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  • Series: Elgar Studies in Law and Regulation x
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Jamison E. Colburn

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Jamison E. Colburn

Regulators empowered or required to consider the costs of their actions must make formative judgments about which costs to count, how to count them, and the intervals of time and space within which to do so. A range of institutional responses to these challenges has arisen in the modern risk-regulatory world, each one of which entails its own hard questions and often conflicting institutional roles and responsibilities. The US Supreme Court’s jurisprudence interpreting the statutory signals on the weighing of regulatory costs has oscillated over the years between various inducements toward standard welfarism, i.e., cost-benefit balancing, and other, subtler uses of compliance costs. Not surprisingly, what legislation even means when it references “cost” has become a deeply contentious matter with cross-currents and institutional obstacles getting in the way of any clear statement of the law.

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Florentin Blanc

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Florentin Blanc

As in Gogol’s quote, the arrival of a government inspector still elicits instant fear and worry in a number of countries – including Russia, and most of the former Soviet Union. Most of these inspectors nowadays, by contrast with Gogol’s, come to inspect and control not state institutions, but private ones, particularly businesses. ‘Inspectors’ and ‘inspections’ come under different names – ‘control’, ‘surveillance’, ‘supervision’ – so the notion may require ‘translation’ into the appropriate words for each country. The reality, however, in most parts of the world, is that inspections (under whichever name) are one of the most frequent and important ways in which businesses interact with state authorities. While scholars and governments often look at ‘regulations’ in an abstract way, businesses will typically relate more to their actual experience of regulations, which arises through procedures such as permits and licences, and through inspections – particularly if the latter are frequent, burdensome or otherwise problematic. This is not unique to regulations affecting businesses, and for most citizens ‘laws’ likewise are often distant abstractions, and are experienced primarily through concrete processes: obtaining documents, marrying or inheriting, and of course dealing with the police. Just as inspections can be seen as essential and beneficial, or as burdensome and inadequate, the police are to some an indispensable defensive wall against crime, to others a body that oppresses some citizens regardless of what they have done. Inspections and other enforcement practices are thus inherently ambiguous. Inspections and control are absolutely necessary for some, oppressive and hostile for others.

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Florentin Blanc

While there were already some inspection officials in ancient times (customs, weights and measures), and official controls of food developed in the Middle Ages, ‘modern’ inspectorates date back to the 19th century. This chapter looks at the development of food safety and occupational safety and health inspections, mostly in the UK and the US, to understand the dynamics that led to their creation and evolution. It shows the importance of risk perceptions, trust issues and interest groups in shaping the regulatory response – and the strength of path dependency in how inspection institutions and practices differ today. Indeed, divergences between countries seem to owe more to historical conditions and evolutions than to rational planning.

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Florentin Blanc

A widespread, traditional vision is that businesses only comply if they are afraid of control and punishment, and that frequent controls and stricter enforcement increase compliance. More sophisticated models, incorporating psychological and sociological perspectives, appear to explain compliance and behaviour change better. In particular, procedural justice supports voluntary compliance, while excessively burdensome enforcement can decrease it. Inspections and enforcement have significant costs and adverse effects, even though they are difficult to assess precisely, and it is thus important to ensure optimal efficiency. Moreover, compliance itself may not be the ultimate goal because of the inherent imperfection of norms. This requires inspector discretion, which itself must be structured in a transparent and predictable way. Regulatory inspections’ goal should be to decrease and manage risks, defined as combining probability and magnitude of harm. While there are technical and legal challenges in so doing, there is evidence that this is possible and appropriate.

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Florentin Blanc

Looking at evidence from inspections numbers, practices and outcomes is essential to assess which approaches appear more efficient and effective. Considering occupational safety and health inspections in Britain, Germany and France, while Britain has the best safety record, it also has the lowest number of inspections. OSH inspections in Britain are more risk focused, more targeted, with more active guidance and compliance support, and risk-proportional, transparent enforcement. Germany achieved slightly worse results with far more inspections, and France very poor results with significantly more inspections than Britain. These findings are confirmed by examples from other countries and other fields, e.g. the former Soviet Union, where we see that there is no correlation between more inspections and better results. Because of limitations in data and models, correlation analysis appears to yield conflicting results, and more modest comparative studies may yield more meaningful findings.

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Florentin Blanc

This book is an attempt to try and bridge the gap between ‘theory’ and ‘practice’, to bring together perspectives issued from decades of research on enforcement methods, compliance drivers and risk regulation – with knowledge, experience and data coming from practitioners of regulation and regulatory reform. It was designed as an investigation into whether risk-based inspections, and more broadly what one could call ‘smarter’ approaches to inspections and enforcement, appeared to live up to their promises – a ‘win-win’ result of effectiveness, efficiency and economic results. It was also an opportunity to examine inspections as a specific and distinct object, to present some of the main variations in inspections practices, and to define more precisely what risk-based, ‘smarter’ inspections consisted of – and what exactly was to be understood under the word ‘risk’. It also incidentally looked at the issue of trust (between market actors, in the regulatory system), and the extent to which different inspection methods may influence the trust level. Finally, concluding this investigation required outcomes to be considered – how they are defined and measured, how differently formulated goals may influence actions and results, and what measurement challenges exist in order to assess the impact of inspection practices. It appears clear, considering both their history and their effects (as evidenced e.g. by the comparison in OSH outcomes between European countries with similar regulations), that inspections are a distinct object with their own range of effects, distinct from that of the regulations they aim at implementing.

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Florentin Blanc

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From Chasing Violations to Managing Risks

Origins, Challenges and Evolutions in Regulatory Inspections

Florentin Blanc

Florentin Blanc focuses specifically on regulatory inspections and enforcement, their historical development, contrasted approaches and methods, and their relative effectiveness in achieving regulatory objectives. Inspections aimed at verifying compliance with regulations are one of the most significant activities of modern states in terms of the number of staff employed or of people affected, and one of the most visible ones – but have long remained relatively under-researched, or at least not considered "as such".