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10:39

Regulatory capture

Today’s newspapers report that the cladding on the Grenfell Tower, which appears to have been a major factor in the dreadful loss of life there, was banned in Germany and permitted in America only for low-rise buildings. It would have cost only £2 more per square meter to use fire-resistant cladding instead.

The tactical way of looking at this is whether the landlords or the builders were negligent, or even guilty of manslaughter, for taking such a risk in order to save £5000 on an £8m renovation job. The strategic approach is to ask why British regulators are so easily bullied by the industries they are supposed to police. There is a whole literature on regulatory capture but Britain seems particularly prone to it.

Regular readers of this blog will recall many cases of British regulators providing the appearance of safety, privacy and security rather than the reality. The Information Commissioner is supposed to regulate privacy but backs away from confronting powerful interests such as the tabloid press or the Department of Health. The Financial Ombudsman Service is supposed to protect customers but mostly sides with the banks instead; the new Payment Systems Regulator seems no better. The MHRA is supposed to regulate the safety of medical devices, yet resists doing anything about infusion pumps, which kill as many people as cars do.

Attempts to fix individual regulators are frustrated by lobbyists, or even by fear of lobbyists. For example, my colleague Harold Thimbleby has done great work on documenting the hazards of infusion pumps; yet when he applied to be a non-executive director of the MHRA he was not even shortlisted. I asked a civil servant who was once responsible for recommending such appointments to the Secretary of State why ministers never seemed to appoint people like Harold who might make a real difference. He replied wearily that ministers would never dream of that as “the drug companies would make too much of a fuss”.

In the wake of this tragedy there are both tactical and strategic questions of blame. Tactically, who decided that it was OK to use flammable cladding on high-rise buildings, when other countries came to a different conclusion? Should organisations be fined, should people be fired, and should anyone go to prison? That’s now a matter for the public inquiry, the police and the courts.

Strategically, why is British regulators so cosy with the industries they regulate, and what can be done about that? My starting point is that the appointment of regulators should no longer be in the gift of ministers. I propose that regulatory appointments be moved from the Cabinet Office to an independent commission, like the Judicial Appointments Commission, but with a statutory duty to hire the people most likely to challenge groupthink and keep the regulator effective. That is a political matter – a matter for all of us.

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