The Regulatory System – Why Is It Failing?

David Rubens, Managing Director of David Rubens Associates
David Rubens, Managing Director of David Rubens Associates

In David Rubens third exclusive article for he shares his opinion on the regulatory system in the contemporary world. David writes;

If the proverbial Martian was to land in London today, as part of their gap year ‘Interplanetary cultural studies’ programme, the report that they would send back at the end of their stay would undoubtedly comment on that fact that, at least to an educated observer, it seems that London, the UK, and much of the outside world is ruled on the basis of two basic principles: The first is The Golden Rule, namely, whoever has the gold, makes the rules, and the second is that in every area of public activity that has major impact on the lives of the vast numbers of citizens, whether it is global finacial matters, domestic banking, political management, MP’s expenses, press oversight, power safety or border controls, despite the fact that all of these actors are supposedly working within tightly-legislated and managed regulatory frameworks, they are in fact working to the law of the jungle, where those that are supposed to be ruled by the rules are free to make up new rules if they don’t like the present ones, and to ignore even those if they decide that it is in their interest to do so.

The outstanding fact about many of the major headline stories of the past months – Fukushima meltdown, press intrusion and police complicity, the original collapse of HSBC, the trading of vulnerable girls in care for sex, Barclays and LIBOR, the recent HSBC money laundering accusations, has been that all of these organisations were engaged in activities that should have had alarm bells ringing in every regulatory office in the land – and yet not only were they left to carry on their ultimately destructive – and self-destructive – activities, but it subsequently became clear that it was done with a high level of collusion, if not outright manipulation, between the regulators themselves and those that they were tasked with overseeing.

It has become common practice to state that we are living in what has increasingly become a ‘Regulatory State’, with every aspect of our lives now governed by rules and regulations that are often backed up with the threat of punitive action, whether it is failing to leave the household rubbish in the correct bag or in the correct position on the pavement, the need for tens of thousands of community-based volunteers to go through Criminal Record Checks, or the ability of increasing numbers of otherwise unauthorised people to claim access to both our private data and, in many cases, our homes and property. And yet when the self-interested and clearly irresponsible, if not actually illegal, actions of highpowered individuals lead to a melt-down in the institutions that underpin every aspect of our social fabric and daily life, it seems that they can merely walk away – often with multi-million pound pay-offs – and there is nothing that anyone can do to even question them about their activities, never mind punish them for their transgressions.

We have become use to the sight of senior politicians, who are ultimately responsible for creating the regulatory frameworks that are supposedly responsible for preventing these failures, standing up in Parliament or at public enquiries to decry the clearly irresponsible behaviour that has led to the problems, to promise an enquiry as to how it happened, and to introduce new regulations and frameworks that will prevent any such occurence happening in the future. And yet, if regulation is failing, then merely putting up more regulation is not likely to be the solution. In many cases, the activities that have led to the need for the enquiry are manifestly undesirable, almost certainly unethical, and quite often actually illegal. The question is not what more needs to be done to increase regulation, but why are the systems that are already in place, and which have often been through mutliple rounds of review and improvement, are clealry not fulfilling the single function for which they were developed, namely the protection of the public and wider society from the self-interested actions of those that put their own benefit ahead of the need to observe the rules and regulations within which they are supposed to be operating.

For our visiting Martian, there would be one other factor that would undoubtedly be highlighted in their report, with a brief, and probably perplexed, background essay on the strange habits of alien cultures. And that is, that in the midst of nuclear disasters, financial meltdowns, global recession and growing social disruption, with the complexity of global institutions reaching such a levels of inter-dependence that it is literally impossible to calculate the impact and implications of any one specific failure of the wider local, national and global network (as in, for example, the tsunami in Japan triggering a breakdown in global supply-chain management of car manufacturing components, leading to the closures of factories across north-east England), even in this highly unstable global environment, where the risks of disaster are ever present and the impact of systems failures are both catastrophic and irreversible, both the sector leaders and the political leadership in general are calling not for greater and more closely managed oversight, but for actual deregulation, claiming that the need to adhere to instructionist government diktat’s is the one thing that is preventing the growth and prosperity that would be of general benefit to us all.

Another notable aspect of the government response to recent issues, is the realisation that in many cases the behaviour that seems to us both demonstrably wrong and morally abhorrent is actually separate from any punitive framework that would allow those in power to bring the perpertrators to a court of law, charge and prosecute them as they would any orther person who acted against the laws of the country, In fact, when it comes to the ordinary citizen, it has seemingly become accepted in legal circles that punishment can be used pour ecourager les autres, as we have seen in the 2011 London riots, when youths who had been caught up in a momentary act of madness and had taken a pair of running shoes or a single bottle of water from a shop, were sentenced to months in prison and received a formal criminal record that would affect their abilities to go to university, to gain good jobs, and would certainly affect their right to travel freely to the United States. However, when it comes to bankers fixing international inter-banking rates for their own advantage, Vince Cable, the Minister for Business and a man who has had many years experience in the international business world, was left publicly impotent to do anything more than plaintively claim that it was the duty of the corporate shareholders to oversee the actions of their executives, and that the shame of doing nothing would be enough to persuade global institutions to take the necessary steps to prevent these situations happening in the future.

Game Theory

In many ways, the reason that regulation should work, but doesn’t is that the regulators have fallen into a category error, and it is one that can be best described by a (brief) look at classical Game Theory. Game Theory is the way that one can test various strategies, usually with the aim of maximising personal benefit. The best known example is probably ‘The Prisoner’s Dilemma’, in which two prisoners are offered the opportunity to either deny the charge or give evidence against the other one. The dilemma comes about because the punishment they are given depends not only on their own actions, but on the decision of the other prisoner.

In both Prisoner A and Prisoner B stay silent, they both receive 1 month imprisonment. If both give up the other, they both receive three months imprisonment. But if one prisoner rats on the other, who in turn stays silent, then the prisoner who has given evidence goes free, and the prisoner who has been betrayed serves one year.

In classical Prisoner Dilemma game theory analysis, the recognised optimal strategy is to give evidence against the other person. Although it results in a heavier sentence than if both sides had cooperated in remaining silent, given that Prisoner A has no control over Prisoner B, and no way of knowing how Prisoner B is thinking or is likely to react, the risk is not one month (if both prisoners cooperated) against three months (if both prisoners gave up the other), but three months (again if both prisoners grass up the other) against one year (if Prisoner A does the decent thing and remains silent, but prisoner B betrays him in the hope of a lighter sentence). However, and this is what takes The Prisoners Dilemma beyond a dinner party game and into the realms of practical strategic value for regulators everywhere, the dynamics change if Prisoners A and B can change their strategy based on previous experience, that is, if the choices made by the prisoners are not based on a one-off encounter, but as part of an evolving relationship.

The iconic example of the power of game theory strategy in what is called the ‘Iterative Prisoner Dilemma’ (where it involves not a one-off situation, but a series of on-going choices) was demonstrated at an event organised in the late 1970’s by Robert Axelrod, an American political scientist and academic, when he invited computer game planners from across the world to put forward programmes that would compete against each other in on-going games of Prisoner’s Dilemma. Entries were received from academics across the world, with many going into thousands of lines of computer code, dependant on deep analysis of changing trends in the opponents decisions.

However, the most simple of all of the entries received, as well as the most successful, was a programme called ‘Tit for Tat’. which consisted entirely of four lines of code. The strategy was simple. Firstly cooperate. Then repeat what the other person did on their previous move. So if they cooperated, cooperate again. If they betrayed, then betray. This strategy rewards cooperation on part of the other party, but without leaving Prisoner B with the impression that in the long-term it is in his benefit to betray Prisoner A, who will suffer because of their inherent ‘niceness’ or trusting nature.

The Prisoners Dilemma as outined above can be seen in action in two variants within regulatory activities, and offers a clear insight into why those involved in regulation act as they do. The first relationship is that between the various people and organisations being regulated – banks, nuclear power stations, council departments, police agencies, journalists, etc, and the clear lessons from history are that even for those organisations that are theoretically in competition with each other, it is beneficial to both / all sides in the long run to use mutual cooperation in order to maximise their personal benefit. Whether it was Virgin and British Airways forming an illegal cartel to fix the price of fuel surcharges (a benefit to themselves which was paid for in increased prices for passengers); football shirt retailers (and Manchester United) being fined £16m for fixing the price of replica football shirts, or Barclays (and undoubtedly other banks) working together to fix the LIBOR rate, the reason why they do it is simple and unanswerable – it is in their benefit to do so.

The largest fine ever handed out by the European Commission (of over Euro 1.3 billion), was to four manufacturers of car glass who had fixed the market prices at an artificially high level. Although a basic understanding of economic theory would suggest that the artificially high margins between cost of production and final sale price would create an opportunity for any company that would cut its prices to gain greater market share, that would only hold true in a theoretically pure market where each competitor independently fixes the rate at which they are prepared to sell based on their own personal strategy. Once collusion is involved, it is always in the interests of supposed competitors to cooperate, given that the cost of such cooperation is passed on to the final consumer (and which in turns directly contributes to higher profits for the colluding partners).

However, when it comes down to the relationship between the regulators and those being regulated, then a completley different strategic dynamic comes into play. The ability of the regulated organisation to maximise personal benefit is then based on the ability to predict what the other side will do in response to the two options – cooperate (play nicely) or betray (screw the customer). Given that in almost all cases the regulatory body has less funds, personnel, resources and expertise than the organisation it is regulating, then it becomes clear that there is little to be gained in the long run by cooperating / playing nicely, and much to be gained by ignoring the regulator and developng a strategy that focusses purely on maximising its own personal benefit. This is not an issue of ‘right’ or ‘wrong’, but purely, in its own terms at least (maximisation of profit, increased market share, annual bonuses, career prospects), of whether it is ‘effective’ or ‘ineffective’.

It seems strange therefore when regulators and politicians claim that it is the reponsibility of the companies’ boards of directors to control the actions of the CEO and other operating officers, especially when it is precisely those action that have created profit and value in the company, and given that many of those CEO’s will have been appointed by those self-same directors purely on the basis of their ability to increase and improve profitability in the market that they are trading in.

In such situations, therefore, it is a failing strategy on behalf of the regulators to go into the game believing that the other side (the regulated organisation) is interested in creating a cooperative relationship. In fact, based purely on an understanding of simple game theory, the opening attitude of the regulators (and one that they would be well advised to repeat to themselves three times before they go into any subsequernt meeting), is the famous phrase ascribed to Jeremy Paxman on his attitude to politicians he was interviewing, ‘Why is this lying bastard lying to me?’.

David Rubens has been involved in UK security consultancy for twenty years. He holds an MSc in Security and Risk Management (Leicester University), and is a Visiting Lecturer and Dissertation Supervisor on their Security, Terrorism and Policing MSc programme. He was a Visiting Lecturer on the Strategic Leadership Programme at the Security and Resilience Department, Cranfield University, UK Defence Academy (2009-’10), focusing on terrorism & public policy and the management of large-scale, multi-agency operations.  He has written specialist reports for government agencies in Japan, Russia, Dubai, Nigeria, Liberia and the Caribbean, and is highly-regarded as a speaker on the international security circuit. He is currently on the Professional Doctorate programme at Portsmouth University Department of Criminology & Justice, where his research is concerned with the strategic management of security operations at the extremes of organisational complexity. He can be contacted at /

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