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The Politics of Regulation, Pt. 3: Fear in the Ranks

Published in Governance by Mark Murphy on February 11, 2013

The empirical evidence suggests that, far from creating a democratic and effective culture of accountability in the public sector, the new bureaucracy has contributed to a culture of suspicion, a culture that threatens to undermine already fragile relations of trust and respect. One striking aspect of this culture of suspicion is the rise of jurisphobia – fear of the law – specifically manifested in the perceived threat of litigation but also entangling itself generally in the fabric of professional work. The seminar explores the significance of this development in the context of debates over accountability and its role in shaping forms of democracy in public life…

It appears that no aspect of public sector work has remained immune from litigation culture, with hospitals, police and even universities seeing steady rises in the number of lawsuits and a parallel increase in the number of complaints brought against public services by end users. The increasing tendency of people to resort to litigation strongly suggests that recourse to the law is seen as a more immediate form of taking public services to account. Where concerns over legitimation surface, law is never far behind.

However, it is sometimes forgotten that it was concerns over professional decision-making that acted as a key driver of the new bureaucracy in the first place. The advent of new bureaucratic mechanisms was itself spurred on by a set of legal challenges to public sector professions. Cases of medical malpractice and incompetence (in the health profession generally) led to the introduction of stronger systems of government surveillance in the NHS. Increasing concerns over professional incompetence in the NHS in the 1980s (including the famous Bristol Royal Infirmary incident), resulted in the creation of a new Inspectorate for the NHS, a development that took place despite strong resistance from GPs to increased control from central government. There was a series of child abuse investigations in the 1980s which gave rise to the development of further reporting and monitoring procedures in the field of social care. The period also witnessed more strident attacks on failing schools and ‘bad’ teachers, education therefore not immune from the demand for quality and accountability across the public sector. Question marks have been raised over its ability to deliver quality services while weeding out professional incompetence and institutional stagnation. Here, the values of discretion and judgement, so important to notions of professionalism, are as much sinners as sinned against.

That said, based on the current research, the increase in legal regulation and the presence of jurisphobia in the ranks of public sector professionals, suggest that professional space for judgement and discretion can be called into question. On one level, the steering mechanisms of regulatory governance have the combined effect of diminishing the distance between state and street-level bureaucracy, the dangers of liability exposure tending to conflate political and professional imperatives. On another level, the concerns over litigation have ensured that forms of street-level bureaucracy are increasingly having to grapple with forms of street-level accountability. Wedged in between state and street-level accountability, teachers, nurses and social workers are, in effect, caught in the crosshairs of a double regulatory whammy.   

The seminar itself will provide more detail on the nature of legal risk and evidential exposure in the public sector – Mark Murphy, February 11th, 2013

(c) Mark Murphy

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Mark Murphy is a Reader in Education and Public Policy at the University of Glasgow. He previously worked as an academic at King’s College, London, University of Chester, University of Stirling, National University of Ireland, Maynooth, University College Dublin and Northern Illinois University. Mark is an active researcher in the fields of education and public policy. His research interests include educational sociology, critical theory, accountability in higher education, and public sector reform.


  1. Avatar
    Rille Raaper

    Thank you very much for your seminar, Mark! It was very interesting and made me think about several issues regarding my own PhD study. I thought it is better to write them down here, perhaps somebody else has further ideas to share and discuss about. As I am trying to uncover and understand both, the macro level developments in HE system but also micro level changes in academic work, I can see a confusing conflict there.

    On the one hand, it somehow looks like that all those system-wide changes in HE governmentality and accountability that you also mentioned at the seminar have occurred in a very natural way without any major resistance or conflicts. Perhaps Bologna process was here a key process that somehow helped to put those new ideas and neoliberal reforms into practice and in a justified and centralised way. On the other hand, the research clearly confirms that the changes in academic work, expanded duties, increased workload etc have caused lots of stress, dissatisfaction and resistance among academic community.

    So my confusion and question is that how could the system change so easily and almost invisibly and did not cause the resistance on the first hand? Did it just happen too fast and top-down direction and now the consequences cause the trouble? Very interesting…

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