When CSW asks long-serving civil servants about the biggest changes they’ve seen across their careers, two themes often crop up. Technological change – from typing pools to a never-ending stream of emails – and the increasing focus on professional skills across government.
Neither of these advances have been straightforward or uniform in the progress they bring. Government has struggled to keep up with both the potential offered and harms threatened by technology and, while it has done much to improve certain skills across the civil service, there are still areas which would benefit from more professionalisation. One such area – according to a recent government white paper – is regulation.
In May, the Smarter Regulation white paper set out 23 reforms aimed at improving how regulation works in the UK, including a commitment to launch “a task and finish group with regulators and industry experts, to design and implement a ‘regulator profession’”. This profession would, in common with others, “concentrate on developing the core skills and capabilities that are central to working in and across regulatory bodies”.
There are some 120 regulatory bodies in the UK – ranging from household names like Ofsted, with over 1,200 employees, to the less well-known Phone-paid Services Authority, which has under 100 members of staff. Each has a unique remit and, often, a dramatic origin story.
“Most regulators in the UK have been set up in the last 30 years in response to scandals,” explains Marcial Boo, chair of the Institute of Regulation and former chief executive of one such scandal-born regulator, the Independent Parliamentary Standards Authority.
Boo, who until January was boss of another high-profile regulator, the Equality and Human Rights Commission, set up the IoR in 2021 because he, too, sees the benefits of professionalising and building capability across the regulatory sector.
“You’re exposed as a regulator in a way that you’re not in a government department. I had two death threats when I was at EHRC, and social media abuse at IPSA when I increased MPs’ pay”
“Lots of regulators know their own sectors very well, but they can sometimes understand regulation less,” he says. There are “common skills, common cultures” across the sector, such as “how to balance conflicting needs, how to look at a system as a whole, how to work with ministers, how to report to parliament, how to defend decisions”.
So, with others, he established the IoR to act as a professional body for regulators and help strengthen these common skills and cultures. Around a third of UK regulators are now paid-up members of the IoR, which offers training, events, a podcast and “a space for regulators to talk to each other about issues that they care about”.
Running through the list of skills, it’s clear that regulators also share many of the attributes expected of civil servants. Both roles often require an understanding of the law and politics as well as general management skills like working in teams, managing money, and what Boo calls “presentational aspects – especially at senior level, politics is always there”.
But while both professions focus on evidence-based decisions, the key difference is who makes those decisions. In a government department, famously, advisers advise and ministers decide; whereas a regulatory body has usually been set up specifically to remove decisions from a minister. This means it’s the senior team – chief executive, chair and non-execs – who decide not only whether rules have been followed by those in their sector but usually how to make that judgement in the first place, and what sanctions if any to apply.
“In the civil service, the advice that’s given to ministers is more protected from disclosure; you are more exposed in a regulatory environment, and you do have to personally defend your decisions,” Boo says. “That increases the pressure. Your name is in the public domain in a way that is not if you’re a DG, so you do need to be really rigorous. You have to be more resilient. There are extremely demanding jobs in the civil service, but you’re exposed in a regulatory world in a way that you’re not in a government department. I had two death threats when I was at EHRC; I had social media abuse at IPSA when I increased MPs’ pay – a decision no politician wants to take. You do need to be thick-skinned, because you’re a referee. And people tend not to like referees.”
Given the similarities between civil service and regulatory roles, it’s not surprising that many people move between the two professions. Boo himself started his career as a civil servant, moving into the Audit Commission as part of a mid-2000s drive for civil servants to gain experience of local delivery. There he found he enjoyed working on complex, challenging policy issues, but “just a step removed from the pure political world that it is necessary to live in as a civil servant”.
Despite the crossovers, CSW often hears complaints from regulators that those in government don’t understand what their job involves. What common misunderstandings does Boo encounter? One, he says, is that civil servants sometimes think regulation is “just secondary legislation”, confusing it with regulations often laid before parliament to set out details of new legislation once an act has been passed.
“My understanding of regulation… is of a range of tools used to ensure compliance, fairness, protections where protections are needed, and freedom where protections are not needed. So it’s not just about a set of things that are set out in law, it’s about a range of tools to ensure you get the outcome that you want,” he says.
Another common misunderstanding is when “civil servants think regulators are delivery organisations”.
“Obviously regulators support the delivery of government objectives,” he clarifies. But he adds that “it isn’t always straightforward to implement a ministerial directive as a regulator”.
He points to the Growth Duty, which requires regulators to “have regard to economic growth” when making decisions, or directives to promote sustainability.
“Those are great objectives,” he says, before pointing out that regulators also need to consider how these factors fit with their core purpose. “It would be good if civil servants could understand that regulation isn’t just about delivery, it’s about managing systems. That is partly about achieving government objectives, but partly about making sure that there’s a fair, level playing field for companies to compete on, or for the provision of public services, or to give assurance to the public in a specific area.”
A regulator’s toolbox
Through the IoR, Boo is keen to help regulators understand that they have a number of tools at their disposal. These range from legal action and fines, through stopping individuals from practising or firms from trading, to softer interventions such as publishing information in league tables or good practice guides.
Even the simple act of making a phone call can be a regulatory tool, he says, recalling a time at IPSA when an MP’s expense claim for the cost of a gazebo raised concerns among IPSA staff. One call to the parliamentarian was enough to clarify that the gazebo was indeed for parliamentary use – it kept him and his trestle table dry at constituency events on rainy days – and was therefore a legitimate expense, although the MP concerned decided not to claim for it in the end.
“That was a regulatory intervention in the sense that I was ensuring compliance with the rules. I needed a bit more information, so I just talked to the regulated person,” Boo says.
“And it’s important that regulators understand they’re not just constrained by what they happen to have set out on their statute. They can be more flexible and, if they find more efficient ways of ensuring compliance, they can reduce the burdens on business or on public services. It’s about giving people options to regulate better.”
Boo is advocating for a “more sophisticated understanding” of regulators’ roles, and says “honest, respectful conversations” are needed about how to balance these objectives.
“We all know that sometimes it’s helpful, politically, to say: ‘Something needs to be done and I’ve told the regulator to do it.’ That’s part of the political game. But then it becomes the responsibility of the regulator to take that instruction and to say to the sponsor team: the minister wants us to do X, Y, and Z. Let’s just work out, in practice, how we can do that, while also delivering our statutory obligations, and without any more money.”
He also notes that misunderstandings run both ways and regulators could do more to understand the world of policymaking. “Sometimes regulators are staffed by people who really understand the sector very well, but they haven’t got the civil service background, and it’s important that they understand the political environment as well,” he says.
Just as they share some skills, regulators and civil servants also share some similar challenges. Operating with increasingly constrained budgets for example, or the need to recruit and retain technical experts in a competitive marketplace. Then there’s the challenge of legislation – one which civil servants will likely understand even if they don’t face it in the same way that regulators do.
The challenge for regulators, Boo says, is that many of them are working under increasingly old – and dated – acts of parliament. “The vet regulator is working off legislation that is nearly 60 years old,” he notes. “The Civil Aviation Authority doesn’t have the legislative cover, as far as I understand, to regulate drones and pilotless aircraft. So, what do they do? If drones exist, you can’t pretend that they don’t; you’ve got to find a way to make them safe for everybody.”
To manage this, he says, regulators need to be very clear with civil servants in their sponsor teams about “the emerging gap between the statute and the social change that has happened since then, whether it be 10, 20 or 50 years ago.”
One option to close these gaps would be to change the legislation – whether with a totally new bill or an amendment to the existing one. “That’s really hard too, because changing some regulatory legislation is never going to be top of the political agenda, never ever,” Boo says.
“Obviously regulators support the delivery of government objectives… But it isn’t always straightforward to implement a ministerial directive as a regulator”
So regulators can be given cover to adapt to changing circumstances in other ways. He suggests “an explicit exchange of letters which gives [regulators] some assurance that if they are challenged on a particular issue, they haven’t gone out on a limb without any protection”.
Departmental officials can look to their regulators, he suggests, to understand just how big a challenge this is in their own policy area.
“Some sectors are moving really, really fast at the moment – because of AI, particularly, but other reasons too. Other sectors, a little bit less so, but all regulators will know where the legislative difficulties are, and also how they can exploit the modern tools of technology to do a better job. So there’s responsibility on regulators to raise their game, and there is also a need for the civil service to understand regulation in a more sophisticated way.”
He urges civil servants working on new or updated legislation for regulators to take this sophisticated approach. “It would be lovely to think that when legislative opportunities arise, regulators can be created in such a way as to give them some flexibility to adapt their regulatory approach as circumstances change.”
This means having “the confidence not to be too constraining, in the specifics [of the legislation]” he continues, so that regulators “have a really clear steer politically about the outcomes they need to achieve, but not so much constraint on the specifics to achieve that outcome, to allow for change”.
Watching over the watchdogs
In February, a House of Lords committee called for the creation of a parliamentary body similar to the NAO to “advise and support parliament and its committees in holding regulators to account”. Asked for his thoughts on this, Boo agrees that greater scrutiny should be part of the overall drive to help UK regulators “raise their game” but says it’s not obvious how that scrutiny should be performed. “Is that a parliamentary committee? Is that a team in the Cabinet Office? Is that a new body created to oversee regulators? There are pros and cons all ways.”
He adds that before an effective watchdog for regulators could be set up, we need to ask what good regulation looks like. “How do you know whether regulators are doing their job well? The people who are regulated will inevitably take issue with the regulator at some time, and similarly ministers won’t like a particular decision the regulator took. That’s not necessarily a reason, on its own, for criticising the regulator. But if we look outside the decisions, there are legitimate questions such as:
Can they improve efficiency? Can they improve their use of data? Are they consistent? Are they fair? Do they explain themselves? Are they transparent?
“These are questions I think all of us need to work through so that we can find ways to help regulators to improve,” he says.
Asked what drew him to the regulatory profession, and particularly working at the more political end of it, regulating MPs’ pay and equality, Boo says he “can’t say that [he] dreamed of being a regulator”. It’s perhaps an unsurprising statement even for someone who now champions them so strongly. “Most careers happen by accident,” he continues, but it was while working at the Audit Commission and then the NAO that he realised he enjoyed roles which “in different ways, cared about standards, consistency, fairness, applying the rules”.
This was in part because of his family’s experience of a society where rules weren’t clearly and fairly applied. “My family’s from Argentina and I used to visit them during a military dictatorship there,” he says. “When democracy was restored in 1982, it was a really beautiful thing – that’s not too strong a word.”
It’s easy, he suggests, to forget how “precious” the UK’s democracy is if you spend your working life absorbed in its nuts and bolts. “All of us who are involved in this world, we look at individual issues, and we complain about this or that because we see how the sausages are made, it all looks a bit grubby,” he says. “But stepping back and looking at what we’ve managed to achieve as a country: to have that peaceful transition of power [in July] and that, when people get fed up with one lot, they vote in another lot – that’s something that lots of people in the world don’t have. We ought to treasure it.”
As a regulator – and a champion of regulation – Boo values “applying rules that have been democratically set, making sure that they’re complied with, that people who don’t play by the rules are sanctioned in some way.”
As a new profession of regulators is developed, Boo will certainly be on hand to champion the common skills and cultures that keep this important but often misunderstood part of our democracy turning.