BRIT.J CRIMINOL.
VOL.30
No. 4 AUTUMN 1990
COMPLIANCE STRATEGY, PROSECUTION POLICY,
AND AUNT SALLY
A Comment on Pearce and Tombs
KEITH HAWKINS*
The paper by Pearce and Tombs appearing in this issue raises significant issues about
the social control of business behaviour. As they know,1 I agree with the broad
argument that it is important to enhance regulatory control over business, and many of
the issues they discuss deserve further attention. In my opinion, stricter enforcement
and harsher penalties for regulatory violations are in many instances necessary. What I
do take issue with, however, is the way in which they misread and dismiss much of the
current research on social regulation.
There are two points that I want to make at the outset, as clearly and as simply as I
can. First, much of what Pearce and Tombs have to say in their paper about existing
socio-legal work on social regulation is based on misinterpretation, misunderstanding,
and misrepresentation. Second, to the extent that it is possible to construe what Pearce
and Tombs say about my and my colleagues' work as implying tolerance of the death,
injury, and illness caused by business and industry, they outrageously misrepresent our
position.2
Pearce and Tombs have written a paper in two distinct parts. The first is a critique of
British and American socio-legal research on social regulation, the second an argument
for the greater use of sanctioning strategies based on deterrence theory. The first part of
the paper is a confused confection of theoretical critique and policy prescription, of
positive and normative, of description and advocacy, and in so far as the authors are
really concerned in their paper with advancing the cause of improved occupational
health and safety, many of the remarks they make about other socio-legal enquiries are
gratuitous and irrelevant.
I want in this reply to discuss some of the central themes in their paper. I shall deal
with their critique and draw attention to some of the ways in which Pearce and Tombs
• Centre for Socio-Legal Studies, Oxford University.
I am very grateful to Bob Kagan for his helpful comments at very short notice. I also wish to acknowledge, with
thanks, the comments of my colleagues Peter Bartrip, Bridget Hutter, Sally LJoyd-Bostock, Peter Manning, and
Matthew Weait. The shortcomings in this paper, however, are mine. Unattributed page numbers in the text refer to the
article by Pearce and Tombs in this issue.
1
From comments I made in a letter I sent to Tombs (13 April 1989), to which Pearce and Tombs refer in their first
note. However, the implication that I have seen an earlier version of their paper, and that I have made critical
comments on it, is not correct. In 1988 Tombs sent me a copy of his report on 'The Nature and Limitations of the Legal
Regulation of Health and Safety in the Workplace' which was submitted to transfer from M.Phil, to Ph.D. status at
Wolverhampton Polytechnic (Tombs 1988), and invited my comments. These I made in the form of the letter to Tombs
from which they quote in their present paper. In that letter I drew attention to various inaccuracies and omissions in
Tombs's report and made brief suggestions which were intended to be helpful. I also pointed out that my book did not
take a position on the issue of the most desirable enforcement strategy to be adopted by regulatory agencies. 1 received
no reply from Tombs, then or later.
2
I can associate Robert Kagan and his colleagues with these statements. In writing this response I am relying in part
on comments made in a letter from Kagan to me of 2 March 1990 in which he outlined some of his reactions to the paper
by Pearce and Tombs, and from which I have drawn, and sometimes quote, with his consent.
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COMPLIANCE STRATEGY, PROSECUTION POLICY, AND AUNT SALLY
misread work which they label as that of'the compliance school' (pp. 424, 428, 436). In
doing this I hope I shall be forgiven for referring extensively for obvious reasons to my
own work (Hawkins 1984a). Since Pearce and Tombs go on in their paper to make a
number of points about regulatory policy, I also intend to make a few comments about
some of the questions of enforcement policy raised by their arguments as to the most
appropriate strategies which should be adopted in an,effort to control certain kinds of
business behaviour. Some of these comments I shall set in the context of remarks Pearce
and Tombs make about some of the publications of Robert Kagan of Berkeley and his
associates, since this body of work is also sometimes singled out for attack which, it
seems to me, is sometimes both misplaced and unfair.3
I now want to deal with some of the main themes and also to document some of the
misrepresentations4 of which I think Pearce and Tombs are guilty. It would be tedious
to speak to each and every assertion with which I take issue, so I shall confine myself to
some general points.
On 'Compliance Theory'
Pearce and Tombs cobble together the notion of a 'compliance school' from academic
work conducted in two rather different traditions. Their carelessness in the use of their
fiction is notable. Having brought the target into focus, they then misuse the analysis
presented in the works they attack, compounding their errors of interpretation.
In fact, the first part of the paper by Pearce and Tombs is a good example of the
'straw man' or Aunt Sally school of academic critique (Aunt Sally: a figure used as a
target in a throwing game; a target of general abuse or criticism—Oxford Paperback
Dictionary). Their particular target consists of a number of empirical studies of
regulatory enforcement which have been conducted in this country and the USA over
the last few years, among them my own research on environmental regulation
(Hawkins 1984a), some of the work of my present and former colleagues at the Oxford
Centre for Socio-Legal Studies (e.g. Hutter 1988; Jamieson 1985; Richardson, Ogus,
and Burrows 1983), and research by Robert Kagan and his colleagues in California
(e.g. Bardach and Kagan 1982; Kagan and Scholz 1984). The Aunt Sally tendency is
even more pronounced in that Pearce and Tombs end up making some policy
recommendations which are really rather similar to those proposed by writers whose
3
Pearce and Tombs incoherently conflate criticisms of British work at the Oxford Centre for Socio-Legal Studies with
criticisms of Kagan and his colleagues, which makes it difficult to separate out the issues and respond briefly. Their
paper also causes difficulties in fashioning a response because they make assertions without reference to empirical
findings, on the basis of taken-for-granted knowledge: no evidence of any empirical research or first-hand fieldwork with
regulatory inspectors on enforcement processes is discernible. This has two consequences. First, there is little in what
they write which suggests that they have any real sense of what regulatory inspection and enforcement actually involve,
or of the nature and distribution of regulatory violations. Second, it leads to a number of cavalier assertions, such as: 'In
most industrial accidents and most instances of occupationally induced ill-health employers have to some extent acted
carelessly' (p. 432). Now this may be true. But we do not knew, since they provide us with no reference to support what
they say. It may also not be wise to conflate ill-health with accidents when discussing employers' carelessness, given that
occupational ill-health, though certainly a serious problem, is often an extremely elusive phenomenon whose causes are
sometimes not understood well, ifat all. This makes it more difficult to debate the question of carelessness than is the case
with occupational accidents.
4
There are also many unsubstantiated assertions. For instance, who says that 'illegalities are considered to form a
marginal rather than an inherent element of business activity' (p. 439)? Who protests that it is impracticable or
undesirable to police industry (p. 439)?
445
KEITH HAWKINS
work they attack. I have in mind here the work of Kagan and Scholz (1984) and
Bardach and Kagan (1982), who argue for punitive enforcement (since compliance
strategies will only work well if backed up by strong penalties), as well as for a mix of
methods. Going by the Book calls very clearly for strict, rapidly-applicable sanctions that
are to be used with discrimination: 'Regulatory agencies need powerful tools of legal
coercion because there are bad apples, eager to exploit vague rules and the cumbersome
mechanics of due process. Moreover, the threat of effective enforcement also is needed
to keep good apples good' (Bardach and Kagan 1982: 123; emphasis in original).5 I
refer also to a recent publication of mine (Hawkins 1989i), in which I suggest that
regulatory enforcement be made easier by trying different regulatory techniques, such
as licensing—an approach advocated by Pearce and Tombs, though in their discussion
of licensing they omit to refer to the fact that elsewhere I have made that very
argument:
. . . from a policy point of view it may be more viable to attain the better control of certain kinds
of risk by altering techniques of regulation to make them more easily enforceable, rather than by
seeking to alter the decision-making behaviour of legal actors. Licensing, for example, may be a
more appropriate mode of getting to grips with some problems than are traditional commandand-control methods. Licences can be withheld or withdrawn, and operators can be prosecuted
simply for acting without a licence. (Hawkins 1989A: 387)6
The theme that links my work (for example) with Kagan's (albeit from our different
standpoints) is an interest in regulatory compliance. But Kagan's work is directly
concerned with regulatory policy. Mine is not. Robert Kagan is a political scientist
whose research, particularly in his best-known publication Going by the Book (1982, with
Eugene Bardach), deals with the question of how more effective and efficient protective
regulatory policy may be designed and applied to business. Going by the Book is
concerned with the 'reasonableness' or otherwise of social regulations and is therefore
explicitly normative. In contrast, my book Environment and Enforcement (1984a) is not
concerned with regulatory policy at all, but with regulatory practices. It is a
sociological study of law enforcement as observed over a period of more than two years
in two Regional Water Authorities (RWAs). It seeks to understand how and why
pollution regulations are enforced (or not) and what part the criminal law plays in
protecting water quality. It is an ethnographic analysis and it does not, contrary to the
claims made repeatedly by Pearce and Tombs, take a position on the question of what
part the criminal law should play in regulating water pollution. Though they may comb
the work for incriminating evidence they will find that I undertake no evaluation of the
advantages and disadvantages of compliance strategy as opposed to sanctioning
5
Kagan says that Going by the Book, for example, 'strongly endorses enforcing of all regulations that reduce serious risks
and do so in cost-effective ways, whether or not the regulated industry likes it. Our definition of "regulatory
unreasonableness" (Going by the Book, pp. 5-7) relates to economic efficiency, a relation between the costs of compliance
and the social benefits that would flow from compliance. Many, perhaps most, environmental and safety regulations
pass that cost-benefit test in the aggregate, we say, and hence should be enforced, whether industry likes it or not (which
they often don't in the case of many pollution control regulations)' (letter to Hawkins, 2 March 1990).
6
While licensing is the major method of regulation employed by the Nuclear Installations Inspectorate of the HSE
(Manning 1987), it is ironic that the consents issued by the RWAs are also forms of licence to pollute. That said, the
Chief Inspector of Factories reports an improvement in the standards of companies regularly working widi asbestos
following introduction of the Asbestos (Licensing) Regulations 1983 (HSE 1987: 28).
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COMPLIANCE STRATEGY, PROSECUTION POLICY, AND AUNT SALLY
strategy, and, indeed, that I make no advocacy in the book of any particular
enforcement approach.
But Pearce and Tombs make the extraordinary mistake of assuming that because I
analyse compliance strategy, somehow I endorse it.7 For example, at the very
beginning of their paper, they refer to 'the thesis that the illegal conduct of corporations
necessarily calls for different forms of regulation than other kinds of law-breaking'. The
advocates of this view, they continue, 'who include, in the British case, many of those
associated with the Oxford Centre for Socio-Legal Studies,[8] argue that regulatory
agencies should thus act as consultants rather than policemen' (p. 423).9 Since the
authors make clear subsequently that they have my work (inter alia) in mind with such
assertions, it is important to state quite clearly that nothing in my book can possibly
support such claims. Nowhere do they cite anything in Environment and Enforcement
which argues 'that regulatory agencies should . . . act as consultants rather than
policemen'. Indeed, they ignore the extensive analysis in the book which draws
attention to the weaknesses and failures in compliance strategy as practised by the
pollution inspectors (Hawkins, 1984a, esp. 105 ff.). They fail to observe that I
document the ways in which business actors seek to prevent, evade, or minimize
regulatory intrusions. Or that I analyse the games that are played by regulatory
officials and regulated firms, such as the manoeuvres to present and preserve legal
authority, and the many games organized around bargaining and bluffing (Hawkins
1984a: 118 ff.; see also Hawkins 1983). Or that it is perfectly clear throughout
Environment and Enforcement that inspectors often turn a blind eye to violations (see esp
ch. 5; also Hawkins 1984i), or that regulatory rule-breaking is, to use their words
(p. 427), 'commonplace and routine'.10
Pearce and Tombs, in short, seem not to accept that it is perfectly possible to analyse
the belief systems of law enforcement agents without necessarily subscribing to, or
arguing for, those beliefs oneself. At any rate, the list of assertions culminates in the
statement (italicized for emphasis) that the starting-point for the 'compliance school' is
1
Others have not misinterpreted Environment and Enforcement in the way that Pearce and Tombs have. One reviewer
actually observed, quite accurately: 'The book is essentially non-judgmental and does not purport to answer the
question of whether the conciliatory approach is efficacious; that is, whether it is the most effective method of achieving
satisfactory water quality in Britain. In one sense the author U a little frustrating in appearing to studiously avoid
critical evaluation' (Cole 1985: 64). Another pointed out that the book did not have 'any economic or normative
perspective. . . . Little attention is given to the ultimate question of the effectiveness of this enforcement program . . .'
(Sullivan 1985: 425). Sec also Braithwaite's long review essay (1987: 559, esp. 565 ff).
8
They also seem to have overlooked the significance of the question mark in the tide of Bridget Flutter's book The
Reasonable Arm of the I AW? (Hutter 1988), not to mention the substance of her analysis and arguments throughout. It
should be noted in the present connection that Hutter (1988: 46—7) suggests that the weakness of the criminal sanctions
in environmental health enforcement is conducive to an unwillingness to prosecute. Moreover, Hutter, who does
explore policy questions in her book, discusses how to strengthen regulatory control through, e.g. greater use of notices
(Hutter 1988: 181), more appropriate sanctions (pp. 181—3), and increased public awareness of the problems (p. 184).
9
This idea is drawn from Kagan and Scholz (1984), not from people associated with the Oxford Centre.
10
I am careful to point out in the book that expressions of view are those of the officials whose work I was researching.
My chief concern in Environment and Enforcement 'was to learn in detail at first hand about the business of pollution control
at field level, to experience personally the [inspector's] world.
. . . Naturalistic observation was des'oted . . . to learning what officers define as relevant... I did not study any of the
pollution legislation before embarking on field work because I wanted to learn the law as the officers knew it. . . . The
perspective . . . firmly adopted in this study is that of the pollution control officer' (Hawkins 1984a: 229). I also made
clear the justification for the perspective adopted: 'The picture of the polluter which emerges is that as conceived by the
[inspector]. But it is this, of course, (as W. I. Thomas would doubtless have observed) upon which the officer premisses his
enforcement strategy' (Hawkins 1984a: 229; emphasis added).
447
KEITH HAWKINS
the illegitimacy of the capitalist economic system's being policed. This statement is as
inaccurate as it is silly."
As for the criticism by Pearce and Tombs (p. 429) that our research appears 'to
remain ideologically determined' (as if their own work does not?) and to ignore the
social and political context of regulation, they seem to have overlooked the discussion
in the preface and opening chapter of Environment and Enforcement, in which it is said,
inter alia, that
regulatory agencies must operate in a political environment, for regulation is intended to
preserve the sometimes fragile balance between the interests of economic activity on the one
hand and the public welfare on the other. Agencies are extremely sensitive to their political
environment. They find themselves operating between two broad publics or constituencies with
competing views about the proper realm of government in regulating the economy. These
constituencies are a reflection of ideological differences and represent opposing positions on the
fundamental political dilemma of regulation: the extent to which economic restraint by the
imposition of legal rules is justifiable. (Hawkins 1984a: 9; footnote and references omitted)12
Given these comments (and more besides), and also given that elsewhere I have raised
the suggestion of the wider use of licensing (Hawkins 19894), for Pearce and Tombs
then to say that 'the social science of the "compliance school", with its empiricist and
ideological understanding of the "feasible1, closes off the possibility of even considering
such reforms [as licensing]' (p. 436) is nonsense.13
Pearce and Tombs seem to have missed the main point of the analysis in Environment
and Enforcement, which shows that the moral status of pollution violations is central,14
and that the decision to prosecute is heavily influenced by the environment of moral
and political ambivalence within which regulatory agencies like the RWAs work. It is
precisely the moral and political ambivalence surrounding regulatory rule-breaking, as
it acts on the regulatory agencies and their inspectors, that determines the level of use of
prosecution and the kinds of cases that are selected for prosecution (see the remarks of
the senior official quoted below, p. 456). The use of prosecution here is primarily
symbolic and dramatizes notions about right and wrong: it is precisely those cases
about which regulatory officials feel no moral ambivalence that receive punitive
treatment (the 'bad' cases: Hawkins 1984a: ch. 10). At the same time, the competing
pressures from the opposing laissez-faire or business publics on the one hand, and the
" They provide no evidence to support their scepticism about the power imbalances (certainly in the USA) between
business interests and regulatory agencies. In the very area with which they are concerned, the Occupational Safety and
Health Administration is well known to have suffered an industry backlash in response to its perceived over-zealousness
(see Noble 1986). Their third assertion (p. 423) ignores the evidence, for example, of the 'capture' of regulatory agencies
in the USA (see e.g., Bernstein 1955), as well as the evidence of the power of business to promote regulation for its own
purposes (e.g. Kolko 1965, 1967). Many strict regulations have been introduced at the behest of business to gain an
advantage over new competitors, as in the case of the US Clean Air Act 1977, which required all coal-fired power
stations to install scrubbers, even if they used low-sulphur coal, a provision enacted following pressure from producers of
high-sulphur coal (Ackerman and Hassler 1981). (I am grateful to Bob Kagan for this illustration: see also Bardach and
Kagan 1982: 18-19.)
Hutter (1988) and Hutter and Manning (forthcoming) also explore the political context of enforcement.
Furthermore, it is interesting, to say the least, to be accused (p. 430) of ignoring the social and political context of
enforcement in a quote lifted from a paper originating in one of my research projects, written up by one of my doctoral
students! And it is at this point in the paper that the 'compliance school' is finally dispatched. It is (wait for it) 'at best
empiricist and at wont implicidy committed to conservative political values' (p. 430).
11
At the risk of labouring the point, considering reforms was precisely not what I was concerned with in writing
Environment and Enforcement.
14
Other empirical studies of regulation to support this include Silbcy (1978), Carson (1970), and Nivola (1976).
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COMPLIANCE STRATEGY, PROSECUTION POLICY, AND AUNT SALLY
activist, pro-enforcement groups on the other, were handled by the RVVAs with the
occasional prosecution to manufacture the appearance of activism. 'The need to
dramatize a measure—but a carefully controlled measure—of activity is the more
acute given the lack of substantial consensus abut the agencies' mandate' (Hawkins
1984a: 194; italics omitted). By prosecuting the clearly morally blameworthy cases the
Water Authorities were placing the behaviour complained of in a framework which
was familiar and comprehensible to all, even the most pro-business advocate (Hawkins
1984a: ch. 10).15
The discussion about 'compliance theory' is extended by Pearce and Tombs to
questions connected with sanctioning. In trying to convey the impression that I argue
for 'compliance' and oppose punitive enforcement Pearce and Tombs employ various
sleights-of-hand. For example, on page 428 they report that 'Hawkins claims that
senior staff curbed the "excessive enthusiasm . . . for prosecution" of junior officers'. As
it stands, a dispassionate reader could be forgiven for thinking that I approved of the
action of senior staff. What I actually wrote was: 'Despite a general desire to stand by
their field men, some area supervisors play a role in curbing what they see as an occasionally
excessive enthusiasm among some of their field staff (particularly some younger officers)
for prosecution' (Hawkins 1984a: 182; emphasis added). 16 Again, on the question of the
penalties available, it is said that I 'challenge' the belief held by some officers that the
legal penalties available are inadequate. I do nothing of the sort.17 The key issues
surrounding penalties in pollution regulation at the time of the fieldwork were
connected with the officers' ignorance of the courts and prosecution processes, which
stemmed from their unfamiliarity with and lack of training in prosecution. This
unfamiliarity in turn arose from the very low use of prosecution in the RWAs at the
time.18 Officers for the most part knew only that on summary conviction an offender
was at the time liable to a fine of £100, which was (understandably) widely regarded as
derisory.
As to my 'claims that the legal penalties are not as insubstantial as is often imagined
and that magistrates are not lenient because of a "general identification . . . with high
status offenders"' (p. 429), there are two separate issues. First, on the question of the
severity of sanctions, the Control of Pollution Act 1974 provided for a fine of £400 or
three months imprisonment, or both, on summary conviction, while on conviction on
indictment there was provision for a fine (without maximum), or two years imprisonment, or both.19 It was also open to the Water Authorities to obtain an injunction to
shut down a discharge of a polluting effluent, though few in the Authorities seemed to
be aware of this power. Though these penalties seem to me (if not to Pearce and
15
'What is sanctionable is not rule-breaking as such, but rule-breaking which is deliberately or negligently done, or
rule-breaking accompanied by an uncooperativencss which amounts to a symbolic assault upon the enforcer's and the
agency's authority and legitimacy' (Hawkins, 1984a: xiii-xiv).
16
In the same passage, Pearce and Tombs talk of'junior staff's "over-commitment" to legalism' (p. 428), and again
imply a personal position of mine. What I actually wrote w a s : " . . . there is usually a preference for fuller enforcement at
field level, in keeping with the pattern of administrative decision-making in legal bureaucracies where the commitment
to a more legalistic approach is stronger in the lower reaches of the organization.' This last statement is described by
Pearce and Tombs as an 'allegation' (p. 428), despite the fact that I cite evidence from no fewer than three separate
studies in support of it (namely, Kagan 1978: 161; Robison and Takagi 1968; Weaver 1977: 100).
" Rather than quote from Environment and Enforcement, I simply direct interested readers to pp. 187-90, so they may
see for themselves.
" See Hawkins, 1984a: 177 for statistics on this.
19
This matter is discussed at greater length in Hawkins, 1984a: 18-19; see also Hutter, 1988: 75 ff.
449
KEITH HAWKINS
Tombs) to be rather heavier than a £100 maximum, the more interesting questions
have to do with the level of penalty provided by the legislature, particularly in its
relationship with strict liability, and why it is that the pollution inspectorates did not
consider private law remedies.
Second, on the question of magistrates' leniency towards high status offenders, many
of those who are prosecuted in pollution control work are not high status offenders. As
Environment and Enforcement shows, it is often the marginal firms and individuals (in the
pollution control context the smaller operators, the 'cowboys', etc.: see ch. 6) who
invite the suspicions of the inspectors, just as the criminal justice process systematically
tends to discriminate against the working class, unemployed, or black, leading to their
over-representation in the prison population. Pearce and Tombs should not assume
that commercial criminals (p. 429) are always high status or that high status offenders
often get prosecuted (at least in water pollution control work, or offences against the
consumer: Croall 1988). Such people are often (as Environment and Enforcement explains),
better equipped to avoid the attentions of the pollution control inspector, or to
negotiate in such a way as to foreclose the possibility of prosecution. Finally, it has to be
observed, of course, that while magistrates may be open to the criticism that they fail to
sanction commercial offenders sufficiently heavily, they can only punish as heavily as
the law permits. And (to repeat the point that Pearce and Tombs seem to have
difficulty in grasping) what they appear to do in sentencing pollution offenders is to
penalize the particular act(s) complained of (they do not hear evidence of prior
intransigence or non-compliance) by reference to the maximum penalties provided by
the law.20
What regulatory agencies can do by way of enforcement is, of course, crucially
dependent on the level of resources at their disposal. But Pearce and Tombs's discussion
(on p. 429) will not do. Why the Water Authorities did not upgrade their facilities was
not a question relevant to my research. The answer21 is partly lack of money, but not
entirely so (one of the RWAs I researched achieved, in one of the years in which I was
doing fieldwork, a surplus of £27 million).22 It is not necessarily correct to argue, as
Pearce and Tombs do, that lack of resources is a reason why regulatory agencies adopt
20
Magistrates will have evidence only of the particular act for which a charge has been brought, a n d will not know of
the sometimes long record of efforts by inspectors to achieve compliance (often in the face of evasion, delay, a n d the like
by t h e polluter for months or years). T h e r e m a y be a difference here between pollution a n d occupational health a n d
safety violations, however. Substantial concern a b o u t the sanctioning practices of magistrates in occupational health
a n d safety violations has been expressed recently by the minister responsible, M r Michael H o w a r d . In a letter to the
C h a i r m a n of the Magistrates' Association (5 F e b r u a r y 1990) he said that 'Fines of a few hundred pounds, for example,
against large building contractors for serious breaches of health and safety legislation are unlikely to have the required
d e t e r r e n t effect.' These views have been endorsed by the C h a i r m a n of the H S C (press release by D r J o h n Cullen,
5 F e b r u a r y 1990). This possible difference in the treatment of pollution and health and safety cases is a reminder of the
hazards of generalizing carelessly across different arenas of regulation.
21
T h i s is so far as the R W A s a r e concerned. Scarcity of resources is a much more significant matter in relation to
prosecution policy so far as factory inspectors a r e concerned. Since factory inspectors not only have to prepare their
prosecution cases themselves, b u t must actually conduct the case in the magistrates' court, the a m o u n t of time required
to collect evidence, prepare t h e case, a n d so on, acts as a major constraint against taking too m a n y prosecutions
(Hawkins 1987).
22
The inability of the RWAs' sewage treatment works to meet standards, which Pearce and Tombs discuss in this
connection, and their adaptive behaviour when faced with the possibility of private prosecution for failure to do so, was
one of the most interesting events that occurred during my fieldwork. But why do Pearce and Tombs say that I 'admit'
that there was a general reduction in standards when it was sufficiently interesting and important for me to devote a
section of a chapter to it? Their use of this particular verb, in the particular context, to convey a sense that some
unpalatable truth has been wrenched out of me, is instructive.
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COMPLIANCE STRATEGY, PROSECUTION POLICY, AND AUNT SALLY
a conciliatory approach (p. 429). If law enforcement agencies lack the inspection
resources to monitor effectively, an approach based on general deterrence could be just
as rational a response as one based on conciliation. Indeed, such a punitive approach is
not only adopted by a number of factory inspectors but is also the principal strategy of
the Agricultural Inspectorate, whose relatively small number of 139 field inspectors
must police nearly 300,000 sites (Health and Safety Executive (HSE) 1988: 46). It is a
commonplace to observe, of course, that a strategy based on general deterrence and
higher levels of more punitive enforcement has its costs. Inspectors who are tied up
preparing prosecution cases (factory inspectors), or assisting solicitors in their preparation (agricultural inspectors), are not able to conduct inspections, search for
violators, monitor compliance, and so on (see Hawkins 1989A; Hutter 1989). And since
it is widely accepted that the subjective calculation of the probability of being caught is
usually a more effective deterrent to illegal behaviour than a possible imagined
penalty, we need to consider whether, and in what circumstances, greater deterrence
might be achieved by putting more resources into inspection, rather than into
prosecution and punishment. This is not to argue against more punitive enforcement,
but to point out that empirically based evaluative studies of the comparative costs and
benefits of compliance and different forms of deterrent strategies are necessary for an
informed policy choice to be made.
A final point about compliance strategy is that it may be prompted as a consequence
of the ways in which the relevant legislation is framed and drafted. From the point of
view of an organizational actor in a regulatory agency, whether and how inspectors
will use prosecution depends significantly on the structure and form of the relevant
legal rules. Prosecution is a risky strategy because the case might be lost. This
encourages factory inspectors to search for and act on violations which are not too
problematic in legal terms: they have a preference for relatively quick and easy cases.
The result of this is a bias in prosecution towards safety cases, rather than occupational
health cases; cases in which the alleged breach is of an absolute rather than a general
duty; accidents (in which the damage has been done) rather than risks (in which
damage is only a possibility in the future); and, in general, cases which are unlikely to
invite a defence (see generally Hawkins 19896: 376 ff.).
On Regulatory Co-operation
Pearce and Tombs do not discuss the phenomenon of co-operation between regulatory
agencies and business, which is highly relevant to the question of regulatory strategy
(see generally Scholz 1984). It is hard to deny that it exists in varying forms and
degrees. Firms may seek to avoid, to delay, to play games, to comply to a greater or
lesser degree (see Hawkins 1984a: chs. 6 and 7), but some do install pollution control
equipment, some do guard dangerous machines, some do exchange information with
regulators, and some do warn pollution control authorities of spillages or equipment
failures. Bardach and Kagan (1982) found in their research in the USA that a majority
of firms respond co-operatively; and the empirical phenomenon of co-operativeness is
not only crucial to the analysis and argument in Going by the Book, it is crucial to the
design of regulatory enforcement policy. First, it is important because of the limits of
legal rules in many regulatory arenas: risks are more diverse and changing than
regulatory rule-makers can anticipate. 'Moreover, the inspectors', writes Kagan,
451
KEITH HAWKINS
. . . can never count on arriving at the right time. They couldn't be on the bridge of the Exxon
Valdez. True reduction in risk requires imaginative effort, an ethos ofrisk-reduction,constantly
reappraised management systems, labor-management co-operation—all of which regulatory
officials can encourage, but [are] more likely [to be achieved] by eliciting co-operation than by
simple rule enforcement. (Kagan, letter to Hawkins of 2 March 1990)
Second, if attitudes conducive to co-operativeness do exist, as Bardach and Kagan
(1982) found in their research and many regulators attest, then we have to consider
carefully whether the penal strategy Pearce and Tombs advocate may indeed stimulate
a counter-productive backlash, a legalistic attitude of minimal compliance, a cuttingoff of information, and so on, as happened in the USA with the Occupational Safety
and Health Administration (OSHA) and the Environmental Protection Agency
(EPA). Punishment causes resentment (see Kelman 1981: 205—14). The evidence of a
backlash against OSHA, for example, is undeniable. President Reagan's appointee as
head of OSHA announced that the agency would no longer aim at 'punishing'
industry, but at seeking its co-operation instead (Szasz 1984: 113). Another consequence was 20 per cent fewer OSHA inspectors, and more dian a third of the agency's
field offices closed (Szasz 1984; see also Calavita 1983; Bardach and Kagan 1982;
Noble 1986). Pearce and Tombs may lament this phenomenon, but they provide no
evidence that it will not happen with a switch to a generally punitive strategy.23
On 'Amoral Calculation'
It is not correct to accuse Hutter, Kagan and Scholz, Jamieson, and Richardson el al. of
believing simply that businesses' 'adherence to regulations is not conditional upon their
interpretation of their own . . . self-interest' (p. 424).24 Kagan and Scholz, and, I
suspect, the other authors, would argue that this explains a lot of corporate behaviour,
but not all of it. For instance, Pearce and Tombs misunderstand the discussion by
Kagan and Scholz (1984) of the 'amoral calculator'.25 Kagan and Scholz say clearly
that the three folk 'theories' of why violations occur 'are not mutually exclusive'
(Kagan and Scholz 1984: 68): that the same firm can act like an amoral calculator, or
23
Nor do Pearce and Tombs provide any contrary evidence on the prevalence of co-operative responses. They ignore
the studies cited in Kagan and Scholz (1984: 71), showing different compliance levels among firms in the same industry.
14
It is important to observe that the work of Kagan and Scholz and Bardach and Kagan (as well as the work of the
Oxford Centre to which they refer) is, in apparent contrast with the basis for Pearce and Tombs's arguments,
empirically derived. It is interesting to observe further, however, that Hutter, Jamieson, and Richardson et al. are
accused (p. 424) of proceeding on what Pearce and Tombs describe as the 'assumption' that most corporations are not
in fact amoral calculators, notwithstanding the fact that these studies do not make assumptions about corporate
behaviour, but are instead empirical analyses reporting the beliefs of enforcement officials. Such empirical findings are
not only misused, but are described by Pearce and Tombs as 'assumptions'.
23
Indeed, they misrepresent Kagan and Scholz. First, Pearce and Tombs (pp. 424) criticize the models used by
Kagan and Scholz (which are empirically derived) without actually describing them in any sort of detail; they also fail
to point out that Kagan and Scholz do refer to empirical evidence in support of their point that businesses do not always
act as amoral calculators (see Kagan and Scholz 1984: 71). This point is described as a 'notion' and subsequently as an
'assumption' (p. 424). We arc then told (p. 424) that Kagan and Scholz have 'objected' to the 'amoral calculator"
theory. But the reader who bothers to look at what Kagan and Scholz write will discover that this is not the case. What
Kagan and Scholz actually do is oudine what they call the 'limits' of the amoral calculator theory. Indeed, far from
'objecting' to the theory, Kagan and Scholz actually begin this part of their discussion with the following remark:
'There is an essential truth, of course, at (or near) the heart of the corporation-as-amoral-calculator theory: businesses
are motivated to increase profits, hence they often will be tempted to violate the law if they perceive the opportunity for
gain' (Kagan and Scholz, 1984: 71, original emphasis).
Kagan and Scholz go on to argue that each image of the business corporation explaining why violations occur in turn
452
COMPLIANCE STRATEGY, PROSECUTION POLICY, AND AUNT SALLY
a rebel, or a blunderer vis-a-vis different regulations. At the same time, they by no
means imply that compliance results from a general, non-economically-based impulse
towards 'social responsibility'—contrary to Pearce and Tombs' implication in the first
part of their paper. To quote Bardach and Kagan (1982):
The good apples are firms . . . guided by some conception of long-term self-interest. They are
concerned about their reputations in the marketplace, maintaining smooth labor relations,
preventing lawsuits, and avoiding the stigma of being labelled a socially irresponsible
lawbreaker. They would not necessarily act in a socially responsible manner if there were no
realistic threat of regulatory enforcement . . . They are also concerned about costs and are not
always willing to subordinate short-run cost considerations . . . [so sometimes they may act as an
amoral calculator . . . but not always], (p. 6A)26
Thus there is a difference, which Pearce and Tombs obscure, between firms being
profit-oriented and being inclined to violate all regulations as long as they think they
will not receive a swift and severe regulatory sanction:
The point of good-appleness, the reason some firms have a better compliance rate than others, is
not that they are 'nice'. It's that under some structural conditions, there are many factors other
than regulatory fines that might impel a firm, for good profit-maximizing reasons, to comply—
either initially, or to respond cooperatively when the inspector comes. The firm might be subject
to expensive lawsuits for hazards that are also violations, or to costly accidents that would
destroy their assets and their ability to sell their products and services. It is not primarily
regulation that makes most established airlines service their planes, or factories maintain boilers
and remove fire hazards, or an architect and contractor follow sound building praedces that will
keep the building from falling down, or an auto manufacturer install brakes that don't fail.
(Kagan, letter to Hawkins of 2 March 1990)
Pearce and Tombs (pp. 426—7) cite figures showing that there are large numbers of
violations and many appalling accidents; that many large firms, over a period of time,
commit many violations; and that threequarters of fatal accidents were linked with
regulatory violations. Their use of these data is not very subtle. The. post hoc finding that
suggests a somewhat different enforcement strategy. 'There is no inherent reason', they go on, 'to choose among these
three "theories" once and for all . . .' (Kagan and Scholz 1984: 68). In fact the strategy of persuasion is only advocated
for firms characterized as 'political citizens' (contrary to the impression conveyed by Pearce and Tombs), and education
for those which arc 'organisationally incompetent'. For those seen as 'amoral calculator^, Kagan and Scholz say (1984:
68), 'the regulatory agency should emphasize aggressive inspection of all firms and promptly impose severe legal
penalties for any violations . . .'. Thus Kagan and Scholz actually advocate a mix of enforcement strategics in the effort
to increase levels of corporate compliance. It is worth looking at their final words: 'Inspectors who exercise discretion
will risk being deceived by business, being blamed for accidents, and being suspected of corruption. Thus, the politics of
security from hazards and the politics of organizational survival both favor a follow-the-rules enforcement strategy. For
political reasons, too, the vision of the corporation as amoral calculator is likely to dominate . . .' (Kagan and Scholz
1984: 87).
K
On page 425 Pearce and Tombs complain about the 'empirical arbitrariness' of Bardach and Kagan's discussion of
the distribution of'bad apples' in the population of regulated firms. Bardach and Kagan (1982: 65—6) try to provide
some empirical support for what is admittedly a difficult thing to quantify, relying on the kinds of observations made by
regulators in a number of regulatory settings. Secondly, Pearce and Tombs miss the point of the exercise, which
concerns how firms respond (and hence how regulators do or should react) when violations are discovered. The points
which Bardach and Kagan make (both supported by observations of regulatory officials), are that (1) the disposition of
firms to comply clearly varia, and (2) that a majority of firms (they are not concerned with the precise figure) usually
respond.
453
KEITH HAWKINS
many workplace fatalities are linked to violations proves only that some violations may
have serious consequences. Their point does not address the question of how likely the
fatality was to follow the violation. (Risks posed are a matter of the likelihood that
harm may occur, as well as the gravity of the harm that may occur. A violation may or
may not be serious. A violation may or may not lead to harm, and if it does lead to
harm, it may be anything from very minor to very grave harm.) And of course Bardach
and Kagan and Kagan and Scholz make the point repeatedly that serious violations do
occur and that the appropriate response by an inspector to a serious violation is a firm
and aggressive one, whether by fine or shut-down order, or what Kagan (letter of
2 March) calls 'a "strong" plea bargain—"I'll forget this violation provided you fix
that serious one immediately"'. We do not know either what percentage of those
fatalities resulted from 'amoral calculation'—wilful efforts to cut corners because of low
risk or sanction—as opposed to incompetence, breakdown of established safety routines
(the organization as incompetent), or a conscious judgement (perhaps erroneous in
retrospect) that the risk stemming from non-compliance was remote.
But the existence of large numbers of violations does not rebut the evidence adduced
by Bardach and Kagan (1982) or Kagan and Scholz (1984), or the validity of their
assumptions about the distribution of bad apples. To quote Kagan:
First, Pearce and Tombs miss or at least fail to discuss the most fundamental observation about
[American] regulatory regimes: the prevalence of overinclusiveness of regulatory rules, which is
rooted in the variability of risk in most regulatory arenas (Bardach and Kagan, 1982: ch. 3), a
phenomenon which is hard to deny. Because most regulations are prophylactic, and only
weakly correlated with accidents, most regulatory violations, as the agencies' own classification
systems and records show, are not 'serious'. There are violations to be found, and no one has
been hurt. Many violations are failures of paperwork, recording, reporting, warning signs,
clean-up requirements, fugitive emissions resulting from mistakes in normal preventive routines,
etc. . . . [T]he statistical incidence of violations does not prove thatrisksare high. We also know,
from Scholz and Feng (1986), that [in the USA] the number of violations cited, and classified as
serious, and fined, depends above all on political influences on the agency and on the degree of
pressure it gets from advocacy groups, labor unions, etc. (Kagan, letter to Hawkins of 2 March
1990; see also Reiss 1989; on the last point, see also Hutter 1988.)
Amoral calculation needs closer inspection. The idea is widely accepted as an
explanation for corporate misconduct (e.g. Staw and Szwajkowski 1975; Vaughan
1983), yet we know little about the dynamics of decision-making within business
organizations, and whether (or to what extent) 'illegality is a result of rational
calculation of costs and benefits of some harmful act' (Vaughan 1990: 8). Grabosky
(1989), in research on illegality in the public sector, found evidence of careful
assessment and weighing of risks and benefits in possibly two of seventeen cases.27
However, the extent to which business calculates is an empirical question, and not
something which we can know a priori. Pearce and Tombs seem to make a series of
assumptions in their use of the idea: that corporations are unitary organizations whose
behaviour is centrally determined as a result of calculation based on their shorter- or
longer-term self-interest; that the policies derived from such calculation are then
transmissible down through the organization so as to control the practices of its
17
I have drawn here from a paper, as yet unpublished, by Diane Vaughan (1990), to whom I am grateful.
454
COMPLIANCE STRATEGY, PROSECUTION POLICY, AND AUNT SALLY
members;28 and that violations arising from mismanagement, inexperience, and
ignorance are all explicable in terms of calculation. As Pearce and Tombs observe,
'even better-organized companies will continue to be prone to error, omission, and
violation' (p. 439). Furthermore, an image of the large corporation seems to lurk
behind Pearce and Tombs's comments (see, e.g., p. 438): but most industries are not
large corporations. Most are small and occupy a substantial amount of regulatory
resources,29 thereby posing the problem of what enforcement strategy to employ,
especially in an era of constrained resources. This is not a quibble. Most construction
firms, for example, are small enterprises, and construction is one of the most hazardous
of industries.30
How much and what kinds of regulatory rule-breaking by business can be explained
by reference to calculation? How much do people in business behave as individuals or
as organizational actors? And if people act self-interestedly, in whose interest do they
act, their organization's or (sometimes?) their own? Is amoral calculation good as an
explanation across all forms of business organization, in all degrees of complexity and
function, in all circumstances? The model of organizational actor as continuously
rational is threatened by cases of an apparent failure of people to calculate. For
instance, are we to assume that the captain of the Exxon Valdez was prepared to risk his
job, and possibly other sanctions, by allegedly drinking heavily while in charge of a
vessel laden with oil (see generally Mew York Times, 1990)? It should also be borne in
mind that self-interest may not only drive business towards non-compliance, but in
some circumstances (e.g. when the plant, such as an oil refinery, is potentially a major
hazard) it can compel not only compliance, but a level of compliant behaviour in
excess of the strict requirements of the regulations (Genn 1987).
How much room is there for a notion of violation arising by accident (as when the
tank, regularly maintained and inspected, suddenly ruptures, spilling noxious liquid
into the river)? Is there any room for chance events of the sort documented by Perrow
(1984), who has shown that organizational failures are often attributed to individuals
when they are in fact consequences of the ways in which elements of organizational
systems are coupled together, ways that make failure not only unpredictable but
inevitable? 'What is interesting', writes Reiss (1985: 817) in this connection, 'is that
men and their laws persist in holding someone—some person—accountable for those
organizational coupling failures.'
And is it possible that people sometimes act in response to normative constraints, on
the basis of moral dictates, on some conception of what they think is right? 'Even when
opportunity, social sanctions, and legal sanctions are controlled for,' writes Scholz
(1985: 18), 'personal norms have been found consistently to be significant predictors of
compliance.'
Though they may regard their starting-point as 'a clear and coherent theoretical
perspective' (p. 439), the fact is that too much is taken for granted by Pearce and
a
Note in this connection that many people have a proclivity for risk-taking behaviour, hence conduct such as
smoking, driving at high speeds in fog on motorways, hang-gliding, and rock-climbing. Some factory inspectors are
familiar with the (as one of them put it) 'My father did that for forty years and he's alright' problem in occupational
health enforcement (Hawkins 1989A: 386).
M
Note in this connection that 58 per cent of factory inspectorate visits in 1988/9 were to premises with fewer than
twenty-five employees (HSE 1990: 4).
" T h i s industry provides work for a million employees and an estimated half million self-employed. 'At least two
people a week are killed on construction sites and many more are maimed' (HSE 1987: 15).
455
KEITH HAWKINS
Tombs in their discussion of business and amoral calculation. They assert the origin of
business rule-breaking; they do not establish it.
On the Mature of Corporate Illegalities
Though Pearce and Tombs may seek to deny it, or prefer that it were not so, it seems
clear that people do respond differently to some forms (the qualification is important) of
regulatory violation, whether we like it or not; this seems to be true not only of
enforcement agents, but of people in general.31 This widely-felt ambivalence (recognized by, among others, Becker 1971; Carson 1979; and Matza 1964) is nicely summed
up in the title ofJohn Conklin's book (1977) on business crime: 'Illegal but not Criminal',
which reflects, in Carson's words (1979: 38), 'the essential sense of ambiguity
surrounding a wide range of criminal activities which, although banned, are freely
resorted to, and while proscribed, are only infrequently punished'.32 The unease about
using the stigmatizing apparatus of the criminal law in minor, routine violations of the
pollution control legislation was expressed by a senior RWA official:
We're dealing with legislation in matters which the general public doesn't really consider to be
part of the criminal law. . . . They don't consider themselves criminal because they've
discharged an effluent containing one part per million more BOD'33^ than they ought. . . . And
also . . . because these minor transgressions of. . . applying for consent'34^ don't in fact, in many
cases, actually do any damage. If someone hasn't applied for consent, what he hasn't done is
comply with an administrative requirement of the Act. But he hasn't in fact done anything. . . .
So in fact to prosecute him for not having applied for the right piece of paper in this country
doesn't go down too well. And so—I think this is the real thing, that people just don't consider
that they are criminal acts . . . . (Hawkins 1984a: 204; speaker's emphasis)
There exist various properties in regulatory violations which prompt these different
enforcement responses. This is not because regulatory enforcement and policing of the
public are intrinsically different activities—indeed, research into regulatory enforcement draws attention to 'the essential similarity in the behaviour of those who enforce
legal rules' (Hawkins 1984a: 7, emphasis in original)—but rather because of differences
in the events, conditions, and behaviours subject to control, leading to the characteristic enforcement response in much social regulation of negotiating for compliance,
rather than seeking to sanction the breach of a rule. Let me briefly rehearse four of the
interconnected properties in corporate behaviour which tend to be associated with
compliance rather than sanctioning strategy (and, to labour the point, this is not to
endorse the use of compliance strategy), and which may contrast with the policing of
motoring (used by Pearce and Tombs by way of analogy) and other offences:35
" To say this is not to argue that a different enforcement strategy is 'necessitated', as Pearce and Tombs claim
(p. 424).
** It is important to observe that such framing is not immutable. For example, public attitudes in Britain to the
environment and its protection have almost certainly changed in the twelve years since I conducted the bulk of the
fieldwork for Environment and Enforumtnt, which (to speculate) might well work through towards greater support for, and
practice of, sanctioning strategy: see, for an example, The Independent, 24 February 1990, p. 5.
" Biological Oxygen Demand: a measure of the polluting load placed upon water by the discharge of an effluent.
M
The consent is the licence to discharge effluent up to, but not in excess of, agreed quality standards.
54
This is not intended to be an exhaustive treatment, butrather an illustrative one. In addition to the discussion in
Hawkins (1984a), see for further elaboration Rciss (1984), Reiss and Biderman (1980), and Manning (1986).
456
COMPLIANCE STRATEGY, PROSECUTION POLICY, AND AUNT SALLY
1. Regulatory legislation speaks to a narrow audience (as motoring legislation does
not) denned by the conduct subject to regulation. This has implications for the
capacity of enforcement agents to know those whom they are regulating. The more
enforcement is directed towards a population of strangers,36 the more likely it is that
sanctioning strategy will be employed (hence the strategy of the agricultural inspectorate, referred to above, or the police in dealing with motoring offenders).
2. Most regulatory deviance (certainly in pollution control and occupational health
and safety) occurs on fixed sites and involves a known or potentially knowable violator;
some of it, indeed, is entirely predictable in its location (owing to its continuous,
repetitive, or episodic character) and causes (the sulphur dioxide emissions from a
chimney, the zinc from a particular pipe). In contrast, much of the work of the
uniformed, public police is concerned with rule-breaking activity designed to evade
discovery and detection and whose timing and location, as a result, are unpredictable.
Law enforcement here occurs after the event, and is inevitably concerned with
punishing the breach of a rule (for whatever purpose). It is important to note that
many regulatory violations are also unpredictable, and in these circumstances enforcement agents are confronted with an act that is over and done with. While repair and
remedy for preventive purposes will remain a concern of inspectors, they also have to
decide how to respond to the particular violation. Punishment is often regarded as
appropriate in such circumstances: this is why accidents comprise nearly 40 per cent of
factory inspectorate prosecutions (Lloyd-Bostock 1987). A great deal of social regulation, however, is concerned with risks, rather than acts, and as a result is pre-emptive,
preventive, and proactive in character, rather than responsive and reactive (Hawkins
1989*).
3. Regulatory legislation addresses the behaviour of organizations, and individuals
who work in business organizations, rather than individuals/WJT (motoring legislation
does not). Thus the corresponding implications of any enforcement response may
differ. Pollution control inspectors (whether we like it or not) weigh up a variety of
issues and tend to consider matters such as the possible implications for the loss of other
people's jobs when deciding whether punitive action (which might result in the halting
of a manufacturing process) would be appropriate in a particular case. Hence the
remark one made that'. . . you've got to give people time to do it [i.e. comply]. It's not
"You mustn't do it today, and if you do it again tomorrow I'll smack your legs", you
know. It's not like speeding' (Hawkins 1984a: 197; see also Hutter, 1988). In this
connection, compliance with regulation often requires the accomplishment of a positive
act (rather than refraining from an act, although that is sometimes required also)—
equipment must be bought, made to work properly, continuously monitored, etc. If
56
On the question of policing strangers and policing continuing violations and Pearce and Tombs' proposal for a
points system of penalties, Kagan has this to say: 'I have no difficulty supporting the idea of an automatic citation for
running stop signs and exceeding the speed limit. Why? One reason is that traffic stops, unlike most business violations,
. . . don't entail continuing violations or relationships. More importantly, we have learned from experience that there is
a reasonably good relationship between stop signs and speed limits and risk. Moreover, in motor vehicle control we are
dealing with the operation of lethal machines by amateurs in uncontrolled environments. You can't react to a violation
by getting the driver to install a speed-control device, or a co-pilot (or backseat driver to nag him). We use deterrent
systems, as Reiss [1984] points out, when we lack alternatives, such as reform, rehabilitation, "regulative" measures'
(letter to Hawkins, 2 March 1990). Note that the proposal by Pearce and Tombs for penalty points at die disposal of the
inspectorate is very similar to the OSHA on-the-spot fines system which was widely disliked and provoked great
opposition, damaging the cause, in the Reagan yean, of occupational health and safety (see generally Noble 1986;
Vogel 1986).
457
KEITH HAWKINS
pollution is occurring owing to the absence of an effluent treatment plant (let us say)
which must be specially ordered, will take six months to be made and delivered,
another six months to be installed and made to work properly, the pollution control
officer is faced with the question of what action, if any, to take, and when to take it.
Sometimes the choices are quite stark: is the pollution to be tolerated in the meantime,
or is that part of the plant to be shut down, with whatever implications for people's
jobs?
4. The character of regulatory work is problematic since its fundamental nature
implies some tolerance of the problems which prompt public concern. This is not an
issue where criminal law is (at least rhetorically) employed in a fundamentally
repressive way. The issue in pollution control is not whether or not to have pollution,
but how much pollution to tolerate. 'The object of . . . defining the behavior [as
criminal] is to produce change,' wrote Lemert (1972: 55), 'not to repress it.' This gives
rise to the negotiated character of regulation; standards to be enforced are themselves
the subject of administrative discretion (contrast the police), and, as such, subject to
administrative change (see, for an example, Hawkins 1984a: 23—36).
One consequence of these particular properties is that, especially where inspectors are
policing a population known (or knowable) to them, the nature of the law enforcement
relationship (as in much police work: Manning 1977) is symbiotic. As I have already
suggested, the regulatory agency needs the co-operation of regulated business. In the
case of water pollution control work, the inspector depends upon business co-operation
to learn about its manufacturing processes and hence to know what to expect to come
out of the effluent pipe at what time, under what circumstances. This sharing of
information extends to the inspector's dependence upon the business for warnings as
soon as there is an accident or a problem on site so that remedial work may be
undertaken immediately before any serious damage is done. For its part, the business
needs the knowledge and (free) expertise of the inspector so that it may more efficiently
handle its effluent; most important, it needs the forbearance of the inspector so that
present non-compliance is not immediately sanctioned to the full extent permitted by
law. This balance of interests leads to the widespread prevalence of bargaining in
regulatory enforcement (Hawkins 1984a: ch. 6; see also Winter 1985). One consequence of a more punitive enforcement strategy might well be to unbalance this
relationship and lead to businesses withdrawing their co-operation to some degree
which in turn might perversely lead to an increase in the incidence of the events and
problems which the regulatory agency is trying to control. This may not be a problem
provided that some offsetting substantial increase in enforcement resources is granted,
though in the current political climate this does not seem likely.
On the Effectiveness of Compliance and Sanctioning Strategies
The issue of how effective compliance strategies are in comparison with more punitive
enforcement strategies is a rather complicated matter in the British context since there
are, so far as I am aware, relatively few socio-legal analyses of impact here (examples
are those by Bartrip 1987 and Fenn 1987). The great bulk of the evidence has been
provided by American scholars, working in a cross-national context (e.g. Kelman 1981
in Sweden; Vogel 1986 in Britain; and see also Kagan 1989) and comparing American
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COMPLIANCE STRATEGY, PROSECUTION POLICY, AND AUNT SALLY
regulatory practices (taken to be more punitive) with European (less punitive). Since
Kelman focused particularly on the regulation of occupational health and safety and
Vogel on environmental protection as well as health and safety, their work is
particularly relevant here, though given the methodological and other difficulties
inherent in evaluating regulatory impact, and for reasons which I shall discuss below,
caution is necessary in interpreting their findings.
Vogel's conclusion is simple: '. . . the more cooperative British approach to compliance has proved at least as effective as the more adversarial strategy adopted by
officials in the United States, if not more so. It has, however, produced far less political
conflict between industry and government' (Vogel 1986: 209; see generally Braithwaite 1985). It is relevant to the present discussion to learn from the American
experience with OSHA, since that agency adopted a legalistic and punitive enforcement strategy in the 1970s, and Pearce and Tombs are particularly concerned with the
punitive enforcement of occupational health and safety violations. This enforcement
stance, as I noted earlier, generated considerable hostility:
In the United States, dissatisfaction with occupational health and safety regulation has been
pervasive in the ranks of both labor and industry; indeed, no other regulatory agency has been
so universally unpopular as OSHA. Industry has accused it of being obsessed with enforcing
detailed rules that often bear no relationship to actual hazards, overeager to prosecute,
indifferent to the costs of compliance, and contemptuous of industry expense and expertise;
indeed, critics of OSHA have argued that in spite of its zealousness, it has actually done nothing
to improve occupational safety. Trade unions, on the other hand, have accused OSHA of being
far too lax in both setting and enforcing standards.
As in the case of pollution controls, measuring the impact of regulation at die workplace is
extremely difficult. . . . On balance, the British appear to have been slightly more effective in
reducing employee injuries. Between 1974 and 1980 the incidence rate of fatal injuries in Great
Britain fell between 4.5 per 100,000 workers at risk to 2.7 (from 16.0 to 13.0 in construction).
The incidence rate of reportable accidents per 100,000 workers at risk fell from 3,570 in 1976 to
2,860 in 1980 (from 3,410 to 3,000 in construction). On the other hand, the consensus of diose
who have analyzed the data is that during OSHA's first decade the agency had a negligible
effect on the occupational injury rate in the United States, though since 1980 the rate has fallen.
While the Mine Safety Program did bring about a significant decline in coal mine fatalities in
the United States, the American fatality rate is currently three times higher than the British.
(Vogel 1986: 206-7)
One reason why stricter American standards have not brought about a more rapid
reduction in disease and accident rates, says Vogel, has been the
difficulties the government has faced in implementing them. Largely because of industry
opposition, OSHA was able to issue only four major health standards during its first six years.
While the number of both health and safety standards issued increased somewhat between 1977
and 1980, so did industry resistance to their enforcement: in 1980, approximately 25 per cent of
all violations were contested by industry. (Vogel 1986: 208)
Another conclusion of Vogel's (if characteristically North American) is also relevant in
this context: '. . . private lawsuits in the area of occupational illness in the United
States may, in the long run, have a greater deterrent effect on corporate conduct than
either nation's formal system of regulation' (Vogel 1986: 207-8).
459
KEITH HAWKINS
On the Need for Careful Scholarship
Social regulation is a difficult and elusive phenomenon, and we need to be careful in
researching it, in evaluating it, and in redesigning policies to make it operate more
efficiently and effectively. There are two particular areas where I think the paper by
Pearce and Tombs is seriously deficient. One is in appraising the results of comparative
research; the other is in generalizing across regulatory arenas.
The paper by Pearce and Tombs uncritically lumps together the findings of US
and UK research on social regulation, when in fact there are many substantial,
sometimes crucial, differences in the way regulatory law is framed, written, and used
on either side of the Atlantic. This is one of the problems in joining work from the
Oxford Centre with that of Kagan for general attack. Pearce and Tombs seem to
ignore the fact that Bardach and Kagan (1982) are writing about social regulation
in America, and their discussion (on p. 427)suggests that they are not very familiar
with regulatory practices in the USA. Rigidity and legalism may not be a necessary
consequence of strict regulatory enforcement, but there is, in the context of American
regulatory practice (not to mention the culture and politics of the United States) a
propensity (which is beyond dispute) for more legalistic behaviour than appears to
be the case in Europe. This is partly a reflection of the greater penetration of the law
into American regulatory practices, which stems in turn from the much greater
reliance upon legal rules in a system of overlapping federal and state jurisdictions
and the generally lower level of status, competence, and experience among American regulatory inspectorates (Smith 1986). If Pearce and Tombs are not persuaded
of this by Kagan and his colleagues, they should consult the work of Vogel, Kelman,
and others who have conducted comparative studies of national styles of regulation
in recent years.37 While it is true that the 'most zealous [British] factory inspector
normally operates on the basis of discretion' (p. 427), Pearce and Tombs overlook
the fact that Bardach and Kagan are not writing about British factory inspectors,
but about American OSHA inspectors.38 It does not do to claim that Bardach and
Kagan are invoking stereotypes or resort to 'popular stereotypical representations'
(p. 427) when they are simply reporting the results of empirical enquiry, supported
by many other studies.
Though it is a matter of opinion as to whether OSHA inspectors were 'inflexible and
unreasonable' (p. 427), the evidence clearly shows, contrary to the scepticism of Pearce
and Tombs, that they did (do?) search for violations (see, e.g. Kelman 1981, 1984).
Pearce and Tombs ignore the fact that in the USA inspectors were under organizational pressure to do this and that state OSHA inspectors were given bureaucratic and
financial incentives to produce citations. 'Getting numbers' and 'building a case' were
the two most significant organizational constraints upon California OSHA inspectors
(Rees 1988: 189). The evidence of legalistic enforcement presented by Bardach and
Kagan (1982: 71-7), does not stand alone: Pearce and Tombs might consult the
37
See e.g. Vogel 1986; Kelman 1981; Brickman et al. 1985; Smith 1986; also Kagan 1988, Hawkins 1989a.
The distinction is important. In the view of the American lawyer Turner Smith, OSHA inspectors are generally
more junior than their British counterparts and lack their level of expertise (Smith 1986). American legislators are
conscious also that they operate in a large country with many more governmental, administrative, and commercial
units, a greater population of strangert, and the various problems which arise from the interrelationship between state
and federal jurisdictions. It is not surprising, therefore, that they should readily take refuge in systems of rather elaborate
rules in the interests of control and consistency of policy.
M
460
COMPLIANCE STRATEGY, PROSECUTION POLICY, AND AUNT SALLY
detailed empirical study of OSHA in California by Joseph Rees (1988), who quotes an
inspector as saying
'Today we're issuing a lot of chickenshit citations . . . because you go out there and you feel you
have to hammer on the guy to up your own quota, so to speak, and write a lot of other stuff that
is really kind of meaningless.' This is not to say that all or most citations are 'chickenshit', he
stresses, but only that many are. 'If you don't write enough of this stuff you look bad yourself. . .
So you're out there writing a whole bunch of chickenshit stuff because somebody is looking for
numbers.' (Rees 1988: 191-2)
The second area where more care is needed is in generalizing across regulatory
arenas (see generally Braithwaite et al., 1987). Pearce and Tombs generalize from the
findings of my research on environmental regulation and apply them indiscriminately
to occupational health and safety matters. In water pollution work the great majority
of violations which inspectors deal with they regard as minor (a trickle into a ditch from
a septic tank in a country cottage; a small quantity of suspended solids occasionally
flushed into a large tidal river from an industrial site). (What enforcement strategy do
Pearce and Tombs recommend for such minor violations?) Major water pollutions are
rare events.39 In occupational health and safety work many violations are also regarded
by inspectors as minor. But disregard of occupational health and safety requirements
may have serious consequences. People get maimed and killed in factories. The nature
of industrial work, sites, and risks means that HSE inspectors have to be alert to many
more potential sources and kinds of non-compliance than water pollution inspectors.
While the latter are primarily concerned with what is going out of the pipe into the
river, the typical factory inspector is concerned with a wide range of hardware and a
wide array of working practices on the average site, all of which provide greater
opportunity for concealment, deception, and so on. Since the nature and gravity of the
violations involved can be substantially different in different arenas of social regulation, it would not be surprising if in some respects factory and other types of HSE
inspectors did a rather different enforcement job than water pollution inspectors.
Conclusion
Given the vast numbers of regulatory violations, many of which would be widely
regarded as minor, others of which would be seen as serious or even potentially
disastrous, and given the scarcity of enforcement resources, a more discriminating
approach to regulatory enforcement is needed. The socio-legal policy issues in social
regulation are concerned with what the rules should be, and how flexibly or rigidly
they should be enforced. Pearce and Tombs do not address the former question, except
to assert the need for tougher rules (and can we always be sure that the rules will always
be crafted in a socially desirable way?). On the latter, they do not indicate how rigid
they envisage enforcement being, or the circumstances in which flexibility would be
justified. Are Pearce and Tombs in favour solely of punitive methods of enforcement, as
implied by the comment on p. 431? Given the vast number and kind of regulatory
illegalities, it seems that some measure of discretionary enforcement (including, in some
cases, consultancy and persuasion) will be inevitable.
w
I encountered one such case in more than two years' fieldwork. Though this was regarded by the staff concerned as
a 'big' case, no one suffered any damage or injury.
461
KEITH HAWKINS
What is their remedy? They hope that 'workforces, local communities, and
consumers' (p. 440) will force change upon business. I hope so too, but, though change
may be possible in the egregious cases of disaster or conspicuously great risk, I am not
optimistic about the prospects for significant change (especially given the low level of
resources granted the HSE) in the vast majority of more frequently encountered
instances of regulatory risk or violation. This is because part of the problem of
compliance with occupational health and safety regulation is that it depends on the
willing co-operation of both management and workforce, each of which is not
necessarily subject to the same incentives and disincentives to conform as the other
(Hawkins 1989c). Furthermore, present evidence does not suggest that the workforce is
particularly activist in the cause of its own health and safety, and this suggestion of a
certain indifference to their personal well-being among workpeople seems to be
reflected also in the role of trade unions, which do not appear to play a particularly
prominent part in advancing health and safety regulation (Genn 1987). Genn explored
current attitudes and practices by interviewing thirty-three safety representatives; the
general impression from this work is that those representatives do not have a good
understanding of health and safety regulation and occupy a rather minor position in
the promotion of better health and safety. It appears that some of the same constraints
affecting the degree to which management complies also act on safety representatives,
especially a concern about the implications of social regulation for jobs (Genn 1987: 42;
see also Dawson et «/., 1988).
Will punitive enforcement improve things?40 The results of empirical research
suggest that its use has to be discriminate. 'The nature of the sanction itself, DiMento
has observed, 'is less important than other factors in compliance. No enforcement
strategy, when considered alone, universally motivates the corporation to behave'
(DiMento 1986: 73). Would Pearce and Tombs advocate punitive enforcement for all
regulatory violations, or are there some that are so trivial as not to warrant it? Would
they justify punitive enforcement for all other forms of rule-breaking, given their
argument that no distinction ought to be made between them? Or do they think that
there are instances in which the police ought to exercise their discretion to turn a blind
eye, or to caution, encourage, persuade, warn, or threaten, but not prosecute? Are they
suggesting that punitive enforcement of minor violations is desirable, even were it
possible, given the many other demands on inspectors' time? Clearly their discussion
(on p. 434) suggests they would not, for it is here that they deny wishing to use the
criminal law as an exclusive means of control, and would wish to develop a range of
regulatory techniques to control criminal or risky activities. But in what circumstances
would such measures be appropriate?
We need to develop theories which reflect the world as it is, as dynamic and complex;
*° Kagan has this to say on the point: 'If punitive enforcement is 10 essential, and yet, as [Pearce and Tombs]
acknowledge, so infrequent, why are things not worse? Why have industrial, railroad, and coalmine safety rates
gradually improved over the last century? Why have many forms of pollution declined, or at least levelled off? Why
don't we all often get sick from unsanitary packaged foods, botulism in the cans, tuberculosis bacteria in the milk? If
punitive enforcement is so essential, why does co-operation occur and sometimes do a better job than punitive
regulation? Pearce and Tombs ignore Kelman's comparison of legalistic OSHA and co-operative Swedish workplace
safety regulation—by statistical measures, Sweden docs better. Joseph Rees, Reforming the Workplace (1988) shows how
large construction firms reduced accident rates after replacing legalistic OSHA with a co-operative system. These
empirical results, which Pearce and Tombs ignore, are hard to explain from their standpoint' (letter to Hawkins,
2 March 1990).
462
COMPLIANCE STRATEGY, PROSECUTION POLICY, AND AUNT SALLY
in particular, we need to refine theories of organizational compliance and of regulatory
enforcement. I agree with Pearce and Tombs about the necessity of throwing off our
ideological blinkers. We must always treat our assumptions and our comfortable
certitudes as empirically questionable. We have certainly to avoid research in which
'the answers we can find' are determined (p. 439), and that must include research on
business behaviour which presupposes that everything is ultimately reducible to a
matter of rational calculation. It may or may not be, but that is an empirical question.
Simplistic assertion and analysis will not do.
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