Regulation of Standards in Public Life

Much has been said about the decline in trust in politics. Media headlines about parliamentary expenses, lucrative earning opportunities and close ties between industry and politics have given rise to continued calls for regulation. As political life is said to be in crisis, so is the regulation of standards in public life. In some jurisdictions, criticism focuses on the lack of explicit rules and enforcement. In others, it has been argued that regulatory approaches have their own perverse effects, namely in deterring individuals from embarking on careers in public life. As part of the CARR seminar series on ‘Regulation in Crisis?’, this workshop focused on a number of key questions to inform not just the academic study of the regulation of standards in public life, but also to enhance international practitioner dialogue.

One key question pointed to issues of cross-national commonalities and differences. On the one hand, a trend of growing similarity was diagnosed. Debates about conduct and the regulation thereof were increasingly in the public domain, triggering growing codification. There was also the diagnosis of a potential life-cycle in regulatory approaches where regulation was moving from largely implicit and self-regulatory approaches, to co-regulation and, potentially, external regulation. On the other hand, there were also noticeable cross-national differences; for example, in the way in which regulation had turned into a partisan matter, and the extent to which regulatory standards had remained principle- rather than rule-based. It remained an open question as to whether existing national differences were simply a matter of countries being at different stages in the same race or whether these differences were an expression of deep-seated institutional variation.

A second debate involved the costs of regulating standards in public life. Long-standing observers, such as US-academic Cal Mackenzie, have claimed that, in the US at least, the side-effects of regulation have outpaced the benefits. Participants pointed to some areas where this claim had been found to be accurate, but also suggested some areas for disagreement. In the UK, the argument was made that some areas of regulation had witnessed self-defeating regulation (such as the attempts at regulating research ethics in universities which had encouraged box-ticking exercises rather than reflection). In other areas, there had been a commitment towards a principles-based approach. Enforcement, however, often depended on the presence of external pressure. For the US, the argument was also somewhat more differentiated, with differences being diagnosed for questions of the revolving door, the disclosure of personal interests, and nominations. The latter in particular was seen as problematic. At the same time, it was suggested that some of the more costly aspects of the existing regime could be easily amended, given the political appetite for doing so.

A third debate involved the dynamics of regulation. One of the arguments has been that regulation follows scandal. Once codification had started to emerge, it was difficult to reverse regulation. There was a tendency towards rule-based (i.e. highly prescriptive) regulation, despite the presence of some forms of risk-based regulation where regulators sought to allocate resources proportionately. However, this was not always possible, leading to some very costly requirements. This trend was further facilitated by a growing heterogenisation of underlying values. Principles and informal regulation could both exist in a system where values were widely shared; such a regime was more difficult to sustain where individuals had different perceptions. This highlighted one further key area for further exploration, namely the growing size of 'outsourced' workforces that were not necessarily captured by existing regulatory regimes. At the same time, the required expertise to undertake certain services often resided in private providers.

One further side-effect of regulation of standards in public life was diagnosed to be a concern with the effects of regulation. Wrong-doing was often not because of a lack of 'ethics' as such, but may often reflect unintended misapplication of complex rule-systems. Few individuals were keen to be exposed to such accusations, especially as wrong-doing may actually reflect a simple error in rule-application rather than underlying moral flaws.

Martin Lodge, June 2015. This text represents the individual views of the author and should not be attributed to any other individual or collective view.