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etween the first and second visits. When inspection teams used purely negative and
punitive approaches and did not also offer ‘praise’ and ‘forgiveness’, non-compliance
increased by 39%. 27 This research has been interpreted by Wright et al. and by the OECD in
its 2000 report as indicating that the minimum necessary enforcement action is associated
with the greatest chance of long-term compliance. 28 However, it is important to note that this
hypothesis is contradicted by the equally robust (and more numerous) outcome studies
undertaken by Gray and Scholz and others. 29 Perhaps a better way of understanding these
studies is to acknowledge that while deterrence-based enforcement is effective in securing
compliance and has been shown to have a positive impact on actual health and safety
outcomes, there will be exceptions to this rule and there may be some circumstances in which
alternative strategies will produce better results.
Whilst this does indicate that regulators’ should be able to exercise a degree of discretion
in their dealings with business, and should have at their disposal an appropriate mix of
regulatory strategies, this does not mean that regulators should rely primarily on informal
measures as advocated by some commentators. For instance, Johnstone points to evidence of
the dangers of an over-reliance on ‘persuasion’:
“Regulators are also beginning to accept that reliance simply on informal
measures can ‘easily degenerate into intolerable laxity and a failure to deter
those who have no intention to comply voluntarily’… Indeed, Shapiro and
Rabinowitz (1997: 722) point to evidence from a number of jurisdictions
showing that ‘cooperative approaches can decrease compliance if agencies
permit law breakers to go unpunished’.” 30
It is also interesting to note that a more recent ‘perception based’ study by Hawkins – who
has traditionally been skeptical of the deterrent value of prosecution and formal enforcement
– suggests that the notion of deterrence influence’s HSE inspector’s decisions in quite complex
ways. Hawkins found first, that inspectors were more concerned with use of the threat of
prosecution to secure compliance rather than as an instrument of deterrence (this is to be
expected since inspectors could not be expected to know whether prosecutions have a
deterrent effect); second that inspectors’ primary consideration in deciding whether or not to
prosecute was not whether it would be an appropriate response to the detected violation but
how it would impact on their time and workload and whether there was a significant risk that
the prosecution would fail since employers are now more likely to contest prosecutions; and
third, that inspectors were critical of the level of fines imposed by the courts when they did
choose to prosecute. 31
What this demonstrates – and this perhaps explains findings from some of the earlier
‘perception’ studies – is that the a deterrence-based strategy is a less rational option on the
part of inspectors when their resources are squeezed, employers become more bullish, and
fines remain derisory.
Specific vs. General Deterrent Effects
Regulatory inspection and enforcement activity may have two different types of deterrent
effect. The first is a ‘general’ deterrent effect, whereby increased levels of inspection and
enforcement lead to increased compliance by all organisations whether they are subject to an
inspection or not. The general deterrent effect depends on employers anticipating that they
are likely to receive an inspection/investigation and are likely to be punished in the event of
non-compliance. The higher the expectation of detection and punishment the greater the
general deterrent effect will be. The second type of deterrent effect is specific to the firm that
has been inspected. As a consequence of this ‘specific’ deterrent effect, individual firms will
take action following a negative inspection possibly through the fear that a failure to comply
with inspectors’ requests will result in future prosecution.
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Whilst Gray and Scholz found that each individual plant that is inspected and penalised in a
given year experiences (on average) a 22 per cent reduction in injuries over the following three
years, 32 they also found that the general deterrent impact of OHSA inspections was much
less, with a total reduction in injuries across the entire sample of only 2 per cent. 33 This was
consistent with previous studies on the general deterrent effects of OSHA enforcement, which
estimated that it brought about a 1.5% to 3.6% decline in the injury rates. 34