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    ENFORCEMENT PRACTICE UNDER GOVERNMENT SPOTLIGHT

    Proposals include reducing “over inspection” through “earned recognition”

    The Government believe that how regulation is enforced can be just as important as the overall volume of regulation. In addition, it regards the way in which enforcement is approached impacts on regulator ability to deliver high levels of compliance.

    As part of the Government’s regulatory reform strategy it has launched two documents underpinning a consultation period on regulatory enforcement to seek views on the best ways to deliver improvements. 

    The two documents are a Discussion Paper on enforcement and a Consultation Document on the future of the Local Better Regulation Office (LBRO) and the Primary Authority (PA) scheme. Views are sought from interested parties on these documents.

    Three principals underpin Government approach

    The approach proposed is for an enforcement strategy built around three basic principles:

    • greater accountability;
    • recognising and promoting good practice; and
    • greater transparency.

    The intention  of the Government is to create a relationship between regulators and businesses where:

    the default setting is trust rather than distrust; where there is greater common sense; and where businesses have effective channels through which they can inform, hear and challenge regulators. We want businesses to get the recognition they deserve for the work they do to comply. Most importantly we want to free up business resources to support business growth, and to see regulators’ resources targeted where they are most needed.

    Recognising and promoting best practice

    Businesses have told government that they sometimes feel ‘over-inspected’ by regulators and that regulators do not always take account of the efforts they have made to comply. 

    Those who invest considerable time and resource in making sure they do the right thing, developing internal systems, using external checks and achieving a good track record of compliance “would like this effort to be acknowledged and reflected in the way that enforcement is carried out.”

    The government believe this is particularly problematic for businesses with large numbers of outlets, where individual premises can be treated like separate organisations, taking no account of corporate compliance systems.

    The Discussion Document goes on to add:

    In some areas we are already making major changes, for example by significantly refocusing health and safety enforcement to reduce burdens on lower-risk, compliant businesses. Evidence from industry assurance programmes like the Red Tractor Scheme, has shown that good levels of compliance can be achieved without regular inspection by public regulators, and there are many examples of effective ‘co-regulation’ which show that industry can take on a variety of roles and functions to deliver compliance. To date, however, there have been limited mechanisms for recognising industry schemes, recognising how businesses manage their own compliance, or for ensuring that co-regulatory approaches are fully explored when designing enforcement regimes.

    We want to give businesses the means to make a reality of ‘earned recognition’. We will do this by requiring regulators to take account of businesses’ efforts to comply with regulations and to adjust their enforcement plans accordingly. We want to create positive incentives to recognise and promote best practice; and we want to deter those who seek competitive advantage, or pose a real material risk, by flouting the rules.

    Red Tape Challenge enforcement theme

    The above is part of the  recently launched government Red Tape Challenge (RTC) website where the public can “have their say about regulatory burdens”.  Through July and August (ending on 31 August 2011), a dedicated section of the RTC website seeks to capture specific views on enforcement issues. Input is sought from trade associations, their members and other interested parties. 

    Comment

    Application of the principle of recognising and promoting best practice could have implications for major players in the construction sector, especially as regards ‘earned recognition’.

    If these ideas are implemented we may see some construction dutyholders formally excluded from routine inspection. This might be based upon use of the HSE CHaSPI performance benchmarking scheme. The longstanding practice of talking centrally with major players in construction (the Lead PI system) is also likely to be given a boost by these proposals.

    Both developments may allow HSE to focus on smaller higher risk projects and less competent organisations.

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