Regulating in a disruptive world – what next?

  • 2 June 2021
  • General
  • Louise Sanger

In April, the Economist hosted a webinar Make or break: Regulating in a disruptive world with an expert panel tackling questions like “Are today’s regulatory methods fit for purpose? What needs to change, and how?”. This prompted me to also ask my fellow FST Foundation Future Leaders a big question – “What next?”, which led to a rich discussion.  

It got us thinking about how each of us are affected by regulatory systems in our everyday lives – often without even thinking about it! There are a multitude of hard and soft regulations that help to keep us safe, but to many people the subject itself can seem tedious. The Professional Standards Authority blogged that; “When we hear the word ‘regulation’ we probably think it is something removed from our daily lives. Or we may think of it as something which stops us from doing something we want to do. It conjures up associations with ‘red tape’, but where would we be without it?”.

Regulation has shown its value over many years as one of the tools used by governments to manage risks to critical infrastructures and to protect people from harm. However, many regulatory methods were designed for situations and hazards that can be very different from those faced currently and from those risks that may be faced by a global society in the future. 

Society is changing too. People’s views about the world around them, informed in part by powerful social media, have become more polarised. This adds to increasingly complex relationships between society, science and technology. What are the potential implications for regulation of disruptive trends like these? How do we get people interested in contributing to find effective solutions?

More people are likely to engage in policy debate and feed into regulatory developments if we get them thinking about how they are directly affected by the issues. What protects them and their families from harm? To help encourage new thinking in the space, appropriate language needs to be used and feedback gathered. There are existing mechanisms in place for public participation, such as the current review of the Regulation of Health and Social Care Professionals, which highlights that with nine regulatory bodies in this space alone, “the UK legal framework is fragmented, inconsistent, and poorly understood.” Different regulators have different powers and change can be a slow and laborious process. 

For global industries, like the maritime sector, this is exacerbated further. The Four Pillars of Maritime Law play an important role in the levels of safety and environmental protection across the shipping industry today. MIS marine note that: “These standards would not be possible without a mutual, global effort to uphold the Conventions and drive further improvements”, however there is still much to be done. The level of information and amendments that regulators, operators and crew members face can be onerous. With 174 Member States of the International Maritime Organisation (IMO), ratification of any changes often takes several years. With the immediate threat of climate change, alongside fourth industrial revolution technologies moving at pace, speed and flexibility in decision and policy making are crucial. 

Insight and data are vital to support suitable, safe and timely regulatory transitions and to encourage investment in new technologies. Most new technology comes with tremendous uncertainty and we are having to regulate things we do not yet fully understand. This means that traditional regulation setting from a place of experience is no longer possible and creating new approaches to achieve regulatory intent are required. How can we do this effectively without over-regulating and stifling innovation?

The subject of regulation in a disruptive world can seem overwhelming, but a key aspect highlighted by Dr Richard Judge, author of the Lloyd’s Register Foundation’s Foresight Review of the future of regulatory systems: regulating in a disruptive world, is to remember that much regulatory activity already works well. There is a great deal to build on. We can learn from successful regulatory intervention at local, national and international levels and implement these as a model. 

Ensuring a diverse input of ideas and perspectives is also key. There are already good networks and examples. Regulators like the Human Fertilisation & Embryology Authority (HFEA), the first statutory body of its type in the world, took a diverse range of ethics into consideration and communicated effectively with stakeholders clearly from the start. Other organisations in the UK and globally provide an opportunity to contribute to policy consultations by gathering impartial advice and expertise together in one place - like the Royal Academy of Engineering (RAEng)

There are many considerations that we don’t have space to cover fully here. Local or international contexts can have a huge impact on the successful application of different legislative approaches. Where do regulations apply? Who created them and based on what evidence? Who will enforce them? Do existing regulations need to be future proofed for a cross-border digital age? How can this be achieved quickly enough and with transparency? Who will people trust to make these decisions? Who should regulate the regulators?

This list goes on - is regulation the most appropriate solution? What other policies might work in different scenarios - such as multi-stakeholder agreements? Where are the gaps? What regulatory systems do not yet exist and will need to? Can existing governance systems be enhanced and supported or will new structures need to be designed? The Conversation explores this further in its article navigating the new digital era.

The recent Foresight Review also recommends some next steps - establishing a trusted, open source, knowledge repository; developing deliberative mechanisms to share different perspectives; and maintaining a compendium of regulatory tools with insights about future regulatory contexts. Often to solve complex issues we need to start by clearly defining what it is we are setting out to achieve. This requires diverse voices to not only describe the desired outcome but also to co-create the solution. By involving the people affected by the regulation in the development of policies, we can help to inform the best regulatory approaches.

We must also bear in mind that transformations and transitions have happened before. What can we learn from the process of making previous regulatory and policy changes to support the new? How can we utilise the lessons of previous regulatory practice to better understand their successes, or failures, over time and in different settings? In his article Nathan Cortez of the Dedman School of Law, looks back at lessons learned from the Food and Drug Administration’s approach to a disruptive technology (computerized medical devices) taken 25 years ago in the United States. He highlights that: ‘Regulatory inertia can be hard to break without an external shock, usually a tragedy or some other failure that reignites interest in regulation’. 

Martin Stanley, Editor of the Understanding Governments Websites explores serious systemic regulatory failures such as the Deepwater Horizon oil spill, the Financial Crisis and Grenfell Tower fire. These incidents raise important questions: Why did the existing regulations fail to keep people safe and why do we so often fail to learn from previous disasters?

What next?

Lloyd’s Register Foundation would like to hear from organisations that are keen to be involved in taking the Foresight Review recommendations forward. If you are thinking “What next?” please do get in touch.

Image by Lennart Demes from Pixabay.

One of the FST’s 2021 Foundation Future Leaders cohort, Louise Sanger works for the Lloyds’ Register Foundation, an independent global charity that supports research, innovation and education to make the world a safer place. She is developing a Hindsight perspectives programme to provide historical insights to support contemporary safety challenges, deepen understanding of issues and provoke creative solutions.