Why Rules Don't Work

Published date01 May 1990
DOIhttp://doi.org/10.1111/j.1468-2230.1990.tb01815.x
Date01 May 1990
Why
Rules
Don’t
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
preci~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 ~ariable.~ 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 ~0des.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
11
12
13
322
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.

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