematic and persuasion is hardly ever necessary. One senior inspector described such inspection as professional talking to professional. On finding a fault, the inspector often merely points a finger at the offending shaft or unguarded drill and the firms safety advisor notes down the problem for attention. The rules are seldom referred to at all. This does not mean that such rules play no role, merely that matters are unsaid and uncontested in the main. Thus, concluding a visit to one such employer, the inspector told the writer:

    I will write to him setting down the relevant points but I wont quote chapter and verse. He knows the law roughly and knows I wouldnt ask for things I couldnt back up. Theres no point in getting heavy. Hes so far done what he said hed do. With small operators you would have to let them know a bit more that you have the power to compel action.

    The well-intentioned, ill-informed employer is (in the absence of serious hazards and accidents) generally treated sympathetically by the inspector and is commonly a small or medium-sized firm. Hazard-reducing actions and a timetable for implementation are usually agreed and undertakings given. In the case of such employers, inspectors often combine negotiation with advice, education or information-giving . On such premises inspectors are disinclined to get all legalistic.

    The ill-intentioned, ill-informed employerI6 tends to be deemed so because of hidher attitude and/or record and once more is usually a small or medium-sized firm. Faced with such an employer, inspectors are inclined to reveal more readily the legal powers that reinforce their negotiating stance. References may be made to the Act and legalistic terms dropped in conversation.

    The problematic employer is usually itinerant or ephemeral in nature. This employer might vary in intention or degree of knowledge but is seen as inherently difficult to deal with. In the construction industry, persuasion is more direct and negotiations tougher not merely becaus...