Too Many Rules – Not enough Guilt

Every few weeks, it seems, there are cries that individuals in one field or another are behaving badly and that the area needs to be regulated, with guidelines, a code of conduct, a complaints system, qualifications, a disciplinary structure and a Regulator. People in the field will be required to tick boxes vigorously, send out lots of (pretty incomprehensible) information to their clients/customers and a bit later some academic, or a committee will be asked to report on how things have changed. And often enough, they have changed, but aren’t really any better.

Why does this happen? The intention was to root out a few bad apples, shine light into some dark corners, and improve transparency, yet it sometimes seems to have the opposite effect. Why?

The answer came to me the other day when I was watching the excellent and amusing programme When Bankers were Good by Ian Hislop on BBC2 .  He was explaining that in Victorian times, and indeed until quite recently, banking and stockbroking was largely unregulated by the law. There were some complete sharks and con-men, but most people behaved well, and those who didn’t were known, and heavily disapproved of by the others. Reputations mattered enormously, because that was all you had to go on.  People couldn’t rely on certification by some quango, and so had to make their own judgements, based on reputation, and the opinions of others in the field.  If you didn’t know somebody and they couldn’t put forward somebody who you did know to speak for them then you dealt with caution, if at all.

The system was underwritten by a strong sense of a shared morality, and an ethos of truthfulness, hard work and being bound by your word. You behaved like gentlemen, or else. The fact that the number of participants was comparatively small, and they often had been to the same schools or universities, meant that reputations were generally well-known, and that bad conduct would normally get back to those dealing with you pretty rapidly. If you lost your “name” then that was basically it, and you would probably have to go to the colonies, because you would get little further business here.

I began to think – is the problem that we now have too many rules, rather than not enough? Do extra layers of regulation actually do any good?

When I was in training there were no regulators for the professions, and indeed the idea would have been regarded as incomprehensible. The whole idea of being a profession was that you regulated yourself. The Law Society, the Institution of Chartered Accountants, the Bar Council, the various medical organisations, the surveyors and so on all had their own rules and enforced their own discipline among their own members. They decided who could be a member, and who couldn’t, and how members should behave, up to a point. Beyond that it remained the province of reputation.

If you were dealing with another professional you knew that a certain minimum standard of behaviour was a given. You would not be lied to, agreements were generally adhered to, and the client’s interests were predominant. A breach of any of this would result in serious displeasure from the senior members of the firm involved, because their reputations would be tarnished by the shortcomings of their staff. Threats to complain to the profession were generally unnecessary. Reputation and shared morality were too important to risk.

But you knew that you were on your own beyond there. You could expect a basic level of competence, but it was pretty basic. It was an important part of your skill to build up a list of suitable experts and contacts who you could rely on. And a list of those to avoid. You got to know the opponents you could trust and those who fought their corners only just on the right side of the rules. You learned the horses for the courses, and the wolves in sheep’s clothing. It was a matter of judgement, and as time went on it became one of the most valuable parts of you, what made you a professional.

Nowadays of course every profession or quasi-profession is regulated up to the eyebrows. An amazing number of things are prescribed, or prohibited. And you can’t be an expert unless you have been on the training course, passed the exam, got on the list and kept your CPD points up to date. You have to tick all the boxes. But has it actually made things any better?

Now I’m not saying that checklists are, in themselves, a bad thing. They are an excellent way of reminding the forgetful or harassed of the things they need in order to achieve the desired result. And they mean that people without the education or experience to work out the requirements for themselves can be allowed to handle something in a manner that will produce the intended result on the majority of occasions. But somebody has always got to be allowed to apply brain to the final answer. No check list is perfect. And it is the result that has to be correct, not just the procedure. Correct procedure makes the result more likely, but not certain. Look both ways before crossing the road, except in one-way streets. But what if somebody is coming the wrong way?

The danger, as I see it, is that people no longer feel responsible for what they do. I taught my children not to lie and steal, not to just avoid being caught. A professional ought to know what the right thing to do is, and expect to be held accountable if they don’t do it. If you over-regulate things then this feeling is lost. I expect, and deserve,  to be hauled over the coals if I mislead my client over their chances in a forthcoming case. But if I am disciplined for failing to ensure that the clients is sent an evaluation of risks every x months, contrary to rule abc I just feel irritated. I don’t feel guilty.

Now the old days were far from perfect. Unsophisticated lay clients could have a very hard time if they fell among thieves. And the enormous increase in the numbers in all professions, coupled with the loss of local and increase in national or internet businesses,  means that it is much harder for reputations to spread in the way they one did. So we can’t go back.

But we, and our regulators, always ought to bear this in mind.  If you have too many rules, and too much regulation, then we don’t feel guilty if we fail. And we should.

Author: Coventry Man

A perspective from a litigation lawyer in the Midlands. After many years in Coventry I am now with David Lee Solicitors in Kenilworth, helping people with all sorts of litigation, especially property and landlord & tenant problems. I am now semi-retired, so for advice go to my successor Kax Chana 01926 852188.

4 thoughts on “Too Many Rules – Not enough Guilt”

  1. Thoughtful piece. I agree with most of what you say, although your point about most professionals having gone to the same school underlines why there has to be some regulation. I don’t know about the law but I do know the health sector. Clinicians will back each other up constantly, not because they are right or wrong, but because they are all in the same ‘club’.

    Researching the book I’m writing about, ‘How to Age Magnificently’, I’ve come across people in their 70s and 80s in terrible debt because they retain that olde world view of the banker that you write about. They trusted the bank when it offered them a loan or an extra credit card in the 1980s. Now they are in trouble and the bank is unsympathetic.

    What you write, in my opinion, is a reflection of how culture has changed. The culture of honour, acting with integrity, being responsible not just for oneself but towards the wider community has been eroded and replaced; largely by a corporate blame approach that disregards the effect it may have on individuals.

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