May 2021 edition: Telling the Story of Intelligent Regulation

Telling the Story of Intelligent Regulation

It was my pleasure to host a panel discussion at CST’s annual conference on the issue of regulation. We were joined by an esteemed group of panellists, including:

- Dominic Herrington, National Schools Commissioner

- Hannah Woodhouse, Regional Schools Commissioner

- Helen Stephenson, Chief Executive of the Charity Commission

- Ian Bauckham, Interim Chair of Ofqual

- Warwick Sharp, Director of the Academies & Maintained School Directorate of the Education and Skills Funding Agency (ESFA)

We had a fascinating conversation, which I hope was of interest to conference delegates. But what I’d like to do here is, rather than repeat the content of that discussion, to reveal a little of its basis. In particular, I’d like to say a little more about the work of Professor Malcolm Sparrow of Harvard’s Kennedy School of Government, as the ideas in his book ‘Fundamentals of Regulatory Design’ informed the issues we debated.

Setting the mission

Sparrow makes a compelling argument that regulation is built upon having a clarity of purpose. He outlines a choice of sorts that regulators must make about where to focus their activities. For example, should the work of the regulator be focussed on:

  • Compliance in relation to the law (the Legal Model)?

  • Going beyond the law to minimize wider risks of harm (the Expert Model)?

  • Both?

It is obvious, Sparrow notes, that regulators tend to start with risks that fall into both categories. But what then? What does the regulator do, Sparrow teases, if they have remaining resource having already targeted the obvious stuff? This is the territory, he says, where regulators must carefully consider their mission, the sector they are regulating and the public’s expectation.

He concludes that while there is no right or wrong, the trend among regulators is to go beyond mere enforcement of the law towards a broader focus on risks which may not be illegal but could be harmful. What was striking in our debate at CST’s conference was that this was reflected in panellists’ responses; everybody concluded that effective regulation in relation to education requires regulators to operate within what Sparrow terms the ‘Expert Model’. And I think we can see this in the public bodies which regulate the education system.

Clearly, a large part of the responsibility to tell the story of regulation falls to regulators themselves, but it’s important to remember that regulation is one part of a system.

Steve Rollett

Telling the story

However, Sparrow makes a further point of note. He argues that the mission a regulator follows should shape the ‘performance story’ it tells about its work. Regulators operating in the Legal Model tend to rely on statistics about investigations, penalties, audits and so on, whereas those following the Expert Model relay more about risk-based accounts, explaining the risks identified and the actions taken to mitigate them. If pursuing the Expert Model they should be clear, he says, with the sector and the wider public about what its mission is and also how risks are spotted and understood – because these risks go beyond what is stated in law and thus can otherwise exist tacitly. Given the drift towards the Expert Model as the means of regulating education, Sparrow’s work suggests we might ask whether more can be done to tell the story of regulation within our sector. This is, I think, a different but important lens through which to view calls for more transparency regarding the regulatory work undertaken by Regional Schools Commissioners, for example. It’s not only that being more open helps those who are regulated to understand the system of regulation better, but also that doing so helps regulation under the Expert Model to be more effective.

Clearly, a large part of the responsibility to tell the story of regulation falls to regulators themselves, but it’s important to remember that regulation is one part of a system. And it’s imperative that regulation is understood and it is valued, as far as that can be achieved (Sparrow says this is hard!). To that end, CST is committed to helping the sector to understand regulation and also to help shape a regulatory system that is as effective as possible.

Intelligent Regulation

To this end, immediately following our panel discussion, CST was proud to publish ten principles of intelligent regulation:

1. The regulator(s) must serve the interests of children and young people and protect the quality of education, fiduciary responsibility, and good governance.

2. Regulation must be robust and coherent.

3. Regulation should be about promoting good and preventing bad things happening.

4. Regulation must be based on principles-based standards and technical specifications.

5. There should be a single regulatory framework.

6. Regulatory decision must be impartial, fair and taken on merit, using the best evidence and without discrimination or bias.

7. The principle of transparency should apply to all regulatory decisions.

8. The power to regulate should be at the level of the legal entity/ accountable body.

9. The power to regulate should include the power to enforce regulatory decisions.

10. The regulator and inspectorate should have separate and clearly articulated authority, decision-making powers, legitimacy and accountability, within a coherent approach to system governance.

We believe that the Secretary of State’s vision for all schools to be part of a School Trust, a vision he reaffirmed at CST’s annual conference, makes the continued development of a coherent and intelligent system regulation even more of a priority. For one thing, bringing all schools within the Trust sector means that the regulatory work of Regional Schools Commissioners and the ESFA will be larger in volume, and there may be other associated complexities too that will need to be reflected in regulatory frameworks and practices. As Professor Sparrow notes, an expansion in the jurisdiction of a regulatory body can provide an ideal time to map the terrain and redesign regulation where necessary.

The ten principles above will inform CST’s policy work and our member support in this important area as the Trust sector continues to mature and as regulation, we might presume, iterates accordingly.


References

Sparrow, M. (2020) Fundamentals of Regulatory Design. Amazon.