Drawing bright lines in law and regulation between what is criminal, what is harmful and what is desirable is difficult. Part of the difficulty here is the way that the benefits of a particular activity or industry are often intertwined with harm. The embedded nature of harm within benefit and the unequal distribution of those harms and benefits means that it is difficult (both politically and practically) to develop precise law or finely targeted regulation that can separate the two. Further, those with interests in the benefits often have unique leverage over policy-making within government. For example, a mine in a particular locale may provide necessary and welcome employment and inward investment to a town, and its continued presence supported by many residents as a result. It may well also provide significant profits for the mine’s owners. Yet, it is miners that are at most risk from death, illness, and injury. So, workplace safety breaches are categorized as side effects of an otherwise purposeful form of wealth-creating industrial activity (which is encouraged), and risks are managed through regulation rather than mining prohibited outright (Hawkins 2002; Kagan and Scholz 1984). Context-rich analyses of criminalization in the context of OHS illustrate well the complexity of the distinction between what is “criminal” behavior and prohibited and what is “merely” a regulatory breach of the law.
While debates around the need for criminalization are important, they can distract attention away from the dynamic within which regulatory strategies (including criminalization) emerge. Again, it can be helpful to go back to Kit Carson’s work (1980), which shows how industrialists’ resistance to criminalization generated new forms of law in an attempt to bring them to account. Notions of mens rea and responsibility were developed in order to frame criminality in terms of individual pathology rather than sociological factors such as poverty and inequality. But safety inspectors found that proving fault in relation to workplace safety breaches was exceedingly difficult and argued for the need for strict liability offenses that did not require intent or mens rea in order to prove a breach. But once in place, the industrialists’ argued that a truly criminal offense must require proof of intent, and so these safety “crimes” were different from “ordinary” deviance in legal form; this meant that they could then be classified as normatively different due to the lack of individual pathology involved (Carson 1979). This change of status was fundamental in legitimating the new laws in the eyes of the industrialists. Understanding enforcement in the OHS context means understanding why enforcement is responsive to the regulated – including strategies to deal with the level of political influence the industry is able to exert. Regulators find it difficult to rigorously enforce safety standards in the face of political ambivalence (Haines 2011). Hence, in the face of resistance, it is not surprising that enforcement officers seek legal provisions that are more easily proved, which gave rise to debates around ambiguity and criminality.
This can be characterized as a problem of assimilation and differentiation; the problems of assimilating industrial offenders into existing concepts of fault proved insurmountable due to the fundamental individualism of the criminal law. From one perspective, strict liability offenses weakened the law, but from another, they at least allowed inspectors to prove an illegality against a corporate defendant. This “double shift” towards and then away from criminalization was born out of necessity and the strictures of a criminal system developed to deal with working-class “unruliness.” Hence, the “quasi-criminal” or regulatory character of the law developed from this point. The impact of this history of ambiguity on current government policy continues to be felt. For example, similar arguments attached to the “reasonable practicability” defense contained in the UK Health and Safety at Work Act 1974 (HWSA). The absolute duty for employers to provide a safe workplace was mitigated by requiring that the costs of breaching the law outweigh the cost of prevention. This had the effect of legitimating the HSWA in the eyes of business without introducing any kind of “moralizing” mens rea element into play; at the same time, this requirement acts as a de facto fault element, in that it allows regulators to differentiate between “respectable” businesses and the morally culpable “bad apples” (Hawkins 2002). But such a requirement arguably also shields companies from rigorous enforcement by introducing a utilitarian calculus into the question of safety protection, allowing what should be an absolute moral obligation to be sidestepped where the costs of doing so would be detrimental to business competitiveness.
There is another important result of this “responsiveness”; the diversity of law and enforcement techniques implemented in various jurisdictions. In the past 40 years or more, a proliferation of different techniques has developed in the OHS context. These techniques span different forms of penalties, such as “on the spot” fines and enforceable undertakings measures, and those that attempt to govern organizational behavior such as safety management systems or individual action in minute detail such as behavior-based safety training. Also important to understand are self-regulatory systems that include a wide array of accreditation schemes (often put in place by business defensively to preempt legislative reform) through to what Ayres and Braithwaite (1992) term enforced self-regulation: the safety case model in the regulation of major hazard facilities such as chemical plants and oil refineries. This latter case, when properly implemented, needs to be understood as far more than self-regulation. Under this model, each plant must come up with fine-grained and clearly articulated rules around safety at their facility. These are checked and, if satisfactory, approved by the regulator who then enforces this unique set of rules (the “safety case”) as it applies to each individual plant. Each of these initiatives above can, and should, command attention in terms of how far they provide an incentive for improved OHS standards on the ground.
Legal, organizational, and behaviorally focused techniques also need to be understood in context. This context includes contests over: (i) the definition of what laws should, or should not, pertain to the workplace; (ii) what is, and is not, acceptable in terms of both risk and behavior; and ultimately (iii) if death, injury, or illness occur, who should be held responsible and for what. There are a broad range of actors with potential influence here. There are the three major players: the government, the employers, and the employees. Further, inspection and enforcement officers need separate consideration to that of the government as their practices, formal and informal policies, and decision-making processes are significant in shaping regulatory outcomes. In particular, the work of scholars associated with the UK’s Oxford Centre for Socio-Legal Studies has shown how regulators utilize discretion, negotiation, and bargain and bluff, in order to maximize their influence while facing severe resource constraints (Hawkins 2002; Hutter 1997). In such cases, they need to find creative ways to implement the law and to generate higher standards. This can prove difficult, if not impossible.