I mentioned in an earlier post that sometimes I wonder whether it is possible for me to conceive the world differently to how I do, because my values seem to filter what I see and how I understand things. Recently I tripped over the work of Susan Silbey and it immediately resonated – firstly because I value relationships and secondly, most of what I have learnt and achieved has been because of relationships with other people.
Silbey has coined the phrase “relational regulation” which she uses to describe the behaviours and interactions of regulatory professionals within all sorts of organisations. Professionals who practice relational regulation understand that they work in situations where there are competing interests, varying goals, and where responsibilities are demarcated according to the various criteria. These professionals are strongly committed to the goals of compliance but seek practical not perfect outcomes. These professionals manage the compliance gap between what is achievable given the complexity of the situation, and what is expected by the specific regulation.
This reminded me of Julia Black’s argument that “regulatory conversations” are necessary in order to understand what legal regulation requires. This is all the more so in situations where the regulation is couched in terms of principles – such as the requirement to “manage risks so far as reasonably practicable”. Legislation like this, Black argues, has little content outside the particular situation, and it is only during a regulatory conversation between the regulator and regulated that what the law requires becomes clear.
This seems to suggest to me that regulatory professionals within a firm act as an avatar of the regulator and participate in regulatory conversations in order to bring into existence, a situation specific picture of “what compliance looks like”.
Do you see regulation working like that, or are my values blinding me?
Last week I watched a video called How Minister’s Think from the Crawford School of Public Policy. The speaker, Professor Richard French suggests that government ministers use a unique form of rationality well suited to political life characterised by competition, publicity and uncertainty. He rejects the argument that it is a less rational form of decision making than that practiced by academics and professors! He says that academic rationality aims to develop models and theories that make progress towards an ideal situation or ultimate truth. On the other hand, ministers have to make decisions that result in an affirmative answer to the question “is it better than now?”
Today I read the following statement :
So, who should decide what progress is, our values and goals are for our nation or communities? Why should citizens be engaged in that task? And how can they be best engaged? And, why should we measure our progress (national, community) and how best to?
Is it enough to be engaged at the ballot box every three or four years electing politicians and then leaving it to them to decide what counts as progress? Does citizenship require more? If it does and given the complex decisions that governments are called upon to make how can citizen engagement be most effective?
What’s this got to do with regulation? Well, you see, I’ve been pondering how specific regulations often find themselves at the nexus of these sorts of arguments – between larger values and goals and pragmatic improvements. A quick look at the range of public submissions made when government seeks to introduce new or changed regulation bears this out. Sometimes regulation is being developed to address a new or emerging problem such as the threat posed by an new invasive plant. Other times, regulation has been addressing a similar suite of problems for many decades – such as safety at work. I wonder if it is these latter types of regulation where the tension between values and progress are the greatest because the passage of time somehow means that the particular regulations resonate with the society.
Maybe it doesn’t resonate, maybe its just not subject to challenge, or maybe I find it too hard to imagine life without the particular regulation. It reminds me that regulation has shaped my life and how I understand it and the culture in which I live. Thoughts like this caution me to tread carefully when citizen’s share their thoughts about the regulatory arena in which I work – because they just might be sharing values and goals integral to their life and being.
One of the things that you may notice when you read my blog is that I tend to make links between lots of ideas and it happened again this week. I’m reading Francis Fukuyama’s Origins of Political Order at the moment and last night was reading his thoughts on why China has repeatedly gravitated to centralised political control. On Thursday a colleague was talking about how the remnants of the Stalinist communist party approach could be found in some unions today. On Friday another colleague suggested that regulation is not well understood and there is a need for new understandings that better explains regulation and how it works (or doesn’t).
So I got to wondering what role history plays in understanding regulation and compliance. Does command and control regulation tend to work to create compliant behaviours because punishment has been so effective over the centuries? It occurred to me that there are so many examples where punishment hasn’t been effective to quell what were believed at the time to be undesired behaviours. Beliefs changed and punishment stopped. Punishment, unless it is supported by prevailing social norms, seems to me to be just as likely to foster rebellion as it is to foster compliance.
Ongoing rebellion seems to challenge regulation and in doing so, bring into question the social norms underpinning regulation. But what happens to regulation and its legitimacy, when the challenge is confined to certain groups – such as unions that take a Stalinist approach to labour relations? How do you design regulation and regulatory agencies that are able to be effective in these situations, whilst at the same time reflecting and responding to predominant values? Without a deep appreciation of history are regulatory professionals doomed to develop regulation that is forever only partially effective? Can regulation change the union’s social norms so that cooperation, communication and engagement with employers becomes preferred? Should regulation even try – isn’t pluralism a key element of today’s society? Is the answer to be found in new ways of understanding regulation?
I wonder if these conundrums are part of regulation and can never be resolved, because at its heart regulation is about people and how people interact in society. I have a suspicion that this is why I will be passionate about regulation for many years to come – because it keeps me guessing, keeps me wondering and is, as Margaret is want to say “endlessly entertaining”!
Margaret makes an interesting point about what makes people comply with regulations. I have a suspicion that the multiple reasons for compliance are one of the factors that make some forms of regulation difficult to spot.
My somewhat inane example of the train announcement might be hard to spot as regulation because a lot of people comply out of self interest. Yet it occurs to me that if everyone acted out of self interest then why make the announcement? Maybe the announcement is designed to stop commuters making complaints to the station staff about being unable to disembark safely on the platform. If that’s the case what is the purpose of the announcement – to regulate my travelling behaviour or to regulate my complaining behaviour? Does it really matter?
I think the announcement is a form of regulation designed to addressed an “information asymmetry”. The station staff know something that I’m unlikely to known – that the train is longer than the platform. Rather than merely providing that information at the station, say for instance in the form of a sign, so that I then could modify my behaviour in accordance with my self interest to alight safely, the rail authority arranges for repeated announcements telling me to sit in the last four carriages.
Developing legal regulation in response to information asymmetry is not uncommon. It is one of the main reasons given for regulating some professions. Most people don’t know enough about electricity, car repairs or medicine to be able to determine whether the professional is competent or the service provided is to an adequate standard. In the absence of this information and to assist people in the community make decisions about what doctor to visit or which repair shop to take their car to, these professions are regulated. Both the doctor and the mechanic must be either registered or licensed. To obtain registration or to be licensed, the professional must obtain certain qualifications and often must keep those qualifications current by undertaking ongoing professional development. Added to this type of regulatory regime is usually a complaints or disputes procedure which helps ensure the effectiveness of the regulation.
My name is Megan Saxby and I’m fascinated by all manner of ideas associated with regulation.
I should start by saying what I mean by regulation – which is pretty broad – it is anything that is more or less designed to shape an individual’s behaviour. All sorts of things shape behaviour including laws, social norms and culture. Laws are probably what most people think of when they think of regulation, but laws are often only the tip of the iceberg.
Secondly, I should confess that I work for a government regulator – a job I love, find frustrating, exciting, challenging and complex all at the same time. But because I work for a regulator, and because I want to keep doing so for a long, long time I’m going to limit my ramblings to the theory and ideas about regulation.
Lastly, I want to thank all those people who have patiently listened to my regurgitation of the latest article I read and who have encouraged me to believe that regulation is not boring and that lots of people would be interested in sharing ideas about regulation.
The day I decided to create this blog I tripped over the Report of the Independent Inquiry into the Media and Media Regulation which gave me hope that people who enjoy participating in blogs might also be interested in regulation. The report recommended the regulation of blogging! It said at page 295:
The second change arises from the fact that there are many newsletter publishers and bloggers, although no longer part of the “lonely pamphleteer” tradition, who offer up-to-date reflections on current affairs. Quite a number have a small audience. There are practical reasons for excluding from the definition of “news media” publishers who do not have a sufficiently large audience. If a publisher distributes more than 3000 copies of print per issue or a news internet site has a minimum of 15000 hits per annum it should be subject to the jurisdiction of the News Media Council, but not otherwise. These numbers are arbitrary, but a line must be drawn somewhere
So lets hope 15000 people are not interested in what I have to say!