Why States Think About Risk Differently:

The Case of Workplace Safety Regulation in France and the UK

Henry Rothstein and Anne-Laure Beaussier

Department of Geography, King’s College London, Strand, London, WC2R 2LS

Correspondence should be addressed to: henry.rothstein@kcl.ac.uk

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This is a draft chapter. The final version is available in ‘Society, Regulation and Governance: New Modes of Shaping Social Change?’ edited by Regine Paul, Marc Mölders, Alfons Bora, Michael Huber and Peter Münte published in 2017 by Edward Elgar Publishing Ltd. ISBN: 978 1 78643 837 9. pp75-89. The material cannot be used for any other purpose without further permission of the publisher, and is for private use only.

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1. Introduction

In 2007, the UK won a protracted battle with the European Commission (EC) over its explicit framing of occupational health and safety (OHS) regulation as a trade-off between safety and cost (C-127/05, Commission v. UK [2007] ECR I-4619). The controversy began a decade earlier when the EC complained to the European Court of Justice (ECJ) that the UK’s stipulation that workers should only be protected against harm “so far as is reasonably practicable” was inconsistent with the Framework Directive’s (89/391/EEC) requirement to “ensure the safety and health of workers in every aspect related to the work”. Other EU member states such as France and Germany had transposed the Directive into national law in ways that emphasized the aim of reducing workplace risks to the minimum possible, and so – the Commission argued – should the UK. The UK responded, however, that it was “impossible to eliminate all [workplace] risks” (HSE 1989, 17). Rather than mandate safety, the UK contended that the goal of OHS regulation should be “risk-based”; i.e. the cost, time and effort required to reduce potential harm should not be grossly disproportionate to the probability and consequence of harm occurring.

At first glance, this conflict over workplace safety speaks to an important contemporary debate over the extent to which regulators across policy domains should target their interventions in proportion to risk. On one side of the debate, many – often

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US-based – commentators promote risk as a universal organising rationale for regulation that can provide an antidote to what they regard as an increasing European proclivity for disproportionate, costly and precautionary regulatory approaches (e.g. Sunstein 2005). On the other side of the debate, critics of Anglo-Saxon neoliberalism often decry the turn to so-called “risk-based” rationales as deregulatory assaults on public protections (e.g. Dodds 2006; Tombs and Whyte 2013). Certainly the conflict over workplace safety does pose some intriguing puzzles for that debate. Given that workplace safety inevitably carries costs, how do other EU member states comply with the Directive’s goal of safety without reducing their competitiveness, or even closing down swathes of their industries? Moreover, far from UK workers having their safety compromised by their country’s risk-based approach, the latest Eurostat (2014) data suggest that they enjoy levels of safety comparable to workers in other EU member states. Indeed, while injury and illness statistics should be treated with caution, it is notable that UK fatal injury rates (6/million) are lower than in Germany (9/million) and France (26/million), where the legal requirement for safety is unqualified.

These puzzles suggest that contemporary regulatory debates may overlook important differences within the EU in how member states think about and govern risk. Using the case of OHS regulation in the UK and France, we explore these differences. We argue that risk ideas are filtered and shaped through deeply nationally entrenched institutional and political arrangements in ways that reveal significant differences in the underpinning logics of risk regulation in each country. In so doing, we explore the extent to which novel policy tools – such as risk-based regulation – actually offer novel modes of shaping society in different countries or simply reinforce old conceits.

2. From the governance of risk to governance by risk

The conflict over European OHS regulation is just one example of a much remarked upon, and often bemusing, variety in the goals, organisations and philosophies of risk governance regimes across sectors as well as countries (Hood et al. 2001). Sometimes it is observed that the same risks are governed more stringently in some contexts than in others. For example, exposure to the natural radio-active gas radon in the home is thought to cause up to 20,000 lung cancer deaths in the US and 2000 in the UK, yet governments around the world set voluntary action thresholds for radon exposure that are far more relaxed than the strict controls imposed on artificial sources of radiation, such as hospital X-ray machines (Rothstein 2003). Some governance regimes emphasize preventative activity, such as strong ex ante regulatory controls on the use of chemicals or the preparation of food for sale, while others emphasize more reactive approaches, such as the importance of tort in US food safety (Brewster and Goldsmith 2007) or compensation schemes for natural disasters. Some regimes are very precautionary in their approach to scientific uncertainty, such as the famously restrictive

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European rules on genetically modified crops, while other regimes are yet to grapple with issues that are at the horizons of human knowledge, such as potential risks associated with nano-materials.

Some commentators claim that there are national patterns to such variety. Vogel (2012), for example, argues that changes in public attitudes and in the strength of green politics have generated long-term “swings of the regulatory pendulum” in national policy stances. As evidence, he points to the rise of strict health and environmental regulation in the US in the 1960s followed by its relaxation from the 1980s onwards; a pattern he argues is being followed by the EU, albeit with a 20-year lag. Others, such as Weiner, argue that it is not possible to generalize across policy domains (Weiner et al. 2010). National variety from that perspective is better explained by factors such as the strength and configuration of national sectoral economic interests. For example, as Lofstedt (2013) points out, while Scandinavians may be keen to phase out many chemicals in the absence of any significant domestic chemicals sector, they would be unlikely to advocate strict controls on forestry products.

One response to the varied and seemingly inconsistent ways in which governments regulate risk has been the promulgation of what has become known as “risk-based” approaches to regulation, of which the UK’s approach to OHS regulation was an early example. Proponents of risk-based regulation insist that trying to prevent all adverse regulatory outcomes is disproportionately costly to achieve and can perversely create other risks, or distract attention from more serious problems (Breyer 1993; Graham 2010). Instead, they argue that it is more rational and efficient to calibrate regulatory efforts in proportion to the likelihood and consequence of harm occurring, thus aiming for socially optimal outcomes, rather than absolute safety (Baldwin and Black 2010). For example, risk-based approaches to regulation can use probabilistic concepts and techniques to: determine where new houses can be built in flood-prone areas rather than forbidding all development; set acceptable probabilities of cancer from exposure to toxic chemicals rather than banning them; or determine when railway lines can be repaired without closing whole lines by using warning signals to slow trains and posting lookouts.

The universalizing promise of this novel risk calculus suggests the potential for convergence in the framing of regulatory goals across policy domains and national contexts. Certainly, risk-based approaches have become commonplace across Anglo-Saxon countries and in a wide range of policy domains, having strong proponents in a variety of powerful national and supranational organizations, such as the US Office of Management and Budget, the World Trade Organization and the Organisation for Economic Co-operation and Development (e.g. OECD 2010). Indeed, the UK has mandated the adoption of risk-based approaches to regulatory inspection and enforcement across all regulatory domains since 2008 (BERR 2007).

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There are, however, a number of reasons why the adoption of risk- Based regulation might be expected to be nationally uneven. Pioneering research on environmental regulation in the 1980s, for example, pointed to the importance of national institutional settings in shaping the uptake of risk ideas in regulation. Most notably, Brickman et al. (1985) argued that quantitative risk analysis emerged in the US as a defensive rationale for legitimating regulatory decision-making in the context of increasing transparency and legal adversarialism. By contrast, they argued that the more closed, cooperative and informal approaches common in Europe put less pressure on regulators to legitimate decision-making through risk-based rationales.

More recently, Rothstein and colleagues hypothesized that the uptake of risk-based regulatory approaches depends on sectoral and national governance norms and institutional structures for identifying, and accounting for, regulatory outcomes (Rothstein et al. 2013; Demeritt et al. 2015; Beaussier et al. 2016). Risk-based approaches to regulation are, after all, inherently discriminatory insofar as they rationalize the limits of regulatory control in terms of which risks and risk producers are targeted and which are not, or who gets protected and who does not. Such discriminatory approaches do not always “fit” easily with a broad set of national institutional contexts, practices and philosophies of governance.

Rothstein et al. (2013) argue, for example, that the UK’s widely observed turn to risk in the last decade or so has been driven by increasing demands on regulators to account for the limits of what they can achieve and governance norms that are relaxed about risk-based discrimination. Risk-based rationales, however, can come into conflict with expectations of state action in other countries. In Germany, for example, state action has historically been constrained by the constitutional principle of Schutzpflicht, which tended to limit state action to addressing “dangers” to life, freedom and property in quite binary ways. In France, by contrast, there is an explicit expectation that the state will protect all citizens in the same way according to the constitutional demands for solidarity and equality.

In order to explore the extent to which such factors can explain risk regulation variety across Europe, this chapter will examine what was at stake in the conflict over the goal of the EU’s OHS Framework Directive. In so doing, the chapter will consider what the case tells us about differences within the EU in how member states think about and govern risk.

3. A brief history of OHS regulation in France and the UK

The 1989 OHS Framework Directive was the EU’s first comprehensive attempt to harmonize workplace health and safety regulations across member states. Until then – with the exception of a number of prior Directives on some specific workplace health

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and safety issues – the policy domain had largely been regarded as a matter of national rather than EU competence. The challenge of harmonizing member state regimes, however, was particularly difficult. Regimes for regulating workplace safety across Europe and North America reach back to the end of the nineteenth century, having emerged in response to rapid industrialization, worker protest and employer demands for legal certainty. Indeed, protecting workers from workplace injuries and ill-health was also a central driving concern in the creation of modern welfare states to ensure that workers received medical treatment and could be compensated for lost income (Hennock 2007). A complex set of varying institutional arrangements consequently emerged across Europe during the twentieth century. These differences are exemplified, as discussed below, by the distinctive arrangements in the UK and France.

The UK’s regulatory regime was founded on the nineteenth century Factory Acts. Their broad objectives – to safeguard life and limb and promote public health – were fleshed out through highly prescriptive regulatory rules, which over the course of the following century evolved into a notoriously complex and gap-laden regime. As both employers and employees complained to the landmark Robens Inquiry into the regime in the early 1970s, “the sheer mass of this law, far from advancing the cause of safety and health” led to inflexible safety “standards” and inconsistent levels of protection across sectors (Robens 1972, para 28). Sometimes those rules were burdensome, such as requiring multiple guards for powered saws even if they were museum exhibits. At other times, the rules were too lax such as demanding guard rails for platforms higher than 2 m, but not for 1.95 m even though the risk of injury from falling could still be serious. In some sectors, rules were entirely missing, such as in the retail sector until the 1960s.

The Robens Inquiry led to the introduction of the Health and Safety at Work etc. Act 1974 (HSWA), which fundamentally transformed the regulatory landscape. The new regime removed swathes of detailed prescriptive rules in favour of a more flexible “goal-based” approach, which imposed a criminal law duty on employers to ensure, so far as is reasonably practicable (SFAIRP), that workers are not exposed to an unreasonable level of risk from any hazard in any sector, whether or not anyone is actually harmed. The term “reasonably practicable” was already established in mining case law from the 1940s, which concerned a miner who had been killed by a collapsed mine roadway (Edwards v. National Coal Board (NCB), [1949] 1 All ER 743). In that case the Court of Appeal ruled that “‘reasonably practicable’ is a narrower term than ‘physically possible’” and that it would have been unreasonable to expect the National Coal Board to shore up all roadways, since the cost and effort required to reduce risk should not be in “gross disproportion” to the benefit gained. The risk-based calculus underlying that principle was made more explicit in the late 1980s when the regulator – the Health and Safety Executive – elaborated its “Tolerability of Risk” framework to

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explain to stakeholders how it made trade-offs between risk, cost and benefit in its enforcement decisions (Health and Safety Executive 1988).

The UK’s regulatory regime has always been decoupled from arrangements for medically treating and compensating workers for accidents and ill-health. To supplement a weak tort regime, the 1897 Workmen’s Compensation Act established a limited no-fault liability regime, funded through employers’ private insurance arrangements without regard to the riskiness of individual workplaces. After the Second World War, however, the Beveridge reforms socialized injury and illness costs through taxpayer funded social security benefits, a state industrial injuries compensation scheme, and the National Health Service (NHS). Employee rights to sue for damages were retained, however, but only where harm is “reasonably foreseeable”, and since 1990, the state has deducted medical costs and social security benefits from successful awards.

In contrast to the UK’s approach, France takes what is known as a “dual” approach to controlling workplace safety. This approach, which is adopted widely in continental Europe, closely couples preventative regulation to the social insurance regime for funding medical care and compensation. The regulatory regime for preventing workplace accidents dates back to the 1893 Industrial Establishments Act, which imposed a general obligation on all employers to provide “clean and safe working conditions” for their workers. That goal was fleshed out over the twentieth century through an ever accumulating mass of detailed and inflexible regulations in the statutory Labour Code which is issued by the Ministry of Labour. As Chaumette (1992: 35) has noted, neither employers nor courts “have any discretion whatsoever as to the cost, utility, technical difficulty or efficiency of safety measures”.

Moreover, unlike the UK, the social insurance regime in France plays a significant role in preventing accidents and ill-health. Following the German Bismarckian model, the welfare regime was created by the 1898 Workmen’s Compensation Act, which replaced the civil liability of employers with a no-fault liability approach that compensated workers for lost income and medical costs from work-related injuries, illness and death. Compensation is administered by the Caisses; a set of powerful national, regional and sectoral mutual associations funded by mandatory employer contributions and governed by the social partners. The Caisses, however, also exercise an important preventative function by issuing and enforcing through their dedicated technical inspectorate – their own “accident prevention” rules. They also encourage compliance by setting premiums that reflect what is known as the “cost of risk” using detailed actuarial data on compensation costs for the sector and/or particular businesses (Cour des Comptes 2002).

Given that context, it is perhaps unsurprising that the EU Framework Directive was going to be in tension with these distinctively different national traditions, not least

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the diverse goals of member state regimes. Thus while the French absolute goal of safety was consistent with the Directive’s, the UK’s qualified goal of safe “so far as is reasonably practicable” did not appear to be so. Yet, from the British perspective, the Directive’s demand for safety appeared to be impossible to achieve. That charge, however, begs the question of why the French did not have the same problem as the British in demanding safety as the absolute goal of OHS regulation. In order to answer that question, we need to consider in greater depth the significance and meaning of terms such as safety and risk within different national settings.

4. Explaining why states think about risk differently

There are three broad reasons why understandings of risk – in the context of OHS regulation at least – are different in the UK and France.

4.1 Risk and Liability Regimes

First, risk ideas have historically served different functions in the distinctive regulatory contexts of the UK and France. In the UK, the concept of risk did not play a central role in OHS regulation until 1974 because regulation was focussed on procedural compliance with inflexible and unqualified rules (Demeritt et al. 2015). However, when Lord Robens recommended the wholesale transformation of OHS regulation from a rules-based approach to a goals-based focus on anticipated outcomes, there was a need for explicit consideration of the boundary between acceptable and unacceptable outcomes.

The problem was how to strike a balance between protecting workers and avoiding making employers criminally liable for any harm that could befall a worker irrespective of fault. Robens had previously been chairman of the National Coal Board and would have been very familiar with the landmark Edwards case, which established for civil liability that employers were only obliged to ensure that workers were safe “so far as is reasonably practicable”. That qualification, in fact, built on the general common-law duty of care that limits civil liability to those circumstances where harm is “reasonably foreseeable” (Donoghue v Stevenson 1932, AC 562). It was probably no coincidence, therefore, that Robens borrowed from this qualified approach to civil liability to restrict employers’ criminal liability for harms to workers that were reasonably foreseeable, while also requiring them to take reasonable precautions even if no harm actually occurs. Indeed, without the SFAIRP qualification, the intolerable situation could have arisen of employers having unqualified criminal liability for potential harms to workers – given that it will always be “physically possible” to do more than what is “reasonably practicable” – while only having qualified civil liability for actual harms. In that context, therefore, probabilistic risk ideas had a natural fit with

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the anticipatory conceit of the reformed OHS regime, insofar as they defined the limits of what adverse outcomes employers could reasonably be held responsible for.

In France, by contrast, the concept of risk has not historically played a significant role in statutory OHS regulation because – like the UK until 1974 – the limits of employer responsibilities were historically defined as procedural compliance with the extensive rules of the Labour Code. Compliance with those rules, as noted earlier, is formally unqualifiable. However, risk ideas have played an important role in the civil liability regime, but only as a way of calculating premium rates rather than as a means for qualifying liabilities. The origin of this difference in the UK lies in attempts to solve the problems facing injured workers in securing compensation at the end of the nineteenth century.

During the nineteenth century, very restrictive civil liability rules made it very difficult for injured workers to make successful claims because they were required to prove their employer had committed a fault, a rule that excluded a vast range of situations where fault could not be established. In 1896 the liability regime was extended to damage caused by “things” (choses), both at work and in wider contexts, making the custodian or owner of a dangerous machine liable unless he could prove he did not commit a fault (van Dam 2013). By then, however, a new théorie du risque professionnel had gained support, which broadly argued that, because workplace accidents were an inevitable consequence of industrialization, liability should be made independent of fault. As Mares (2003) notes, the idea of severing the link between responsibility and compensation was an expression of the revolutionary principles of fraternité, so that those workers risking their well-being for the good of the nation did not have to suffer the unavoidable adverse consequences. The théorie du risque professionnel was eventually embodied by the 1898 social security law in the form of a no-fault liability regime, which removed the civil liability of employers in favour of a mandatory compensation regime funded through the Caisses to pay for lost income and medical costs.

From that perspective, the conceit at the heart of the théorie du risque professionnel was the opposite of the conceit at the heart of the UK’s approach to risk. In the UK, risk ideas and concepts served as a way of qualifying which harmful outcomes employers should be held responsible for. In France, however, the théorie du risque professionnel was concerned with ensuring that workers were paid out for all harms irrespective of fault. In recent years, risk ideas may have been used in France to calibrate employer premiums against payouts but never to qualify employer liabilities.

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4.2 Risk and the Distribution of Workplace Accident Costs

The second reason why understandings of risk are different in the UK and France concerns the way in which those understandings have been sustained by distinctive national state traditions, welfare arrangements and political settlements that have created path dependencies (cf. Pierson 1993 2000). In the UK, explicit risk-based rationalizations of employee protection and employer liability have emerged in the absence of any written constitution that accords rights to individuals that could conflict with utilitarian calculations of how to achieve optimal social welfare. As Lord Irvine of Lairg (2000) has put it, “English Law observes rights as residual, comprising the range of conduct that has not been in terms cut down by statute or common law rules”. Parliament is sovereign and if it chooses to qualify the requirements of OHS regulation through risk-based rationalizations then that is its prerogative, subject to compliance with European and human rights law. Indeed, at the start of the twentieth century Sidney Webb (1910) famously described the evolution of factory legislation as a “typical example of English practical empiricism. We began with no abstract theory of social justice or the rights of man. . . Each successive statute [was just] aimed at remedying a single ascertained evil” (Hutchins and Harrison 1966: preface).

That broad approach of qualifying employer duties, however, has been politically sustained by the post-war Beveridgean welfare arrangements that compensated workers for workplace injury and ill-health through taxpayer-funded social security benefits, a state compensation scheme and the retention of rights to sue for damages, with medical treatment provided by the famously free at the point of delivery NHS. In the absence of those arrangements, the UK approach would be much harder to politically sustain because workers would face intolerable costs for medical treatment and lost income in those cases where employers were not found to be liable. Even so, Fairman (2007) has persuasively argued that the political legitimacy of the UK’s approach to OHS regulation has also significantly rested on the creation of a strong tripartite corporatist setting for OHS regulation when the regime was reformed in the 1970s, as evidenced by the continued explicit support of both unions and employers in a recent government review (Loftsedt 2011).

In France, by contrast, the UK’s conception of risk as a means of qualifying duties would be more problematic in the context of constitutional expectations of equality and security that date back to the French revolution. In the context of the French OHS regime, however, these rights were interpreted less in terms of preventing workplace accidents and illhealth than ensuring that the social insurance system compensated workers for medical care and lost income irrespective of the fault of the employer. In that context, a principle such as SFAIRP could undermine that arrangement by qualifying the conditions under which workers were paid out. Certainly such concerns lay at the root of the European Commission’s complaint about the UK’s retention of

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SFAIRP, as noted at the beginning of this chapter. As Advocate General Mengozzi makes clear in his opinion for the ECJ, the Commission’s case rested on its belief that “the employer remains liable for the consequences of any event detrimental to workers’ health which occurs in his undertaking, regardless of the preventive measures the employer may have actually adopted or could have adopted” (Mengozzi 2007: para 58). That requirement makes sense in a no-fault social insurance system where employees need to have their costs for lost income and medical treatment met through social security funds. Such a requirement, however, made less sense in the UK, where those costs are socialized through tax payer-funded disability benefits and NHS irrespective of employer fault.

Indeed, as Mengozzi makes clear, the Commission – with a continental social insurance mindset – understood the purpose of the Directive’s requirement set out in Article 5(1) to “ensure the safety and health of workers in every aspect related to the work” (89/391/EEC) very differently to how the UK understood it. As he comments, “The Commission and the United Kingdom proceed on the basis of two divergent interpretations . . . The Commission’s argument is based on a reading of that provision largely in terms of the employer’s liability for harm to workers’ health, whereas the United Kingdom interprets that provision basically in terms of the obligations devolving on the employer to take the requisite preventive measures” (Mengozzi 2007: para 62). What was at stake for the Commission then, was not the prevention of accidents or ill-health but what happened to workers once they were harmed. As Mengozzi notes, the “Commission is not challenging the legitimacy of the clause . . . in terms of its ability to affect the extent of the employer’s duty to ensure safety, but rather in terms of its capacity to operate as a limit on the employers liability in relation to events detrimental to workers’ health” (Mengozzi 2007: para 59).

Mengozzi decided that the Commission was wrong; he argued that Article 5(1) was essentially preventative in nature and that it said “nothing about the liability of the employer should an event detrimental to the health of workers occur” (Mengozzi 2007: para 75). Ironically, however, he concluded that had the Commission complained about the UK qualifying the duty on employers to prevent workplace accidents and ill-health, it would have had a good case. As he notes (2007, para 138), SFAIRP “introduces a criterion for assessing the appropriateness of the preventive measures taken which is less rigorous than sheer technical feasibility . . . [and therefore] . . . is incompatible with . . . the general duty to ensure safety laid down in Article 5(1)”. The Commission, however, chose not to pursue that course.

4.3 Risk and Legal Traditions

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Given that context, however, the question remains why it is that France can live with an explicit obligation on employers to keep workers safe but the UK cannot. That question leads to the third and final key difference in the way that risk concepts play a role in OHS regulation in the UK and France. The explanation is that regulatory goals have different meanings in the contrasting legal traditions of the UK and France. British common law places great weight on judicial interpretation of the law; the consistency of that interpretation being ensured by constraining judges to interpret statutes according to their literal or plain meaning (albeit with limited scope to avoid absurd or cruel results), and by demanding consistency with the precedential decisions (the “common law”) of higher courts.

That common law tradition helps explain why the UK fought so hard to succeed at the ECJ insofar as SFAIRP was an essential part of 1974 HSWA. Without that qualification, the HSE argued that legal literalism would make – more or less – every workplace in breach of the law since it would be impossible to “ensure” the health and safety of workers as the Directive demanded (Health and Safety Executive 1989: 17). It is conceivable that in the face of such an absurd situation the courts might have responded by exercising interpretative discretion to restore proportionality to the law, but that would have been controversial if Parliament had actively removed the SFAIRP principle when transposing the Directive. In that situation, the UK might have been forced to abandon its goals-based approach, which had proved so successful over the previous decades.

By contrast, civil law systems, such as found in France, place less emphasis on the wording of headline law. Under separation of powers doctrines, judges are merely expected to implement the law made by the legislature, which in principle should be sufficiently complete, coherent and clear so as not to demand interpretation (Merryman 1985: 29). In practice, since legislatures are rarely able to anticipate all cases that could come before the courts, statutes tend to take the form of general legal frameworks for which, as the Health and Safety Executive (1989: 15) has pointed out, “literal interpretation is not expected”. In that context, judicial consistency and predictability come not from judicial interpretation but from the further elaboration of extensive codes of legal rules and guidance that give expression to the meaning of general statutes.

One way of thinking about general duties in continental legal jurisdictions, therefore, is as aspirational, rather than as unambiguous, requirements. Indeed, the French goal of safety was not even justiciable until the 1980s (Chaumette 1992: 19, 25). Rather in civil law systems the emphasis is on compliance with extensive legally based rules and guidance, such as found in the Labour Code and the accident prevention rules issued by the Caisses. In effect, the goal of safety is defined in terms of meeting specified rules rather than the prevention of harm per se.

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5. Discussion and conclusions

These two brief overviews of the OHS regimes in the UK and France suggests that the two countries think about and govern risk in very different ways – ways which seriously constrain the extent to which the rationales underpinning novel policy approaches such as risk-based regulation make sense in different country settings. In contrast to the focus of transatlantic comparisons of risk regulation on the degree of precaution in statutory goals (e.g. Weiner et al. 2010; Vogel 2012), our findings here suggest that looking no further than narrow headline law may too easily mistake ambitious regulatory goals of safety for risk aversion. Divergence in how countries have chosen to transpose the EU Framework Directive into law does not necessarily reflect differences in risk appetite but rather reflects how risk ideas are filtered and shaped through deeply nationally entrenched institutional and political arrangements in at least three contrasting ways.

The first distinctive contrast that emerges from the OHS case concerns the fundamentally different conceits that underlie ideas of risk and safety. From a British perspective, risk is not just a synonym for hazard or more general adverse outcomes but is also an organizing principle for regulation, bringing the conceptual toolkit of probability and consequence to determine the limits of what regulation can and should seek to achieve. Risk, then, is associated with a conceptual framework that normatively structures the way that we think about hazard by circumscribing options for preventative action through a rational and discriminatory utilitarian calculus of optimal social welfare. Safety, from this perspective, is neither feasible nor even desirable. From that rather Foucauldian perspective, risk ideas are a vector for the transmission of neoliberal notions of rationality into ever more domains of regulation and governance (cf. Rose and Miller 1992).

From a French perspective, however, risk is not so much a utilitarian discriminatory principle for determining what preventative actions to take, but is rather a way of denoting hazards that require addressing and calibrating premiums to ensure the sustainability of the insurance funds to pay compensation. Part of the reason for that difference relates to deeply entrenched French constitutional commitments to solidarité and fraternité, which focus attention on ex post compensation as much as ex ante prevention given the inevitability of harms that will befall workers. So safety, from that perspective, is not simply something that can be secured by preventing harms arising – that would be impossible – but can also be secured by dealing with the consequences of those harms. It perhaps significant that, in French, safety translates as sécurité, a word that connotes a wider set of ideas than simply preventing adverse events from happening.

The second and related distinctive contrast concerns the institutional and political arrangements that underlie the stability of the British and French approaches. In the UK, the qualified approach to preventative action is a necessary component of the outcomes

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focus of the regulatory regime, but it is complemented by an entirely decoupled regime of socialized benefits, compensation and healthcare as well as the retention of civil liability. Those decoupled arrangements enjoy considerable support amongst workers and employers and tend to focus their attention on ex ante prevention to ensure that workers are not harmed at not too great a cost, while broadly bracketing out wider concerns about the generosity and effectiveness of the welfare state to national political debate.

In France, by contrast, the closely coupled relationship between prevention and compensation lends itself to a different kind of politics. Qualification of employer duties in that context makes less sense because the costs of workplace injury and ill-health have to be met within the regime rather than being socialized onto the tax payer. Those arrangements, therefore, inevitably tend to focus worker and employer attention on ex post action as much as ex ante prevention to ensure that workers are always adequately treated and compensated while containing the costs of the social insurance regime at not too great expense to employers. Those concerns were central to the complaint by the European Commission about the way the UK had transposed the OHS Framework Directive even though that complaint misunderstood the British context.

The third distinctive contrast concerns the different legal traditions of the UK and France. The UK’s goals-based approach to OHS requires trade-offs to be explicitly sanctioned in the headline law because its common-law tradition of legal literalism would struggle in the absence of a principle such as SFAIRP. By contrast, the more aspirational nature of headline regulatory goals in the civil law system of France means that there is less need for explicit recognition of trade-offs. Indeed, in the French constitutional context, recognition of such trade-offs creates awkward tensions that are avoided by the focus on procedural compliance with the extensive rules of the Labour Code.

Our overviews of OHS in France and the UK have necessarily distilled out just a few key contrasts between the two country cases. Of course we recognize that there is much more complexity to both cases. There are good arguments, for example, that the last 10 years have seen some convergence. The OHS Framework Directive, for example, introduced the rather British requirement that all workplaces should undertake risk assessments. Research by other commentators, however, does suggest that countries such as France have struggled to interpret that demand given the inevitable conflicts between their rule-based approaches towards compliance and the anticipatory goal-oriented nature of risk assessment (Walters 2002). Likewise, in the wake of a major scandal in the 1990s over the deaths of thousands of works from exposure to asbestos, France strengthened its civil liability regime to put more costs on the employers but it has struggled to do so in the context of its current arrangements (Cour de Cassation 2015).

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Our research also suggests that there are good reasons to study OHS regulation in other country contexts. Other research on Germany and the Netherlands (Rothstein et al. 2015), for example, has found that Germany, like France, takes a dual approach to OHS regulation, while the Netherlands, like the UK, takes a more decoupled approach. One consequence is that the emphasis on prevention and compensation between German and Dutch regimes follows similar patterns to that of France and the UK. On the other hand, the Netherlands, like Germany and France, has a civil law tradition, and consequently, takes a much more rule-oriented approach to compliance than the UK. Research on other countries is required to generalize those themes further.

Finally, research is needed to examine whether these findings can be generalized to other domains. There are good reasons to think that these patterns may have wider relevance given that the explanations for differences between the two countries go beyond OHS and relate to the political economy of the welfare state, and legal and state traditions. At the same time, the fundamental nature of those factors makes it difficult to compare risk regulation regimes in different countries because they are so constitutive of national ideas of risk and safety. For example, attempts to identify which countries are the most precautionary or most risk-taking, as many Anglo-Saxon commentators are wont to do, are liable to fail if it is not recognized that the very conceit that lies at the heart of discussions about risk and safety is unstable.

Acknowledgements

This research was funded by the Economic and Social Research Council (no. ES/ K006169/1).

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