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date: 13 December 2017

Worker Health and Safety

Summary and Keywords

From the best estimates we have, workers die as a result of health and safety crimes at perhaps 70 times the rate of people who are murdered and perhaps 15 times the rate of people killed in car accidents. Yet health and safety crimes are not the typical subject matter for criminology simply because they are not interpersonal crimes. Yes, individuals are involved, but health and safety crime always requires us to look beyond individual actors playing out a criminal event in a self-contained crime “scene.” This chapter provides a detailed overview of how safety crimes might be regarded as crimes of violence, and explores in detail the way scholars have characterized the regulation of those crimes. It closes by providing a theoretical and empirical description of the “political economy” approach to understanding safety crimes with reference to the case of a young English worker, Simon Jones, who was killed at the hands of his employer.

Keywords: safety crimes, corporate crime, white-collar crime, worker safety, health and safety, regulation

Death at work ranks highly in comparison with virtually all other recorded causes of premature death. In the United Kingdom, for example, there are about 550 murders and some 2000 road traffic fatalities per annum. By contrast, as we will discover later in this chapter, there are up to 50,000 work-related fatalities each year in the United Kingdom. Further, as we have pointed out elsewhere, available evidence points to the conclusion that a large majority of the latter—perhaps as many as 75%—are caused by breaches of the criminal law (Pearce & Tombs, 1998; Tombs & Whyte, 2007).

And yet, when we are talking about the United Kingdom, we are talking about an advanced economy that for a variety of complex social and historical reasons might be expected to have safer workplaces than many other economies. Globally, a particularly heavy toll of death and injury occurs in developing countries where large numbers of workers are concentrated in primary and extraction activities such as agriculture, logging, fishing, and mining (Takala, 2002, pp. 2–3). This unequal international distribution of risk is further exacerbated by the struggle to secure safer and healthier workplaces in developed countries having as one effect the relocation of risk and hazard to developing economies—creating a key advantage for transnational companies in their ability to “regime shop” and thus “export” hazardous work from more to less regulated contexts economies (Castleman, 1979, Ives, 1985). The long and still largely unsuccessful struggle of the victims of the Bhopal gas leak to gain compensation for human and environmental suffering (Pearce & Tombs, 2012) clearly illustrates a further structural inequality associated with global distribution of health and safety victimization: for the economic consequences of death, injury, and disease associated with working are also differentially distributed. Thus, for example, occupational health and safety compensation schemes differ enormously—while workers in Nordic countries enjoy nearly universal coverage, “only 10% or less of the workforce in many developing countries is likely to benefit from any sort of coverage. Even in many developed countries, coverage against occupational injury and illness may extend to only half the workforce” (Takala, cited in Demaret & Khalef, 2004). As this, and a plethora of other evidence indicates, then, unequal distributions of risk and harms at a global scale are reproduced within economies (Tombs & Whyte, 2007).

Having made those points, this does not diminish the scale of health and safety risks that workers face in the Global North. Using the estimates we have already introduced, workers in the United Kingdom die as a result of health and safety crimes at some 70 times the rate of people who are murdered and about 15 times the rate of people killed in road traffic incidents. Yet if you were to stop 100 people in the street and ask them to list the five most serious crimes in Britain today, it’s a pretty safe bet that the crimes committed by employers against workers would not feature on this list. This is not to be disparaging of popular understandings of crime, for our ways of seeing are socially constructed. Health and safety crimes—which we define as violations of law by employers that cause death or injury as a result of work-related activities—have devastating physical (and psychological) effects, and carry with them enormous financial and social consequences. Despite this, such crimes remain relatively invisible at the level of political and popular consciousness. Indeed, they are rarely represented as crimes, but are invariably represented as accidents, disasters, tragedies, and so on.

Safety crimes as an area of focus is also obscured by the dominant focus of criminological teaching, research, and writing. That said, the one area where there is some focus by criminologists and socio-legal scholars more broadly on worker health and safety is on the issue of regulation—studies that ask how the state should seek to mitigate or respond to health and safety offenses which harm or have the potential to harm workers? We will turn to a detailed discussion of the regulation of workplace safety and health later in this chapter. Before turning to this task, however, we first explore nature and the scale of workplace injuries, illnesses, and fatalities.

The Scale of Violence at Work

For us, crimes against worker safety can and should be defined as crimes of violence. Though this is not an original approach, it is one which, in the context of academic criminology and general representations of occupational injuries, remains a rarity (Tombs & Whyte, 2007). For us, the lack of criminological attention to safety crimes as crimes of violence is less a quality of the phenomena at issue, and more a failure of the discipline to reflect upon long-standing, but ontologically weak, assumptions. Most crucially, dominant conceptions of violence are based upon an implicit association of violence with the interpersonal and with intention, both qualities that are often absent from safety crimes (Tombs, 2007).

Once occupational injuries are viewed not as accidents but as incidents which are both largely preventable, and which the law requires to be prevented, then they fall within the ambit of criminology. If we consider these illegalities in terms of their consequences—injury and death—we realize that these look remarkably similar to the results of those events that most men and women, as well as policymakers, politicians, and academics, generally deem to be “proper” violence.

Following Salmi (1993), the category of “indirect violence” is particularly important in thinking about safety crimes, as it directs our attention to the “relations of domination, and the violences that are condoned as part of the ‘normal’ and ‘healthy’ functioning of a society such as ours” (Catley, 2003, p. 5). Health and safety crimes result from the organization of production and working regimes that carry deadly consequences for some workers and members of the public. It is this feature that clearly puts health and safety crimes on the terrain of “indirect violence,” since they are the human consequences of mediated violence, inflicted indirectly through working. Indeed, one might argue that since there is no intention to kill any specific person here, these routine crimes of widespread negligence or recklessness have an indiscriminate quality, and are generally more calculated and more easily avoided than many interpersonal crimes of violence committed in the heat of the moment. This makes them arguably a greater social problem than interpersonal violence. (Reiman, 1998, pp. 61–71). This is in many ways to recall a very old argument:

When one individual inflicts bodily injury upon another, such injury that death results, we call that deed manslaughter; when the assailant knew in advance that the injury would be fatal, we call this deed murder. But when society places hundreds of proletarians in such a position that they inevitably meet a too early and an unnatural death, one which is quite as much a death by violence as that by the sword or the bullet; when it deprives thousands of the necessaries of life, places them under conditions in which they cannot live - forces them… to remain in such conditions until that death ensues which is the inevitable consequence—knows that these thousands of victims must perish, and yet permits these conditions to remain, its deed is murder just as surely as the deed of the single individual.

(Engels, 1969, p. 106)

So wrote Friedrich Engels in his classic book The Condition of the Working Class in England. He coined the phrase “social murder” to describe the systematic and routine killing of workers and citizens in the horror of the emergence of industrial capitalism. As we have noted, if its scale and contours have changed, this “social murder” is not merely a matter of historical record.

In the United Kingdom, around 1500 workers are killed every year due to incidents that have caused traumatic injury. Still, these additions do not capture the full scale of the problem of work-related deaths. Researchers from the European Agency for Safety and Health at Work calculated, in 2009, 21,000 deaths per annum in the United Kingdom from work-related fatal diseases, while accepting both that such data “might still be an under-estimation” and that work-related diseases are “increasing” (Hämäläinen, 2009, pp. 127, 132). Indeed, another U.K. study has estimated that up to 40,000 annual deaths in Great Britain are caused by work-related cancers alone (O’Neill et al., 2007). And long-term research by the Hazards movement, drawing upon a range of estimates derived from studies of occupational and environmental cancers, of heart-disease deaths which have a work-related cause, as well as estimates of other diseases to which work can be a contributory cause, produces a lower end estimate of up to 50,000 deaths from work-related illness in the United Kingdom each year (Palmer, 2008). This annual total ranks highly in comparison with virtually all other recorded causes of premature death in the United Kingdom (Rogers, 2011).

Of the up-to-50,000 occupational fatalities in the United Kingdom each year, and the hundreds of thousands of major and other injuries and infractions of safety law, there are typically about 500 prosecutions per annum; indeed, a disproportionate number of these follow the subset of deaths which are captured by what we referred to as HSE’s “headline” figure, with some 80–90 each year leading to successful prosecutions.

In the majority of cases, then, we have no definitive understanding about whether those deaths, injuries, and illnesses might have involved criminal breaches of the law. And while, as we have argued variously, this is largely because they are so rarely investigated, and prosecuted (Tombs & Whyte, 2007, 2008), it should also be noted that a further key contributory factor to this lack of knowledge is the fact that safety crimes generally appear to us, even as direct victims, in a relatively abstract form (Whyte, 2007; Tombs & Williams, 2008; Tombs & Whyte, 2010). Certainly, safety crimes tend to have an ambiguous relationship to (il)legality. Thus, the majority of safety crimes, even if they are punishable, remain largely unregulated in practice. The term “regulated” immediately indicates that those crimes are not policed in the usual sense of the word: corporate crimes are normally dealt with using different types of enforcement authorities (“regulatory agencies”) and often with different types of (“administrative” or “regulatory”) law. As a result, they typically remain outside the ambit of mainstream criminal legal procedure. If they do become subject to law enforcement, they tend to be separated from the criminal law (and processed using administrative or informal disposals rather than prosecution). Even if they are subject to the formal processes of criminal law, corporate crimes are rarely viewed as equivalent to “real” crimes. We return to these points, below, but for now it is worth exploring how they have been instituted historically, and how they function contemporaneously.

Regulating Safety Crimes

Famously, in volume 1 of Capital, and with clear echoes of Engels’ framing of “social murder,” Karl Marx (1954) showed how the carnage experienced in early industrial capitalism in 18th and 19th century Britain meant that those who sold their labor in the factory system were quite literally being worked to death. Reports presented to the Childrens’ Employment Commissioners on the occupational health of workers in the potteries, match making, and paper industries documented the vulnerability to disease and fatal injury faced by workers, low life expectancy (in the Staffordshire potteries, Marx noted, many operatives could not expect to live past their teens), and the mutilation of children, many suffering stunted growth and premature aging. Locating the struggle for regulation within nascent class conflict and threats to state legitimacy, Marx was to argue that those conditions necessitated the emergence of a system of regulation that was to become enshrined in a series of laws introduced in the 18th century known as the Factory Acts:

These Acts curb the passion of capital for a limitless draining of labor power, by forcibly limiting the working day by state regulations, made by a state that is ruled by capitalist and landlord. Apart from the working class movement which daily grew more threatening, the limiting of factory labor was dictated by the same necessity which spread guano over the English fields. The same blind eagerness for plunder that had in one case exhausted the soil, had, in the other, torn up by the roots the living force of the nation.

(Marx, 1954, p. 229)

Marx documents the efforts of domestic social reformers and the relationships of these efforts to upheavals in continental Europe, widespread employer opposition to the introduction of factory regulation, and clear conflicts amongst different groups of employers. He also shows that, in the very attempts to impose minimal conditions for workers, the state played a crucial role in forcing the qualitative leaps in the nature of capital investment and concentration of production that were crucial to the development of the factory system—this giving impetus to the real subsumption of labor, rather than merely extending the formal subsumption of labor. Yet, “for all that, capital never becomes reconciled to such changes—and this is admitted over and over again by its own representatives—except ‘under the pressure of a general Act of Parliament’” (Marx, 1976, p. 610).

The legal protections for workers enshrined in Factory Acts originated in the need to resolve a contradiction inherent in capitalism, generated by a relentless demand for greater profit which at the same time threatened to exhaust the capacity for sustaining profits in the long term. As Engels noted of the violent system of 19th century production, “measures had to be taken by the state to curb the manufacturers’ utterly ruthless frenzy for exploitation, which was trampling all the requirements of civilized society underfoot” (Engels, 1850). The conditions of the factory threatened to eradicate the source of its profits: a compliant labor force.

The Factory Acts can be understood as a form of mediation between social protection and rampant profiteering which threatened the viability of the Factory system, and, given the social unrest provoked by workers’ resistance and growing campaigns by middle-class social reformers, regulatory intervention was necessary to ensure some measure of legitimacy for a very clearly grossly unequal and violent system of production. In short, regulation was necessary, in Carson’s (1980) words, in order to sustain a “viable class society.”

The process of regulating safety crimes thus appears as a process that does much more than simply control corporate harms and illegalities. Rather, it is a means of ensuring that a burgeoning capitalist economy does not self-destruct. We have seen how regulation emerged historically in response to occupational safety crimes, a response to a social problem which threatened to undermine the conditions for accumulation, but did not respond “naturally” nor spontaneously—rather, regulation emerged historically, and should be understood contemporaneously, as a product of inter- and intra-class conflict, conflict often involving wider social movements (Snider, 1991). Moreover, the emergence of regulation is never in itself an “end” to such conflict, not least because the nature, level, and actual enforcement of such law always remains open to contest.

Regulatory Tolerance

With these points in mind, let us look in a little more details at how the contemporary U.K. state responds to the health and safety harms—deaths—which are at issue here. Here we can draw upon wider literature but also drill down to examine in detail the enforcement of health and safety law in the United Kingdom.

There now exists a mass of studies—mostly nationally based, though with some useful cross-national comparative studies also—regarding the practices of a whole range of regulatory bodies (see Clarke, 2000, pp. 136–161). Several broad generalizations can thus be made about the practices and effects of regulatory enforcement agencies: non-enforcement is the most frequently found characteristic; enforcement activity tends to focus upon the smallest and weakest individuals and organizations; prosecutions for corporate crime are relatively rare and sanctions following regulatory activity are light—with, overwhelmingly, the most common sanction imposed on a company convicted of any criminal offense is a monetary fine, on which more below (Snider, 1993, pp. 120–124)1.

We have documented how what we have at work here are in fact processes of non- or de-criminalization (Tombs & Whyte, 2007, 2008). To illustrate the scale of these processes, let us return to recorded injury and illness data, extending our analysis beyond the subset of occupational fatalities. According to HSE’s most recent data, they state that, in 2014/2015, there were: an estimated 2.0 million people suffering from an illness (long-standing as well as new cases) they believed was caused or made worse by their current or past work; 76,000 reported injuries to employees; 611,000 injuries which occurred at work, according to the Labour Force Survey, of which 152,000 led to over-seven-days absence. (Health and Safety Executive, 2015, pp. 1–4)

Yet the companies which cause these deaths, injuries, and illnesses are subjected to virtually no regulatory oversight. Between them, the Health and Safety Executive and Local Authority Environmental Health Officers are responsible for enforcing health and safety law in over 2.5 million workplaces. In 2013/2014, inspectors from these two sets of regulatory agencies made just 130,000 inspections, at a combined “average” of one in 20 workplaces receiving an inspection.

Moreover, it is not simply that inspections are low. So too are investigations of deaths, injuries, and incidents: for example, only a very limited subset of the deaths recorded by HSE, the 150 or so which constitute HSE’s headline figure, are subject to investigation, while less than one in 20 major injuries are subject to regulatory scrutiny. On the basis of such state inactivity, then, it is unsurprising that prosecutions are few and far between.

Indeed, those levels of regulatory activity have been in sharp decline since the late 1990s, with levels of inspections much less than a third the level they were at just 20 years ago (Tombs & Whyte, 2008; Tombs, 2016). The conditions of this decline have been designed very deliberately into regulatory systems by neo-liberal politicians and policymakers; it is a political process that that reflects a weakening of the relative power of workers in vis-à-vis their employers.

The level of punishment that employers might expect is also instructive in respect of the seriousness with which the law treats such offenses. In 2015/2016, there were 964 separate offenses successfully prosecuted (across 660 cases) undertaken by HSE and local authorities across Britain, the average penalty being just under £39,696.2 Thus, the chances of a death, injury, or illness resulting in a successful prosecution are infinitesimal, while the sentence attached to any such conviction is, on any criterion, low.

Somewhat differently, in the case of a limited subset of deaths, companies may be charged with corporate manslaughter, on the basis of a new law introduced in 2007, the Corporate Manslaughter and Corporate Homicide Act (CMCH Act), designed to facilitate the prosecution of large, complex organizations for death or deaths. However, at the time of writing3, with the law in force for almost eight years, there have been just 14 successful prosecutions under the new act, or less than two such prosecutions every year!

Thus, looking at workplace health and safety through the prism of regulation and enforcement, one sees a sphere of activity which produces significant harm but which is effectively non- or de-criminalized—in distinction to many much lower-level incivilities which, many have convincingly argued, are increasingly subject to punitive (and counterproductive) levels of state responses.

And here we return to our earlier point. Regulation, then, is not only, or perhaps not very much at all, to do with law and its enforcement. Rather, a fundamental principle in the regulation of workplace safety—in capitalist social orders—is that regulators establish conditions under which risks can be distributed to workers and the community. In this respect, we draw attention to an often ignored feature of the process of regulation: the normalization of the redistribution of risks to workers and the communities in which production is located. Quite simply, highly dangerous working conditions are often officially sanctioned and indeed tolerated by local government and by state regulators.

Approaching the regulatory process from this perspective—as a regulatory tolerance of safety crimes—raises some profound questions about the extent to which current systems of regulation can guarantee the safety of workers and communities. First, dangerous work is legalized—that is, regulations tolerate permitted levels of risk. Second, it is clear that even where the rules set out by regulatory systems are broken, formal enforcement methods are always a last resort—they take place only after a long series of negotiations have either proven unsuccessful, or safety crimes been exposed and rendered problematic through resistance strategies by workers and/or their communities. Third, even when formal enforcement action is taken, this tends to be delicately graded, escalating both slowly and rarely to significant heights.

Understanding Regulation

Some of the trends in enforcement highlighted above are certainly an effect of the rise to dominance of neo-liberalism and its stringent critique of regulation. Neo-liberal theorists argue that we are over-regulated, and that government imposed rules on markets and on corporations obstruct economic efficiency and individual freedoms (Friedman, 1982; Hayek, 1972). Market mechanisms more efficiently allocate resources and exert control over participants in markets. Deaths and injuries at work, for example, can be adequately regulated by the balance of market forces. Neo-liberal market logic holds that workers only enter employment after freely agreeing contractual terms with employers. The risks that workers are exposed to will have a nominal value in this agreement, and employers will find an optimum level of safety provision that is necessary to attract workers on competitive wages (for a critical discussion, see Moore, 1991).

A key element of the neo-liberal ideology that took hold in Western political systems in the 1970s and 1980s and post-Soviet societies in the 1990s was the institutionalization of “deregulation” as a centerpiece of economic policy. For the Reagan and Thatcher governments, regulatory protections (particularly in the realm of “social regulation”) often created unnecessary “red tape” or imposed “burdens on business.” What followed in the United States, United Kingdom, and in other prominent OECD countries was a twin pronged attack upon the legislative safeguards governing some forms of anti-social business activity, perhaps most notably worker safety (Tombs, 1996), the environment (Monbiot, 2000), and some forms of consumer protection (Palast, 2003, pp. 215–231). Central to this strategy was the withdrawal of political support for, if not resources from, some regulatory agencies (Tolchin & Tolchin, 1983; Woolfson, 1994).

If neo-liberalism is a set of ideas that dominates the political landscape and shapes economic policy, regulatory agencies themselves have been dominated by a separate, compatible set of ideas that we might call “consensus’ theories of regulation” (Whyte, 2004). Those theories see regulation as a phenomenon which arises as a protective or paternalistic state response to socially damaging economic activity. In this distinctly pluralist vision, systems of regulation are conceived of as the outcome of dialogue between a range of diffuse competing interests: the outcome of an open and ultimately benevolent decision-making process involving relevant stakeholders (generally understood as workers, employers, and government). Consensus theories are politically seductive (Mascini, 2013) in so far as they offer a “way out” for regulators under pressure from neo-liberal political agendas to “deregulate.”

Over twenty years ago, in what became a rather acrimonious debate (Hawkins, 1990, 1991; Pearce & Tombs, 1990, 1991), Pearce and Tombs drew attention to what they called a “compliance” school of regulation studies as the dominant version of a consensus approach to regulation. The debate unfolded as the consolidation of neo-liberalism in the United Kingdom tipped the academic and policy scale towards those forms of regulation and its enforcement which Pearce and Tombs were subjecting to critique. Almost two decades later, Almond and Colover (2012, p. 1010) were able to characterize work on regulation via reference to a “regulatory orthodoxy”—alongside a rump “‘deterrence school’ of thought.” The triumph of the “compliance school,” this “regulatory orthodoxy,” suggests a more selective use of the threat of prosecution as a “last resort” and in general gives support to approaches that utilize enforcement rarely and prioritize compliance-centered, accommodative, self-regulatory strategies of risk management. (Almond & Colover, 2012, p. 1000, italics in original)

Thus, across an apparently heterogeneous variety of regulation scholars, there has been a generalized rejection of “deterrence-based” approaches. For example, scholars who describe or prescribe compliance-oriented (Hawkins, 1984), twin-track (Gunningham & Johnstone, 1999), smart (Gunningham & Grabosky, 1998), problem-solving (Sparrow, 2000), risk-based (Hutter, 2001), private or market-based (Hutter, 2006) or responsive (Ayres & Braithwaite, 1992), really responsive (Baldwin & Black, 2008), or really responsive risk-based (Black & Baldwin, 2010) regulation all assume that what is generally referred to as “command and control” regulation, where the state prescribes closely what constitutes compliance and then responds punitively on the basis of a deterrence-oriented approach, is unsustainable. Thus,

In business regulation circles these days, there is not much contesting of the conclusion that consistent punishment of business non-compliance would be a bad policy, and that persuasion is normally the better way to go when there is reason to suspect that cooperation with attempting to secure compliance will be forthcoming.

(Braithwaite, 2002, p. 20)

At the same time as the “debate” between Hawkins and Pearce and Tombs had taken place, Braithwaite was forging the concept of responsive regulation in an explicit effort to transcend what he viewed as a sterile debate over regulation versus deregulation. Significantly, Braithwaite was also formulating those ideas in a period in which the imagination of academics was seemingly being suppressed by the idea that “there is no alternative” to neo-liberal capitalism. Responsive regulation thus emerged at a time in which we witnessed a new, brutal, politics in which businesses and managements were being empowered by the rhetoric if not the practice of neo-liberal “anti-statism” and the “roll-back” of invasive state regulation. Central to responsive regulation is the prescription of a regulatory enforcement strategy whereby most regulatory activity with most companies involves forms of self-regulation, whilst the most punitive tactics need only to be resorted to in dealings with a small number of firms—hence regulation is pyramidal, the self-regulatory base being far larger than the punitive peak. (Ayres & Braithwaite, 1992).

A slightly distinct—but now increasingly voluminous—variant within regulation literature has sought to establish a “risk-regulation” paradigm (see, for example, Black & Baldwin, 2010). Since the publication of Responsive Regulation, the use of risk technologies to inform regulatory targeting—as part of a pyramidal approach to enforcement—has become part and parcel of the regulatory landscape, with risk-based forms of regulation now ubiquitous across U.K. regulatory bodies (Black, 2005; Hutter, 2005; Rothstein et al., 2006). Conceptually, the “risk-regulation” couplet has established itself as academically pre-eminent in the past decade. In practical terms, and “In a striking wave of regulatory homogenization, risk-based regulation is becoming widespread across the globe and in areas as diverse as environment, finance, food, and legal services” (Black & Baldwin, 2012, p. 2).

What appear to be diverse literatures share several assumptions. One is that state capacity has dwindled with respect to private actors and “the market,” while state resources are not and never will be sufficient for the task of overseeing compliance with regulation. A second is that this requires a targeting of regulatory resources at those firms or sectors where risk is greater or the chances of non-compliance are more significant, or both. Third is that the preferred regulatory option is to leave the management of risks to institutions beyond the state—notably to business organizations and their managements themselves, but also other private actors including trade associations, insurers, and investors—so that corporations should be encouraged to act as responsibilized, self-managing, risk-mitigating organizations. A fourth assumption is that this is not only desirable but also feasible, because corporations can and do have moral commitments to preventing and mitigating risks—they are not reducible to artificial amoral, calculating, profit-driven entities.

We have subjected the latter views to extensive empirical (and conceptual) critique elsewhere (Pearce & Tombs, 1990; Tombs & Whyte, 2013; Tombs, 2016). In short, we would argue, first, that there is little empirical evidence for consensus theory’s claims about the desirability of self-regulation (Dawson et al., 1988; Smith & Tombs, 1995). Relatedly, the case against strict enforcement of regulation is always made hypothetically, since it has never been tried and tested over a sustained period (although see Alvesalo, 2003a, 2003b). Second, consensus views of regulation downplay conflict, viewing conflicts over regulation as a peripheral rather than central feature of regulation. Workers’ movements and popular campaigns against corporate harm, for example, rarely warrant more than a passing mention in many of those texts. Moreover, where corporate resistance to regulation is recognized in this literature, it tends to be characterized as the vice of a few malicious deviants or “bolshie types” (Hawkins, 1996, p. 312). Third, the assumption that corporations can be made into responsible, moral decision makers which can largely self-regulate underplays both the routine and pervasive nature of corporate offending. (Tombs & Whyte, 2015). Moreover, this assumption obscures the techniques of “creative compliance” and “law avoidance” that corporations use systematically to undermine the letter or spirit of the law (McBarnet & Whelan, 1991; McBarnet, 1988; Marx, 1954, pp. 271–272). Fourth, this perspective obscures the social and legal foundations upon which corporations are built. Company directors are bound by law to pursue maximum levels of profit for shareholders and in the final instance, corporations as presently constituted must make a profit to survive (Glasbeek, 2002). It is those features of capitalist businesses that make it unlikely that they will voluntarily consider workers, consumers, or the environment before they consider the bottom line.

From Consensus to Dissensus

A different way of thinking about regulation can be found in a neo-Marxist literature on the subject. This body of work notes that regulatory controls have often been established only after long and bitter struggles by organized groups of workers and other social movements (Kramer, 1989; Snider, 1991; Tucker,1990). At the same time, historically, businesses and their representatives have fought bitterly in opposition to regulation when it is not in their clear interest. They obfuscate, lie, cheat, and make threats to disinvest, often fighting fierce public relations campaigns and behind the scenes political maneuvers to avoid or to influence regulatory reform (Monbiot, 2000; Tombs & Whyte, 1998; Woolfson et al., 1996; Tweedale, 2000; Palast, 2003). Critical scholars and neo-Marxist commentators therefore argue that conflicts between pro- and anti-regulatory forces from outside the state are crucial to understanding the origins of regulation, and its subsequent level of enforcement (for example, Carson, 1979; Harris & Milkis, 1989; Navarro, 1983; Pearce & Tombs, 1998)—even if such conflicts around the definition and enforcement of the law are not always visible (Grigg-Spall & Ireland, 1992; Lukes, 1974).

Regulatory agencies tend to emerge after periods of crisis and after sustained periods where conflicts over corporate activity are highly visible. They are formed by states in order to absorb and dissipate struggles between conflicting social groups and do this by claiming to represent the interests of pro-regulatory groups at the same time as protecting the general interests of society. This does not mean that regulatory agencies are neutral or balanced in the way that they deal with corporate crime; rather they are “unequal structures of representation” (Mahon, 1979, p. 154). Regulatory bodies tend to subordinate the interests of non-hegemonic groups to the interests of business, but since their purpose is a stabilizing one for capitalist social orders, they may subordinate the immediate interests of particular businesses to the long-term interests of capital as a whole. In turn, the likelihood that they may regulate in order to placate or dissipate movements of opposition makes regulatory agencies vulnerable to pressure (Shapiro, 1984; Snider, 1991). From this perspective, the consensus perspective becomes less convincing. It is more accurate to think about dissensus rather than consensus as the driving force behind the politics of regulation.

It is this notion of dissensus that helps us to grasp the complex and seemingly contradictory politics of regulatory reform. For example, 2008 saw the introduction of a Corporate Manslaughter and Corporate Homicide (CMCH) Act—a law that emerged in the midst of a general deregulatory assault on health and safety law and its enforcement. One interpretation of this is to see regulation as “an explicitly social act” (Almond, 2013, p. 77) with normative, symbolic, and expressive functions. Thus, for Almond, the CMCH Act 2007 steers a path between government’s symbolic need to do something about “companies that kill” (ibid., p. 32) whilst not unduly harming business interests: a juxtaposition which points to a “deeper set of tensions” regarding legal attempts to control corporate behavior (ibid., p. 33).

If Almond’s interpretation is plausible, it is only a partial understanding of how the law emerged and took the shape it did. Despite his reference to deeper tensions, his analysis typifies many studies of regulation, since it lacks any detailed sense of pro- and anti-regulatory forces engaged in struggle over the existence and shape of the new law (Snider, 1987; Bittle, 2012). All too often one encounters references to “the public,” alongside a sense that law emerges as if naturally or relatively spontaneously in relation to a political and legal problem which somehow—often autonomously—simply demanded resolution. Thus in Almond and Colover’s (2012) discussion of the CMCH Act 2007, there is reference to “politicians and the public,” but not to victims, campaigners, trades unions, divisions within political elites, branches of government or the state, business organizations, or regulators themselves. Written out of this brief, historical backstory is any sense of partisanship or struggle4—an observation which may seem tangential, but which is ultimately very revealing. But the act had in fact been the subject of a long (thirteen years), intense struggle. The consequence of this long period of contestation was that many of those pro-regulatory organizations who had campaigned most vehemently for the law were highly critical of the form in which it was ultimately passed. As the bill passed through to enactment in 2007, Families Against Corporate Killers5—a group of families bereaved by work-related death, established in 2006—were scathing of it for its omission of directors’ duties, its reference to senior management, and the limited range of penalties then envisaged to follow from convictions under it (Families Against Corporate Killers, 2006).

Perhaps more obviously, ongoing struggles for safety in the workplace have a crucial impact on the way that standards are upheld. The safest workplaces—and, by extension, the most legally compliant workplaces—are those with strong trade unions and effectively functioning trade union safety representation. This has been confirmed in numerous research studies. This research literature generally concludes that strong worker representation in the workplace has a markedly beneficial impact upon health and safety performance (for example, Walters et al., 2005) and that trade unions are the key organizations in providing this support. Strong trade union representation reduces injury rates dramatically, by perhaps as much as 50% (Reilly et al., 1995). Moreover, a review of the research has confirmed the consistency of those findings on an international basis (James & Walters, 2002).

A Political Economy of Corporate Killing

A number of commentators on corporate crime have emphasized the need to incorporate explanatory variables which range from the micro (individual), through the meso (organizational), and macro (socio-structural) levels (Coleman, 1987; Punch, 2000; Vaughan, 1992, 1996). On the basis of the argument thus far, it is clear that in order to understand the systematic production of, and lack of state responses to, workplace death, injury, and illness, then we need a macro-level theoretical framework or perspective within which we can still capture the key effects of meso- and micro-level institutions and processes. In the context of health and safety crimes, we apply a political economy approach for this purpose, for reasons that become clear as this section develops.

Most broadly—and most obviously—political economy implies an understanding of the ways in which “politics” and “economics” interact. Much more than this, the political economy approach also entails an understanding of the ways in which “ideas about what constitutes the political and the economic” (Gill & Law, 1988, p. xviii) are constructed and maintained, and thus leads us directly into explorations of dominant values, ways of understanding the world, and of the possibilities for and limits to social change; essentially, then it involves an understanding of the differential distribution, nature, and effects of power in any given society. Political economy exposes as socially specific what is taken-for-granted, revealing how what is was not always so and need not necessarily be, with existent states of affairs only comprehensible in the context of macro-level social processes, on both national and international levels. In the rest of this section, the political economy approach is illustrated through an outline of a case of a death caused by working.

Simon Jones was a 24-year-old student, taking a year out of study before sitting his finals in social anthropology at Sussex University. In April 1998, he signed on for casual work in Brighton with a local employment agency, Personnel Selection—“to get the dole6 off his back,” in the words of his friend Emma Aynsley. Simon was required to register with an employment agency under the Job Seekers Allowance scheme—part of Labour’s broader Welfare to Work strategy, whereby claimants must continually demonstrate availability for and willingness to work in exchange for continued receipt of “benefits.” His first job with Personnel Selection was at Shoreham Docks, working for Euromin Ltd., a Dutch cargo company. He went to work in a ship’s hold, unloading its cargo. Within an hour of arriving for his first day of work, he was dead. His head had been crushed and partially severed when a three ton “crane” grab closed around it. The grab should not have been there; it certainly should not have been open. The work required chains which should have been fastened to a hook instead. Changing back between a grab and a hook costs time and therefore money.

Now, in many ways, Simon Jones’s death was a routine killing: the thousands of workers and members of the public die each year in Britain in work-related incidents rarely make any headlines, rarely attract prosecution, most are not even investigated as potential crimes. But his death was also exceptional in several ways, not least for the campaign it spurred. The Simon Jones Memorial Campaign based its fight around the issue of casualization—a now firmly re-entrenched feature of working life in neo-liberal Britain, where de-skilled, short-term, and often agency-mediated employment are common features of a deregulated labor market. Such features are bolstered by a benefits system which forces claimants to take work—even work for which they are patently “unfit”—on threat of withdrawal of any minimal financial support from the state. Finally, the role of Personnel Selection—acting as the “middle-man” between the state and Euromin—is also symptomatic of a state contracting out its functions to the private sector. In short, Simon’s death is only explicable in the context of a particular political economy, namely neo-liberalism in an era of “globalization.”

It was quite literally neo-liberalism that put him in the ship’s hold where he died—prior to neo-liberalism, Simon Jones simply could not have been there to lose his life. In the hey-day of the Keynesian post-1945 settlement, there would have been no compulsion to work in exchange for benefit entitlement, no role for private companies in finding that work, no chance of him working on the docks without having been certified as competent to do so under the national Dock Labour Scheme (Lavalette & Kennedy, 1996). In other words, if a routine killing, Simon’s death is only comprehensible in the context of wider social, political, and economic trends and the prevailing modes of thought and dominant value systems within which these emerge and through which they are sustained. In short, this and other corporate killings must be viewed through the lens of political economy.

More generally, safety crimes require analysis which extends far beyond what largely passes for contemporary criminology. We require a political economy of safety crimes, which places their production within prevailing systems of economic, social, and political organization, dominant value systems and beliefs, and the differential distribution of power. One analysis of the organizational and social production of safety crimes (Tombs & Whyte, 2007) concluded that to grasp the complexities of such phenomena means seeking to address a series of interrelated factors in their production—factors, further, that need to be understood dynamically (that is, historically) and beyond the level of the nation-state.

We must grasp the differential vulnerability of workers to victimization. Victims of safety crimes work in jobs or sectors which are disproportionately likely to be casualized. They are more likely to be sub-contracted and/or increasingly given to migrant workforces. Vulnerability also varies by the particular social constructions around gender, by ethnicity, by age, and so on, as well as the country of worksite. More generally, vulnerability to safety crimes is a function of the strength of workers in relation to managements; as we noted above, evidence overwhelmingly points to the finding that the safest workplaces are those workplaces that have strong trade union representation.

A focus on management is also required. Examining specific safety violations often reveals evidence of aggressive managements, or managements who ensured that warnings, usually from below, were being systematically ignored. Moreover, we are likely to find a patterned lack of management accountability for safety crimes, where management decisions and failures to heed warnings are subject to very little external counterbalancing in terms of regulation. Indeed, safety (and other business) crimes often emanate from companies that frequently offend, or from sectors where recidivist employers are commonplace. Thus managerial practices—and the cultures within which these are embedded—are crucial in understanding the production of safety crimes. What is fundamentally at issue here are the standards of management that can be regarded as “acceptable” in any given political economy.

Beyond the organizational structures and cultures of companies, there are key inter-organizational features which need to be accounted for. These include the ways in which different parts of the same firm relate to each other (parent-subsidiary relationships, for example), agency-contractor relationships (relevant in the case of Simon Jones), how different firms were linked into each other within or across particular sectors, perhaps in terms of long and complex supply chains, or indeed in terms of systematic relationships between legal and illegal businesses.

A further group of factors, both cultural and organizational, is located at the level of the market or industry. These include the norms that predominate in an industry for what is acceptable or even “required” for how production of goods and services is organized—characterized by Carson’s (1982) classic study of the U.K. offshore oil industry, for example, in the “political economy of speed,” alongside a series of (more or less real, but perceived in any case) market pressures, operating locally, nationally, and international, or even globally. Different markets and different industries create quite specific demands for profitability, speed, or cost-cutting.

Also requiring critical scrutiny are the systems of law and regulation that are put in place, ostensibly, to protect workers. As we have argued above, low levels of inspection, detection, formal enforcement, and sanctions ensure that safety offenses are regarded as less serious than other crimes of violence, an enduring phenomenon that acts to reduce the social opprobrium that is attached to those crimes. Crucially, the way the state does—or does not—frame and respond to safety crimes shapes the extent to which such crimes are tolerated, from the boardroom to the workplace.

Political economy, then, is an analytic approach which is essential to understanding what crime is, how it is produced, how and why it is and may be regulated, and what the limits to and effects of such regulation may be within specific social orders. It is, then, ideally suited to understanding crime and crime control—in ways that a hidebound and largely state-driven activity such as criminology is unlikely ever to be. It is also a perspective which requires us to understand the dynamics of regulation, itself an effect of conflict and compromise, and therefore can only understood in the context of a wider balance of capitalist social forces. In this context, political economy requires us to identify and interrogate the social relations which develop around and support the production of specific forms of commodities—and by social relations we refer of course to labor-management relations/antagonisms, as well as to the relationships between those who own and control production and broader economic, political, and social forces: the multinational firm, local, national, and supranational states, regulatory bodies, counter-hegemonic organizations—all of which must necessarily if not sufficiently be grasped through an understanding of productive relations.

Thus, in the context of safety crimes, a political economy understanding must move beyond individualized or environmental explanations, to engage in both theoretical and empirical work. In truth, however, as is the case with theory-building in corporate crime research in general (Cressey, 1989), theoretical development here remains at an early stage, although there are now a number of book-length studies which attempt to incorporate this range of factors. These include studies of safety crimes in the offshore oil industry (Woolfson et al., 1996), corporate crime in the asbestos (Tweedale, 2000), chemicals (Pearce & Tombs, 1998), and pharmaceutical (Braithwaite, 1984) industries, corporate manslaughter (Slapper, 2000), and the corporate and state illegalities associated with the fateful launch of the Challenger space shuttle (Vaughan, 1996).

Conclusion

Health and safety crimes are not typical subject matter for criminology simply because they are not interpersonal crimes. Yes, individuals are involved, but the circumstances that lead or force individuals to choose particular courses of action always require us to look beyond the individual on the scene—the ship’s assistant bosun who did not check whether the ferry’s bow doors were closed before leaving port, the chemical plant worker who attached the hose to the tank, the shipping manager who sends a young man to unload cargo. This is to deny neither human agency, nor that individuals at times act (or fail to act) in ways that act as decisive triggers for safety crimes. Individual, low-level employees at times may act in violation of safety law, behave stupidly, carelessly, or recklessly.

Both the under-enforcement of regulation and the absence of controls for serious corporate harm provides us with a perfect illustration of Lacey’s (1994) point that we cannot take “crime” for granted. Neither can we take its enforcement for granted. The criminal justice system remains preoccupied with a relatively limited number of interpersonal crimes. And criminology by and large obediently falls into line behind this “official” version of what constitutes the crime problem. The state’s embedded bias forces us to think about a much more profound question in relation to regulation: whether, under capitalist social orders, state regulation can ever adequately guarantee our protection? Can workplace deaths and injuries ever be sufficiently harnessed in states that see as their primary aim the encouragement of private profit maximization and capital growth? Given that under-regulation and an absence of safety crime controls appears to be as much an embedded feature of capitalist social orders as safety crime itself is, our greatest challenge is perhaps not simply to reform or tinker with the means we have to control individual corporations. Therefore, a much greater and more pressing challenge is to seek an alternative means of organizing production regimes that will neither encourage nor sustain the routine killings and injuries committed by employers.

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Notes:

Notes

(1.) These are, of course, generalizations: there are important national differences in enforcement strategies (Pearce & Tombs, 1998, pp. 229–245) and important differences in enforcement strategies across different spheres of regulatory activity (Snider, 1991).

(2.) Table 2: HSE and COPFS prosecuted offences by result, industrial sector and region, at http://www.hse.gov.uk/statistics/tables/index.htm#enforcement

(3.) July 2016.

(4.) In fact, there is passing, vague reference to “influential lobby groups”—though no sense of who these were—and to the “trade union constituency” (Almond & Colover, 2012, p. 1000).

(5.) FACK seeks “urgent government action to halt the complacency about deaths at work and decent laws which will bring dangerously negligent bosses to justice. FACK wants a review of the way work-related deaths are investigated and the way families are treated. And it believes workers and safety reps must be given more rights to protect themselves against exposure to unacceptable risks to their lives and health” (http://www.hazardscampaign.org.uk/fack/about/index.htm).

(6.) Government-employed social security officers.