Who regulates the regulators' regulators?


'It was a good week for the CQC'. This comment received general assent at a small seminar on regulation which I chaired this morning at the RSA. It was the spur for a fascinating discussion with implications for public services, democratic accountability and the distribution of power and authority. 

The speaker was, of course, referring to last week's report by the Care Quality Commission which exposed widespread neglect of frail elderly patients in NHS hospitals. Seeing the extensive coverage received by the report as a success implies that the priority for regulators is a policing function of identifying and exposing wrong doing. But, on reflection, this is only one of the primary functions of regulation. Here are some others: 

  • Driving improvement 
  • Identifying and reducing risk
  • Maintaining public confidence
  • Undertaking research and providing public information
  • Shaping Government policy 
  • This list applies to public service regulators but if their economic and industrial cousins were included it would be even longer.  

    The most interesting dimension of the conversation was a recognition of inherent tensions between regulatory goals. For example, there may be a trade off between the policing and the improvement function. Regulators which often attack providers may not have the kinds of relationships with those providers which assist collaboration in pursuit of improvement. Conversely, regulators which claim to be driving improvement may, over time, become less willing to expose failings as these could be seen to reflect badly on the regulators' influence (having said which, OFSTED continues to be seen as central to school improvement and yet able every autumn to expose widespread school and teacher under-performance without itself appearing in the public firing line). 

    In another possible trade off, regulators that 'speak truth unto power' and in so doing regularly embarrass Government, may find their policy influence limited (this is certainly the impression one gets from the apparently impotent frustration of the Prisons Inspectorate). 

    It is clear both that regulators are powerful and that they face dilemmas and have important choices to make. Sir Michael Wilshaw, the sometime controversial incoming Chief Inspector of OFSTED, is now without doubt one of the most powerful influencers of how English children will be taught over the next decade. Although Wilshaw has to report to the Education Select Committee, as well as to ministers, there is no getting way from the fact that he is neither elected nor downwardly accountable to the public, parents, pupils or teachers.  

    It is also important to recognise that although the task of regulators is in part to ensure that publicly funded organisations put the interest of service users above those of producers, regulators too have their own organisational interests. One example given this morning was that regulators craving high profile and popularity might offer obvious and populist explanations of failures in their areas of jurisdiction rather than more accurate but also more complex and less media friendly accounts.  

    The inevitably question arises; who regulates the regulators (closely followed by 'who regulates the regulators' regulator?'). Although the Government seems gradually,  and predictably, to be dropping the ideological hostility to regulation which the Conservatives espoused in opposition, I can't see it funding an uber regulator any time soon. So the task for regulators who recognise some of the tensions and dilemmas I have sketched in this post, or who simply want to stay on their toes, is to work together to open up these issues to public engagement, and also to promote greater peer review within the regulatory sector.  

    This may seem like a dry and dull issue but given the power of regulators and the limited nature of their accountability it is one worthy of further debate.

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