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There has been a growing interest in the disciplinary ‘autonomy’ of labour law. The chapters in this book examine the interface between criminal law and theory and the regulation of labour markets, given the importance of this interface in the twenty-first century. The four chapters in the first section of the book are concerned broadly with the normative questions concerning the legitimacy of criminalisation in the regulation of social activity. It is a fundamental feature of liberal theories of criminalisation that the legitimate use of the criminal sanction requires special justification. The criminal law is coercive, punitive, and stigmatic. Each chapter examines the normative issue of criminalisation from a different perspective. The second section examines the distinctiveness of the criminal law as a form of regulation, especially compared with civil enforcement. The third section is concerned with criminal law, vulnerability, and precarious work relations. Recent scholarship in labour law has been intensively concerned with the concepts of vulnerability and precariousness in labour market relations. There is now a significant literature on these concepts from legal, economic, and social-scientific perspectives. The chapters in this section provide a novel theoretical perspective on those concepts by examining the distinctive role of the criminal law in respect of vulnerability and precarious work relations. The fourth section is concerned with contexts of criminalisation. The chapters in this section explore the different labour market contexts in which criminalisation has occurred. The fifth section is concerned with criminalisation and enforcement, and it examines the variety of ways in which the criminal law is being used as an enforcement tool, either as an auxiliary support to civil enforcement or as a substitute for civil enforcement. Finally, the last section provides two comparative chapters by leading scholars in the US and Canada. These chapters provide a comparative perspective on the role of penal policy in labour law.

This chapter argues that the contribution of criminalization to better health and safety in workplaces has been limited by certain contextual features of this regulatory method. It focuses on the role of criminal law in the health and safety legislation and the corporate manslaughter offence. In particular, this chapter argues that criminal law interventions are gravitationally oriented towards individualized notions of fault, capacity, choice, and responsibility. Once the liability enquiry is structured in this highly personalized way, the regulatory capacities of the criminal law to secure effective and enduring structural change is limited. Thus, it remains an open question whether the criminal law can accommodate approaches to responsibility that are more attuned to structures, cultures, and organizational norms.

The regulation of conduct via law is a key mechanism through which broader social meanings are negotiated and expressed. The use of regulatory tools to bring about desired outcomes reflects existing social and political understandings about¬ institutional legitimacy, the meanings attached to regulation, and the values it seeks to advance. But these contextual understandings are not static, and their evolution poses challenges for regulators, particularly when they reflect political framing processes. This paper shows how inspection has been reshaped as a tool within the United Kingdom’s health and safety system by changes in the meanings attached to the concept of ‘risk-based regulation’. While rates of inspection have fallen dramatically in recent years, the nature and quality of inspection have also been fundamentally reshaped via an increasingly procedural and economically-rational ‘risk-based’ policy context. This has had consequences for the transformative and symbolic value of inspection as a tool of regulatory practice.

This chapter explores the historical development of health and safety since the nineteenth century, including substantial analysis of the otherwise much-neglected post-1960 period. This includes identifying a movement from detailed specifications about standards to more open-ended duties to be performed to safeguard people’s safety and health. In addition, analysis suggests that the location of debate about health and safety shifts from the workplace to a more diffuse and public arena, entering high politics and ‘public opinion’ as a concern. It also identifies gaps in historical study, notably around gender and newer forms of employment.

This chapter focuses on the functional legitimacy of health and safety—how it derives acceptance from the ways in which it operates in practice, and the outcomes that it produces. The expansion of health and safety beyond the workplace, the emergence of a safety profession and the valorisation of expertise, and the inspection and enforcement practices of regulators, are all explored in relation to the challenges and benefits that they provide in terms of demonstrating the effectiveness, efficiency, and expertise of those who ‘do’ health and safety. The chapter argues that the common theme here is that of redrawing the balance of who is responsible for health and safety—something that can be heavily contested, become blurred, and be subject to external political pressures.

The chapter analyses how the normative legitimacy of health and safety was enacted in Britain since 1960, particularly in relation to why health and safety was carried out and the extent to which it was democratic in nature. It focuses on the major changes to the British economy and occupational structure since c.1960 and the impacts these had on participation in health and safety. It also considers the economics of health and safety and the changing nature of trade unionism, including the role of safety representatives. Finally, it demonstrates how health has been marginalised for much of the last 60 years and the difficulties faced regulating this aspect of health and safety.

This introductory chapter sets out the core aims and research questions that have motivated the investigation that forms the basis of this book. The contemporary social context and climate that surrounds health and safety, as a social institution, is introduced and analysed, and attention is focused in particular onto the question of how far the broader public and social acceptance of health and safety has changed in the period since 1960, and what might have motivated or driven this change. The chapter seeks to provide a core definition of the concepts of legitimacy, health and safety, and the state, which underpin this research question, and explains the research methodology and the historical focus that are adopted throughout the rest of the book.

This chapter examines four core components of the constitutional legitimacy of health and safety, relating to the legal and political bases on which it is based and undertaken. It shows how health and safety has been shaped by the new legal framework and institutional regulatory arrangements that have been created since 1960 to direct activity in this area, and the fundamental challenges of accountability and clarity that they have posed. It also considers the contributions of, and challenges posed by, central government within the United Kingdom, and the European Union (EU), to the legitimacy of health and safety. In each case, complex institutional trade-offs are explored which demonstrate the interlinked strengths and weaknesses of health and safety’s relationship to ideas of legality, accountability, and due process.

This chapter synthesises findings from a range of methodological approaches and sources relating to the nature and content of public attitudes towards health and safety. It argues that we should be cautious about accepting that there is any single, simple, public opinion towards health and safety; the attitudes that underlie these surface opinions are more subtle, complex, and contradictory than that, and reflect some core areas of ambiguity, misunderstanding, and lack of knowledge. While these attitudes are shown to have changed over time, the chapter concludes that there are few grounds for accepting the pessimistic accounts of public opinion presented within political and media discourses. A broad acceptance, or critical trust, in health and safety has endured, and offers a sound basis for future activity.

'Health and safety’ currently has an image problem in the UK. This article explores the origins of these current negative perceptions, framed around the concept of legitimacy – the degree to which a policy project of this sort is viewed as right, proper, and appropriate. The article considers and evaluates key moments in the growth and decline of social consensus around health and safety since 1960, including the Robens Committee and subsequent Health and Safety at Work etc Act, the decline of trade unionism, the extension of health and safety beyond the workplace, and the rise of the safety profession. It concludes that change has been much more subtle and less uniform than general perceptions might suggest, and makes recommendations for how public engagement with occupational health and safety might be restructured.

This paper provides a review of the last five years of policymaking in the area of health and safety law; this includes multiple reviews, legislative reform, and the reframing of rhetoric around the issue. It characterises this as a process of social construction of a new ‘universe of meaning’ around health and safety regulation, which provides a basis for a particular, narrow, neoliberal conception of regulation and responsibility to permeate the mainstream. Deliberative and public-facing policymaking processes have been utilised as a key element of this process.

Purpose – The purpose of this paper is to assess and highlight the approach taken towards the legal control of illicit money laundering taken in the Republic of Kazakhstan, in particular, the role played by an amnesty on the legalisation of illicit funds. This is particularly important as a basis for a wider discussion about the proper limits of the “criminalising” approaches commonly taken in anti-money laundering regulations. Design/methodology/approach – The discussion and evaluation in the paper is based upon a conceptual analysis of the money laundering regime in Kazakhstan, in particular, the legal framework and policies of implementation adopted. Findings – The paper demonstrates that the problems that are posed by the shadow economy in post-Soviet transition societies can make the blanket criminalisation of money laundering a self-defeating approach, unless accompanied by measures which allow for the achievement of “market-constituting” effects. Research limitations/implications – The paper draws on experience and practice in one jurisdiction only (Kazakhstan); it also limits its focus to one particular example of a money laundering amnesty policy. Both of these limitations, therefore, suggest avenues for further comparative research. Originality/value – The paper’s conclusions about the interactions between the shadow economies of transitional societies and the global anti-money laundering agenda have wider application in assessments of international law in this area.

This paper concerns an empirical investigation into public attitudes towards work-related fatality cases, where organizational offenders cause the death of workers or members of the public. This issue is particularly relevant following the introduction of the Corporate Manslaughter and Corporate Homicide Act 2007 into UK law. Here, as elsewhere, the use of criminal law against companies reflects governmental concerns over public confidence in the law’s ability to regulate risk. The empirical findings demonstrate that high levels of public concern over these cases do not translate into punitive attitudes. Such cases are viewed rationally and constructively, and lead to instrumental rather than purely expressive enforcement preferences.

The successful enforcement of health and safety regulation is reliant upon the ability of regulatory agencies to demonstrate the legitimacy of the system of regulatory controls. While 'big cases' are central to this process, there are also significant legitimatory implications associated with 'minor' cases, including media-reported tales of pettiness and heavy-handedness in the interpretation and enforcement of the law. The popular media regularly report stories of 'regulatory unreasonableness', and they can pass quickly into mainstream public knowledge. A story's appeal becomes more important than its factual veracity; they are a form of 'regulatory myth'. This paper discusses the implications of regulatory myths for health and safety regulators, and analyses their challenges for regulators, paying particular attention to the Health and Safety Executive (HSE) which has made concerted efforts to address regulatory myths attaching to its activities. It will be shown that such stories constitute sustained normative challenges to the legitimacy of the regulator, and political challenges to the burgeoning regulatory state, because they reflect some of the key concerns of late-modern society.

The measurement of public attitudes towards the criminal law has become an important area of research in recent years because of the perceived desirability of ensuring that the legal system reflects broader societal values. In particular, studies into public perceptions of crime seriousness have attempted to measure the degree of concordance that exists between law and public opinion in the organization and enforcement of criminal offences. These understandings of perceived crime seriousness are particularly important in relation to high-profile issues where public confidence in the law is central to the legal agenda, such as the enforcement of work-related fatality cases. A need to respond to public concern over this issue was cited as a primary justification for the introduction of the Corporate Manslaughter and Corporate Homicide Act 2007. This article will suggest that, although literature looking at the perceived seriousness of corporate crime and, particularly, health and safety offences is limited in volume and generalist in scope, important lessons can be gleaned from existing literature, and pressing questions are raised that demand further empirical investigation.

This paper outlines and assesses the field for small-scale research within a government regulatory agency, the Health and Safety Executive (HSE). The value and purpose of research within this sphere is considered, before the discussion looks specifically at the contribution that small-scale research projects can make to debates surrounding this area of legal activity. The methodological approaches taken in conducting regulatory research are discussed, with particular reference to a small-scale research project con ducted by the author, focusing on the process by which this research was conducted rather than the outcomes achieved. While the discussion relates

A significant body of literature has examined the role of public attitudes in shaping the contemporary politics of law and order, and suggested that a state of ‘populist punitiveness' now exists, whereby policy is made in response to harsh and punitive public attitudes towards crime issues. This paper will explore these issues within the context of regulatory and corporate offending. A qualitative investigation into public attitudes towards work-related fatality cases demonstrated that these cases are regarded as serious, but that attitudes regarding punishment in this context are only partially ‘punitive'. Demands for significant penalties are underpinned by rationality rather than a desire for revenge, casting into doubt the applicability of populist punitive accounts of lawmaking in this area.

This paper concerns the prospective implementation of the proposed 'corporate killing' offence. These proposals suggested that the Health and Safety Executive (HSE)-the body currently responsible for regulating work-related health and safety issues-should handle cases in which a 'corporate killing' charge is a possibility. Relatively little attention has been paid to this issue of implementation. An empirical investigation was undertaken to assess the compatibility of the HSE's methodology and enforcement philosophy with the new offence. It was found that inspectors categorize themselves as enforcers of criminal law, see enforcement action as valuable and support the new offence, but disagree over its use. They also broadly supported the HSE taking responsibility for the new offence. This suggests that 'corporate killing' may not necessarily be incompatible with the HSE's modus operandi, and there may be positive reasons forgiving the HSE this responsibility.

As the previous chapters have demonstrated, work-related deaths have become important objects of legal regulation. This process has been piecemeal and shaped by context-specific considerations and events, including particular work-related deaths. This book aims to establish that the regulation of work-related ‘death’, as a specific component of the criminal law, is a distinctive contemporary development which reflects the socio-cultural limitations of established regulatory systems. This makes it necessary to explore where the sources of those limitations, and of this instrumentalism, lie within the history of safety regulation. This chapter will overview the development of safety regulation within the UK as a case-study, partly because safety regulation emerged there first but also because the UK has subsequently been the site of the most decisive contemporary development towards the use of criminal law as a regulatory tool. It will show that while much of the impetus towards the development of health and safety regulation was provided by welfarist political concerns, it was also a response to the needs of a free-market economic system. The regulatory system that was constructed succeeded in addressing these issues via centralised structures of oversight and control, but lacked the capacity to communicate effectively the normative reasons for regulating that underpinned it.

As discussed, the last 30 years have seen a movement in many jurisdictions towards the criminalisation of corporate bodies that cause work-related deaths. This has been an area of some controversy, involving as it does a form of offending which does not fit easily into the criminal law’s taxonomic system. This chapter will begin by elucidating the distinctions that are drawn between ‘criminal’ and ‘regulatory’ offences and explaining the consequences of this differentiation. The historical development of the movement towards ‘corporate crime’ will be examined in order to understand the fundamental ambiguity that has long characterised this area of law. As with Chapter 4, the primary focus will be on developments in the UK. What is the nature of the challenge that work-related deaths present to the state and society, and why has criminalisation been regarded as an appropriate response to this challenge? Contemporary trends towards the criminalisation of work-related deaths and arguments about the role that such law should play relative to other legal measures echo debates that have gone before, reflecting a fundamental distinction between the instrumental and symbolic functions of law. An understanding of these dynamics helps us to understand why criminalisation is increasingly sought in the current social and political climate and in the context of workplace death.

The preceding two chapters have shown how systems of regulatory law that govern health and safety emerged as part of a broadly emancipatory rights-giving process, but were constrained from the start by the needs of the economic and political systems. This led to the emergence of a regulatory system that is instrumental in outlook, able to implement policy choices in pursuit of defined goals, but unable to demonstrate its own normative purpose because it has become disengaged from the social values that justify action in the public interest. This deficit has underpinned subsequent attempts to invoke the criminal law as a means of responding to work-related deaths. Criminal law offers a potential forum for moral adjudication, as it is notionally concerned with censuring conduct that is wrongful according to shared values; criminalisation is an attempt to restate the moral ‘reasons for’ regulating and has come to the fore at exactly the time when the broader political climate has turned against regulation. This chapter will explore the role and purpose of the new offence, in a practical and conceptual sense. The criminal law can play a role in re-establishing the reputation of health and safety regulation; this chapter will argue that this role can be understood in terms of a reframing of public debates in such a way as to allow for consideration of the balance between welfarist and economic considerations. Criminalisation has the capacity to validate regulation by providing a forum for moral accountability that enhances the legitimacy of the regulatory project.

On the afternoon of Friday, 5 September 2008, Alexander Wright, a 27-year-old junior geotechnical engineer, was collecting soil samples at a building site in Gloucestershire, UK. He was working alone in driving rain in a specially dug trench approximately four metres deep, which was not supported on either side by timber buttressing. Approximately 15 minutes later, the sides of the trench collapsed inwards, burying him under falling soil. Although buried over his head, he was able to call for help, and despite the efforts of those on site to dig him free, mud continued to fall into the trench faster than it could be dug out and he died of traumatic asphyxia several minutes later. An investigation established that Wright’s employer, Cotswold Geotechnical Holdings Plc., had disregarded industry guidance and concerns raised by employees and regulators in the past about safe trench-work, had failed to provide adequate training to employees about the hazards involved in this sort of operation, and had knowingly exposed Alexander Wright to a wholly unsafe system of work. This was an extremely serious, entirely avoidable, and highly culpable example of a work-related death.

The phrase ‘work-life balance’ has become increasingly familiar and widely used in recent years as a means of describing the difficulty encountered in managing the competing time demands placed on individual life in the modern world and the encroachment of professional commitments into spaces previously set aside for personal commitments (Tausig and Fenwick 2001). Hochschild (1997) calls this the ‘time bind’: the diminution of private social relations due to the demands imposed by the economic and cultural value associated with work (also the ‘temporal trap’: Simon 2010). The way in which the identities of individuals are defined and constructed is increasingly shaped by work. One of the primary indicators used in defining our external identity is our job: what we do, what we earn, how successful we are (Goffman 1969). Those who work are defined by it; those who do not are increasingly socially excluded (Atkinson 1998; Young 1999). The result is the domination of individual life by work, a dominance which, as Richard Sennett (1998) points out, can have corrosive personal and social consequences.

This chapter provides a theoretical overview of how and why issues of regulatory law are enforced, and what considerations shape this process. It will position this book in relation to existing approaches to this issue, aiming to build on both the critical literature influenced by Marxist theory and the work of scholars writing within a broadly pragmatic ‘regulatory studies’ tradition. These often conflicting approaches are reconciled via the notion of regulation as a communicative endeavour which incorporates normative and instrumental components. While regulatory systems tend towards instrumentalism, in terms of a focus on technical issues and compliance with the law, work-related deaths have a communicative power which instrumental systems of regulation struggle to respond to. A Habermasian theoretical framework will be used to explain how the moral and instrumental components of this issue interact, and why the latter predominates within the context of health and safety regulation. It will be argued that corporate manslaughter reforms can thus be understood as a reaction to this instrumentalism and a primarily communicative response to the normative demands of wider society.

This book has attempted to establish that the movement towards the criminalisation of work-related death cases, via the liberalisation of criminal law attribution rules and the introduction of corporate manslaughter offences, is reflective of a communicative deficit within systems of health and safety regulation. These systems tend to be instrumental in nature and technical in form, both factors that contribute to a distancing of the law from its legitimating foundations in deliberative public discourse. Criminal law, it is argued, has the potential to provide a more compelling public account of the ‘reasons for’ regulating, highlighting its connection to deeper social values. It can do this because it is an explicitly normative system of law that involves the censure of ‘wrongdoing in which the public is properly interested’ (Duff 2001: 61), and it involves making judgements about the accountability of the defendant for that wrong. It should make a statement about why compliance with the law is ‘right’ and so persuade the defendant and others of that rightness (Duff 2001: 80; Dzur and Mirchandani 2007: 156). In this way, the legitimacy of the regulatory system and the values it pursues are enhanced. Criminalisation is thus part of a constructive movement towards a more democratically constituted regulatory system.

The early 21st century is part of the era of mega-corporate capitalism (Braithwaite 2008: 19), and the increasing dominance of multinational corporations as institutions of economic, political, and social influence has been accompanied by demands for them to be held more accountable for their actions (Wells 2001). The post-2008 global financial crisis, the Deepwater Horizon oil spill in the Gulf of Mexico in 2010, and a host of other events have demonstrated both the centrality of corporations to the new world order and also their power to destroy the lives and livelihoods of individuals. The criminalisation of corporate offending has become a key theme within the debates that follow these events, and there has been a new acceptance of the notion that a company can be criminally culpable. It is no longer the case that deaths at work are universally construed as accidents, which, if they are characterised as forms of wrongdoing at all, are viewed as matters of mala prohibita rather than mala in se. In this chapter, the trend towards imposing corporate criminal liability for work-related deaths will be explored in an international context, to build on the discussion of the British context in Chapter 1.