The Citizen in Regulation

A report for
The Local Better Regulation Office
2
 THE CITIZEN IN REGULATION

A Report on the Evidence Base for

The Local Better Regulation Office

Paul Sanderson
Cambridge Centre for Housing & Planning Research
Department of Land Economy
University of Cambridge
19 Silver Street
Cambridge CB3 9EP
01223 337118
[email protected]

3
 Acknowledgement

This report has benefited from the expertise and guidance offered to the author by John
Brady of Anglia Ruskin University, Laura Robinson and colleagues at the LBRO and Rupert
Roker at Consumer Focus. Anne Cavalier of Anglia Ruskin University provided assistance
with preparing the report for publication.

Paul Sanderson
Cambridge

4
Contents

Executive Summary ............................................................................................................... 6

Introduction ............................................................................................................................ 8

Our Approach ........................................................................................................................ 9

Method ................................................................................................................................. 11

1. Citizen Participation in Public Services............................................................................. 12

2. The Citizen and Co-production ......................................................................................... 25

3. The Citizen in Co-regulation ............................................................................................. 32

Further Research ................................................................................................................. 37

References .......................................................................................................................... 38

Appendices .......................................................................................................................... 44

5
Executive Summary
Citizen Participation in Public Services

This chapter reviewed the existing literature on the perceived benefits of citizen
participation in public services and explored where evidence indicates that citizen
involvement may be applied in the context of local regulation to improve regulatory
outcomes.

It was found that direct citizen participation is valued as a democratic end in itself, as
well as a means of improving public services. It is coming increasingly to the fore, as
the popularity of other forms of participation diminishes (voting and membership of
political parties, for example) but willingness to engage may, to some extent, be
determined by external conditions, such as the economic climate.

Policymakers and practitioners need to grasp the opportunity to bring citizens into the
decision-making process, when conditions are conducive. Due attention should be
paid to what the public values and, as far as possible, to embracing those values, but
exactly how public officials respond to citizen participation is under-researched. What
research has been undertaken reveals a concern by officials that they may currently
lack the necessary skills for facilitating participation as part of their daily practice.

Recent models of participation tend to focus on collaborative and deliberative rather

than adversarial politics. Deliberative participation – bringing citizens together to
discuss, share and modify issues and opinions – has emerged as one of the most
important engagement strategies in recent years and is consistent with the idea of
the Big Society.

While desirable, ‘representativeness’ is elusive, and with increased diversity is

unlikely to become any easier to achieve. Lack of representativeness should not
however discourage policymakers and practitioners from seeking ways to involve
citizens and improve accountability but as some individuals have greater capacity to
engage than others, public officials will need to ensure that new ways of producing
services such as regulation do not exacerbate existing inequalities.

A caveat. The evidence for improved outcomes arising from the use of citizen
participation is patchy but what systematic reviews are available suggest decision-
making, service quality, and sense of community are all enhanced.

The evidence base for citizen participation with local regulators is thin. More work is
needed to understand how local regulators perceive their local communities and how
local communities perceive local regulators – within the context of the responsibilities
of local authorities as a whole – as a basis for leveraging the potential gains from
bringing the citizen into regulation, where they live – at the very local level.

The Citizen and Co-production

This chapter reviewed the existing evidence base in relation to concept of co-
production; the process of involving the users of goods and services in their design,
management, manufacture and/or delivery.

Co-production is both a means of maintaining or improving provision and, like citizen

participation, an end in itself. The concept combines both the collaborative provision
of goods and services and community development. Co-production therefore
addresses individuals both as consumers of goods and services and citizens
embedded in their local communities.

6
 Co-production can improve efficiency as providers tend to become more sensitive to
user needs when co-producing with them, but citizens should not be treated as
experts. Their role is as citizens, to express their aspirations, values and concerns
and to act as a co-productive partner where appropriate. To do otherwise can
diminish the value placed on professional knowledge, which in turn may lead to sub-
optimal outcomes for citizens.

Regulation is a difficult concept to grasp and so in co-producing regulation, it is

important to focus on the positive benefits and what the public values (safer streets
rather than the detail of rules and regulations on alcohol sales, for example). In a true
co-production model regulation can be defined not solely as constraining action – a
means of minimising the risk to harm to citizens – but also enabling – optimising the
quantity and quality of goods and services to the public.

The Citizen in Co-regulation

This chapter reviewed the existing evidence base in relation to co-regulation, a

process which, at its most basic level, entails sharing regulatory responsibilities
between the state and regulatees.

It combines aspects of both statutory regulation (regulators are authorised by

legislation) and self-regulation (regulatees determine the detail of how to comply with
the principles laid down in the legislation or by the regulator.). However, unlike
voluntary self-regulation, by trade bodies for example, co-regulation operates within a
legislative framework which empowers the regulator to take action in cases of non-
compliance.

In both co-regulation and voluntary self-regulation the citizen has a potential role to
play a role as a co-productive partner, for example by monitoring compliance with
standards (the Food Standards Agency’s Food Hygiene Ratings Scheme, for
example) and by using, providing and disseminating information on the quality of
goods and services (the ‘Trip Advisor’ model, for example)

The co-production of regulation by regulators, regulatees and citizens may enhance

regulatory regime legitimacy – by demonstrating citizens are incorporated into the
decision-making process, and can lower compliance costs – by demonstrating to
regulatees that they too are central to the process. However, it relies on high levels of
trust being generated and maintained between the various participants. There is a
risk of reputational loss for the regulator if trust diminishes, for example due to fear of
regulatory capture.

Given the need to manage the process of bringing in the citizen to regulation,
perhaps co-manager is a better term than co-producer. It may more accurately
describe the real role of the regulator in such a regime.

7
Introduction
The UK government’s Big Society initiative, combined with decreased funding for the public
sector, have served to focus attention on how, as a matter of both policy and necessity, the
citizen can be better incorporated into the process of providing public services. Policy has of
course for some time been to encourage choice in the provision of public services and
indeed to bring the citizen into the design of services (e.g. the personalisation agenda in the
provision of social care) and so engage more fully with markets, a process accelerated by
the current government. The form such ‘co-production’ of public services takes can vary from
what might be termed minimalist (consultation on needs, for example) through to a more
participative role for the citizen where the state enables the citizen to purchase services in
the market. In this way citizens engage not only with the demand side but also with supply.
This blurring of the boundaries in the production and supply of services has implications for
consumer protection, and so also for regulators.

Alongside co-production, and not entirely unconnected, there has also been interest for
some time in the concept of co-regulation. Co-regulation typically is placed mid-way on the
continuum between command and control regulation, and self-regulation, and is exemplified
by the movement from rule-based to principle-based regulation; providers self-regulate
aspects of the production and delivery of regulated products and services, albeit by
delegated authority from a regulator. However, in contrast to some forms of co-production,
co-regulation rarely brings in the consumer as an active participant – beyond membership of
traditional consultative bodies and through ad hoc consultation. Regulation is often
considered a technical matter between regulator and regulatee, too complex for consumers
to engage with, or perhaps too complex to incorporate into the regulatory mix. It is this
complexity, and how to unravel it, that drives this project to examine the relevant evidence.
Policymakers and practitioners need to understand the extent to which the citizen can be
brought into the process of regulation, especially at local level, and how such participation
can be brought about.

Of course, citizen participation can be problematic. National government can be perceived

as remote, while local government may lack the resources to engage meaningfully – but the
Big Society does necessitate such engagement. Involvement, co-production and co-
regulation will need to be addressed in a far more extensive and indeed inclusive way if the
aspirations of consumers (Consumer Focus 2010), legislators (Great Britain Parliament
House of Commons Regulatory Reform Committee 2009) and others calling for more active
engagement with citizens are to be met. Fortunately there is a well-developed literature on
citizen participation which can serve as a basis for considering how to bring the citizen into
regulation in a meaningful way. In addition, the notion of bringing the consumer into the
process of producing their own goods and services has been explored, most notably in
continental Europe and the US and while work on co-regulation has been focused almost
exclusively on the relationship between regulator and regulatee such analyses do provide
clues on how citizens might become involved.

8
Our Approach
The objective of this project is to contribute to learning on how to bring the citizen into
regulation by surveying the evidence base on citizen participation, co-production and co-
regulation, highlighting analyses and ideas from the various literatures that may be used to
encourage greater participation at local level. What seems to work? What doesn’t seem to
work? What can be transferred to the context of citizen participation in regulation? Where
might more research be needed? To retain focus on the objectives of projects such as this it
is useful to describe the framework statement linking the various components, placing them
in their policy context:

In the Big Society, regulators and citizens can be conceived as partners with businesses
in the co-production of goods and services to the public. Regulation is part of the
process of production so these three key stakeholder groups should also become co-
producers of regulation.

As modern sectoral regulation in the UK has evolved, starting with the monopoly
privatisations of the 1980s, through market-making in the 1990s, to consumer protection in
the 2000s, one might have expected the role of the citizen in regulation to have been
explored already in some depth – but this has not been so. Perhaps this is in part because
engagement with government is such a broad topic but it may also reflect uncertainties
around the role of regulation. Yes it is to protect the public by minimising risk of harm, but
exactly how? What is an acceptable level of risk? Who determines that? How can the public,
as citizens, be brought into the process of regulating? It is helpful not only to describe the
framework but also to visualise it, to produce a model that links the citizen to both the task
and the objective of regulation, where regulation is conceived as one part of the process of
production.

Figure 1 represents in effect an alternative nested inclusive approach to the tri-partite way of
conceiving regulation as the result of interactions between (i) regulator and regulatee, (ii)
regulatee and consumer, and (iii) consumer and regulator. If regulation is considered integral
to the process of production, and thus outcomes for citizens, the citizen engages with the
regulator not as simply a principal holding the regulator to account as agent for the
effectiveness of rule-setting and enforcement, but also as a partner (with producers and
other stakeholders) in the process of producing the goods or services under regulation. In a
true co-production model regulation can be defined not solely as constraining action – a
means of minimising the risk to harm to citizen – but also enabling – optimising the quantity
and quality of goods and services to the public.

(Please note that as far as possible, consistent with the title of this report, and within the
constraints of the terminology used in the evidence cited herein, we refer by default to
citizens – legal residents with both rights and obligations, not least to participate in society.
The same individuals are also of course consumers – users of goods and services, and that
term is also used where appropriate. There has been much debate over what might be
termed the ‘consumerisation’ of the citizen but we do not propose to re-engage with such
debates here.)

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Figure 1. Co-producing: The Citizen in Regulation

CITIZEN,

REGULATOR

and PRODUCER …

Resource Process Output Outcome

s

… together co-produce

(i.e. co-govern, co-regulate,

co-design, co-manage and/or co-deliver)

(Paul Sanderson)

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Method
The evidence for this report is drawn from the academic literature and selected relevant grey
literature. The initial literature review strategy was to move from broad overview of citizen
participation through a mid-range review of co-production to a systematic review of the
citizen in the context of co-regulation to provide an initial assessment of the extent and
impacts (where evaluated in the literature) of citizen participation. In the end very little
literature was found to exist on the citizen in the context of co-regulation so the general co-
regulation literature was reviewed in a search for transferrable concepts and ideas, guided
by the citizen co-production of regulation model (figure 1.).

Within each literature the process employed was:

(i) trawl on concept key words using university library gateways, plus UK and
national/local governments’ websites, to gain overview
(ii) draft notes on key general themes in each literature for later use in report
(iii) determine the key themes as they emerged from each literature review to feed
into the final discussion on how they might be applied in the context of the LBRO.

Key sources for articles – Business Source Complete, Ingenta Connect, SOSIG, Wiley,
ZETOC

Key search terms – citizen engagement, citizen influence, citizen involvement, citizen
participation, citizen in regulation, citizen in co-regulation, collaborative governance,
community involvement, consumer involvement, consumer in regulation, consumers and
regulation, co-delivery, co-governance, co-production, co-regulation

Typical journals browsed – Journal of Democracy, Policy Studies, Public Administration,

Public Administration Review, Public Management Review, Urban Studies,

Typical organisation websites searched – Demos, Involve, IDS, LBRO, New Economics
Foundation, Respublica, TimeBanks, various UK national/local Government etc.

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1. Citizen Participation in Public Services
The term public participation can broadly be defined as all activities by which
members of the public (whether defined as citizens, users or consumers) contribute
to shaping the decisions taken by public organizations (Albert & Passmore 2008:
p.4).

Citizen participation in public services has been claimed to give better governance, better
decision-making, better representation of the community and greater community and citizen
empowerment (Ackerman 2004; Anderson et al. 2006; Communities and Local Government
2008; Cornwall & Coelho 2007; Fischer 2010; Ranson 2008). Given these claimed benefits
what aspects of public participation can be applied to local regulatory services to improve
regulatory outcomes?

There is a large literature on participation with a profusion of terms used (Rowe & Frewer
2005) reflecting public, academic and political concerns. As the ‘participation’ debate has
gathered strength so it has moved across academic disciplines and related professional
areas. Knowledge has moved across international boundaries, as for example in the case of
participatory budgeting in Porto Alegre (Fischer 2010:10). Consequently, although
presenting difficulties to a reviewer of the literature the diversity of terminology indicates the
underlying intellectual vigour and depth of the debate. This chapter sets the scene for the
evidence base on public participation and provides a context for the following chapters on
co-production and co-regulation.

The perceived paradox of western democracy is that as rights, services and franchise have
expanded so citizens have withdrawn from participation and involvement with the state. In
other words, as the state grows it becomes more remote. Commentators on this perceived
decline of engagement with the democratic state (Putnam 1995) point to a variety of reasons
but central to this discussion is the argument that it is a failure of accountability that has led
to, what is called, the ‘democratic deficit’. Such a deficit is evidenced by low turnouts for UK
general elections and increasing apathy, particularly in respect of the extent to which political
parties truly represent the views and aspirations of citizens (Hansard Society 2009; Power
Inquiry 2006). A recent survey found 64% of people think that the political system could be
improved ‘a great deal’, while 73% of people feel they have ‘no influence at all’ over
decision-making in their local area; this increases to 85% who feel they have no influence
over national decision-making (Hansard Society 2009:4).

Ackerman (2004), in an extensive review of literature, argues that the growth of interest in
how citizens can participate is a direct response to a perceived lack of accountability in
democratic systems. Accountability mechanisms include elections and oversight agencies
but additionally ‘societal actors can directly oblige government actors to answer for their
actions and sanction them for wrongdoing’ (Ackerman 2004:449). Public services are
frequently criticised for not meeting public expectations (Brooks 2007). Democratic voting
systems and membership of political parties do not provide the sort of consistent and
responsive form of accountability for public services that the public demand. This leads to a
sense of there being a ‘democratic deficit’ – traditional forms of participation are perceived to
be dominated by ‘professionals’ – experts who struggle to understand and relate to the
citizenry. One way to counter this deficit, it is argued, is increased participation by the public
in the process of producing public services (Aspden & Birch 2005; Brooks 2007; Donovan et
al. 2001; Fotaki 2010; Hood 2008; Leadbeater 2006; National Consumer Council 2004;
Simmons et al. 2007; Walshe et al. 2004). Hence the emphasis in this report on the concept
of co-production.

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The extent of public participation

Participation is both of intrinsic value and instrumental in achieving the goals of governance.
It is both valued in its own right also a means to an end. Participation not only encourages a
sense of belonging, binding individuals into society, but can also serve to improve public
services and/or make them more effective:

Participation is a fundamental goal and object of value in and of itself. That is evident
from the fact that the right to participate in a society’s decision-making processes has
been accepted by the world community as a fundamental human right. Participation
also has instrumental value because it can help achieve other primary goals. In
particular, participation can help to deepen democracy, strengthen social capital,
facilitate efficiency and sustained growth, and promote pro-poor initiatives, equity and
social justice. (United Nations Economic and Social Council 2007:4)

However, there are many different types and levels of participation. This section illustrates
the extent, content and range of participation found in and around public services. These
forms of participation can be conceived as hierarchical, political or deliberative and tend to
be located respectively internally (within the service), externally, or networked across
organisational boundaries.
Figure 2: Forms of public participation in public services

Box 1: Internal to public Box 2: External to public Box 3: Horizontal

services services participation (networked)

Emphasis on new and

Vertical forms of Political forms of protest more elaborate processes
participation and and methods of deliberation
accountability. Media revelations
Use of courts, referenda, e.g. America Speaks
Participation – consultation Freedom of Information Acts, Use of asset transfer, right
co- Petitions to request,
production social enterprises
e.g. university fees protests; Private-public services
Voice – complaints the charity Action Against Monitoring organisations
Exit – moving from one Medical Accidents used the e.g. HealthWatch
provider to another Freedom of Information Act to
reveal hospital ignoring of
e.g. GP safety alerts.
Redress – having a
statutory right to
compensations;
train delays
Information

(Ackerman 2004; Brannan et al. 2006; Cornwall et al. 2000)

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What figure 2 illustrates is, in essence, not only forms of engagement, but also of
accountability, citizens tend to engage because they want both change, and an account of
actions taken that have or will affect their lives – both individually – self-interest, and, more
altruistically, for society as a whole.

In box 1 of figure 2, ‘Voice’ and ‘Exit’ (Hirschmann 1970) are terms that describe
mechanisms used by consumers to either complain or make their views known (Voice); or,
to reject the product and choose that of a competitor (Exit). Voice and Exit have been difficult
to implement in public services but there are some well-known examples, for example,
enabling NHS patients to choose their hospital/dentist/GP surgery. Redress, the payment of
compensation in the event of shortfall in service delivery is also commonly employed, e.g.
the Delay Repay Compensation Scheme run by UK rail companies offers rail travel vouchers
if a train is late or cancelled. Vertical forms of participation extend from obtaining information
to being a part of the production of the service itself (co-production) as in personal budget
planning for social care (Leadbeater 2004).

Box 2 includes forms of public participation that influence public service decision-making but
are outside of any ‘invited spaces’ (Cornwall & Coelho 2007) of participation. Pressure
groups and single-issue groups can exert powerful influences, focus public opinion and
change policy as was seen recently with the campaign by the ‘Cure the NHS’ group who
pushed for an investigation into morbidity rates at Stafford Hospital in the UK (BBC 2011).

Box 3 is concerned with the blurring of boundaries between state and society by networking
between the two. This box contains examples of horizontal participation, for example, the
use of participatory audit in India where there is citizen oversight of public works construction
(Ramkumar 2007), or the work on deliberative participation by such public interest groups as
America Speaks where citizens are brought together both face to face, and via IT, to
deliberate on complex policy issues such as budget deficit reduction (Lukensmeyer &
Brigham 2005). A UK example would be HealthWatch, which works in partnership with the
Care Quality Commission (CQC). Although publicly financed, HealthWatch is completely
independent of local or central government. It is one of a relatively new and diverse group of
participatory organisations which also includes asset transfer organisations formed to own
and manage the local library or village hall or social housing through the process of asset
transfer (Pratchett et al. 2009: p. 28-47). This flow can be bi-directional. Social enterprises
also supply public services (Haugh 2005), as with the City Health Care Partnership based in
Hull or the plans of Lambeth City Council to become the first cooperative council (Social
Enterprise London 2011).

Models of public participation in public services

In recent years there has been a substantial growth in strategies by state agencies to involve
citizens and consumers in policy formulation and production (Marinetto 2003; Pestoff 2009).
UK government departments have increasingly employed participation strategies (Brannan
et al. 2006; Cabinet Office 2007) within a developing legal framework supporting
participation, from the Local Government Act (2000), Local Government and Public
Involvement in Health Act (2007), Sustainable Communities Act (2007) and Local
Democracy, Economic Development and Construction Act (2009), through to the current
Localism Bill (Communities and Local Government 2011). Participation in local government
in one way or another was estimated to involve around 8 million citizens in 2001 (Office of
the Deputy Prime Minister 2002). At the same time there has been a rapid growth in
government and public agency information available over the internet and a continuing
interest in enlarging participation through new technologies such as the mobile phone (Miller
& Williamson 2008). Many can be considered ‘invited spaces’ implying space that is kept
private, invisible or deliberately hidden (Gaventa 2007). Such spaces may also be a means
of achieving or controlling participation (Brannan et al. 2006:1005).

14
Of the many models of citizen participation that have been developed Arnstein’s ladder is
probably the most well-known and enduring (Arnstein 1969):
Figure 3: Arnstein's Ladder

(Arnstein 1969)

Arnstein’s contribution has been considerable in demonstrating the multiple and often covert
processes, functions and outcomes of participation together with an appreciation of the
continuum from personal benefit to wielding authority and control, and has been further
developed (International Association for Public Participation 2007). However, it has also
been criticised partly for its manifest preference for particular kinds of participation (Collins &
Ison 2009; Tritter & McCallum 2006).

These concerns were addressed to an extent by Fung (2006) who put forward a framework
for ‘understanding the range of institutional possibilities for public participation.’ Fung
identified three specific ‘mechanisms of participation’, which may be used in the design of
participation strategies. Mechanisms of participation vary along these dimensions:

Who participates,
How participants communicate with one another and make decisions together, and
How discussions are linked with policy or public action.

These three dimensions constitute a space in which any particular mechanism of

participation can be located (2006: p. 66). Depending on the particular purpose of public
participation these dimensions support the planning of a participatory strategy.

15
Figure 4: Participant Selection Methods

Representatives

Open, Targeted
Administrators

Diffuse public
Stakeholders

Stakeholders
Professional

Open, self-
Recruiting
Selection

selection
Random
Elected

sphere
Expert

Lay
State Mini-publics Public
Most Exclusive Least Exclusive

(Fung 2006)

The representativeness of participants is a focal topic in the literature and the subject of
Fung’s first mechanism showing participant selection methods (figure 4.) The range moves
from most selective to least selective, from a generalised public at one end to the expert
administrator at the other. A feature of the model is the concept of the mini-populous (Dahl
1989) or mini-publics (Fung 2003) – defined by the engagement strategies employed, such
as deliberative polls, consensus seeking conferences and citizen juries (Goodin & Dryzek
2006; Stevenson et al. 2004). These mini-publics are ‘groups small enough to be genuinely
deliberative, and representative enough to be genuinely democratic though rarely will they
meet standards of statistical representativeness, and they are never representative in the
electoral sense’ (Goodin & Dryzek 2006).

Representativeness has been an issue in promoting participation strategies (Wilson 1999).

When the notion of representation is explored it is invariably in respect of a specific
community or public – but there is little consensus on what a community or public is (Barnes
et al. 2003). Fung’s solution is to ignore the ‘continuing controversies regarding accounts of
the public sphere’, advocating instead small groups as a way of advancing accountability,
effective governance and popular mobilization (Fung 2003:340). The central building block of
Fung’s structure is that it is ‘deliberative’. Deliberative democracy refers to the ‘capacity of
those affected by a collective decision to deliberate in the production of that decision’
(Dryzek & List 2003:1) or as Chambers states ‘talk-centric democratic theory replaces
voting-centric democratic theory’ (2003:308). Theories of deliberative democracy have
prompted new participatory methods and processes. These have been particularly
innovative in North America (see vignette, figure 5. below.). Information is shared with
participants and they are given time to listen to the views of others and to shape their own
views. While national policies may well be debated citizens tend to be more engaged with
issues that affect them at the local level.

16
Figure 5. Vignette – Deliberative participation

America Speaks, an organisation specifically designed to promote deliberative

participation, regularly holds meetings of up to 3000 people debating issues such as
childhood obesity and the budget deficit.

Participants sit at tables of eight to ten with a trained facilitator. They discuss a series of
questions that build to create a set of collective priorities by the end of the meeting.
Participatory technology is utilized to make sure every voice in the room is heard:

A computer on every table serves as ‘electronic flipcharts’ to record general table

agreements.

The table agreements are instantly transmitted to a ‘Theme Team’, which reads all the
entries to identify the strongest themes. These overarching themes are displayed and
quickly presented to all the participants.

Individuals use their individual voting keypads to vote on what they believe are the most
important priorities.

The 21st Century Town Meeting effectively restores the balance of the ‘political playing
field’ by engaging hundreds or thousands of ordinary, unaffiliated citizens, quickly
summarizing their general agreements and priorities, and widely disseminating the
results through media coverage.
(America Speaks 2011)

Modes of communication and decision-making (figure 6.) shows a scale from left to right
moving from least intensity to most intensity. Intensity here is defined as, ‘the level of
investment, knowledge and commitment required of participants’ (p. 69). Some participants
may be spectators; others are the paid administrators and professionals whose training is to
resolve policy problems. Fung is not claiming that every public policy decision has to be
either expert or deliberative or both, but rather that consideration be given to establishing the
most appropriate mode of decision-making.
Figure 6: Modes of Communication and Decision
Preferences

and bargain
preferences

Aggregate

Deliberate

technique
negotiate
spectator

expertise
Listen as

Develop
Express

Deploy
and

and

Least Intense Most Intense

(Fung 2006)

A further important dimension to be considered in the design of participatory mechanisms is

the extent of authority and power (figure 7.). At one-end of the spectrum participants have
little impact on policy; at the other there is direct control over the organisation and its
processes and policies. In-between the design may call for advising and consulting, or, in the
case of co-production, a contribution to the planning and/or delivery of a policy or service
through co-governance.

17
Figure 7: Extent of Authority and Power

Governance
Communica

Advise and
Influence

Authority
Personal
Benefits

consult

Direct
Co-
tive
Least Authority Most Authority

(Fung 2006)

To sum up, Fung’s model provides an important synthesis of earlier developments in the
participation literature, building on the work of earlier democratic theorists such as Robert
Dahl (1989). It promotes,

A range of participation strategies that are planned around the potential and reality of
representativeness,
A flexible approach to participation,
The use of deliberative techniques, and
Acknowledges the contribution of expertise and information giving

Public Value theory and participation

An alternative perspective on participation is to use the notion of ‘public value’. Public Value
is a theory of public sector management put forward by Moore (1995). Public value refers to
the value that members of the public place on a particular service or policy choice.

It presents a way of improving the quality of decision making, by calling for public
sector managers to engage with services users and the public as a whole. It seeks to
promote greater trust in public institutions and meet head on the challenge of rising
expectations of service delivery. In simple terms, public value poses three central
questions to public sector managers (Coats & Passmore 2008):

What is this organisation for?

To whom are we accountable?
How do we know if we have been successful?

Public Value uses the methods and processes of deliberative participation to ascertain
choices and preferences. It requires those working in public services to:

Focus on what people using services want, and;

Discuss and refine their preferences in deliberative debate.

This emphasis on public sector management engagement with citizens serves to counter the
managerialism of the New Public Management (Hood 1991; Hood & Peters 2004) by
‘bringing in the citizen’ but how this is to be operationalized within the framework of public
value is unclear. The model also provides little guidance on how to deal with conflicts
between professional knowledge and the democratic will, where they diverge. Are public
sector managers acting for the public as ‘Platonic guardians’ (Rhodes & Wanna 2007: 406)
or are they servants, merely effecting the public will? The theory does not really provide
guidance on how a balance is to be struck but it does have value nonetheless, in as much as
it provides an approach to decision-making that emphasises the need for public sector
managers to engage with citizens (Stoker 2006).

18
The success of public value theory, or indeed any participative approach to delivering public
services, depends to a significant degree on the willingness of public service staff to engage
with the idea. The incorporation of citizen engagement strategies by national government in
the delivery of public services has increased dramatically in recent years (Brannan et al.
2006; Cabinet Office 2007) but there is little empirical evidence on the value of such
strategies. Critically, how do local government officers respond to greater participation by
citizens (Cooper et al. 2006; King et al. 1998)? In what ways are decisions, and indeed,
outcomes, altered?

What evidence is available draws on the US experience. A study of municipal officials

commissioned by the National League of Cities found that nearly all placed considerable
value on public engagement and believed it developed ‘a stronger sense of community,
building trust between the public and city hall’ (Barnes & Mann 2010). However, officials
were uncertain they possessed the necessary skills for public engagement. Ensuring
community governance, the report emphasises, is different from running local government.
Officers needed good command of relevant languages used by the citizens, the ability to
facilitate, to engage in active listening and to manage participative processes (Barnes &
Mann 2010: 20). An understanding that different interactional skills and attitudes are
necessary is underscored in a study on the use of forms of communication in public
engagement such as online, telephone and face-to-face (Tomkins et al. 2010). Forms of face
to face engagement, it was argued, may be a better way of increasing trust and confidence
in government, but they are of course expensive and time-consuming.

The preceding overview of citizen participation provides a context for thinking about how to
bring the citizen into decision-making on public services in general, and the particular task of
bringing the citizen into regulation. The work by Fung provides the basis for the LBRO to
consider the range of mini-publics that populate the local regulation arena, how they can be
engaged, and what resources and skills they possess or require? However, as King et al
(1998) caution, participation is as much about relationships as it is about strategies. A further
important consideration is to examine the relationship between participation strategies and
outcomes.

What is the evidence base for improved outcomes through public participation?

The impact of participation on policy outcomes has been significantly under-investigated.

This is somewhat surprising given the consistent claim in the academic and policy literature
that public participation improves outcomes. This section examines various relevant scoping
studies and systematic reviews in a search for evidence on impacts. Most report on
interventions while making little attempt to assess impact – with some notable exceptions:
the evaluation of participatory budgeting in Brazil (Sintomer et al. 2008) and Jonathan
Tritter’s work on public participation in healthcare and in environmental regulation (Anderson
et al. 2006; Similä et al. 2008; Tritter & McCallum 2006).

Collectively, the benefits of public participation are considered to be the creation of more
effective and responsive public services following a deliberative exercise that leads to
refined public preferences. Participation therefore fits with the idea of modern government as
more than just ‘delivering’ a service (Cabinet Office, 2007a). In other words, consumers,
citizens and communities all have a role to play in creating effective public services,
alongside public bodies themselves (Albert & Passmore 2008)

19
As was seen earlier, public participation is an end in itself - it is valued. It is also a means to
an end. Participation, it is argued, delivers better policy outcomes. In this section, the
evidence for the latter view is examined, however, it is far from clear that the two different
views can, or should be, separated. Participation as something that is valued has a
beneficial outcome, not only to those who experience it but to the communities of which they
are a part (Communities and Local Government 2008). Recent literature refers to capacity
building for participation, generating social networks, confidence and specialist knowledge
(Cornwall & Coelho 2007; 2010) as part of an infrastructure of social capital (Putnam 1995).
Participation, it is argued, provides better public and community outcomes and at the same
time creates a ‘spill-over’, boosting social capital and developing democratic forms of
organisation.

A systematic review by Pratchett, Durose et al (2009) sought to identify the benefits of

community empowerment in relation to UK local authority decision-making. Their conclusion,
in common with the other studies in this section, was that most studies were not designed to
yield quantitative data on the impact of participation; many reviewed the method or the
process used. However, Pratchett et al selected certain participation mechanisms to
evaluate their community impact – asset transfer, citizen governance, participatory
budgeting, petitions, e-participation and redress. ‘Overall, the mechanisms selected showed
the potential to empower those directly participating and to both influence and shape
decision making. However, it was widely found to be more difficult to empower the
community through the use of such mechanisms. Only citizen governance and participatory
budgeting showed clear evidence of spill-over from individuals to the wider community’
(Pratchett et al. 2009: p. 7).

Burton (2004) found that claims for beneficial outcomes often depended on perceived
impacts rather than quantifiable impacts. Nevertheless, drawing on a range of studies (43)
examining the impact of Area Based Initiatives (ABI) the review concludes that favourable
outcomes reported outweighed the negative impacts. Overall, they found the following
benefits:

Policy and service effectiveness and realism;

Inclusion of issues such as childcare as well as economic aims into strategies and
action;
Employment and training; and
Enhanced visibility of the area and its needs.

Further points made in this same study were that although few authors made explicit the
contribution of participatory processes to community capacity and social capital ‘ a sense of
empowerment, a levelling of power between community representatives and other
stakeholders, and a sense of inclusion were all reported’ (2004:vi). The same study also
made the point that existing power and resource inequalities in communities were
reproduced in participatory initiatives. A point made by most of the literature reviews was
that more needed to be done to contact ‘hard to reach’ groups. The authors recommended:

Better planning for participation including ‘approach, structures, roles processes,

methods and resources’ including flexibility
Need to acknowledge the diverse nature of communities
Building in appropriate measures of success and impact
Wide agreement on the need for support for participants

20
Gaventa and Barrett (2010:25) in a review of 830 outcomes from citizen engagement in
international contexts using a sample of 100 cases found positive and negative outcomes
across four broad areas in which ‘citizen engagement and participation have the potential to
influence state-society relations in either a positive or negative direction.’ Figure 8 outlines
these outcomes:
Figure 8. Outcomes of citizen engagement

(Gaventa & Barrett 2010)

Gaventa and Barrett found that 75% of total outcomes were positive and 25% negative.
These findings suggest that public participation may be linked to development outcomes
such as better water, sanitation and to democratic outcomes of building accountability.

The evidence base for types of public participation strategy

This section briefly examines types of public participation strategy. The range of participation
methods is shown and where possible an evidence base referenced.

The systematic review by Pratchett et al (2009) examined the following types of participatory
methods:

Asset transfer
Citizen governance
E-participation
Participatory budgeting
Petitions
Redress

21
The above methods were assessed in terms of their effects on participants, the effect on
communities and the effect on decision-making. While all methods showed outcomes in one
or more of those areas the citizen governance method demonstrated major gains in all
outcome areas. Citizen governance covers ‘the role of citizen or community representatives
on partnerships, boards and forums charged with decision making about public services and
public policy’ (2009: p. 13). The impact is outlined in figure 9 below:
Figure 9: Types of citizen governance and impact on outcomes

Type of citizen Comment Effectiveness

governance
Local Representatives of a wider Personal benefit
Representation community – effective in areas Community benefit
of deprivation – ideal type, Decision-making benefit
open to all, linked to decision-
making
Local knowledge Citizens provide input to Personal benefit
decision making but may have Community benefit
no formal link. Decision-making benefits
where linked
Organisational Voluntary or community sector Decision-making benefits
proxy organisations act as a proxy for May form a chain of
citizen representation. representation
Semi-professional Not open to all. Link to formal Decision making benefit
decision making Personal benefit

(Pratchett et al. 2009)

Pratchett et al emphasise that these types of citizen governance do not form a league table,
‘rather it allows us to think about ‘fitness for purpose’ within an empowerment strategy’
(2009: p. 14). Further methods of participation are given in Appendix 1.

Other recent work has addressed participation in the context of ‘complex governance’ (Fung
2006) and overlapping and horizontal forms of governance (Ackerman 2004; Andersson &
Ostrom 2008). Regulators and other scrutiny bodies exercise oversight over critical sectors
such as food production and retailing, and indeed government itself, for example, Monitor,
the NHS Hospital Foundation Trusts regulator. Often these types of agencies are described
as exercising horizontal accountability yet with some exceptions it remains unclear whether
the literature is sufficiently focused on this manifestation of complex governance (Goetz &
Jenkins 2001; Michels & Meijer 2008).

Citizen participation in regulation

The literature on citizen involvement in public services is substantial and it could be

assumed that there is an equally extensive literature on citizen involvement in regulation.
However, the academic literature on regulation and citizen involvement is slight and more
often than not, takes the theme of ‘public interest’ and ‘public accountability’. These two
themes form a rich tradition in regulatory scholarship but there is little by way of empirical
analysis on citizen involvement. This is unexpected considering the recent substantial
growth in regulation has in large part been based on the claim to further consumer and
citizen choice and accountability (Levi-Faur & Jordana 2005).

22
In regulatory studies the consumer and/or citizen are found most clearly expressed in the
notion of regulatory tripartism – empowering public interest groups to counter regulatees
(Ayres & Braithwaite 1991) but the primary driver for tripartism has been to minimise risk of
regulatory capture rather than to involve citizens per se. Such tactical use of citizen
involvement is, arguably, not an authentic expression of citizen involvement.

Although public involvement is understudied in regulation it finds expression in the real-life

governance and structures of regulatory organisations. The Financial Services Authority and
OFCOM both have consumer panels set up to represent the interests of UK consumers.
Both consumer panels describe themselves as being independent of the regulator. OFCOM
in addition has a very comprehensive Consumer Research report which provides a state of
the market analysis e.g. spread of communications packages, proportion of low income
families with broadband, action on ‘non-spots’ for mobile reception etc. It evidences and
accounts for Ofcom’s actions for and on behalf of consumers over the past year. As Lunt
and Livingston explain both FSA and OFCOM have statutory objectives (Lunt & Livingstone
2007) which require them to be public-facing and proactive in public engagement. A newer
regulator, the Care Quality Commission, has been active in exploring new ways of
accounting to citizens and encouraging participation. (These are detailed in Appendix 2.)

Citizen Participation and Local Authority Regulatory Services

Little information is available on public participation in local regulatory services. However,

consumers in contact with local regulators often request and receive consumer information
and advice which the Office of Fair Trading estimates saves consumers approximately £228
million p.a. (Office of Fair Trading 2009). Clearly this can be considered a form of public
participation, albeit by consumers rather than citizens. A brief search of trading standards
websites reveals that Suffolk Trading Standards is promoting a scheme to encourage
greater participation through Consumer Champions, members of the public who volunteer to
disseminate information on trading standards. (Suffolk Trading Standards 2011). The
national ‘Food Hygiene Rating Scheme’ (Food Standards Agency 2011) and the ‘Redbridge
Conversation’ (Local Better Regulation Office 2008: p. 10-11), particularly the latter, suggest
that local regulatory services are moving toward greater public participation. However, recent
surveys (Beaufortrsearch 2010; Ipsos MORI 2008) of public perceptions of local regulatory
services in England and Wales, found that, with the exception of environmental health, levels
of awareness were low. A survey of local authority regulators conducted by LBRO (2009)
with a focus on the relationships of agencies makes no mention of association with public or
civic groups. Overall there is concern from organisations such as Consumer Focus (2010)
that public awareness of local authority regulatory services needs to be improved particularly
in respect of unfair trading practices, loan sharks and other practices that impact especially
the poor and hard to reach groups (Franceys & Gerlach 2007).

23
Citizen participation: Summary and recommendations

1) Interest in citizen participation is a response to increased distance and

consequent levels of mistrust between the public and elected officials, political
parties and electoral processes leading to a perceived lack of accountability.

2) Citizen participation is valued as an end in itself as well as a means of improving

public services.

3) Recent models of participation focus on collaborative rather than adversarial

politics.

4) While desirable, ‘representativeness’ is also elusive. Lack of representativeness

should not divert policymakers from seeking ways to mobilize the citizenry and
improve accountability mechanisms.

5) Deliberative participation, bringing citizens together to discuss, share and modify

issues and opinions has emerged as one of the most important engagement
strategies.

6) How public officials respond to citizen participation is a key factor in the success
of an engagement strategy, with particularly attention being paid to what the
public values.

7) The evidence for improved outcomes arising from the use of citizen participation
is patchy but what systematic reviews are available suggest decision-making,
service quality, and sense of community are all enhanced.

8) The evidence base for citizen participation with local regulatory services is thin.
More work is needed on how local regulators perceive their local communities and
how local communities perceive local regulators as a basis for leveraging the
potential gains from bringing the citizen into regulation at the very local level.

24
2. The Citizen and Co-production
The ‘co-production of public goods’ is a central component of the ‘ensuring state’ (Giddens
2003); it is a process of ‘collaboration between the state and the citizen in the production of
socially desirable outcomes’ (Dunston et al. 2009). Definitions of co-production are
numerous but all refer in some way to the involvement of service users in delivering public
services (Brudney 1985; Ostrom 1996; Pammer 1992). Most would assert that citizen
involvement improves outcomes by ensuring some or all aspects of the production of a good
or service focus on the end consumer – with supply coming from a variety of sources, in
recent times of course from the market (e.g. HM Government 2011). The term co-
governance may be used if the focus is on the management of the process of providing the
service. Alternatively co-delivery may be the preferred term if the focus is on the means or
source of supply.

Origins

The concept can be perceived as having two distinct phases of development: the first half of
the 1980s (Brudney 1985, 1986; Brudney & England 1983; Clary 1985; Ferris 1984; Kiser
1984; Levine & Fisher 1984; Mattson 1986; Parks et al. 1981; Percy 1983, 1984, 1987;
Schneider 1987; Whitaker 1980; Wilson 1981) and the first half of the first decade of the
twenty first century (Anderson et al. 2006; Bendapudi & Leone 2003; Bettencourt et al. 2002;
Bifulco & Ladd 2006; Bovaird 2007; Boyle et al. 2006; Brandsen & Pestoff 2006; Cummins &
Miller 2007; Marschall 2004; Pestoff 2006; Pestoff et al. 2006; Prentice 2006; Skjølsvik et al.
2007). Co-production, in the general sense of bringing in individuals and communities to
improve or provide public services is seen by some as a policy response to budget limits or
as a means of countering the rise of managerialism in the public services (Coote 2011;
Levine & Fisher 1984; Ostrom 1996; Parks et al. 1981). However, a second strand focuses
on co-production as a form of community development. In this version of co-production
known as timebanking or time dollars (Cahn 1999; Ferris 1984; www.timebanks.org),
individual citizens provide or exchange their services, skills, or time at the level of the local
community.

It is claimed that this is a way of operationalizing co-production by providing a means of

recognising and/or encouraging otherwise hidden voluntary contributions from citizens (New
Economics Foundation 2008; The Welsh NHS Confederation 2010). However, a review of
UK timebanks’ websites would suggest that it is often little more than a record and means of
bartering, albeit for the benefit of local charities or public services. Some overlap exists
between the two versions of co-production but timebanking may be of some interest when
considering co-production as a means of bringing the citizen into regulation – there may be
some lessons in citizen motivation, especially in bringing in poor and disadvantaged groups
for whom community engagement without direct and immediate benefit may be difficult to
justify (Boyle et al. 2006; Boyle et al. 2010a; Boyle & Harris 2009; Boyle et al. 2010b). The
empirical evidence is however not convincing.

Conceiving co-production

Co-production can be conceived narrowly or broadly – from simple co-production involving

citizens in the (co-)delivery of predetermined services through co-management (of the latter)
to co-governance (Pestoff et al. 2006), to participating in policy design, implementation,
execution, review, and so on (Ackerman 2004; Groeneveld 2009).

25
Figure 10. Co-governance, co-management, co-production, co-design, co-delivery

Co-governance refers to an arrangement, in which the third sector participates

in the planning and delivery of public services.
Co-management refers to an arrangement, in which third sector organizations
produce services in collaboration with the state;
Co-production, in the restricted use of the term, refers to an arrangement where
citizens produce their own services at least in part:
o Co-design means that government and service providers work with service
users and citizens to design services, and/or
o Co-delivery refers to drawing service users into the delivery of those their
services, providing additional resources and benefits.

(Brandsen & Pestoff 2006; Wales Council for Voluntary Action 2010)

Co-production: Participation by citizens or consumers?

Individuals can be considered as consumers participating in the production and delivery of

services to themselves (Brudney 1985), or as citizens working with agencies to produce
services for the benefit of all (Pammer 1992). The common thread is that they are no longer
‘to be the passive recipients of care, dependent on the intervention of the expert’ (Anderson
et al. 2006). Note this has implications not only for the engagement strategy of service
providers but also for the citizen – who has now to be motivated or in some way incentivized
to engage in the production of services in order to benefit from them. Figure 11 illustrates
consumer and individualised co-production models of citizen-state interactions which
suggests, perhaps misleadingly, that consumers do not co-produce, but passively accept
services delivered to them by the state. The schema does however illustrate the range of
interactions that underpin the various forms of co-production.
Figure 11. Stylised models of citizen-state interactions

(Halpern et al. 2004)

26
Although political scientists tend to be wary of losing the distinction between citizen and
consumer (Livingstone & Lunt 2007; Ostrom 1996) the division between citizen and
consumer may not be helpful as individuals are of course both self-interested consumers
and altruistic social animals. However, the distinction may be useful to make when
considering strategies for bringing the citizen into regulation – what sort of incentive can be
provided in order to encourage participation, and how does this vary according to the
context? Consumers may be highly motivated to seek redress for perceived wrongs while
citizens may have a broader focus around concepts such as justice, accountability,
sustainability and so on. There are lessons to be learned from the private sector where the
consumer is paramount.

An interesting question is when does mere engagement in civic life, especially when
compulsory, become co-production (Alford 1998)? Consider for example a taxpayer
completing an annual self-assessment. Is she co-producing the taxation system?

Operationalizing co-production

Co-production also requires consideration of the relationship between the citizen and the
professional. Bovaird (2007) warns consumer co-production may serve to diminish the value
placed on professional knowledge and by so doing inhibit rather than enhance outcomes.
The various permutations in the relationship between the citizen and the professional are
outlined in figure 12 below:
Figure 12. Citizen-professional interactions in co-producing services

Professionals and Service users and/or No professional input

sole service planners community as co- into service planning
planners
Professionals as sole Traditional Traditional N/A
service delivers professional service professional service
provision provision with
service users and
communities
involved in planning
and design
Professionals and User co-delivery of Full professional co- User/Community co-
users/communities professionally production delivery of services
as co-deliverers designed services with professionals
with little formal
planning or design
Users/communities User/Community User/community Traditional self-
as sole deliverers delivery of delivery of co- organised
professionally planed planned or co- community provision
services designed services

(Bovaird 2007)

In their consideration of co-production in the health sector, Dunston, Lee et al (2009)

conclude: ‘Successfully negotiating a transition from a traditional expert-based health system
to a co-productive health system, and from traditional expert based professional practice to
co-productive professional practice will, we believe, require an in-depth and co-productive
engagement with issues and processes of profound cultural, identity and practice change,
renegotiation and reformation. How these matters are identified, framed and addressed will
be critical to the likely success of a broader co-production project.’

27
While there is little evidence of implementation of real co-production of public services
beyond aspects of health and social care e.g. the personalisation agenda (Leadbeater
2006), there are some useful pieces of work delineating realworld citizen-agency
interactions. Whitaker (1980) identifies:

(i) asking for assistance;

(ii) assisting/facilitating programme execution;
(iii) critiquing, revising and redirecting future provision.

Outcomes are critical to satisfaction and so also to continued engagement by citizens in the
co-production process. It is also noted by Whitaker that participation in production mitigates
below expectation outcomes, in part due to a sense of shared ownership of any resultant
problems.

Motivating citizens to participate

In developing a strategy for successful co-production attention needs to be paid to the

following:

(i) designing appropriate tasks for citizens;

(ii) designing appropriate organisational structures and interfaces that are accessible
to citizens, and;
(iii) minimising the possibilities for conflict between citizens and public agencies over
tasks and organisation.

To accomplish this, social, economic and personal incentives need to be carefully

considered and incorporated into the co-production strategy (Clary 1985). Recruitment and
training of co-producers should also be given due consideration (Brudney 1986; Brudney &
England 1983). It may for instance be worthwhile an agency focusing on its’ and other
stakeholders’ identities – who do they think they are? – in order to capture what each may
get out of engaging in co-production – on which see Downing (2005).

In the case of bringing the citizen into regulation it may be beneficial to seek to learn from
the private sector as well as the numerous models and analyses emanating from those
concerned with solely the public sector. This would mean considering regulation not only as
an element in the co-production of goods and services but also as a good in its own right –
to build a process model of regulation from design though ‘manufacture’ to ‘distribution’ – in
order to benefit from generic learning in manufacturing on co-production. For example, Etgar
(2008) distinguishes ‘five distinct phases of the production activity chain where consumers
can become involved in co-production’:

(i) assessment of the economic, cultural, technological, personal (e.g. time), and
(regulatory) context;
(ii) development of motivations which prompt consumers to engage in co-production;
(iii) calculation of the co-production cost-benefits;
(iv) activation when consumers become engaged in the actual performance of the co-
producing activities;
(v) generation of outputs and evaluation of the results of the process.

It should be noted that regulatory context – for example the global financial crisis – can affect
demand for involvement with, or at the very least, willingness to consider involvement with,
co-production of goods and services (Amengual 2010). One can speculate that the public
appetite to engage in the co-production of banking services may be higher now than when
the economic climate was less bleak. Percy (1987) notes that while people are more likely to
fit locks to their own doors (self-interest) than to join neighbourhood watch schemes (public
interest) they are even more likely to undertake either or both if the local media have run a
campaign on crime in the immediate vicinity.

28
 ‘The results suggest that government action to encourage co-production of security
increased both the private and the collective security. Most of the private co-
production and ‘protective neighbouring’ was parallel production – i.e., done
independently of the government program – but bystander intervention and recent
increases in private security involved higher levels of joint co-production’ (Schneider
1987).

In any case it is important to understand (trends in) the division of responsibility and
importance attached by the public to the risks being regulated – information already held of
course by regulators in most cases. The Department of Health (2010) reports a mapping
exercise (see figure 13. below) carried out to assess where the most gains might be made
from introducing co-production (as part of a report on how to develop strategies on co-
production):
Figure 13. Case Study: Co-production matrix

Case study: Co-production matrix in Bristol Partnership

In a workshop with members of Bristol Partnership, Governance International
used the four steps model to help the Partnership to identify key initiatives on
which to target, where the potential gains were highest. To do this, Partnership
members were encouraged to identify which of their initiatives were high in both
engagement and effectiveness (in terms of improvements and/or savings). They
highlighted preventative initiatives as particularly important in their partnership at
that time (early 2010). At the same time, Partnership members were asked to
commit to initiatives in which they were willing to play a greater part – the ‘People
It’ Step in the model.

(Department of Health 2010)

29
Successful implementation may also require the productive process to be broken down into
what is being produced at individual (citizen), organisational level (e.g. regulator) and system
level (goods, services, and their value) because ‘institutional arrangements are the key to
matching co-productive activities to production opportunities where they would be efficient,
and to their avoidance in inefficient areas’ (Parks et al. 1981). Parks et al offer critical
guidance on operationalizing co-production. Not only do they suggest breaking down the
productive process into its component parts but also to identify where co-producers can
substitute for existing resources, so mitigating budget cuts (zero sum), and/or where
outcomes can be improved by co-producers bringing additional resources to the process of
production (non-zero sum), so improving outcomes, or indeed where co-producers are
already in an interdependent relationship and thus where change out to be minimised. To
this one must add, to avoid unnecessary costs, the need to determine the conditions in
which citizens are unlikely to engage at all (Pestoff 2009).

Summary of criticisms and benefits of co-production:

Benefits of co-production:

Enables citizen voice and empowers front line staff (street level experts) as intermediaries
so improving agency efficiency (Needham 2008). ‘By emphasising user input into the
productive process, co-production improves allocative efficiency, making frontline providers
and their managers more sensitive to user needs and preferences’ (Percy 1984) - the
positive efficiency argument (Pammer 1992);

Empowers citizens to take control of their lives - with spill-over effects in both private and
public domains – the good society argument (Needham 2008). ‘Co-production provides a
focus on citizens’ participation at the level of local production of … services.

Co-production opens up possibilities for better understanding the importance of obtaining

the consent and support of all three major stakeholders in such reforms, i.e. the citizens,
the professional providers of welfare services and the politicians. However, without a clear
vision of a ‘good society’, or at least a better society than today, it will be very difficult to
promote such sweeping reforms’ (Pestoff 2006).

It is argued, citizens already are engaged in co-production: ‘Citizens ‘co-produce’ public

services by requesting assistance from service agents, by cooperating with service agents
in carrying out agency programs, and by negotiating with service agents to redirect agents'
activities’ (Whitaker 1980).

Criticisms of co-production:
Smokescreen for budget cuts. Shifts part of the burden of provision from the state to the
citizen who may be ill-equipped to provide. Moreover, aggregate production costs may
actually increase as the costs of (encouraging) participation may be considerable (Neiman
1989).

De-professionalises services by promoting the role of the lay person in relation to the
expert, so diminishing the capacity of the expert to act.

Presumes willingness on the part of citizens to participate yet (i) they may in aggregate
have neither the capacity nor desire, and (ii) even where capacity and desire exist, they
may do so unevenly, which may serve to increase existing disparities in service provision
between rich and poor (Mattson 1986; Needham & Carr 2009).

30
Operationalizing co-production: a prescription for bringing the citizen into regulation

Treat regulation as part of the productive process – but producing what? Bringing in the
citizen may improve regulative efficiency but regulation is a difficult concept for the citizen to
engage with, so instead there may be merit in focusing on the positive, the benefits, the
outcome sought by effective regulation –‘the good society, the good life.’ To this end it may
be useful to examine what is valued by citizens in any given regulatory context. Borrow from
the private sector, especially social network marketing models, which are underpinned by
strong values. In other words, to reprise the public value argument in the previous chapter,
analyse what is really important to the citizen (Lih-Bin & Hock-Hai 2010).

Also, focus efforts at the local level – citizens understand the local (Marschall 2004).
(National representative groups are better equipped to act at national level.) Continue recent
efforts to develop positive engagement with citizens and local bodies by, for example,
focusing on co-producing safe streets, rather than technically, negatively, policing
regulations on alcohol sales. Regulation in this way becomes a co-produced component in a
larger co-productive process and it is this larger landscape where the benefits of citizen co-
production may be found. To operationalize, break down the productive process. Identify
where citizen co-producers can enhance or substitute for existing resources, (and where
there is already interdependence.) Then determine how to promote the benefits – for
instance, citizens value public safety while consumers value personal safety.

Co-production: Summary and recommendations

1) Co-production refers to a process of involving the users of goods and services

in their design, management, manufacture and/or delivery.

2) The concept as used combines in some proportion or other both the

collaborative provision of goods and services and the development of
community. Co-production thus addresses individuals both as consumers and
citizens.

3) Co-production can improve efficiency as providers tend to become more

sensitive to user needs. Learning from the private sector may be helpful.

4) Active public participation in co-production can however diminish the value

placed on professional knowledge, which may lead to sub-optimal outcomes.

5) Some individuals may have greater capacity to engage in co-production than

others which may exacerbate existing inequalities.

6) Willingness to engage may, to a large extent, be determined by external

conditions such as the economic climate.

7) Co-production is both a means of maintaining or improving provision - and an

end in itself, the good society - or the big society. This less immediate benefit
may nonetheless be of importance in encouraging citizens to participate in the
co-production of less tangible services or processes, such as regulation.

8) Focus on values and the positive benefits, e.g. safer streets rather than the
detail of rules and regulations.

31
3. The Citizen and Co-regulation
Co-regulation

In this section we examine the co-regulation literature, focusing on themes and concepts
relevant to bringing the citizen into regulation. At its simplest co-regulation can be
understood to be the delegation of regulatory responsibility from a statutory regulator to
regulatees:

‘Our approach to social housing regulation is built around co-regulation. By that, we

mean that we expect robust self-regulation by the boards and councillors who govern
the delivery of housing services’ (Tenant Services Authority:
http://www.tenantservicesauthority.org/server/show/nav.14727).

Co-regulation has been a mainstay of EU policy for over a quarter of a century and is seen
as an essential component of Better Regulation. However, definitions are far from settled.

Various EU documents suggest co-regulation:

‘combines binding legislative and regulatory action with actions taken by the
actors most concerned, drawing on their practical expertise;’

‘involves the sharing of the regulatory responsibilities between public authorities

and private partners;’

‘is a mechanism whereby a Community legislative act entrusts the attainment of

the objectives defined by the legislative authority to parties which are recognised
in the field (such as economic operators, the social partners, nongovernmental
organisations, or associations).’

(Senden 2005)

These are mostly definitions around implementation (Verbruggen 2009). So is co-regulation

anything more than a division of responsibilities between regulator and regulatee, where the
former sets and monitors standards in some areas (statutory regulation) while delegating
such responsibilities for others areas to the regulatee (self-regulation)? Well, yes. Firstly, the
regulator has the statutory authority to impose sanctions if regulatees do not self-regulate
effectively. Compare the third definition of co-regulation cited above, with the definition of
self-regulation contained in the EU Interinstitutional Agreement on Better Lawmaking agreed
in 2003:

Self-regulation:
‘. . . the possibility for economic operators, the social partners, non-
governmental organisations or associations to adopt amongst themselves
and for themselves common guidelines at European level (particularly
codes of practice or sectoral agreements)’ (European Union 2003).

In other words co-regulation, unlike self-regulation, involves a legislative act (Senden 2005)
which means that strictly speaking the concept of citizen co-regulation would mean placing a
legal duty to ensure standards onto citizens, together with other regulatory stakeholders of
course, in a kind of ultra-co-production.

32
However, there is a second rationale for co-regulation, and indeed a reason for bringing the
citizen into co-regulation (beyond arguments around better implementation). There is
increased legitimacy, both input and output legitimacy. Input legitimacy is established when
citizens are sufficiently involved in political choices (‘government by the people’) which in
turn depends, according to Scharf (1999) on the extent to which citizens have a common
political identity. By contrast, policies are output legitimate if their outcomes serve the
citizens’ interests, i.e. they are legitimate because they are effective (‘government for the
people’). Output-legitimate policies can be generated without a common political identity, as
policies must effectively solve problems and thereby serve the citizens’ consumer interests
(Scharf 1999). In other words, representativeness is not essential. Legitimacy can come
from serving multiple mini-publics but is more readily generated by co-production,
incorporating citizens into the policy making and implementation process.

Note also that not all iterations of the concept of co-regulation have been bipartite (regulator
– directly or via an agency – and regulatee). Examples of successful tripartism, incorporating
the public voice in one form or another, are few but there are some, e.g. the early 1990s
Code of Conduct for Computerized Checkout Systems in supermarkets negotiated between
the Australian Retailers Association, the Trade Practices Commission and various consumer
groups (Ayres & Braithwaite 1992). However, most have been bipartite. The UK system of
financial services regulation prior to establishing the unitary Financial Services Authority,
though described as self-regulation, could more properly be defined as traditional bipartite
co-regulation. However, this previous system is generally considered to have failed – leading
to a loss of trust, and trust is a critical component of any collaborative, deliberative system
(Prosser et al. 2010).

Co-regulation: strengths and weaknesses

Strengths:

improves compliance rates compared to command and control regulation)

lowers costs of enforcement and monitoring
lower rates of non-compliance than with command and control regulation.

Weaknesses:

lack of trust among actors

higher perceived risks amongst the public if market forces are allowed to play a
role in regulation so standards-setting should be retained by institutional
regulators;
higher real risks where private interests take a leading role in securing socially
optimal outcomes
focus on costs of regulation rather than benefits
increased risk of regulatory capture

Conclusion:

traditional supplier co-regulation could improve monitoring and compliance levels

but standards-setting should remain for the most part with government agencies
(Garcia Martinez et al. 2007; Utting 2005)

Operationalizing citizen co-regulation

An examination of the elements of co-regulation of the workplace by Estlund (2010)

concludes the following are essential:

33
 internal employee committees
strong internal whistleblower protections
independent external monitors
strategic allocation of government enforcement resources.

... which could be translated for the purpose of this project as:

bringing citizens into the process of ‘producing’ regulation

ensuring citizens can speak ‘authentically’
the presence of a trusted equilibrator
adequate resources

An area where co-regulation has been adopted, though with varying degrees of success, is
corporate social responsibility. The following table (figure 14.) from Albareda (2008) outlines
the different ways that corporate social responsibility plays out in self, inter-industry, and co-
regulation contexts. The latter part of the list, Business and non-governmental organisations,
suggests citizen co-regulation may be best considered where overall co-production (of an
outcome rather than regulation) is promoted and where all key stakeholders are brought in to
co-produce. This is consistent with the co-production literature, and the conclusion reached
in the survey in the previous chapter, that citizen engagement should focus on values, the
good life and/or the good or ‘big’ society, rather than consumer redress, which is after all one
of the immediate and explicit existing responsibilities of the various regulatory agencies and
ombudsmen bodies.
Figure 14. Self-regulatory and co-regulatory mechanisms in corporate social responsibility
engagement

(Albareda 2008)

34
Co-regulating with citizens v consumers?

‘Rather than seeing corporate self-regulation and voluntary approaches as a superior

alternative to governmental and international regulation, the corporate accountability
agenda suggests a re-articulation of voluntary and legal approaches. It focuses more
attention on complaints procedures or complaints-based systems of regulation that
facilitate the task of identifying, investigating, publicising, and seeking redress for
specific instances of corporate malpractice, as a complementary approach to
regulatory systems that involve broad but relatively superficial systems of reporting,
monitoring, auditing, and certification’ (Utting 2005).

This suggests the dual identity of individuals as both citizens and consumers may be hard to
disaggregate and attempts so to do may be sub-optimal from a regulatory perspective – the
citizen may serve merely to obscure and defocus efforts to combat malpractice – but this is
to conceive the roles of the regulator and individual in a traditional pre Big-Society way –
emphasising the policing task rather than as outlined in the introduction to this report, as co-
producers with suppliers of goods and services to the public. Citizens are members of a
community, society, state, etc.; they are by definition in a relatively enduring relationship with
their community by virtue of the rights and responsibilities that bind them in. Consumers on
the other hand are transient, defined by their passing usage of a good or service. On
balance there may therefore be a benefit to conceiving individuals in the main as citizens (as
the title of this report suggests) rather than as consumers. An additional consideration is that
trust is built over time, so models of participation based on transient consumers may never
achieve high levels of trust.

Bringing the citizen into co-regulation

An empirical study by Prosser, Adlard et al (2010) of the co-regulation of energy network

access in Germany suggests the devil lies in the detail. Where traditional co-regulation is
designed (as is common) as a form of bargaining between parties it leads inevitably to
gaming for position and advantage. Drawing on the evidence presented in the previous two
chapters it may be better to focus on ways of co-regulating that emphasise and incorporate
communication, deliberation and participation of regulator, regulatees, citizens and
consumers, and government. One prescription may be for the regulator to take on the task of
managing the process as equilibrator, moderating the process of integrating the various
stakeholders into the regulatory sub-system and integrating the regulatory sub-system into
the overall system of production – as co-manager. To an extent this would be part of a larger
mutual monitoring process whereby regulatees, citizens and regulator each monitor the
actions of the others, as co-productive partners, for example by monitoring service levels
(TripAdvisor 2011) or standards (FoodVision 2011) rather than more traditionally, as
adversaries. Indeed, co-managing may well be a better way of thinking about the role of the
regulator in this context than co-producing.

Finally, given the paucity of empirical evidence on co-regulation, and the total absence of the
citizen in co-regulation (as against citizen participation in regulation as a whole via for
example, consumer consultative committees) it may be instructive to examine the self-
regulation literature for insights into how citizens may be brought into co-regulation (Ayres &
Braithwaite 1992; Baldwin & Cave 1999; Fairman & Yapp 2005; Gunningham et al. 1998).
How can this be translated into citizen co-regulation? Well, perhaps rather than setting up
citizens to either fail to get to grips with the issues encountered in regulation, or be captured
by ‘experts’ (the lay trustee problem encountered in employee representation in pension
fund management), the answer is to co-opt citizens for their own expertise – for what they
are: citizens – recognising that others may have more expert knowledge.

35
The citizen and co-regulation: Summary and recommendations

1) Co-regulation at its most basic entails sharing regulatory responsibilities

between the state and regulatees.

2) It combines aspects of both statutory regulation (regulators are authorised by

legislation) and self-regulation (regulatees determine the detail of how to comply
with the principles laid down in the legislation or by the regulator.) However,
unlike voluntary self-regulation by, for example, trade bodies, co-regulation
operates within a legislative framework which empowers the regulator to take
action in cases of non-compliance,

3) Co-regulation may enhance regime legitimacy – by demonstrating citizens are

incorporated into the decision-making process, and can lower compliance costs
– by demonstrating regulatees are also involved.

4) Co-regulation relies on high levels of trust being generated and maintained

between regulator, regulatees and citizens. There is a risk of reputational loss for
the regulator as equilibrator, co-manager or co-producer of the process, if trust is
absent or low, for example if regulatory capture is alleged.

5) Citizens should not however be treated as experts. Their role in such a

participative process is as citizens, to express their aspirations, values and
concerns.

6) Co-regulation may focus on communication, deliberation and participation

between regulator, regulatees, citizens and consumers, and government, with
the regulator managing the regulatory process as an ‘equilibrator’. However, this
activity may sit alongside a wider mutual monitoring process whereby
regulatees, citizens and regulator each monitor the actions of the others, as co-
productive partners, for example, by monitoring service levels (TripAdvisor 2011)
or standards (FoodVision 2011)

36
Further Research
To operationalize this various recommendations outlined in this report it may be useful to
investigate further (i) delineating participating publics – and their values (following Fung,
above), (ii) the motivations of citizens to engage in participatory processes, (iii) how to build
and maintain high trust relationships in the co-production of regulation, and (iv) citizens’
perceptions of local regulation and the perceptions of local regulators in respect of citizens.

37
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Appendix 1: Methods of public participation

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Appendix 2: Care Quality Commission Example
Involvement and regulation

The Care Quality Commission (CQC) has statutory duties to the public and service users.
The Commission uses a variety of methods to achieve those objectives. CQC forms of
involvement are mapped below to the Fung categories outlined in chapter 4. The CQC does
develop the idea of mini-publics with variable access to decision-making.
Involvement and CQC – showing influence level, Fung category, function and selection method

Influence Fung categories Location Function Selected by:

CQC Board Board Lay stakeholder Organisation One board member CQC
level Deliberate and
negotiate
Co-governance
Equality Voices Advisory/ Lay and Organisation Rights and equality CQC?
critical professional agenda of the CQC.
friend stakeholder Carers and users plus
Develop representatives
preferences
Advise/consult
Mental Health Advisory Lay and Organisation Advises on priority areas Open elections
Board professional for mental health.
stakeholders Chaired by member of
Develop board above.
preferences
Advise/consult
Acting together Advisory Co-regulation Organisation Joint visits by service Service User
Lay stakeholder user and inspector Reference
Deliberate and Panel (source
negotiate panel)
Co-governance
(at MHC visit)
Links Advisory Advisory Lay and Community Representative from links Put forward by
Group professional networks – to be national LINK
stakeholder renamed HealthWatch network
Aggregate and
bargain
Advise/consult
Speak Out Advisory Lay and Community A network of over 80 Run by English
Network professional small groups who University
stakeholder represent the difficult to
Develop reach.
preferences
Advise/consult
People with Advisory Lay and Organisation/ Group made up PLD, Not known
learning professional community carers and organisations
Disabilities stakeholder
Advisory Panel Develop
preferences
Advise/consult
Maybe co-
regulation in this
group
Carers Advisory Advisory Lay and Organisation/ Group made up of carers Not known
Panel professional community and organisations that
stakeholder represent family carers.
Develop
preferences
Advise/consult

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