25th May 2021
It would be unfair to name the particular public body responsible but a new guide to regulation has just been published.
The guide is lovely to look at.
Pages and pages of colourful graphics, with boxes and arrows.
A well-meaning sequence of platitudinous or vague statements are made which together are to be taken as a guide to good regulation.
The guide is pretty and clever and earnest.
And the guide seems completely useless.
One suspects no better regulation will be made because of it, nor any better regulatory decision.
The problem is not that, on its own terms, it is wrong.
On its own terms, the guide is quite wonderful.
Like a self-contained and lovingly illustrated code in some invented language like Dwarvish or Klingon or Dothraki.
The obscure illuminated manuscripts of our public policy age.
But the guide – and many guides like it – may not correspond to reality.
The essence of regulation is practical, not theoretical.
The basic question is: what behaviour or outcome would happen (or not happen) but for the regulatory measure?
How will things actually be different (or the same) because of the intervention (or lack of intervention)?
And will those things really be more desirable than otherwise would be the case?
If the regulatory measure – either a rule or a decision – does not in practice affect behaviours or outcomes as desired, then it may be many things but it fails as a regulatory measure.
So: the best guide to regulation is work backwards from what is happening (or otherwise would happen) and see how that behaviour or outcome can be made to be different (or forced to stay the same) in a way desired.
The problem with flowchart-based – and also with checklist-based – regulation is that it makes the regulator feel that something is being done.
Like the old joke about the driver who always looks in the rear-view mirror before pulling out – it does not matter what is coming, as long as they have looked in the rear-view mirror they can proceed to pull out.
In so many fields of human activity – from drug-taking to sex work to public health rules for coronavirus and electronic surveillance and public procurement (just to take a few public policy bug bears) – there is a belief that there must be regulations, as something must be done.
The problem with colourful guides on ‘how to regulate’ the process takes priority over practical effect and implementation.
There should perhaps be a new regulator to prevent flowchart-based regulation.
Perhaps it can be called OffChart.
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