The Law And Regulation

The effects that adverse stress has upon us can be controlled, to a certain extent, by ourselves in the way we live our lives and resist the pressures that other people, and organisations, have on us. However, we live in a society that needs rules that we all should live by, in order to ensure that the majority of people are able to live in a way that the interactions between us are beneficial. I would expect these rules should ensure that the adverse stress is reduced as much as possible - but the vast web of law and regulation is now having a restrictive effect on the very law abiding people that it is supposed to protect. If we now peel back much of the minutely detailed laws and regulations that we have we would have a series of rules that would be a form of constitution by which we should all live that could be used by those professionals whose duty it is to ensure that society lives by this constitution.

In my career within HR we were always stating that all people are different and then many of my colleagues tried to ensure that a set of rules could be applied to everyone. This cannot be done as not only are we individually different in terms of our biological makeup, but as genetic groups we are different. These differences have implications for all sorts of people who interact with the human animal, and that includes all of us. For far too long our daily lives have been defined by sets of rules, and a rule book, than by our judgement, depending upon the situation and variables that are present at that time. We have lost our ability to make judgmental decisions and must have the crutch of a rulebook, or similar, to refer to. How often have you heard someone say "…but the rules say" or "…the computer says…" Very often the rules do not apply in a particular situation but need the judgement of an individual to solve the problem, and very often a decision is made to stick to the rules that is detrimental, and causes stress, to the person it is applied to and anxiety (yes it's that word again) to those who are to implement it. I will deal with the frustrations that I know are felt by professionals such as Doctors, Police, Teachers and others later on, but they are all in a position of trying to work, and make decisions, with a set of rules that generally are costing them a lot of anxiety to implement rather than applying problem solving to individual people, and situations.

If it is so easy then why has this sort of thing not been done before? - Quite simply because if you have a detailed set of rules you can measure against them. If you say that all carrots must be 13cm long you can throw away the ones that are too long, or too short. But here the most important thing is taste and how do you measure that when one person's nice sweet tasting carrot is too sweet for someone else? You have to rely on judgement.

When I was running graduate development schemes I was asked to measure one aspect of my performance by the number of interviews that I conducted. My senior manager was rather perturbed when I challenged this and said that measuring simply the number and not the quality of the interview, and subsequent result, was totally wrong. His response, in typical Civil Service fashion, was that we must be able to show an improvement - so I suppose I could have whisked staff through the door, and out of the next, with a quick shake of the hand and turned over some 60 interviews an hour - what an increase in performance, but to what effect? Again the reason for this is that for too long we have been looking to measure all aspects of human performance and behaviour as if we were some sort of mass-produced robotic toy.

As long as there is a general framework of a constitution within which to work for a particular field then the professionals can make their decisions around and within that. I attended an HR conference in 1999 for Personnel Managers In The UK Civil Service, when the then Head of the Civil Service Sir Richard Wilson outlined his vision for the Service under 'Modernising Government'. He gave an example in which he saw a Civil Servant making judgemental decisions, and he could foresee that an officer in a department in Edinburgh would perhaps make a different decision to that made in Bristol because of the differing local conditions. There was a sharp intake of breath amongst the delegates, and looks of disbelief. What! - a Civil Servant making a decision based upon judgement! I was almost applauding, but unfortunately changes such as those that Sir Richard was outlining were so unpalatable that many department heads had no intention of implementing many of the recommendations outlined. In particular he said in his speech "This in turn means expecting civil servants to develop more innovative approaches, to think outside the box, to manage risk in a more professional way and to be prepared to work across boundaries and in teams". This was a pretty tall order for the UK Civil Service and probably for our society as a whole. But we must overcome this fear of making decisions and being accused of being wrong.

In my own judgement we should dismantle many of the laws and rules that we have generated over the years. We have built a vast complex web of legislation that should be quickly unpicked. I say unpicked because it would be unrealistic to eliminate large chunks without causing other problems along the way as those professionals who need to become increasingly used to making the decisions become familiar with doing this work again. However, my biggest concern here would be our own Parliament's ability to be able to make these decisions in the context of our democratic system and, more importantly, the contribution played here by the Civil Service. As fans of the BBC TV series 'Yes Minister' will know it is the Civil Service that has a very effective process driven machine where the decisions are made by the rulebook and the process. To now turn this around and allow decisions to be made by individual officers will be a challenge, but a very necessary one, in the context of prising the system from constantly looking at all decisions being made objectively and accept that many can only be made subjectively. Increasingly decisions will need to be attributed to individuals and less and less on the system, or the rulebook. The Civil Service is a key player and it, along with all major institutions, will need to move from a culture of increasing risk elimination, to risk acceptance.

We have become such a risk averse society that it is now threatening our very survival and it shows in reports such as the one in 2002 that indicated that the UK workforce was the least committed within Europe. Probably due to the culture that we have of sticking blindly to rules whilst some of our European fellows see such things as mere guidelines and correctly choose to ignore them when they do not apply locally. All areas of life whether it is work, or leisure, should have elements of risk as this provides the added spice to our lives. Take that away and people merely become operators of a joyless system.

Having dealt with our attitude how can this be implemented? The steps are quite radical and simple, with most rules drawn up with the rule breakers in mind it should be noted that most new rules have little effect on rule breakers. They tend to affect the rule abiding to a far greater and restrictive extent. The rule breakers will continue to break them. The ultimate sanction is what happens if caught. Sadly this is again something that is shunned by most as rather unpalatable so they prefer to talk about the process and not the solution. An eminent Barrister once admitted that the UK law has nothing to do with Right and Wrong but only to do with the application, and interpretation, of the law itself. I was shocked, as probably most people would have been, but not surprised. If we had a shift to Right and Wrong that would help, but we already have rules that can still be used while many others could be eliminated. At the same time a shift from litigation to ensuring that individuals are responsible for their own actions and not simply blaming others. A key here would be to prevent solicitors advertising in 'ambulance chasing' cases.

Let's use the motoring fraternity as an example. We have an appetite for the issue of speeding and other motoring offences. We also have an industry that has grown up around these in terms of hardware and administration. Not only that, we also have the judiciary now looking at the law wording to see if an offence was committed or not?? However, if overnight we eliminated speeding as an offence, in itself this would trigger a long-term beneficial cultural change. Yes people will die, they always will, but it also means that when individuals learn to drive and learn to 'read' the road conditions they will be able to do so, and not be constantly having to look at a plethora of road signs, flashing cameras and other distracting things in order to drive in a correct and safe manner. If someone does persist in driving recklessly past a school at 'turn out' time then the police already have 'driving without due care and attention' and 'dangerous driving' in order to convict. They should be able to use their professional judgement in order to ensure that the person is charged. Also a Judge should be convicting on the basis of the offence being Right or Wrong and not based upon whether the officer was properly dressed when cautioning the individual, or other similar peripheral issues. I have discussed this with a number of police officers who confirm the general thinking but who, on present structure, say that they would be unable to use their judgement in such a situation and secure a successful conviction.

A change such as this would have the effect of ensuring that drivers became used to the risks involved and started to learn during their driving career rather than compare their 'mistakes' against an arbitrary rulebook. I believe that the driving standard would improve. An industry also created on such a worthless intent could be dismantled and lower stress levels. Also those who walk around roads would perhaps be more aware that they are dangerous places and should be treated with very great care. Also children should not treat roads as harmless playgrounds.

We must eliminate this striving for the perfect 100% solution as it does not exist, and as the human animal is inherently flawed, to strive for such a goal is fruitless. But we always spend an inordinate amount of time on the process, be that the law or other rules, rather than any ultimate sanction. This is probably because so many wish that all souls would be good and that to punish anyone is somehow rather dirty. This attitude must be turned around and punishment for those who genuinely do wrong must be carried out and it probably will hurt. However, any such person will have brought the result upon himself or herself and after the punishment they must accept that - they - have made a mistake and that something must now be learned from it for them to progress. Failure to do so means they will not progress at all and may suffer for the rest of their life. Again as a society we seem to have a problem with a person having to suffer for their misdemeanours; this must be overcome for the survival process. As a supporter of capital punishment as the ultimate sanction for relevant crimes I believe that this has to be used for the wider benefit of the human group and the scaling of punishments from here down for other crimes is essential. Prison, as the present ultimate form of punishment should be hard; it should involve physical work for the community and should have any form of leisure removed. Yes it should hurt - the rehabilitation work should commence when the individual has left the prison after the sentence has been served. We should also accept that to strive for these sorts of establishments being able to turn 100% of inmates away from crime is a fantasy. Life in the context of Nature is, and never will be, a fairy tale existence.

There are many other rules that end up being used as trap entanglements during a process. Local planning applications are an example where invariably officers are applying rules to a large area rather than using logical trained professional judgement in respect to a particular request. Invariably any appeal is with respect to those rules rather than the Right or Wrong logic of a particular situation.

I have spoken to a number of people in the health profession who also tell me that they do not have full professional responsibility to treat patients using their own professional judgement. Because of National Guidelines and Targets they, like the speeding motorist and speed numbers, have to keep looking at the ever-present treatment listing to ensure that they taking the appropriate action in accordance with the guidelines rather than be respected for their professional judgement. This causes some angst amongst them, as they are aware that their patients could be treated more effectively and efficiently using their own judgement than by rote.

Teachers are another group who are suffering from the implementation of rules and regulations and having their professional judgement questioned. Any sort of specific national standard at particular stages means that a teacher is forced to take groups of pupils through various stages at faster or slower rate than may be acceptable for that pupil purely to meet key stage targets rather than a daily, or probably, hourly assessment of the pupil. If these requirements were eliminated they would free the teacher to make their own judgement on a particular group. This will ultimately mean that a pupil may, or may not be, ready for a particular exam. Again in this profession the focus is on measuring the rate of pass (level lowered to ensure that as many as possible 'succeed and don't feel the pain of failing) or ensuring that x numbers are through key stage whatever. They also have looming over them the league table ethos that purports to take away the responsibility for the parent to make their own judgement on any particular school, for their own essentially individual child. Presently the parent is also able to 'blame' someone else for any potential mistake in their own judgement. Here they are also given choice, but this is also a word where the meaning implies all succeed in this fairy tale world but the reality is that some choices are good and others could be a grave mistake with consequence that we, as individuals, must cope with ourselves.

I have mentioned judgement a lot here and justifiably so as it is the responsibility of everyone to exercise judgement in everything that you do. Where training is needed to enable that judgement to be made then it should be provided. However, it is also the responsibility of every individual to exercise their own judgement in everyday life and take responsibility for those judgements. This is not difficult and will lead to proper empowerment of individuals, but we must take away most of the rules that prevent these judgement assessments being made without fear of making mistakes. Where mistakes are made we must make it more difficult for individuals to make large compensation claims, we must accept that mistakes will be made. We are human and as part of the animal kingdom we are prone to mistakes but we are also intelligent enough to learn from them, and as a result must accept that this is part of the learning process. For a very short while within the Civil Service department I was in I was tasked with helping promote a 'blame free' culture - when I pointed out that in order to do so we must promote - that in order to learn, we must accept that mistakes will be made. Also more importantly, when a mistake is made, punishment and retribution would not necessarily follow. Instead there would be merely a pause, a learning moment, and then we would proceed on our way. It was pointed out to me that all that was really wanted, was for me to appear to be addressing the issue and not to be actually doing it!

The litigation process should be curbed so that mistakes are accepted as accidents, and a necessary part of the learning process. To this end, any litigation must only be allowed to proceed where there is 'Intent'. Only in this situation should the door to further legal action be allowed. The cultural situation that allows the legal profession to peddle this sort of litigation should be outlawed itself.

Within our present culture we are so bound up with the rules that we are blind to how they are disadvantaging us in our scientific research, and our marketing, with respect to other countries that do not have the same cultural adherence to them. We can have meetings discussing meetings that do not actually do anything, and then the participants cry that they have no time for other things and become very stressed. We should accept that others are able to survive by perhaps telling us they are playing by the rules, while they are not. Perhaps we shouldn't get too upset about this. We should also look at our rules and decide what does not really work, and throw them out. Perhaps then, parliaments will be able to concentrate on major issues of major policy and not the minutia of everyday life. That will ensure a less stressful life for the parliamentary member's family, the parliamentary staff, and most importantly, the rest of us.

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Material Copyright © 2009 Alan Harmer.
Last Updated December 2010