Regulation Strategies Of The Uk Government Criminology Essay

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The recent Icelandic volcanic eruption fits wholeheartedly into the debate surrounding government intervention. Acting on behalf of the public, the British government used what is known in academia as 'the precautionary principle', creating the largest and longest no-fly zone since the Second World War. This, a classic case of Ulrich Beck's risk society, demonstrates how governments frequently act as the nanny to protect the public from hazards induced by modernity itself. We must therefore determine how to manage risk most effectively; a question largely debated between various aspects of society, from government officials, to scientific experts, the lay public and national/multinational corporations. There is no universal standard-setting to answer this question, as hazard regulation varies between governments and risk domains themselves. Therefore, it is the aim of this paper to critically address the role of the British government intervention strategies against the theoretical creation of what critics call the 'nanny state' or paternalism. Using various single-case studies we shall analyse how democratic states, such as the UK, manage contemporary risks ranging from; obesity, alcohol and tobacco, domestic radon, dangerous dogs and vehicle accidents.

The argument can be divided distinctively into those who support 'classic' government regulation and those who oppose it as a 'default response' to public health related hazards. This is not to say that many believe government should be banished from risk regulation regimes completely, rather, as this paper shall demonstrate, there is justified reason for the state to take responsibility (albeit a minimal response in some cases). There are a 'spectrum of views surrounding this debate as to "how far how far it is proper for the state to introduce programmes that interfere, to different degrees, in the lives of its population in order to reduce the risks to the health of all or some of them" (Calman, 2009). Table 1 summarises these 'spectrum' of views.

Essentially interventionists manifest change through various forms of legislation on behalf of the lay public. As such, "the argument being that since individuals' choices are constrained by their environment, changes to this are required before people may exercise full and free choice" (Hoek, 2008). Indeed this follows a Marxist approach as Benjamin Franklin denotes:

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty or safety" - (Benjamin Franklin, Historical Review of Pennsylvania, 1759)

Libertarians oppose such views; instead they promote individual freedoms and challenge the decision-making role of the state. Yet is it clear that society has sanctioned this transition of power to the state. As the Better Regulation Commission (BRC) states, "we [society] have been complicit in a drive to purge risk from our lives and have drifted towards a disproportionate attitude to the risks we should expect to take" (2006). Such perspectives argue that modern society is dominated by a 'zero-risk tolerance culture' and over-regulation which means individuals are reluctant to take responsibility for managing their own risk. Thus, opponents of government intervention describe attempts to promote public health as "nanny statist".

Libertarian views such as these follow "John Stuart Mill's argument that individuals have a right to perform actions that may result in harm, even though others, including the state, have to take responsibility for the consequences" (Hoek, 2008). For instance, in the UK public health regulations such as restrictions on public smoking, alcohol licensing and junk food advertising have shaped individual choices towards healthier and safer behaviour (Jochelson, 2005).

Thus, key to this argument is the 'harm principle', established by Mill's in an effort to resolve tension from the 'nanny state' debate. The theory suggests that "state intervention is primarily warranted where an individual's action affect others, i.e. coercion are legitimate where it acts to avoid hard to third parties" (Calman, 2009). It also recognizes the importance of state intervention to protect vulnerable populations (for example, children who are more susceptible to junk for advertising and thus damaging their own health). In addition, the harm principle acknowledges the importance of educating and informing so that the lay public can make their own decisions regarding risky behaviour. For example, the UK ban on smoking in public places was finally introduced in 2006 after the public began to understand the risk of lung cancer associated with passive smoking. Such instances have generally been accepted for they have protected individuals from the actions of third parties. Yet, the debate becomes more intense as government interventions into public health now attempt to protect individuals from risks generated by their own actions (for example, unhealthy diets leading to obesity). Therefore, in 2006, the Nuffield Council on Bioethics produced a report highlighting that the most appropriate proposal for risk, regulation and responsibility is that which captures the best of both libertarian and paternalistic approaches (Calman, 2009). Going beyond the work of Stuart Mill's harm principle they established a more appropriate intervention strategy known as 'stewardship'. A liberal view which supports the role that government has a responsibility (as a steward) to protect people from harm, both individually and collectively (Table 2 summarises the key characteristics of the stewardship approach). Supporters of the Labour government believe the state must take responsibility by empowering society to make educated and informed decisions, using legislation as a way to motivate health behaviour.

However, the BRC argues that there needs to be "changes that would separate the 'cause' (a risk and our response to it) from the 'effect' (new sets of rules, regulations and guidance)" (BRC, 2008). Accordingly they suggests that any UK regulation must meet the 'BRC Five Principles of Good Regulation' (Table 3) and "brought in reluctantly as a last resort rather than first instinct" (BRC, 2008).

Critics of the 'nanny' state ideally believe that where responsibility and regulation is concerned, 'less is more' in regards to government intervention. Thus, the minimal feasible response hypothesis is proposed as...

"the expectation that in a liberal capitalist society, state intervention constitutes the minimal response necessary to correct market failures (taking a narrow interpretation of 'market failure'). Suggesting, for example, that risks with strong 'public bad' characteristics will be more heavily regulated than others" (Hood et al, 1999).

This response suggests that governments are expected to take minimal action and adopt the "least intrusive and extensive response that matches the specific market-failure characteristics of each particular hazard" (Hood, 1983). If this hypothesis is implemented as the most appropriate action, then "state intervention is only adopted for risks where 'opt-out costs' and 'information' costs are substantial" (Hood et al, 1999). Thus, any risks placed in the top left hand corner of Table 4 would suggest minimal or no regulation, no state investment and little or no behaviour modification.

Hood et al (1999) applied the minimal response hypothesis to a number of risk regimes and found intriguing results. The four risk regimes were: 'domestic radon, pesticide residues in drinking water and food, dangerous dogs and ambient benzene'. Yet, only one risk regime (dangerous dogs) produced the same expected and observed state regulation. Information regarding dangerous dogs is considered low-cost, as generally dangerous dogs are tangible risks which can be observed by lay observation (although disputed between experts). The opt-out costs are considered high and therefore require regulation focused on sate enforcement and behaviour change. For instance, contracts between producers (dog owners) and victims are impracticable, and although obtaining and wearing body armour may have significant financial obligation for a family, the real costs are lifestyle restrictions.

In the case of domestic radon Hood et al (1999) demonstrate that the government is actually doing 'too much' compared to the minimal expected response. For other regimes, such as ambient benzene, the government is accused of doing 'too little'. Yet, a key argument in this debate is preventing state intervention where the market can provide protection, and thereby responding to risk without an intrusion of individual lifestyles. For instance, the UK has the potential for an ordinary market or tort law processes for radon testing; however the power of British government has overcrowded this possibly, thus nullifying the possibility of individual responsibility. On the other hand with the risk of ambient benzene one might "expect a regulation regime to incorporate 'effector' activity to deal with the consequence of the lack of an individual contract or market solution for the problem" (Hood et al, 1999). Yet surprisingly, official UK targets for benzene levels have only ever been recorded in 1997. Evidently, the UK government must assess the usefulness of certain regulation strategies relative to the hazard in hand.

In addition, there are a substantial number of hazards which are heavily shaped by public and media opinion (even though the risk itself may be trivial in relative terms). Some would argue that providing information on risks empowers the public to make informed decisions; a worthwhile alternative to intrusive legislations. However, providing information to the lay public assumes that this information is understood, but also welcomed. What Ravertz' (1990) calls "useable knowledge, useable ignorance". The public are not the experts and may suffer from information overload, adding pressure to already busy lives in modern capitalist societies. The reality is that people are generally accepting for the government to take responsibility, as they have neither the time nor money to be personally responsible. One major assumption of the minimal feasible response hypothesis is that society has the capacity (both mentally and financially) to take individual responsibility. However, critics of the 'nanny' state should realise that society is not equal, or equally motivated to challenge government interventions. Information alone is not enough to promote public health and should be used in conjunction with other types of intervention, for instance, guiding choice through disincentives such as tax on cigarettes (Calman, 2009).

Finding the most suited approach to manage risk is widely disputed, however, as this paper has shown there is a strong argument supporting both government intervention and individual responsibility. It is generally accepted that we should reject describing government intervention as 'nanny' statist and instead follow the 'stewardship' approach which highlights Stuart Mill's 'harm principles'. Jochelson (2005) and Goodin (1995) favour this notion and argue that legislation brings about changes to public health that people themselves have a conscious desire to do, but are unable to act on that desire without help from the government. For instance, evidence about smoking shows how restrictions have helped many people quit. However, all interest groups agree that intervention and regulation must be justified, not by "lurid headlines or imaginative use of statistics...but constructed on the basis of hard evidence" (BRC, 2006). As Hood et al. (1999) 'minimal feasible response hypothesis' demonstrates with domestic radon, pesticide usage and ambient benzene, this is no easy feat as risk management is frequently distorted by "differences in perception, poor risk communication and special interests [to name a few]" (BRC, 2006). Justification should be applied using the 'intervention ladder', meaning "the higher the rung on the ladder at which the policy maker intervenes, the stronger the justification has to be" (Calman, 2009). Inspecting school lunch boxes to tackle childhood obesity or banning conkers in school playgrounds are classic cases of government intervention gone too far, and are by no means justified under the stewardship approach (Hawkes, 2005). A British culture of "zero-risk is unattainable and undesirable" (BRC, 2006). For instance, in the Netherlands road traffic regulation has been literally turned upside down. An innovative scheme to reduce road traffic accidents called 'Naked Streets' has been implemented. Instead of more and more road regulations, a process of 'de-cluttering' roads has developed greater individual responsibility. The reality is that there is (and should be) a limit to how much governments intervene, but collectively people have to want to change their lifestyle and take responsibility.