The Contexts of Regulation: The Impact Upon Health and Safety Inspectorates in Britain

It is argued that the systematic study of regulation should include an analysis of the structural contexts within which agencies with enforcement authority are embedded. At least four contexts affect indirectly and directly the process of regulation: the political, the economic, the scholarly and the media. The period of the mid- 'eighties in Britain is characterized and trends in that period are described. The decline in resources, a political and scholarly environment of "de-regulation" and increased media interests in aspects of regulation in general, it is argued, shape regulation in Great Britain. The authors use records, field and interview data from an on-going research program on health and safety regulation in England and the structure and operations of the Health and Safety Executive (HSE) at the Centre for Socio-legal Studies, Oxford, to a) examine structural changes in the organization(s) of which the HSE is constituted b) identify stresses and conflicts within the HSE c) record resultant patterns of morale and performance and d) describe efforts at achieving rationalization and formalization. It is concluded that in the context of declining resources and pressures to appear efficient, potentially divisive stresses and conflicts in regulatory bodies, if the HSE is at all representative, will continue and will underlie changes and developments that can be expected to emerge.     

Integrating Management Systems and Occupational Health and Safety Regulation

'Best practice' in occupational health and safety (OHS) performance needs to recognize the declining emphasis that is being placed on the capacity of the regulatory state. This article argues that there are more appropriate forms of OHS regulation than direct command and control. The development of a systems-based approach acknowledges the importance of continuous improvement, benchmarking, and internal self-regulation. In order to encourage a systems-based approach, it is suggested that some form of persuasion by coercion by means of law remains a necessary condition for the establishment of an incentive-based 'voluntary' regime.     

职业安全卫生立法及监管模式评析

国外职业安全卫生立法及监管模式经历了“详述性”立法、“命令与控制”模式向“概括性”立法与“合作监管”模式的转变,前者具有要求明确、便于遵守与适用的优点,但会导致法律过于繁杂、过于依靠监管、抑制了义务主体能动性等缺陷;而后者虽然可以在一定程度上弥补前者的缺陷,但又可能带来新的问题,即过于依赖义务主体的自律,因而可能带来潜在的安全风险.我国当前的职业安全卫生立法在某些方面过于原则,在某些方面缺乏应有的灵活性,我国“命令与控制”式的职业安全卫生监管模式也存在一定不足,今后的立法或修改法律应当将激发义务主体的能动性作为重要目标、采取“综合性”立法模式并调整现行监管模式.     

Business Responses to the Regulation of Health and Safety in England*

The material in this article is extracted from an empirical study of industrial and agricultural businesses' responses to regulation of health and safety in the workplace. The study critically assesses the philosophy of self-regulation which underpins the regulatory framework in England and within the context of the expectations of employers built into that philosophy, attempts to distinguish between different models of employers in relation to their levels of motivation toward health and safety issues; their knowledge and comprehension of the law; their general approach to compliance with regulations; and their response to inspectors' enforcement activities. The article concludes that self-regulation is only capable of operating under very narrow conditions. It is at its most successful within the largest and most hazardous companies, despite the fact that the inspectorates devote the greatest concentration of enforcement and advisory resources to these sites. Companies which do not have a natural interest in safety require considerable advice, encouragement and coercion. In some situations deterrent penalties may be required in order to achieve a sustained improvement in standards. The research suggests that greater attention should be paid to the variety of employers and their compliance strategies, and to the potential for better targeting of regulatory efforts.     

Theory and Practice of Regulatory Enforcement: Occupational Health and Safety Regulation in British Columbia*

Data about the activities of occupational health and safety officials in British Columbia is utilized to explore competing explanations for the overwhelming prevalence of persuasion over punishment in regulatory enforcement. By plotting the compliance histories of individual firms, this study demonstrates that many offenders repeatedly commit the same infraction. Few of these repeat offenders are punished. These findings suggest that the very limited use of penalties is not a result of the vast majority of firms being good apples induced to comply by mechanisms of social control other than punishment. Rather, there appears to be institutionalized tolerance of widespread violations. The enforcement deficit may be partly explained by such aspects of regulatory structure as the ongoing relationship between regulated firms and field officers who are the gatekeepers of the penalty process.     

Moving Beyond Command-and-Control: Reflexivity in the Regulation of Occupational Safety and Health and the Environment

Direct or "command-and-control" regulation has had limited success in dealing with occupational health and safety and with environmental regulation. This lack of success has led policymakers to experiment with self-regulation as an alternative means of achieving the goals of social regulation. The economic subsystem fails to acknowledge its social identity and, therefore, appears to be blind to its negative performance regarding the environment and the workplace. The authors of this paper argue that moving beyond command-and-control can be feasible and desirable, at least to a certain extent, but that pitfalls are omnipresent. "Regulatory dilemmas" need to be solved, sound empirical studies need to be conducted, and a guiding theory needs to be drafted. To achieve these goals, the authors suggest use of the key concept of "reflexivity," which refers to the economic organization's relationship with itself. The practical usefulness of this theoretical concept is explored against the background of regulatory practice in the areas of occupational safety and health and the environment. It is concluded that a mode of reflexive administrative law requires a "negotiating government," which adopts a mixture of strategies and learns to cope with issues like third-party interests, access to information, and enforcement.     

Messy Business: Media Representations of Administrative Sanctions for Corporate Offenders

Enforcement against corporate offenses is increasingly carried out by specialized regulatory agencies. These often use publicity as a regulatory tool, in the expectation that disclosure of sanctions will invoke the threat of reputational damage and broadcasts a moral message about desired behavior. This article investigates how media represent administrative offenses in the Dutch financial market, in terms of punitiveness for offenders and in terms of the message about the wrongfulness and harm of offenses. Media coverage of administrative fines is messy in several senses. First, adverse publicity is unpredictable and disproportionally affects small firms in comparison with large, professional firms. In addition, it is also messy in terms of its contribution to the prevention of corporate misbehavior. Media do not unequivocally disapprove of financial market offenses. Rather than clarifying the demarcation line between right and wrong, media describe financial market behavior as a grey zone where differences of opinion can exist over whether certain behavior constitutes an offense. More than a publicity sanction or moral message, media was found to frame offenses by retail banks and capital market firms in terms of the power struggle between firms and the regulatory authority.     

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

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 framework 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 application.     

媒体报道中的新闻侵权与法律规制研究

社会发展的急剧变化以及新兴媒体的蓬勃涌现,致使新闻侵权现象愈来愈多,对新闻侵权的研究也显得更加迫切和重要.媒体报道中新闻侵权问题的规制首先需要界定新闻侵权的责任类型与内容,并在此基础上探讨相应的抗辩事由.新闻侵权主要包括:名誉侵权、肖像侵权和隐私侵权,不同的侵权类型需要承担不同的侵权责任,也具有不同的抗辩事由,需要具体分析分别对待.     

Democracy and Press Freedom in Zambia: Attitudes of Members of Parliament Toward Media and Media Regulation

In Africa, colonial rule, followed often by one-party rule, resulted in the creation of authoritarian press systems. The political climate usually required journalists to align themselves with the government as propagandists rather than serve as watchdogs to inform the public. To rule Zambia, Kenneth Kaunda established a government based on a political philosophy he called Humanism, a form of African democratic socialism that valued the community over the individual and defined the role of the press as a tool for national development. Colonialism, Kaunda's Humanism and general resource scarcity have shaped the perspectives from which Zambians view press freedom. Multi-party elections in 1991 produced a democratically elected government and brought increased freedoms for the media, but the values shaped by the experiences of the elected leaders in Zambia are also important to understanding the Zambian system of press freedom. This paper quantitatively investigates support for the press and press freedom among members of the newly democratized Zambian Parliament. Regression models show that perceptions of media accuracy and fairness are not indicators of press support. The article speculates that Zambia's leaders may have to experience intergenerational value changes to overcome the past if they are to view press freedom from a more libertarian perspective.     

The Blameworthiness of Health and Safety Rule Violations*

Man‐made disasters usually lead to the tightening of safety regulations, because rule breaking is seen as a major cause of them. This reaction is based on the assumptions that the safety rules are good and that the rule‐breakers are wrong. The reasons the personnel of a coke factory gave for breaking rules raise doubt about the tenability of these assumptions. It is unlikely that this result would have been achieved on the basis of a disaster evaluation, or high‐reliability theory. In both approaches, knowledge of the consequences of human conduct hinders an unprejudiced judgement about where the blame for rule breaking lies.     

Safety,Regulation and Tort: Fault in Context

The relationship between tort and regulation is dense and complicated. This paper examines diverse approaches to one small element of this relationship: the relationship between regulatory norms and the standard of care in personal injury cases. The lack of clear rules governing that interaction is not surprising: we would never expect the courts to give up the authority (or abdicate the responsibility) to generate private law norms; on the other hand, nor would we expect them to ignore the potential authority and legitimacy of external norms. The strength of external standards is best identified by close scrutiny of the regulation itself. The varying authority of external norms in a private law forum requires engagement with the process by which the external norms were reached. Who and what determined the ‘ought’ of regulation will provide greater insight into the ways in which it should inform the ‘ought’ of tort.     

Working to Death: The Regulation of Working Hours in Health Care

Recent research highlights significant risks associated with health professionals working long hours—risks to their health and safety, to the safety and quality of care provided to patients, and to public safety. This article undertakes a review of the various instruments used to regulate working hours in health systems, using six countries (Australia, Canada, Denmark, New Zealand, the United Kingdom, and the United States) and the European Union as primary comparators. The review demonstrates differences in the instruments used to regulate the issue in these countries and in the economic, social, and cultural factors that limit instrument choice and moderate instrument effectiveness.     

Developmental and Validation of The Illustrated Version of The Home Inventory for Dangers and Safety Precautions: Continuing to Address Learning Needs of Parents in Injury Prevention

This paper describes the development and validation of the Home Inventory for Dangers and Safety Precautions – Illustrated Version to be used with parents whose children are at significant risk for home injury. Because illustrations are useful in facilitating learning by parents who have difficulty ensuring child and self home safety, colored illustrations representing 6 home rooms or areas were empirically developed for assessment purposes. The dangers depicted were selected from previous work and represented those associated with the majority of family home injuries. Score-sheets contained dangers and associated precautions administered to 62 referred young parents. Administration and psychometric characteristics were examined; specific hypotheses were tested. Obtained measures of internal consistency for dangers and precautions for all illustrations (except for Stairway) and for totals were satisfactory. Administration was suitable for use with this population. Parents were able to identify approximately half of the depicted dangers while being able to provide a suitable precaution for 40%. Reading comprehension was predictive of danger identification whereas reading recognition was predictive of precautions given. The HIDSP-IV is useful in assessing a parent's knowledge of dangers and precautions from which more individualized home safety instruction can occur.     

中华民国矿场安全与健康立法的价值

民国时期,工业发展和长期战争急需矿产品而加速了矿业开发。但矿工的福利与迅速发展的矿业不协调,导致劳资双方对立。为此,国民政府制订了一系列改善矿工福利的法律法规,其中以《矿场法》最突出。该法是一部以健康安全优先、界定矿主责任、保障矿工权利、强制培训矿工的矿场安全与健康法。其立法目的、指导思想和基本原则很值得我们今天继承。     

Assaults Against Inspectors: The Dangers in Enforcing Corporate Crime

This survey of regulatory inspectors reveals a surprising number of threats and assaults being made against inspectors in the course of enforcing regulatory provisions. Contrary to conventional images of regulatory enforcement, inspectors in some agencies face violent resistance from regulatory offenders that is similar to the violent resistance encountered by police officers. These findings provide support for the contention that regulatory enforcement and policing should be conceptualized as overlapping forms of law enforcement rather than as distinct governmental activities.     

经营者安全保障的法律规制——以“公法模式”作为研究中心

目前有关经营安全保障的探讨和规范，基本上是由私法学者采用私法规范模式进行的，其基本思路是在现行民事法律体系框架内，通过民法理论的运用，课以经营者法定义务。这种以私法为基础的规制方案在现代社会存在着诸多不足，更为关键的是这种模式存在着理论上的矛盾。从某种角度而言，解决经营者在经营过程中存在的怠于行使安全保障义务问题，一方面可以适用私法意思自治，通过契约责任或者侵权责任来规范这种行为，男一方面，还需要政府管制的补充。只有“公法模式”和“私法模式”的互相融合，互相补充，才能有效应对现代社会的高度复杂性、多元性。