The modern world is full of inspectorates of various kinds, all with subtly different roles and responsibilities. But they all face the same dilemma. The more they give helpful advice, and the more they offer opinions, the more they become responsible for the decisions of their regulated entities.
One version of the dilemma arose in the early days of the railways, and led to a great debate between George Stephenson and Isambard Kingdom Brunel. Stephenson argued for government oversight of new railways, fearing ‘wild and visionary schemes being tried at the great danger of injury or loss of life to the public’. Brunel opposed any form of government interference and reckoned that his enginemen did not ‘obtain the slightest knowledge of instructions by reading them’.
The resultant Regulation of Railways Act 1840 met Stephenson’s concerns by establishing the Railways Inspectorate which had wide powers of inspection. But Brunel’s concerns ensured that the Inspectorate had no other powers. They could do nothing beyond deploying their powers of persuasion if they found that a new railway had not been built to a safe standard. The government of the day felt that powers to enforce Inspectors’ recommendations would result in the unwelcome (to the government) result that the management of the railways would be taken out of the hands of the companies’ directors. Responsibility for safety would instead be placed fairly and squarely upon the Inspectorate and the Board of Trade.
This compromise faced one of its most severe tests in the Tay Bridge disaster. The bridge had been inspected by a Railway Inspector in 1878 when he supervised a successful crossing by six engines all coupled together - but he had expressed concern about the effect of strong winds when a train was crossing. In the event, a fierce gale in December 1879 destroyed the bridge and a crossing train, killing over 70 passengers.
It will have been little consolation to the passengers’ relatives that the subsequent Board of Inquiry concluded that the Board of Trade could not and should not be held responsible for the designs of railway structures. As a practical matter, the Board would have to employ large numbers of qualified staff, duplicating those employed by the industry. But also “… the result would be to check and control the enterprise which has done so much for this country , and to substitute for the real responsibility which rests on the railway engineer the unreal and elusive responsibility of a public office … to say nothing of the necessary evils of double management.”
Avoidable serious accidents continued until railway safety regulation was at last recognised as inadequate following the privatisation of the railway industry, and the Southall, Ladbroke Grove and Hatfield accidents. Here is an extract from an HSE report (emphasis added):
“[The Inspectorate] has followed a consensus-seeking approach … with a reluctance to use formal enforcement powers. The ‘light touch’ approach was derived during a political climate of deregulation … Such an approach is less appropriate for an industry which is more driven by commercial imperatives and in which levels of co-operation and trust appear to be declining.”
And so we come to another 72 deaths following the refurbishment of Grenfell Tower by an industry very much “driven by commercial imperatives and in which levels of co-operation and trust appear to be declining”. It is already striking that the contractors and sub-contractors claim not to have any responsibility for ensuring that their insulation and cladding systems complied with building regulations. Rydon told the Inquiry that it was content to rely on building control inspectors to check for fire safety issues and “we did regard it as building control’s responsibility to raise concerns”. And Harley Facades said its view was that it was for Building Control to check that products complied with regulations .
What can we learn from these stories?
First, although inspectorates can encourage good management, a lot depends on how they go about their task. By 'passing' a practice or standard as acceptable, they can too easily (though inadvertently) reduce the ambition, innovation, responsibility and accountability of managers whose practices they have 'passed'. "As long as 'they' (the inspectors) are happy, why should we worry?" This problem was exacerbated, in the case of Grenfell, by the fact that local authority Building Control was competing for work with private sector inspectors.
It follows that when regulators carry out effectiveness reviews they should ensure that those they regulate clearly understand their inalienable responsibility for ensuring the safety of those who use their products and services.
The second lesson, surely, is that regulators must be properly funded. Most businesses may not need frequent inspections, but the occasional criminals and ‘chancers’ can do huge harm – and will do so unless faced with energetic prosecution and/or enforcement. It is worrying, therefore, that recent governments have reduced the resources available to regulatory bodies, typically by around 50% in real terms.These savings looked like false economies even before Grenfell Tower. Politicians have subsequently been distracted by Brexit and COVID. Let’s hope that, as normality reappears, there is a sensible review of the resources available to these vital organisations.
 The information about railway regulation is taken from Ian Prosser and David Keay’s history of the Railway Inspectorate.
 The chart showing reductions in regulatory etc. budgets was prepared by unchecked.uk .
About the author
Martin Stanley is the editor of Understanding Regulation - www.regulation.org.uk – a website written for legislators, journalists, academics and others who wish to understand the recent rapid growth of the regulatory state, and how regulation should best be designed and enforced. Martin was previously a senior civil servant, and Chief Executive of (what is now) the Better Regulation Executive, the Postal Services Commission and the Competition Commission.