The Dangers of Hanging Baskets: ‘Regulatory Myths’ and Media Representations of Health and Safety Regulation

Date01 September 2009
Published date01 September 2009
DOIhttp://doi.org/10.1111/j.1467-6478.2009.00471.x
JOURNAL OF LAW AND SOCIETY
VOLUME 36, NUMBER 3, SEPTEMBER 2009
ISSN: 0263-323X, pp. 352±75
The Dangers of Hanging Baskets: `Regulatory Myths' and
Media Representations of Health and Safety Regulation
Paul Almond*
The successful enforcement of health and safety regulation is reliant
upon the ability of regulatory agencies to demonstrate the legitimacy of
the system of regulatory controls. While `big cases' are central to this
process, there are also significant legitimatory implications associated
with `minor' cases, including media-reported tales of pettiness and
heavy-handedness in the interpretation and enforcement of the law.
The popular media regularly report stories of `regulatory unreason-
ableness', and they can pass quickly into mainstream public
knowledge. A story's appeal becomes more important than its factual
veracity; they are a form of `regulatory myth'. This paper discusses the
implications of regulatory myths for health and safety regulators, and
analyses their challenges for regulators, paying particular attention to
the Health and Safety Executive (HSE) which has made concerted
efforts to address regulatory myths attaching to its activities. It will be
shown that such stories constitute sustained normative challenges to
the legitimacy of the regulator, and political challenges to the
burgeoning regulatory state, because they reflect some of the key
concerns of late-modern society.
INTRODUCTION
The process of exercising regulatory controls over the conduct of individuals
and corporate bodies is an explicitly social one, in that it involves the
communication of a wide range of messages to a number of different
audiences. As well as performing a directive function by requiring people to
behave in a certain way in pursuit of desired outcomes, regulatory legal
controls also perform symbolic and expressive functions, in that they
communicate a moral message about the desirability and acceptability of
352
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Law, University of Reading, Foxhill House, Whiteknights Road,
Reading RG6 7BA, England
p.j.almond@reading.ac.uk
certain forms of conduct. In particular, regulatory enforcement activities
provide a forum for the communication of important messages about social
risks, the culpability of those who create these risks, and the status of the law
and regulators governing them.
1
Enforcement activity allows regulatory
agencies to demonstrate their organizational legitimacy by establishing the
moral rightness and procedural fairness of their actions.
2
Yet this process of
`legitimation' is double-edged; while successful regulatory enforcement
action can establish organizational legitimacy, ill-judged enforcement
activity can also undermine it.
This paper will investigate one area in which the legitimacy of a specific
regulatory agency, the United Kingdom Health and Safety Executive (HSE),
has been challenged by negative public evaluations of its enforcement
activity.
3
While previous research has examined t he ways in which
organizational legitimacy can be affected by large-scale and serious cases,
the potential for delegitimatory impact is not restricted to these `big' cases.
In particular, it is important to look at the ways in which `frivolous' minor
cases, such as those involving tales of heavy-handed and disproportionate
enforcement, the petty implementation of regulations, and the adoption of
unnecessarily bureaucratic approaches to issues of health and safety, can
impact on perceptions of regulators and the law. Such cases are a familiar
media feature and are afforded significant coverage; this has prompted
official attempts by regulators like HSE to try and mitigate the negative
effects of these stories.
This paper will argue that these stories constitute something more
significant than just amusing media features and, as such, merit serious
analysis. They can be characterized as `regulatory myths', in that their
popularity transcends their factual validity, and their meanings derive from
the wider political significance that they possess. Regulatory myths provide
a forum for the communication of moral messages about the law, and for
reassessment of the legitimacy of regulators and the system of regulatory law
that underpins them. Crucially, while these stories involve challenges to the
`moral legitimacy' of the regulator involved, they also present challenges to
the `procedural validity' of the agency as well,
4
thereby calling into question
not only the substance of the regulatory outcomes in question, but also the
353
1K.Hawkins, Law as Last Resort: Prosecution Decision-Making in a Regulatory
Agency (2002).
2P.Almond, `Regulation Crisis: Evaluating the Potential Legitimising Effects of
``Corporate Manslaughter'' Cases' (2007) 29 Law and Policy 285; F. Haines and D.
Gurney, `The Shadows of the Law: Approaches to Regulation and the Problem of
Regulatory Conflict' (2003) 25 Law and Policy 353.
3 The increasing public profile of this issue, and of these negative public evaluations,
is evidenced in the broadcast on national television of two documentaries on health
and safety in 2008 and 2009: `Cutting Edge: The Fun Police' (Channel 4) 4
December 2009 and `Panorama: May Contain Nuts' (BBC1) 20 April 2009.
4D.Beetham, The Legitimacy of Power (1991).
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School

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