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Right Touch Regulation – Better Strategy, Better Regulation


Right Touch Regulation (Cayton and Webb 2014) is not a regulatory theory of everything but a set of strategic and tactical principles. Right Touch Regulation exposes the shortcomings of the prevailing wisdom of Better Regulation (Better Regulation Executive 2009). Furthermore, it is an outstanding example of how policy and perspective may come from within the industry itself rather than placed by government departments (Kingdon 2010; Cairney 2018).

Introducing Right Touch Regulation

In 2014 the UK Professional Standards Authority for Health and Social Care (PSA) introduced their own approach to regulating health care regulators and called it ‘Right Touch Regulation’ (RTR). It has provoked interest from other regulators but little interest from the academic community.
The PSA is a regulator of regulators (health care professional regulators for nursing, dentistry etc); consequently, its perspective on the problems and solutions for professional regulation has received close attention from those regulated. However, the influence of Right Touch Regulation has spread beyond those in the curtilage of the PSA to a much wider following. A recent publication (Professional Standards Authority 2018) featuring those who have adopted or had been influenced by RTR perspectives, includes regulators from Australia, New Zealand, Canada and the UK as well as diverse sectors such as chartered surveyors and professional banking standards regulators.

Principles of Right Touch Regulation

What accounts for this influence? RTR has underpinning commitments:

to use evidence to identify and understand problems, and
to draw on the roles and responsibilities of different parts of the system to deliver the best solution.
The consequences of adopting this approach may be less regulation or more regulation, but should certainly mean better regulation. (Professional Standards Authority 2015, p.5).

It is perhaps the simplicity of Right Touch Regulation principles, summarised in the following sections ( see Professional Standards Authority, 2015), that account for its influence.

One: Identify the Problem before the Solution

RTR is a problem-solving approach that cautions regulators to understand the problem before providing the solution. Often regulators jump to the mandatory solution although an alternative solution that falls short of full regulation may be more effective. Regulatory groupthink tends to shoehorn off-the-peg solutions rather than think the problem through.

Two: Quantify and Qualify the Risks

RTR describes problems in terms of risk to the end users of the sector concentrating on the big risks. What is the extent of harm possible and what is the probability of that harm occurring?
Targeted regulation needs to understand, both the range of hazards and the factors that increase or decrease the risk of them resulting in harm (Professional Standards Authority 2015, p.6).

Three: Get as Close to the Problem as Possible

Regulators are often detached and distant from the situations where problems occur. For example, regulatory standards of professional conduct have negligible impact on day to day work unless there is a local means of supporting them (Professional Standards Authority 2015).Solutions should be effective at the level at which the problem is occurring. The level closest to the problem is very often the level at which the appropriate expertise and dynamics apply. However, getting close to the problem requires collaboration and cooperation with all stakeholders, an ability not always nurtured by regulators.

Four: Focus on the Outcomes

Where regulatory functions such as inspection are mandated as a duty, it is understandable that many regulators have strayed into counting their own activities as results rather than the more challenging task of measuring the outcomes of what they do. The RTR approach recognises this with a principle focussing on measuring regulator impact through outcomes rather than taking as the measure how many inspections or registrations or Fitness to Practice Hearings logged in any year.

Five: Use Regulation Only When Necessary

Not every problem requires new regulation. In the case of professional regulation, enough control may be possible by accreditation of an existing institution together with regulatory oversight.
In addition, many institutions are subject to other regulators, posing the problem of duplication of inspections and other requirements. Regulatory cooperation can remove such inefficiencies.
An organisation may have a quality management system in place that gives assurance of achieving regulatory standards monitored by a third party such as ISO.

Six: Keep it Simple

Simplicity promotes shared understanding and aims. Often regulatory tools are badly designed and overly complex (Walshe and Phipps 2013). Neither those regulated nor regulators themselves can understand what is required. Striving for simplicity, clarity and accessibility is key.

Seven: Check for Unintended Consequences

There are three kinds of unintended consequences:
· There are unexpected benefits
· Unexpected draw backs and,
· Some consequences simply make things worse
For example, legislation requiring front passenger airbags caused serious injury to pregnant women (Wallis and Greaves 2002). The VW diesel emissions scandal was partly the result of an emissions testing requirement that failed to keep up with advances in car engine digital technology (Coglianese 2015).

Eight: Review and Respond to Change

Anticipated and unanticipated consequences change over time therefore review is necessary. Values and technical knowledge change as do responses to regulatory oversight. Will the problems of today always require regulation? Is there change on the horizon which may require a response?

A System-based View of a Regulatory Sector

The Right Touch Regulation viewpoint is that the regulator is only one part, but an essential part, of the total system. Quality of outcome comes from a range of decisions made by:

  • Consumers or customers
  • Professionals and their training/continuous development
  • Goods and services providers and their quality and governance arrangements
  • Commissioners
  • Other bodies
  • Legislation

Outcome quality is the result of collaboration between all parts of a sector and shared responsibility. RTR brings a willingness to work with those regulated as partners to promote responsibility and improvement.

What Does it Add to What We Already Know?

Proponents of RTR recognise that the perspective has multiple sources. There is a close relationship between RTR and the problem-solving work of Malcolm Sparrow (Sparrow 2000; Sparrow 2008). As with Sparrows work, RTR is engaged with change: problem solving is a means of prescribing and analysing change. So too there are links with Responsive Regulation (Ayres and Braithwaite 1992) and Smart Regulation (Gunningham et al. 1998) (see our Best Books on Regulation page). It is apparent that RTR is derivative. However, its attractiveness is:

  • Coherence – the whole package makes sense
  • Simplicity – it is easily understood
  • It is flexible and agile.

Right Touch Regulation is a Strategic Management Tool

There is a strategic gap in current regulatory management. The right touch principles fill the gap because they are strategic – they give form to and support the aims of the regulatory body in contrast to the government guidance on regulatory management – Better Regulation.

How is Better Regulation Not Strategic?

Better Regulation refers to a set of principles developed by the EU, OECD and UK amongst others. The principles are:

  • Proportionality – the punishment fits the crime
  • Accountability – taking ownership for events and consequences
  • Consistency – the same principles apply to all
  • Transparency – no hidden surprises or traps
  • Targeting – not using a scattergun approach.

At its heart Better Regulation is concerned with the impact of regulation on business – that is, that regulation should not be a burden on business in terms of cost, innovation, or opportunity. But is there a conflict between regulators thinking strategically and the aim of Better Regulation?
Arguably, Better Regulation is designed to manage the relationship of regulators to regulated businesses; for this reason, it is more accurately a form of relational management rather than strategic management – it is a set of principles regulating relationships between regulators and business. In contrast, strategic management identifies the high-level goals of the organisation (What is the regulator there for?) and the challenges faced through change and new risks. RTR is a risk-based approach building on process improvement, performance evaluation and monitoring sector outcomes.

Conclusion

Right Touch Regulation offers a coherent, strategic approach that adds significantly to existing regulation management perspectives.
RTR is not a product of academic activity, although it draws upon many academic contributions. Neither is it UK government guidance. RTR is that rarity – a perspective/policy on regulation generated by the regulatory industry itself rather than consultants or academics. Thus far RTR has received little academic attention. Where regulators have created their own solutions to specific problems there should be support and analysis of such developments.

References

Ayres, I. and Braithwaite, J. 1992. Responsive Regulation: Transcending the Deregulation Debate. New York: Oxford University Press.
Better Regulation Executive 2009. Code of Practice on Guidance in Regulation. London: Department for Business, Innovation and Skills.
Cairney, P. 2018. Three habits of successful policy entrepreneurs. Policy & Politics 46(2), pp. 199–215.
Cayton, H. and Webb, K. 2014. The benefits of a ‘right-touch’ approach to health care regulation. Journal of Health Services Research & Policy 19(4), pp. 198–199. doi: 10.1177/1355819614546031.
Coglianese, C. 2015. What Volkswagen Reveals about the Limits of Performance-Based Regulation. REGBLOG
Gunningham, N. et al. 1998. Smart Regulation: Designing Environmental Policy. Oxford: Oxford University Press.
Kingdon, J.W. 2010. Agendas, Alternatives, and Public Policies, Update Edition, with an Epilogue on Health Care. 2 edition. Boston: Pearson.
Professional Standards Authority 2015. Right Touch Regulation,(www.professionalstandards.org.uk)
Professional Standards Authority 2018. Right Touch Regulation in Practice – International Perspectives. London: PSA.
Sparrow, M.K. 2000. The Regulatory Craft: Controlling Risks, Solving Problems, and Managing Compliance. Washington, D.C.: Brookings Institution Press.
Sparrow, M.K. 2008. The Character Of Harms: Operational Challenges in Control. Cambridge: Cambridge University Press.
Wallis, L.A. and Greaves, I. 2002. Injuries associated with airbag deployment. Emergency Medicine Journal 19(6), pp. 490–493. Available at: https://emj.bmj.com/content/19/6/490 [Accessed: 23 January 2020].
Walshe, K. and Phipps, D. 2013. Developing a Strategic Framework to Guide the Care Quality Commission’s Programme of Evaluation. London: CQC.