It is a truth universally acknowledged that a regulator in possession of a dodgy report must be in want of a cover-up.
–Attr: Austen, Miss J.
Yesterday on Newsnight, the Chief Stoat was worrying another victim, on this occasion the Chief Pongo for the time being at Can’t Quite Cope, the body charged for the time being with keeping an eye on the quality of health and social care in England. The story is that CQC had given a certain NHS Trust a green light when it should have flashed a red. On finding the error, senior staff at CQC ordered all lights off, all shredders on, and folk who should have known better started wall-papering their arses. But wall-paper is no match for the brown stuff. As the skid marks appeared, the CQC leadership panicked, turned to its lawyers, and received the extraordinary advice to hide behind the Data Protection Act. It was the absurdity of this advice, not to mention that it was followed, that caused Paxo’s eyes to enlarge in visible increments. Mr Behan, the Chief Pongo for the time being at CQC, responded for the time being by talking up his leadership, but the vigour his assertion was compromised by the fact he spent most of the interview looking like a goldfish about to lead the escape from a wet paper bag.
It has of course since emerged that those found to have wall-paper on their back-sides are alleged to include, inter alia, the former CQC chief executive Cynthia Bower, her deputy Jill Finney and media manager Anna Jefferson. It remains to be seen whether they will be entered for another round of musical managers’ chairs, or whether the spotlight of transparency will be indeed be used to burn a hole in the alleged mischief. It is said that Health Secretary Mr Hunt is very exercised in his anger; and we must all hope, for the keeping of the peace, that he does not allow the strength of his anger to affect the colour of his language. But, be that as it may, Dr No wishes to take not one but two steps back, and ask: how did we get into this gold-fish bowl world of external regulators, where nothing is as it seems, and the custodes, far from being the guardians of good care, are themselves found to be swimming in a cess-pool, a murky pool in which the swimmers’ first instincts are not to come up for light and air, but to dive deeper into darkness and legal obfuscation?
Today’s bungled system of regulation has its roots, Dr No believes, in the modern but mistaken notion that the only effective regulation is external regulation. On the face of it, external regulation is a no-brainer that even seems to have glorious and classical roots: quis custodiet ipsos custodes? But, like most no-brainers, it is perhaps better suited to easy assimilation by those who are indeed themselves no-brainers. Even quis custodiet is not the root of support that it might at first appear to be, for it is not an answer but a question. It does not tell us who the custodians should be, it asks who they should be; and nothing about the question gives any clue as to where the answer lies. An internal, that is to say self-regulatory, answer is just as valid an answer as one that says regulation has to be external.
The first sound argument against external regulation is that, on both past and present form, it simply doesn’t work in practice. Even a cursory glance at the two sectors arguably most in need of some form of regulation – healthcare and finance – shows not the smooth operation of efficient regulation, but a world of mugs and shredders, of covered arses and cover-ups. The consequences of these failures are a regulatory arms race – constant calls for bigger, better regulators, each with more clout than the last, in the fond hope that arming the CQC/uber-CQC/ultra-CQC with bigger, better warheads will somehow ensure efficient regulation. Dr No, however, suggests the opposite: as the stakes go up, the mugs will get muggier, the shredders hotter, the dorsal wall-papering ever more desperate, and the bangs when they come ever louder.
The second argument against external regulation is more theoretical, and is that external regulation is by it’s nature adversarial – it’s ‘us and them’ – and that any such arrangements, far from encouraging good behaviour, actually have a counter effect. The gold-fish bowl, inside-outside, us and them nature of external regulation encourages defensiveness, strain and secrecy, not just on the part of the watched, but on the part of the watcher – for what has the CQC’s recent behaviour been, if not defensive, strained and secret?
The third argument is the most ephemeral, but it is perhaps to Dr No the most persuasive. Let us imagine we wish to promote good citizenship, and reduce crime. At one end of the scale, we can pass more laws, beef up the police, and strengthen the judicial system – in short, take a external regulatory approach – one that we might call the Martian approach. The other approach, at the other end of the scale, we might call the Venusian approach: one in which we foster within citizens a sense of civic duty, cooperation and openness – in effect, an internal regulator. Dr No is quite sure neither on their own would succeed, but he is equally sure that the regulatory trend in healthcare towards more Martian approaches promises more war, when in fact what we really need is more Venusian: more jaw.