The hollowing of the state

The enactment of HASAWA ‘hollowed out the state’.1040 _{Through this Act, power and}

responsibilities shifted from the central government to non–departmental public bodies and non– state actors. Before its enactment, government departments played a much larger role in service delivery and policy making. However, after HASAWA was introduced, government

departments devolved responsibilities to non–departmental public bodies and non–state actors to carry out service delivery and policy making. This is best exemplified in an exchange between Harold Walker, Parliamentary Under-Secretary of State of the Department of Employment, and Bob Cryer, a Labour backbencher, in which the latter attempted to introduce a bill to limit the maximum weight a worker can lift but was promptly stopped by Walker and told that the Government now regarded amendments to the law as the prerogative of the HSC.1041 _This exchange is particularly pertinent considering that Walker was one of the architects of the Robens Committee and HASAWA, thus, re-emphasising that delegation was in line with the original intentions of OHS reform. Correspondingly, we find that the HSC/E presented itself to the public as ‘independent of government’.1042

With the passing of HASAWA in 1974, the Health and Safety Commission (HSC) was established and its operational arm the Health and Safety Executive (HSE) was created the following year. Referred collectively as the HSC/E. Former HSC Chair Bill Callaghan noted that the ‘HSC/E model’ was wholly unique within Whitehall; it combined two separate and distinct bodies which performed their functions on behalf of the Crown, each with a separate

1039 _{Eva Sørensen and Jacob Torfing, ‘Network Governance and Post-Liberal Democracy’ (2005) 27 ATP 2 p197;}

Eva Sørensen and Jacob Torfing (eds), Theories of Democratic Network Governance (Palgrave Macmillan 2007); Eva Sørensen, ‘Democratic Theory and Network Governance’ (2002) 24 ATP 4 p693

1040 _{Chris Skelcher, ‘Changing Images of the State: Overloaded, Hollowed-Out, Congested’ (2000) 15 PP 3 p3} 1041 _{A. Wilson, ‘Danger Men at Work’ The Guardian (London, 28 May 1976)}

legal personality yet gradually intertwined both by legislation and a series of administrative developments.1043 Regarding the HSC, sections 1, 10 and 11 of the HASAWA endowed it with a mandate to take the appropriate steps to secure the health, safety and welfare of people at work and the public generally against risks arising out of a work situation. The HSC was central to reforming the existing system of regulations, proposing new regulations and codes of practice, providing information and advice and conducting research. The HSC was a tripartite institution. Three members of the HSC were nominated by the CBI, three were nominated by the TUC, and two were nominated by local authorities. Robert Baldwin noted that the local authorities were involved to represent the general interest of society.1044 However, in practice, the power levers of HSC policymaking remained firmly in the TUC and CBI.1045 The first Chair of the HSC was William (Bill) Simpson a former General Secretary of the Foundry section of the Amalgamated Union of Engineering Workers (AUEW) and occasional chairman of the Labour Party.

Legally, the HSE was subordinate to the HSC; its remit was to follow the directives of the HSC.

Also, under section 18 of the HASAWA, the HSE was charged with making ‘adequate

arrangements for the enforcement’ of OHS legislation. The HSE brought together nearly 3,000 members of staff from nine separate government departments and inspectorates to be headed by a ‘three-person statutory body’ consisting of a Director General, a Deputy Director General and another senior official.

The establishment of the HSC/E significantly hollowed out the state. Specifically, the loss of capacity of the core executive to alternative delivery systems.1046 Linking the hollowing out of the state to the creation of autonomous agencies, David Vogel commented, ‘By turning over the task of establishing standards to the representatives of the interest groups directly affected by

1043 _{Bill Callaghan, ‘The Health and Safety Commission and Executive’ in Linda Dickens and Alan C. Neal (eds),}

The Changing Institutional Face of British Employment Relations (Kluwer Law 2006) p38

1044 _{Robert Baldwin, ‘Regulatory Legitimacy in the European Context: the British Health and Safety Executive’ in}

Giandomenico Majone (ed), Regulating Europe (Routledge 1996)

1045 _{Christopher Sirrs, 'Health and Safety in the British Regulatory State, 1961-2001: the HSC, HSE and the}

Management of Occupational Risk' (PhD thesis, London School of Hygiene & Tropical Medicine 2016)

1046 _{R.A.W. Rhodes, Understanding Governance Policy Networks, Governance, Reflexivity and Accountability}

them, the British system reduced the direct role of government in the regulatory process’.1047 Although there was a reduction in the direct role of government, it is important to stress that the HSC/E carried out their activities under the ‘shadow of hierarchy’, Rhodes explained,

Many networks work in the shadow of hierarchy; that is, they are dependent on central agencies for legal

authority and financial resources but are at arm’s length for implementation. In turn, because they include the private and voluntary sectors, the networks provide more resources for central agencies.1048

The ‘shadow of hierarchy’ can be explained by observing the ‘negotiated independence’ of the HSC/E. The DE’s had three broad areas of restrictions in which the HSC/E had to negotiate its independence. These restrictions were not entirely rigid and would ‘give way’ and loosen from time to time. This ‘negotiated’ independence could be observed in three matters. First, the main restriction was the HSC/E’s specified mandate. On occasion, when the HSC/E’s activities or even its proposals went beyond its mandate, the DE would deter such incursions. An example was the refusal to allow the HSC/E to inspect, investigate and prosecute crown bodies.1049 _{At the} time of the HSC/E’s establishment, crown authorities such as government departments were not subject to the same sort of legal sanctions as any other employer.1050 _{However, such restrictions} were not completely rigid. They could be disregarded if the case was well-argued or deemed necessary, as in the case of the government’s eventual agreement to allow the HSC/E to pursue certain crown authorities.

Second, the DE held on to the ‘purse strings’, under the watchful of the Treasury, the DE oversaw the budget of the HSC/E.1051 _{Plausibly, the DE could use the HSC/E’s annual budget} as a means to alter the behaviour or restrict the reach of the HSC/E. Cutting the budget of the HSC/E was politically tenable given the fact that OHS was much lower down on the list of other

1047 _{David Vogel, National Styles of Business Regulation: A Case Study of Environmental Protection (Beard Books}

2003) p200

1048 _{R.A.W. Rhodes, Network Governance and the Differentiated Polity: Selected Essays (Oxford University Press}

2017) p75

1049 _{In Brief, ‘Crown not Above the Law says Safety Chief’ (1977) 77 IM 10 p5} 1050 _{In Brief, ‘Crown not Above the Law says Safety Chief’ (1977) 77 IM 10 p5}

1051 _{Robert Baldwin, ‘Regulatory Legitimacy in the European Context: the British Health and Safety Executive’ in}

‘politically sensitive’ areas under the purview of the DE.1052 _{Nonetheless, such actions were not} present in the first six years of the HSC/E’s operations. In fact, the OHS budget increased.1053

Third, HASAWA imbued the Secretary of State with powers to modify and reject regulations. However, in practice, the government exercised minimal oversight over the HSC/E’s activities. The HSC/E regulations went unchallenged in Parliament and the courts.1054 Writing in the mid- 1980s, Graham Wilson added that, ‘The Secretary of State for Employment has not so far exercised his legal right to reject a regulation passed by the HSC, and no regulation has been seriously challenged — let alone rejected — by Parliament’.1055