How much ‘Better’ can ‘Better Regulation’ get?

Steve Tombs, Professor of Criminology, The Open University

This week, the Parliamentary Public Accounts Committee published an evaluation of the Better Regulation initiative. The Government, it stated, “has set a target to reduce the cost to business of regulation by £10 billion between 2015 and 2020. So far it has achieved less than £1 billion”. In other words, ‘Better Regulation’ must do better.

Indeed, who could object to ‘Better Regulation’? In a sense, no-one. But the question that has to be asked is what is meant by the term or, indeed, for whom should regulation be better?

A 2005 report – Reducing Administrative Burdens: Effective Inspection and Enforcement – proved to be a turning point in the trajectory of business regulation and enforcement across Britain. It marked the consolidation of the establishment of what had already been termed ‘Better Regulation’, a formal policy shift from enforcement to advice and education, a concentration of formal enforcement resources away from the majority of businesses onto so-called high risk areas, and consistent efforts to do more with less. The Report was the work of Sir Phillip Hampton who was appointed, in 2004, by Chancellor Gordon Brown to oversee a review of a Remit encompassing 63 major regulatory bodies – including the Environment Agency, the Food Standards Agency, the Health and Safety Executive, and the Financial Services Authority – as well as 468 local authorities.

Focusing on three areas of social protection – environmental, food and worker protection – my research indicates clear trends in enforcement practices over the ten-year period since Better Regulation was rolled out. Thus, summarising inspection and enforcement data between 2003/04 and 2014/15, across three regulatory functions overseen by five sets of regulators, I found some stark data.

If we look at food safety and hygiene law, enforced by Local Environmental Health Officers, we see, during this period, that: food hygiene inspections fell by 15%; food standards inspections fell by 35%; food prosecutions fell by 35% .

Turning to pollution control, a function split between the national regulator, the Environment Agency, and local Environmental Health Officers, we find that Environment Agency officers undertook 52% fewer inspections* and 54% fewer successful prosecutions, while issuing 42% fewer cautions. Meanwhile, local Environmental Health Officers enforcing local pollution control law undertook 55% fewer Inspection Visits, while notices issued fell by 30%**.

Finally, examining health and safety law enforcement, inspectors from the Health and Safety Executive, the national health and safety regulator, undertook 69% fewer inspections (on the part of Field Operations Directorate, the body within HSE which undertakes by far the vast majority of inspections) and 35% fewer prosecutions of offences. Local Environmental Health Officers enforcing health and safety law undertook 69% fewer inspections, 96% fewer preventative inspections and 60% fewer prosecutions.

Taken in isolation, perhaps none of this data as it relates to specific enforcement activity on the part of any one regulator is particularly surprising. What is remarkable, certainly for a set of social scientific data, is that each set of data reveals precisely the same trend: that is, notwithstanding variations across regulators, the form of law being enforced, and indeed within regulators and specific forms of enforcement activity by year, each set of data unequivocally indicates a long-term downwards trend in every form of enforcement activity.

Sonae Chipboard plant, Kirkby, Merseyside; after years of controversy over worker health and safety and pollution of the local area, the plant closed in 2012; photograph courtesy of David Jacques

Of course, this period, from 2003/04, is also marked by the 2007 financial crisis which was used, by the Coalition Government from 2010 onwards, to justify austerity – so it is likely that within this data there is evidence of both politics and economics at play. And, indeed, ‘austerity effects’ are confirmed if we drill down to local authority level. Thus a case study of five local authorities’ regulatory efforts in these three areas of social protection reveals:

• Considerable reductions in staffing in these regulatory functions
• Declining enforcement activity
• An increasing reluctance to prosecute
• A widespread perception that enforcement capacity has been dangerously undermined.

On the last point, the following quotations, drawn from interviews with EHOs, were typical:

“at present, we can’t meet our statutory duties”

“to be honest we’re now doing statutory stuff only”

“there’s nothing left to cut now”

“there is no padding left, we’re below the statutory minimum … there are no areas of discretion left”

“there’s nothing else to be cut”

“Where we are now, we’re at the point where worker safety is being jeopardized”

“It’s going to come to the point where it going to affect the residents, the local population, in many ways we are at that point now, public health and protection is being eroded”

“We’re at the point where there is no flesh left, this is starting to get dangerous, a danger to public health”

A further, worrying finding from the qualitative research reveals significant push factors towards contracting out or even wholesale privatisation of regulatory services – something which a handful of Local Authorities have now embraced. Taken together, these changes may mark the beginning of the end of the state’s commitment to, and ability to deliver, social protection. Yet this process continues apace, virtually without political, popular nor indeed academic comment. Meanwhile, the Government wants this ‘better regulation’ to get even better. That translates into businesses being freer to flout the law, with workers, consumers and the natural environment less protected than ever.

* This figure refers to the period 1999/00-2008/09; the Environment Agency claimed it could not separate data for inspections to businesses from 2009/10 onwards.

** Notices rather than prosecutions are used, since the latter are so few as to render data almost meaningless.

This blog was originally posted by the Institute of Employment Rights on 14 October 2016 at http://www.ier.org.uk/blog/how-much-better-can-better-regulation-get

Prisons: Places of Harm and Dehabilitation

David Scott, The Open University

HMP Manchester [Strangeways] – Photo by David Scott, 2016

Prisons: Places of Harm and Dehabilitation

On the 4^th October UK Justice Secretary, Liz Truss, delivered her speech Prisons: places of safety and reform to the 2016 Conservative Party Conference.  For Truss the UK ‘justice system’ is “incorruptible” and “the best in the world”.  If we follow the principles of meritocracy, it will become a “justice system of all talents” that “works for everyone” providing “justice for all”.  Although Truss digresses away from prisons (to talk about the courts and a new Bill of British Rights) her central arguments focus on how the Conservative government is “going to make prisons work”.  Sadly her speech is nothing but the same old story, harking back to the “making prisons work” rhetoric employed by Labour Home Secretary Jack Straw in 1997, as well as regurgitating an idea with a 200 year record of abject failure.

Truss starts her speech by talking about a prison governor who was assaulted by a prisoner but still came into work the following day. She later highlights the “abuse, intimidation and violence” experienced by prison officers, citing data claiming to show that last year prison officers were attacked on average 15 times a day [5,423 recorded attacks in 2015].  In a key message directed to our “brave” and “dedicated” prison officers she states: “I promise you this – I will do everything in my power to protect you”.  Prisoner assaults are from now on to be treated as “serious crimes”.  Further protection will come via more intensive drug testing and greater prison officer numbers and authority.

Harmful Evidence used for Political Legitimacy

Before we go any further let us consider some of these points in more detail.  First the official data.  Over the last few years the Prison Officers Association [POA] has called for a “zero tolerance” approach to prisoner violence and encouraged members to report every single incident that could be considered an assault.  As a result, the recorded number of “attacks” on prison officers has dramatically increased.  Prison officers have also allegedly been encouraged by the POA to seek medical assistance irrespective of obvious injury, the end result being that such incidents appear in recorded medical data sets.  What we do not know – what is not actually indicated such data – is the seriousness and harm of the recorded incidents.  The apparent deliberate manipulation of data therefore means we should treat such claims of evidence with considerable caution – as indeed should the UK ‘Justice Secretary’.  Further, drug testing has been a tried and tested failure in terms of measuring or deterring substance usage in prisons for more than 20 years.  More rigorous testing will not solve the problem of Spice or any other ‘drug’ in prison: substance usage is systematically generated by the pain, isolation and difficulties in building and sustaining relationships in prisons.  Drug testing does not change this.  Nor does it alter the wasting of life, boredom and loneliness of the prison place.  But what about the increases in prison officer numbers? Truss in her speech makes a commitment to employ 400 new prison officers.  Yet what this fails to take into account is the recent decline in prison officer numbers in the Prison Service of England and Wales and the deep underlying structural problems confronting prisons.  More prison staff will not address the daily inhumanities, harms and degradations characterising prison life.   Further, the introduction of the 400 new staff is only a remedial measure to address the most obvious problems associated with the recent staff cuts, for new prison officers will only be employed in “prisons that have seen sharp rises in violence in recent years”.

A Distorted Picture of Violence in Prisons

For Truss, the priorities of reform are on identifying prison officers as victims of prisoner violence and protecting prison officer safety, but there is no mention in her speech of prison officer violence or prisoner safety, or the truly terrible reality that in the last year we have seen the highest rate of self-inflicted deaths in prison ever recorded in England and Wales.  At best, the account of violence by Truss is partial.  At worst, it gives a distorted picture mystifying the true reality of violence in prison. We know that the data of violence against prisoners by prison officers is much more difficult to record than violence perpetrated by prisoners.  This is because of the nature of officer violence (it could involve violence during restraint procedures) and that prisoners may fear repercussions if they report violence by officers. There is also problems regarding whether the prisoners account will be believed by other prison staff charged to investigate such incidents.  That violence against prisoners by prison staff occurs, however, is evidenced in prisoner and prison officer autobiographies as well as other official accounts, both historical and contemporary.  Further, the hidden ‘institutionally-structured violence’ and the harmful outcomes generated by the prison place are also neglected in the speech by Truss.   As of the 29^th September 2016 there were 84 Self-Inflicted Deaths [SIDS] in prisons (and 43 awaiting classification).  Sadly this number is only going to rise in the final three months of this year.   A prisoner is recorded as attempting to take their own life every five hours and a prisoner is recorded as self-harming once every 20 minutes.  The seriousness of such events cannot be questioned.

Liz Truss, Justice Secretary – Source: www.pressandjournal.co.uk, 2016

Wanted: Obedient, Disciplined and Reliable Staff

A further, and quite significant proposal from Truss in her speech is a commitment to employ more prison officers who are from the armed forces.  In her words “Who better to instil the virtues of discipline? Who better to show what you can achieve in life with courage and integrity? [Personnel from our armed forces] will help our prison officers lead the change.”  This policy commitment is revealing for a number of obvious reasons.  When the ‘reformed prisons’ of England and Wales were being introduced in the late eighteenth and early nineteenth century, prison reformers felt that ex-servicemen would be ideal to run prisons, both as governors and prison officers.  The prison reformers wanted obedient, disciplined and reliable staff to replace the old ‘turnkeys’ and prisoners who had ran the prisons and jails in the UK before that time.  The emphasis of ex-service men (and women) as prison officers reflects a particular penal ideology – one not just of reform but also of authoritarianism.     The infamous ideas of ‘hard fare, hard bed and hard labour’ that underscored the Victorian prison regimes overseen by Sir Edmund Du Cane were built on such punitive assumptions.  Questioned in terms of efficacy and morality, the implementation of Du Cane’s harsh regimes were often associated with ex-servicemen prison officers.  Whilst this proved largely mythical – prison officers have never been exclusively from the army, air-force or navy and so on – it led the Gladstone Report of 1895, which itself arose due to public outrage against the Du Cane regime, to undertake a detailed survey of the number of ex-service men in the prison system in the 1890s.  The call by Truss for greater discipline clearly indicates a vision of more punitive times to come.  Truss also blatantly disregards the fact that currently there are a large number of ex-servicemen prisoners.  The disastrous failure of current policies regarding the care and re-entry of ex-service personnel into society will not be addressed by increasing their employment as prison officers.

The Human Costs of Prisons

Truss also leads us to consider the  ‘the human costs of prisons’ beyond merely those of prison staff, but her focus here is primarily in terms of victims of ‘crime’.  Yes, there is some recognition in the talk that prisoners have problems.  Contradicting her point on meritocracy, she shows awareness that prisoners are some of the most “damaged” people in society.  Truss notes problems around literacy, mental health and sexually-violent victimisation.  But her concern is not with prisoners because we as a society fail to meet their needs before, during or after prison. Instead of prisoners squandering their time in prison Truss would rather have them undertaking “purposeful activity” in an endeavour reduce recidivism rates.  The key beliefs of her position though are crystal clear – prisoners should be made better people in prison in the interests of law abiding others.  Prison reforms are for those on the outside rather than those we house behind the prison walls.

Truss talks of her “optimism” and the need to join her as a “champions of change”, whilst at the same time recognising that most ex-prisoners re-offend, more than half within one year of release.   Her assumption is that prisons are places of potential reform if managed correctly.  The grand solution, as discussed above, is to give prison governors and prison officers more powers and to spend £1.3 billion to “sweep away our decaying Victorian jails and putting in place new modern prisons”.  What is missing though is any reflection on two important factors driving this change.  First, a number of the Victorian prisons are built on land which is highly attractive to property investment.  Either through pulling down the prisons or transforming the existing buildings into gated communities for exclusive accommodation, the selling off of such Victorian prisons could generate sizeable capital.  Second the proposed new prisons are to be ‘supersized’.  Such large new prisons, housing between 1,000 – 2,000 prisoners, are cheaper to run, are less staff intensive and could swell the volume of private prisons in the UK.  Such reforms are evidence of placing profits over people and looking to solve social problems through penal confinement.  What Truss misses is that prisons always have been places of harm and dehabilitation rather than safety and reform.

Throughout her talk – which actually offers little new – there is no mention of the vast evidence from 200 and more years that ‘reformed prisons’ have never achieved the goals that she aspires to.  The vision presented by Liz Truss is one of discipline and policies which only exacerbate despair. It is one which must be challenged.

Today’s immigration laws have teeth, and their bite is toxic for people seeking asylum

Victoria Canning, The Open University

As a dock city, Liverpool has served as a gateway to the sugar trade, slavery and global transport for hundreds of years. It has long been a city of immigrants from Ireland, India and Pakistan to Somalia, Ethiopia and Jamaica. It boasts the oldest Chinese community in Europe, and the largest Chinese arch outside of China. But like other parts of the UK, for those seeking sanctuary in the city today, the tightening of the immigration regime has made life full of uncertainty and injustice.

In early September, the women of Migrant Artists Mutual Aid (MaMa) – a Liverpool-based group of refugee rights advocates and women seeking asylum which I am involved with – were worried when two of its core members did not attend a regular meeting.

As news filtered through, we learned that the women (alongside two others) had been dispersed from their accommodation to a northern town 20 miles away: too far to walk back, and too expensive to travel for women receiving £5.30 per day while awaiting refugee status. The practice of dispersal means people seeking asylum can be moved away from friends and family at any point, without choice or negotiation, with little notice, to a place they may have never been.

Eventually, from speaking with the two women, it transpired that they had been approached by staff from one private sector provider at the accommodation block they lived in at 1pm on a Friday afternoon and informed they would need to move “temporarily”. They were given until 4.30pm to gather their belongings and leave their already temporary homes. No need for the children to get ready for school on Monday morning, since they were being wrenched from attendance at the very start of term.

Echoes from 70 years ago

The treatment of people seeking asylum in Liverpool today has parallels with a more sinister moment in the city’s post-war history. In 1946, it was Chinese migrants who bore the brunt of rising anti-immigration sentiment in the region. Having recruited around 20,000 Chinese men into the British Merchant Navy during World War II, once their service was over, they were deemed “undesirable” elements of Liverpool life.

Instead of offering these men and their families sanctuary, the Home Office ordered a police raid on their homes. In an early morning round-up in the summer of 1946, an estimated 1,362 Chinese men were arrested, temporarily detained, and deported. Around 500 children were estimated to have been left behind.

Seven decades later and similar events are still happening. In 2014, the women of MaMa were shocked when a long-time member was detained and deported by the Home Office. Her right to further appeal had been rejected. She was forced to leave 13 years of life and belongings in the city that she loved, with the friends she knew. We had known her well, some for almost as long as she had been in the UK. We sang from a phone on loudspeaker to comfort her as she sat in Yarl’s Wood detention centre. She was deported to her country of origin within days.

As weeks and months went by, other women grew increasingly concerned for their own futures. Those seeking asylum must comply with regulations which require them to sign in with the Home office regularly. In the aftermath of their friend’s deportation, Home Office meetings were daunting. Some of the women have already experienced Yarl’s Wood – none of them want to experience it again.

The ‘Utopia’ of rights

Unlike 1946, the legislative landscape of contemporary Britain is now embedded in a discourse of rights: human rights, refugee rights, and the rights of the child. Home Office policy and legislation advocate rights-based approaches and it has even published a plethora of guidelines on how to adhere to them.

And yet there seems little evidence of this Utopia of rights in practice. People seeking asylum are subjected to arbitrary detention, with no time limit in the UK. Abject poverty and destitution have become staple parts of the asylum process. Living in limbo, the threat of deportation looms every day, limiting individuals’ ability to look ahead to the future, particularly if they fear returning to their past in their country of origin. For asylum-seeking women living with violent men, refuges and support have been diminished by government cuts.

Meanwhile, people seeking asylum face ever more insidious forms of social controls on a daily basis, including immigration enforcement officers on public transport and regulations within housing. To give one example, women I spoke with who lived in one accommodation facility run by SERCO said that they had been told they would be reported to the Home Office for leaving bedroom doors open that could be a fire hazard. In this way, everyday actions become border offences.

House rules at an accommodation block for asylum seekers.
Anonymous., Author provided

New laws are biting

The impact of legal aid and appeal restrictions, introduced in the 2014 and 2016 immigration acts have begun to bite. Refusals for asylum faced by women in MaMa are regularly based on obscure and sometimes legally precarious grounds.

Adequate legal support is ever diminishing. Cuts to legal aid mean fewer lawyers are available to take on appeals. The 2016 act facilitates easy deportation with those removed expected to appeal from the home country, and this has already begun: 42 people were recently deported on a chartered flight to Jamaica. A huge increase in the fees for appealing Home Office decisions now threatens further limitations on access to justice: another wall between refugees and their rights.

To fight back, MaMa has turned to choir performance fundraisers among other projects in an effort to pay legal costs. Only recently we collected goods to raffle to raise legal funds: a “raffle for justice”, in one of the world’s richest countries, with one of the world’s oldest legal systems. A country that colonised many of those that MaMa members have come from. The irony is not lost.

Victoria Canning, Lecturer in Criminology and Social Policy, The Open University

This article was originally published on The Conversation. Read the original article.