(Last Updated On: 4th January 2021)

Responsiveness: Going Beyond Compliance – Enabling Improvement


Responsiveness

Abstract

This article examines responsiveness, the capacity to take account of the attitudes, context and ability of others, in separation from its usual entanglement in theories of responsive regulation. We assess responsiveness as an improvement strategy.

Central to a responsive strategy is the attitude, situation and motivation of those regulated. It transforms our focus from checking compliance and accepting minimum standards to enabling improvement through changing behaviour and motivation.

This resource uniquely brings together several topics that come under the heading of responsiveness:

  • The Principles of Responsiveness
  • Ability and Willingness
  • Fairness
  • Strengths-based Approach
  • Third Party Standards
  • Really Responsive Regulation
  • Critiques of Responsiveness

1.  Introduction

… while a deterrence strategy can play an important positive role, especially in reminding firms to review their compliance efforts and in reassuring them that if they comply others will not be allowed to “get away with it,” its impact is very uneven. Deterrence is, for example, more effective against small organizations rather than large ones, and better at influencing rational actors than the incompetent. Unless it is carefully targeted, it can actually prove counterproductive, particularly when it prompts firms and individuals to develop a “culture of regulatory resistance” [Bardach and Kagan, 1982] (Gunningham, 2015: pg 3).

This article focuses on the contribution of regulatory strategies grouped as ‘responsive’ that contribute to better outcomes, sustainability and improvement. Responsiveness goes beyond simple compliance and deterrence strategies to harness the values, beliefs and motivation of those regulated.

There are team activities within the article to enable you to discuss and share learning around strategies of responsiveness.

2.  The Context of Responsiveness

Significant changes are … evident in the approaches taken by audit, inspection and scrutiny bodies … whereas in the past systems of audit or inspection were mainly designed to establish how well or badly a particular body or service was performing against certain standards, current systems are increasingly designed not only to assess, but also to increase the capacity for improvement. (Levitt et al., 2010: p. 4)

The vital challenge for regulators of whatever sector is to design strategies to enable those regulated to achieve better outcomes and realise improvement whilst having strategies and skills to deal with the much smaller number of organisations where performance in key areas is of concern.

Responsiveness engages with this complex challenge. It is a broad approach developed over two decades by academics, practitioners, policy makers and regulatory agencies (Ayres, 2013, Ayres and Braithwaite, 1992, Baldwin and Black, 2008, Black and Baldwin, 2010, Braithwaite, 2017, Etienne, 2013, Grabosky, 2013, Ivec and Braithwaite, 2015, SEPA, 2015, Professional Standards Authority, 2017). It moved beyond its original roots to encompass:

  • Cooperation as the basis for achieving regulatory objectives
  • The role of fairness and justice in regulatory relationships
  • Supporting strengths and opportunities to realise continuous improvement
  • Promoting ethical business relationships.

Responsiveness means:

‘tak(ing) into account the circumstances and context, behaviour and culture of those being regulated  (Ivec and Braithwaite, 2015: p. 9).

Being responsive is not a one-size-fits-all approach where the same rules are applied to everyone no matter what the differences between them. Central to a responsive strategy is the attitude, situation and motivation of those regulated. It reframes the regulation process from one of violation-seeking behaviour around broken rules, to working at improving the sector through standards and other indicators – a more positive approach that looks at the bigger picture. It transforms our focus from checking conformity to enabling improvement through changing behaviour and motivation.

The Choice of Intervention

Establishing relationships is crucial in achieving improvement. It is also necessary to understand the motivations, abilities and cultures of those in the sector in order to select the appropriate intervention.

Research from the UK Tax Office (HMRC, 2009) suggests a regulated population will divide into the following:

Figure 1: Degrees of conformity

Figure 1 reveals that, of those regulated, 76% are motivated to cooperate (including 18% requiring some assistance), whilst only 16% are not motivated to cooperate (with 8% completely unaware of the requirement to cooperate). This finds a substantial three quarters of those surveyed wanting to cooperate.

Individuals and organisations can be described in terms of their ability as well as their willingness to cooperate. Four different types of responses are shown in Figure 2 together with the action that a regulator may take in response to each type (Source: Monk, 2012p. 43).

Figure 2: Different responses to different characteristics (Monk, 2012)

Many regulators use the four responses above to demonstrate the range of interventions available. Below (Figure 3) is an example of a Responsive Approach revealing how regulatory strategies are adapted to the attitudes of those regulated.

Figure 3: Changing Behaviour (SEPA, 2015)

Ability and Willingness

Much of the regulatory literature has focused on enforcement, (OECD, 2013, Hampton, 2005, Gunningham, 2010). However, Figure 1 above shows the day-to day reality of regulation – working with those who wish to conform, cooperate and achieve better outcomes.

Most organisations will wish to cooperate but it should not be assumed that all organisations possess the ability to meet regulation demands. This is particularly true of small and medium enterprises (SMEs) (Yapp and Fairman, 2006). While their willingness to cooperate may be high their ability is limited by, for example, not having the resources or skills for the necessary documentation systems. Although skilled in their trade or vocation, they may find regulation requirements ambiguous and the guidance unclear (Anderson, 2008, Mascini and Wijk, 2009).

An inquiry by the UK National Audit Office found that UK businesses, in particular SMEs, often lack clarity about how to comply. Research by different agencies found that SMEs believe that they are complying until a person they respect points out that they could improve, after which they usually follow the advice. This evidence influenced official thinking that much behaviour is affected by information, advice, support, and reminders – consistent with psychological research (Hodges, 2016: p. 5).

Where ability is the issue, advice, education and persuasion are appropriate enabling skills, although resources may be an issue too. Praise is also vital especially when used in a systemic way, responding to and supporting the motivation of those regulated.

Identifying Willingness

Distinguishing the willing from the unwilling in a relatively short encounter and breaking down willingness to cooperate into a set of measurable indicators can be difficult. Research (Hutter, 1997, Hawkins, 1984) suggests the following provide useful indicators:

  • The amount of resources devoted by the organisation to achieving the regulatory objectives
  • Attitudes of staff towards cooperation and improvement
  • The ability to comply based on the skills available and the financial position
  • Any previous records of action taken and the nature of any complaints.

Willingness may reflect commitment to the purpose and moral basis of the legislation:

Regulation in practice, mediated as it is by a bureaucracy in which people have to exercise their discretion in making judgements about their fellows, is founded upon notions of justice … (inspection) is done in a moral, not a technological world (Hawkins, 1984: p. 207).

Judgement is not only technical, nor is it gathered solely from material evidence – there are complex ethical and moral dimensions. Taking all of this into account suggests three factors at play in responsive strategies:

  • The nature of areas of concern (severity)
  • The willingness of the organisation to cooperate in the future and the
  • Ability to be cooperative in the future.

Willingness and ability are infinitely variable. Nevertheless the regulated organisation or individual can be encouraged to go beyond mere compliance to sustainable improvement and change. We look at the Principles of Responsiveness in providing some of the tools for achieving this.

3.  Principles of Responsiveness

Ayres and Braithwaite introduced the idea of Regulatory Responsiveness in ‘Responsive Regulation: Transcending the Deregulation Debate’. In 2011 Braithwaite returned to the Principles of Responsiveness. He suggests that being responsive relies on regulators recognising ‘the limits of being prescriptive and combative’ (Braithwaite, 2011). The Principles are given below:

  1. Think in context; don’t impose a preconceived theory

Each situation is different; therefore think flexibly about the people and the context. Consider the evidence for where improvement is needed and identify the resources, abilities and motivation the organization has available and how these can be modified.

  1. Listen actively; structure dialogue that:

– Gives voice to stakeholders

– Settles agreed outcomes and how to monitor them

– Builds commitment by helping actors find their own motivation to improve

– Communicates firm resolve to stick with a problem until it is fixed.

Listening is central to responsiveness – but it doesn’t mean not speaking. Resolve needs to be demonstrated in determining any uncertainties or concerns that you will pursue until they are improved.

Setting expectations, raising existing concerns and building motivation to improve are important, especially in the first meeting.

Building Motivation

Braithwaite notes the contribution of motivational interviewing and suggests the following strategies(Miller and Rollnick, 2004, cited in Braithwaite, 2011):

Figure 4: Motivational Interviewing
  • Regulation should be collaborative, the regulator/inspector draws on the values, motivations, abilities, and resources of those regulated to help bring about the desired change
  • The regulator seeks to move those regulated in the direction of positive change
  • The regulators role is to elicit and strengthen ‘change talk’
  • The regulator should emphasize the ‘change talk’ in the statements of those regulated to strengthen their motivation to bring about change
  • The person regulated, rather than the regulator, should voice the arguments for change
  • Developing a plan for change is the role of the regulated person/organization. It is they who decide what is needed, and when and how to proceed. The regulator offers advice cautiously when asked
  • Commitment for change must come from the person regulated. The role of the regulator is to ascertain whether the time is right to commit to the change plan
  • To effect this change in approach, the regulator should listen with empathy, minimize resistance, and nurture hope and optimism (adapted from Braithwaite, 2011: p. 497).

Figure 5: Building Confidence

Building the confidence of workers and the management team is important. Jenkins research (cited in Braithwaite, 2011) on the self-confidence of managers and their ability to take on regulatory improvements, highlights the importance of the relationship with, and confidence in, regulatory personnel and the regulatory organization itself.

Equally important in predicting cooperation is ascertaining the importance to the regulated individual/organisation of the specific issue concerned, as well as their commitment to the values and principles of the standards or regulation framework.

  1. Engage those who resist with fairness; show them respect by construing their resistance as an opportunity to learn how to improve regulatory design

The use of fairness is important. Braithwaite recognises that those who are resistant are different from those who are disengaged. The latter group are hard to turn around but the former may, with persuasion, become committed to continuous improvement (Braithwaite, 1995). Even those managers who lack confidence in one area may excel in another and praise of that area may help in enabling the self-confidence and determination to tackle under-performance in others.

  1. Praise those who show commitment:

– Support their innovation

– Nurture motivation to continuously improve

– Help leaders pull laggards up through new ceilings of excellence

  1. Signal that you prefer to achieve outcomes by support and education to build capacity

Here dialogue is important to develop readiness, confidence and to promote understanding of the importance of the issues. It is collaborative.

  1. Signal, but do not threaten, a range of sanctions to which you can escalate;

The regulator should be aware of the possible impacts of the organization not achieving the desired performance, but not use them as threats. Impacts can range from incapacitation (registration cancelled), reputational loss, naming and shaming (restorative/remedial work) to a simple recommendation.

  1. Network knowledge and innovation

Transfer knowledge and best practice from one provider to another and from one service to another. Use frameworks of standards outside of your own.

  1. Elicit active responsibility (responsibility for making outcomes better in the future), resorting to passive responsibility (holding actors responsible for past actions) when active responsibility fails

Active responsibility is where the person or firm regulated agrees to take responsibility for some action in the future. Taking responsibility is important to changing motivation – taking active responsibility is moving toward sustainable improvement. Monitoring the outcomes of the agreement gives a measure of commitment.

Passive responsibility is where the regulated individual or organisation take responsibility for actions from the past.

  1. Learn –evaluate how well and at what cost outcomes have been achieved; communicate lessons learned (Braithwaite, 2011: p. 476).

There is no specific recipe for being responsive. There are, however, principles; one of the most important is to learn quickly from failures. Colleagues and team meetings are important channels for learning from experience.

In the principles, as presented by Braithwaite, relationships are central and focus on dialogue, negotiated agreement and listening. Demonstrating fairness is crucial, as well as learning from past experience and establishing responsibility. Finally, there is the importance of setting expectations.

Setting Expectations

Interpersonal skills are essential to communicating the values embedded in standards and guidance. Ehren called this ‘setting expectations’ on what constitutes good practice in the sector:

inspection primarily drives change indirectly, through encouraging certain developmental processes, rather than through more direct and coercive methods, such as schools reacting to inspection feedback. Specifically, results indicate that school inspections which set clear expectations on what constitutes “good education” for schools and their stakeholders are strong determinants of improvement actions; principals and schools feel pressure to respond to these prompts and improve their education (Ehren et al., 2014: p. 296).

Setting out clearly the values, principles and skills as contained in standards, guidance and quality indicators, focuses those regulated on the reasonsfor changing behaviour and its justification. It helps instil motivation and active responsibility. ‘Setting expectations’ takes place throughout a regulatory encounter but it is most important in the first meeting with providers and managers. The aim should be shared agreements and viewpoints from which the regulated person/organisation can take active responsibility and demonstrate commitment (Braithwaite, 2011).

4.  Fairness

One of the most important qualities valued by those regulated is that the regulator is fair, open and transparent (Tyler, 2006, Nursing Homes Ireland, 2010). Some may ask:

‘Isn’t being fair being soft?’

‘Doesn’t a commitment to fairness result in always giving the regulatee one last chance or accepting their point of view?’

There is another view of fairness derived from ideas of Natural Justice (impartiality and right to reply); it fits in well with responsiveness and is called Procedural Justice.

‘Procedural Justice’ is a term referring to:

  • The perceived fairness of procedures involved in decision-making and
  • The perceived treatment one receives from the decision-maker.

In other words, it relates to how a person may experience and feel about the decision-making processes they have been involved in, regardless of whether the resulting outcome is favourable or not.

Research into the effects of procedural justice has consistently found that people and organisations are much more likely to obey the law and accept decisions made by authorities when they feel that the decision-making procedures are fair, respectful, and impartial. They are also more likely to report wrongdoing to an authority that has treated them fairly (Tyler, 2006: p. 2).

Using the techniques of Procedural Justice makes individuals more likely to comply with the decisions of regulators even where those decisions are unfavourable.

Elements of Procedural Justice are:

  • Decision-making is based on discernible objective evidence
  • Actions of the regulators are understandable and clear (transparent)
  • People are treated with dignity and fairness
  • People have the opportunity to state their point of view (Murphy et al., 2009).

A Shared Ethical Approach

Hodges (2016) endorses a collaborative ethical approach between business stakeholders and regulators, a method that has an affinity with Procedural Justice and Responsiveness:

  • Compliant behaviour cannot be guaranteed by regulation alone
  • Ethical culture in business should be promoted and not undermined
  • Regulatory systems need to be designed to provide evidence of business commitment to ethical behaviour on which trust can be based
  • Systemic learning has to be based on the capture of information and that maximising the reporting of problems requires a no-blame culture
  • Scrutiny will be most effective where it is based on the collaborative involvement of all parties
  • Society needs to be protected from those who seek to break laws, and people expect that wrongdoing deserves proportionate sanctions (Hodges, 2016: p. 3).

Ethics and Fairness

The ethical approach of Hodges and the Procedural Justice perspective outlined above set the boundaries of the regulation relationship by:

  • Promoting expectations based on the principles, beliefs and professional values of the sector
  • Listening to the views of those regulated and demonstrating that those views have been heard
  • Treating people with dignity
  • Making transparent the evidence and values behind decision-making and extending the right of reply.

5.  The Strengths-based Pyramid

The Strengths-based Pyramid shown below is a simple graphic illustrating how strengths and opportunities within a service can be supported and commitment to continuous improvement gained by using tangible rewards such as praise, gradings or an awards scheme.

Figure 6: Strengths-Based Pyramid (Braithwaite et al., 2007: p. 319)

The pyramid represents a gradual escalation of reward or praise beginning with education and persuasion and proceeding through stages of recognition of achievement. It is an agreed framework designed to incentivise managers and staff towards continuous improvement.

The pyramid is responsive and can be customised to address different types of opportunities. For example, it can be designed to promote safety or to reward those who improve the participation of citizens in the management of regulated enterprises. The pyramid shape is used to indicate that the majority of support for strengths will occur at the base of the pyramid with few organisations reaching the top set of rewards.

Crucially, a Strengths-Based Pyramid helps pull an organisation or individual from mere basic conformity where ‘adequate’ is achievement enough, towards continuous improvement.

Team Activity
Stage One – approximately 45 minutes:

Before your team meeting read sections 4 and 5.

Stage two – approximately 90 minutes:

At the team meeting make time to discuss the different approaches that you can use to support improvement and change. You might like to think of examples where you have used ideas of Fairness or the Strengths-based Pyramid. As a team put together your experiences on any one of the approaches, the difference it made and the improved outcomes that came, or might have come, about.

6.  Using Third Party Standards

Traditionally regulation has been thought of as a relationship between two parties, the state created regulator and the regulated organisation. The reality is now very different.

There is an increase in the use of private international standards, e.g. standards produced by independent standards bodies such as the ISO (International Organization for Standardization), ANSI (American National Standards Institute), CNS (Chinese National Standards) and EFQM (European Foundation for Quality Management). ISO standards in particular are designed to fit multiple national safety and quality frameworks. Much of this has been due to globalised trade (Busch, 2011) where international standards are essential for:

  • Technical Compatibility – being designed to operate in a number of countries, for example, car parts, medicines, electronic equipment
  • Assuring international consumers that a product or service is of the right quality by the use of a recognised and accredited quality and risk-management system, for example ISO or EFQM
  • Conformity to safety standards, for example, the international supply and export of human tissues such as organs and cells (European Parliament and the Council, 2004)
  • Showing that the organization is ethical in its manufacturing processes or employment practices no matter where in the world it is located, such as in clothing manufacture, for example (Bartley and Smith, 2010).

Smart Regulation (Gunningham et al., 1998) expanded the notion of responsiveness, arguing that governmental regulators should be responsive to private and civil standards and codes existing within the sector:

The state can enlist the support of a variety of non-governmental institutions in furtherance of the regulatory process. By guiding a range of market forces and through other unobtrusive forms of activity, government can influence public interest groups, commercial third parties and industry itself to act as quasi-regulators (Gunningham : et al., 1998: p. 93).

These standards may incorporate existing regulations and are often necessary in order to trade. Larger organisations may have their own regulatory conformity units.

Further sets of standards exist through civil bodies and trade groups, as with FairTrade, for example. It has a central international body producing standards across various countries in order to gain FairTrade certification (Nelson and Pound, 2009). These Non-Government Organisations (NGOs) or charities influence the performance and activities of services in various ways:

  • Raising public awareness of an issue
  • Providing information to government, regulators and the regulated –
  • To act as watchdogs
  • Promoting strengths and innovations in the sector.

Organisations such as the above produce statements and guidance that their members have to take into account. Regulators may use these to influence and lever services into improving outcomes and give the service a competitive edge. Regulators too may be influenced in their strategies and policies by civil groups, for example on the subject of whistle-blowing policies (Public Concern at Work, 2013).

Combinations of influences work better than individual ones. The table below illustrates these alternative forms (Baldwin et al., 2012: p. 266).

Table 1: Opportunities for leverage and third party standards

Government as regulator controls by: Business as self-regulator (private standards) controls by: Third parties (trade groups, civil bodies) control by:
Disqualifications

Penal Sanctions

Notices

Warnings

Persuasion

Education

Advice

Disqualification

Sanctions

Warnings

Guidance

Education

Advice

Dismissal

Discipline

Promotions

Reviews

Incentives

Training Supervision

Advice

Many businesses and large organisation sregard reputation as one of their most important assets and safeguard it to avoid adverse publicity. Organisations sensitive to risk, safety and reputation will have internal procedures that a government regulator may take up. For many organisations conformitywith international private standards and civil bodies is essential.

Business and Communities

A healthy sector is one that is drawing on a range of tools, standards and advice to improve. Regulation staff can help business and local government in pointing to external and internal resources to assist the improvement process. The aim is for a sector that is not stifled by scrutiny but is able to meet the needs of the communities dependent upon them.

Team Activity
Stage One – approximately 30 minutes:

Before your team meeting read section 6. Here we consider how the regulatory organisation might use the various external and private standards to drive improvement.

Stage two – approximately 90 minutes:

In your team discuss the external standards that services, professions and producers use…do they influence and drive improvement – and do we use them enough? Gather your thoughts about what standards you could use.

7.  Really Responsive Regulation

Failing to regulate really responsively can constitute an expensive process of shooting in the dark (Baldwin and Black, 2008: p. 1).

‘Really Responsive Regulation’ is the term coined by Baldwin and Black (2008) for a perspective that analyses responsiveness across the widest extent  of regulation and scrutiny, the organization and its industry are analysed by reference to their unique characteristics,. There are five key areas examined:

  1. Behaviour, attitudes and culture of those under scrutiny
  2. The institutional character of the regulator
  3. Interaction of different tools and strategies
  4. Sensitivity to the regulators performance – are better outcomes being achieved?
  5. Responsiveness to change – new risks, innovations and public attitudes.

We will look at each in turn.

  1. Behaviour, attitudes and culture of the regulated

Baldwin and Black recognise that to be responsive is to employ strategies that address behaviour, attitudes and culture. However, they argue that these differ widely across and within sectors.

For example, in the social care sector we can compare the child-minder – a micro business – and a large local authority. The child-minder may have few business skills and tiny resources while a large local authority has many employees, multiple departments and skilled, articulate, professional staff. Responsiveness to each will and should be very different. Similar comparisons can be made in the food retail, farming or financial sectors.

  1. The institutional character of the regulator

The actions and culture of a regulator are shaped by history, by relationships with other regulators/scrutiny bodies and by the relationship with government. For example, a government may wish to restrain and restrict regulation. One such example occurred in the US Reagan administration – heads of regulatory bodies were appointed hostile to the idea of regulation itself (Wood and Waterman, 1991). Governments may also wish to extend regulation and thereby appoint accordingly.

Of course, government attitudes may not be this extreme but Baldwin and Black point out that government, as the major stakeholder, can nudge regulators/scrutiny bodies in directions that impact on regulation strategy and performance.

  1. Interaction of different tools and strategies, awareness of contradictions that may limit strategies – such as education

Baldwin and Black make the point that, for a responsive approach to be successful, the regulator should be aware of the sometimes-conflicting nature of regulatory tools and strategies. Strategies based on encouragement and education, for example, may be incompatible with the threat of punitive sanctions. To take another example, certain types of standards (tools) may require different skills and strategies: Process, Outcome and Principle-Based Standards (see our paper on Standards) are unalike and have their own strengths and weaknesses. Further, if standards are poorly designed so that neither those regulated nor those regulating can interpret them, better outcomes cannot be achieved (Walshe and Phipps, 2013).

  1. Sensitive to the regulators performance – are better outcomes being achieved? Are the objectives of the agency being achieved?

Critical evaluations of the regulator’s/scrutiny body’s performance at organisational level are essential, according to Baldwin and Black, to reveal if strategies are successful or failing to reach objectives. They advocate learning the lessons from implementing strategies and the advantages of building feedback loops into regulation strategy and sector practice, for example, from adverse-event sharing.

  1. Responsiveness to change – new risks, innovations and public attitudes

Baldwin and Black maintain that awareness of change is a fundamental but difficult area for regulators and their staff. Rules, indicators and standards are directed at risks that are known but, as in the case of the Financial Crisis of 2007-8 , it is the risks that are unknown and/or unanticipated that may have the greater impact. There is an innate conservatism in regulation – it is difficult to release resources to examine the impact of innovations that are not yet known or to foresee how public attitudes, particularly trust in regulators might change in the future. Yet, they argue, time and resources should be found.

Summary

A Really Responsive Regulation perspective does not elevate improvement or cooperation above other strategies – deterrence and responsiveness are among the tools that may be used; the focus is not on going beyond compliance and not directly on the motivations and attitudes of the regulated. What it does promote is an analysis of the unique characteristics of an organization and its industry providing a thorough basis for responsive strategies.

8.  Critiques of Responsiveness

… responsive regulators will, in addition, examine the way that different attitudinal settings and tool logics will affect both the way that particular controls operate and the manner in which tools can be combined (Baldwin and Black, 2008: p. 33).

Various commentators have drawn attention to the limitations of a responsive approach (Gunningham, 2010, Tombs and Whyte, 2013, Grabosky, 2013):

  • There may be distrust in a cooperative relationship when the regulator has, in the past, used more intrusive or punitive measures
  • In a small number of cases identified as ‘of concern’ by the regulator it may be better to move immediately to change the situation – it is not advisable to always use a gradual advice and education approach
  • Central to responsiveness is the relationship between the regulator and the regulated. The closeness of that relationship, as encouraged by the use of a responsive strategy, is questioned. Advice is important to responsiveness in order to steer organisations towards better outcomes but there is the risk of regulatory capture by virtue of regulatory staff acting as a consultant, ‘marking their own homework’ or in being persuaded by those regulated to create policies for the organisation.

A Broad Range of Competency

If organisations consistently underachieve regulators may need to intervene with actions that protect the public. In order for this to be the case, regulatory staff must have a range of competencies to ensure that their requirements are enforceable. As Gunningham maintains:

…what has very rarely been examined is the question of how an inspectorate generates and maintains its skills base and how it ensures that it has the capability to discharge the increasingly sophisticated regulatory tasks demanded of it. This is perhaps surprising given that an inspectorate that lacks the relevant competencies will be incapable of enforcing regulation effectively, irrespective of what regulatory style it adopts, what measures it takes to avoid capture, how it targets its resources or how it manages stakeholder interactions (Gunningham, 2012: p. 53).

9.  Conclusion

If all responsiveness achieves is to break down the myopias of dominant regulation discourses, then at least it broadens our understanding in a useful way (Braithwaite, 2011: p. 500).

Responsiveness recognises that the majority of those regulated are willing to cooperate and that they see the benefits of regulation. There should be clear responsibilities for the regulated and the regulator – no fuzzy boundaries. Active responsibility for creating better outcomes should be sought.

Harnessing the motivation for better outcomes and sustainable improvement releases regulators to concentrate on organisations where key areas of practice are of concern and addressing the weakness of scrutiny and surveillance as a means of going beyond compliance.

Responsiveness aims to contribute to what Hodges sees as the implicit contract of regulation:

An ethical and fair culture, whether within an organisation or in a regulatory enforcement regime, has to be seen to respond to problems and wrongdoing by distinguishing between people who are basically trying to do the right thing and those who are not – essentially an issue of motivation (Hodges, 2016: p. 8).

Hodges identifies what is possibly the central skill of responsiveness -accurately assessing motivation, intention, willingness and ability. Harnessing this skill enables regulators to go beyond simple compliance.

Team Activity
Stage One – approximately 45 minutes:

Before your team meeting read sections 7, 8 and 9. Now focus on the notion of “Accurately assessing motivation, intention, willingness and ability” – what is the capacity of the service, professional group, producer to improve?

Stage two – approximately 90 minutes:

In your team discuss how you would tackle this challenge in a responsive way. What experience, knowledge and tips can you share in your team? Is inappropriate ‘closeness’ (regulatory capture) in a responsive approach a real risk? If it is, what strategies are available to be responsive and yet avoid regulatory capture?

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About Precepts

Precepts is a Social Enterprise specialising in professional change. The majority of our work has been with regulatory organisations in education/ accreditation/training for staff or for those using regulation. More recently we have been involved in business journalism.
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