Regulated (Self-)Regulation: A New Paradigm for Controlling the Professions?
| Author | Robert P. Kaye |
| Published date | 01 September 2006 |
| Date | 01 September 2006 |
| DOI | http://doi.org/10.1177/095207670602100308 |
| Subject Matter | Articles |
Regulated (Self-)Regulation:
A
New Paradigm for Controlling the Professions?
Robert P. Kaye
London School of Economics and Political Science
Abstract
Self-regulation has long been a defining characteristic of the regulation of
professional activities in the UK. In this paper, I suggest that recent
developments, including increased lay participation in professional
regulation, the creation of new state regulatory structures, the transformation
of regulation from a series of life events to an ongoing duty to account for
oneself, and the creation of a new tier of independent ’meso-regulators’,
constitute the emergence of a new paradigm. Prime accountability is no longer
from the individual professional to the collective profession. Rather it is from
the individual practitioner through the professional body to independent
regulators. However, by locating the public interest in independent and
unaccountable regulatory structures, this new paradigm may fail in its aim of
securing public trust in professions.
Regulation - in a broad sense - is a defining characteristic of the profession.
Even if professionalization is taken to be no more than the achieving by one
occupational group of higher social status or material rewards than other
groups, this in turn requires the creation and retention of barriers between
those groups, a system of control and regulation. At its crudest, this consists of
some ’badge’ of membership to a profession, whether this is by qualification,
by registration, or by restricted membership of a professional organisation. In
most of what we would generally recognise as ’professions’, including the
traditional liberal and later technical professions, there are formal mechanisms
for distinguishing and discriminating between members and non-members of
the profession.
Identification as a member of a profession is assumed to affect not only how
professionals are seen by outsiders, but also how they perceive and conceive
of themselves. And in turn this is likely to affect their behaviour. As such, there
is a symbiotic relationship between the emergence of a profession, and modes
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of control. Regulation is part of a profession’s creation, but the creation of a
profession in turn affects the behaviour of practitioners. The creation of a
profession alters the accountability structures within which professionals
operate,
This paper examines four core professions - medicine, law (limited to the
two largest groups of lawyers, solicitors and barristers), chartered accountancy,
and teaching - but also considers the position of a number of smaller
professions, including dentistry, architecture, teaching and nursing. The core
professions have all experienced profound periods of regulatory change and in
at least two cases (medicine and law) change is ongoing and uncertain.
This paper compares two paradigms of professional regulation: the
’traditional’ model of ’binary’ self-regulation, and an emergent model of
’regulated (self-)regulation’. The former highlights two characteristics of the
traditional mode of regulation: first, that bodies comprised of professional
peers controlled admission to the profession; and, second, that the dominant
method of control was the power to admit or remove a person’s licence to
practice. The Bristol Royal Infirmary inquiry (2001, Cm 5207(1)) coined the
term ’binary’ to stress the over-simplicity of this model as a strategy for
dealing with professional discipline: misconduct is ’serious or nothing’ and the
sanction ’removal from the register or nothing’. In contrast, the term
’regulated (self-)regulation’ is designed to highlight two facets of
contemporary professional regulation: (i) a decline in the extent to which
regulatory bodies in the professions are self-regulating, and (ii) the fact that
these bodies are themselves increasingly subject to regulation. It is argued that
the acceptance and encouragement of these two developments by the British
government means that regulated (self-)regulation is becoming a new
paradigmatic form of regulation for the professions. Regulated (self-
)regulation is a key facet of the new arrangements for regulating healthcare
professionals. It is also at the heart of the Government’s White Paper and on
legal services (2005, Cm 6679) and Draft Legal Services Bill (2006, Cm
6839). Regulated (self-)regulation aims to address concerns about ’self-
regulation’, and counter a purported decline in public trust. But regulated
(self-)regulation gives rise to its own problems of accountability, tension, and
regulatory overkill. And it is by no means clear that it can successfully counter
public distrust.
The paradigm of self-regulation
For most of the past two hundred years, professional regulation has been
characterized by self-regulation. As recently as 1989 Baggot (1989) described
the UK as a ’haven for self-regulation’. But the term ’self-regulation’ has a
number of meanings. As Moran (2001) notes, ’self-regulation’ is ’more than
an institutional arrangement, it is a regulatory ideology’. That is, self-
regulation in the UK has been manifest not only the creation of formal
structures giving voice and control to practitioners, but the encouragement of
practitioner autonomy has been a normative principle.
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Equally importantly, the term self-regulation encompasses a wide range of
institutional arrangements, some more, some less, deserving of the description
’self-regulation’. Most regulatory regimes within the professions now involve
multiple elements, some of which are more self-regulatory than others.
Despite the efforts of some academics to impose one criterion for determining
whether or how far a system is self-regulatory (see for instance Baggot and
Harrison, 1986; Ogus, 1994; Black, 1994), popular use and perception (and
perception is an important driver of change) continues to conflate various of a
regime’s characteristics, including formal status, ownership, funding and the
degree of lay-involvement, to determine whether or how far a professional
organisation (let alone the regime of which it is a part) is self-regulating. For
this reason, I follow Moran (2001) in arguing that there is a multi-dimensional
continuum between ’pure state-regulation’ and ’pure self-regulation’.
Regulatory regimes generally involve a number of structures, each of which
will occupy a different point in that multi-dimensional space - but few of
which will be purely self-regulating. So for instance, within medicine there are
parallel structures of GMC-led professional regulation and the NHS’s own
regime of clinical audit. These might be taken to represent respectively self-
regulation and state-regulation. In practice, the GMC is a body grounded in
statute containing a number of ministerially appointed lay members, while the
latter of necessity involves review by other clinicians.
Over time, however, self-regulatory regimes have become generally less
self-regulatory as they have been supplemented by state-led regimes, diluted
by outsiders and lay members, and have been subject to outside interference
from government, often tacitly accepting the role of regulating on behalf of the
state as a least-worst option. But retaining the self-perception of self-
regulation, of nominal if not practical control by the regulated, has been an
important aim of the professions. As the General Teaching Council for
England has put it:
Any ’profession’ has at least two defining characteristics [including] the power
of self-regulation (GTCe, ’National Strategy for Teachers’ CPD).
(It follows from this, and the GTCe has suggested, that teaching in England
only became a profession with the GTCe’s formation.) It is for this reason that
in the paper that follows I describe the role of ’front-line regulators’ as (self-
)regulation (’front-line regulator’ or FLR is the term used in the recent review
of legal service regulation for the Department for Constitutional Affairs by Sir
David Clementi to describe bodies such as the Law Society or the Bar Council
which have responsibility for the regulation of individual practitioners). An
individual regulatory body may be more self-regulating or less self-regulating
than another, but in almost all cases there are self-regulatory elements to what
is in reality a hybrid institution.
Despite these qualifications the ’self-regulating profession’ was the
paradigm of professional organization in post-War Britain. This fact is
somewhat problematic for analyses that try to see the development of the
’regulatory state’ as part of a process of retrenchment, in which governments
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did less. John Braithwaite (2000) for instance, posits a history of regulation in
which he compares regulation to the act of rowing and steering a boat.
Braithwaite has it that the old ’night watchman’ state had civil society steering
and rowing; the post-war state had the state steering and rowing; and the
regulatory state has civil society rowing but government steering. For the
professions, however, the post-war state was always circumscribed. To a large
extent the post-War settlement in the UK allowed professions to keep control
of both rowing and steering, albeit that they steered under the shadow of the
state. In...
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