Revolution Blues: The Reconstruction of Health and Safety Law as ‘Common‐sense’ Regulation

AuthorPaul Almond
Publication Date01 Jun 2015
ISSN: 0263-323X, pp. 202±29
Revolution Blues: The Reconstruction of Health and Safety
Law as `Common-sense' Regulation
Paul Almond*
This article reviews the last five years of coalition government policy
making in relation to occupational health and safety law. It shows that
the most significant and influential element of this activity has been the
reframing of the wider regulatory system according to a dominant
ideological paradigm of `common-sense' regulation, to the detriment
of other considerations and interests. A social constructionist frame-
work assists in setting out the means through which this new `symbolic
universe' of regulatory possibility has been constructed and
promulgated within the policymaking arena. In particular, it identifies
the key role played by processes of deliberative regulatory engagement
in the construction and development of this approach, and identifies
the inherent vulnerability of `thin' forms of deliberation to this sort of
As in many other fields of government activity, the last five years have seen
those involved in the regulation of health and safety in the United Kingdom
having to contend with the challenges posed by a sustained economic reces-
sion and a crisis of the public finances.
The institutional change heralded by
*School of Law, University of Reading, Foxhill House, Whiteknights Road,
Reading RG6 7BA, England
I have gratefully benefited from the comments of many people while writing this paper,
including Steven Bittle, Carmen D'Cruz, Neil Gunningham, Richard Hyde, Stuart Lakin,
Nancy Reichmann, David Whyte, and the three JLS reviewers; all errors remain my own.
1 T. Prosser, ```An Opportunity to Take a More Fundamental Look at the Role of
Government in Society'': The Spending Review as Regulation' (2011) Public Law
596; P. Taylor-Gooby, `Root and Branch Restructuring to Achieve Major Cuts: The
Social Policy Programme of the 2010 UK Coalition Government' (2012) 46 Social
Policy & Administration 61.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
the election of a Conservative±Liberal Democrat coalition government in
2010, and a subsequent shift towards a new `politics of austerity', have led
to a `rolling back' of regulatory resourcing and formal intervention, as well
as reform of the legal and institutional frameworks which govern regulatory
Together, these developments might be read as a product of
external circumstances which have conspired to compromise the foundations
of the existing regulatory structure. But this is only a partial explanation for
the changes that have taken place during the last five years, in that it over-
looks the profoundly ideological character of many of these changes. These
post-2010 policy developments have profoundly reshaped both the substan-
tive content of the health and safety regulatory system, and also the tenor of
social debate around this issue. As such, and as the current government's
term of office comes to an end, the time is ripe for an assessment and review
of some key features of the last five years of policymaking in this area.
These recent developments merit attention because they provide an
instructive example of a particular dynamic of reform. A pre-existing com-
mitment to specific political values, such as deregulation and business
freedom (which, it is claimed, reflect public preferences for economic
liberalism), has been translated into policy in a particularly pervasive manner
which has reframed the debate about the form that regulation ought to take.
Perhaps, unlike previous eras of government hostility towards health and
safety regulation, when opposition was at least recognized and understood as
such, this more recent period has seen the creation of a new orthodoxy, or
of regulation which sets firm parameters around what is
possible and permissible in terms of future policy, and which excludes
alternatives that do not conform to this model. It will be argued that this
process of agenda-setting can be understood in social constructionist terms
as the creation of a `symbolic universe', an all-encompassing body of
meaning and common-sense reality, around the issue.
On this reading, the
conditions of a dominant (self-)regulatory paradigm have come to be
accepted as part of the background against which policy making occurs,
internalizing a set of fundamental assumptions that narrow the range of
possibilities that regulation can pursue.
This article sets out the different stages through which this process of
social construction has occurred. It shows how, via experimentation, inter-
action, institutionalization, and internalization, a particular vision of regula-
tion has been advanced. This has been achieved via the adoption of
principles of deliberative regulation as a means of bringing external con-
2 S. Tombs and D. Whyte, `Transcending the Deregulation Debate? Regulation, Risk,
and the Enforcement of Health and Safety Law in the UK' (2013) 7 Regulation &
Governance 61.
3 Reflected in the title of the government's review by Lord Young, Common Sense,
Common Safety (2010).
4 P.L. Berger and T. Luckmann, The Social Construction of Reality (1967) 33, 113.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School

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