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Can co-design be used to create new regulations?

Updated: Dec 2, 2020

Following a question from a colleague recently, I’ve been musing over this topic. Can you use a co-design process to create new regulations?

The short answer is yes.

But there are some nuances and questions underneath the more realistic answer.

First - What kinds of regulation?

I come from a regulatory school of thought that suggests regulatory craft can be carried across content areas. The regulation might be in health, environment, waste, medical, business, even social sectors … and the process will be based on roughly the same frameworks and drivers. While the content areas all have large differences and any specific regulatory tool needs to be tailored to the specific need of what is being regulated (and for whom), the underlying principles, approaches, drivers and models are the same. Regulatory craft is regulatory craft. If you are keen to explore this question more, I’m a student of the Prof. Malcolm Sparrow approach from the Harvard Kennedy School views about regulation and regulators. If you want to get into this more, I recommend his 2000 book “The Regulatory Craft: Controlling Risks, Solving Problems and Managing Compliance” amongst others.

Let’s be clear that while all regulation is similar at a fundamental level, the creating and doing of regulation will be very different depending on the complexity of the thing needing regulation, the potential harms, the stakeholder environment surrounding it, the balance of public-private value being protected, and many more inputs. Hence creating some regulation is more complex than others.

Would co-design work to help create regulation?

Frankly, there is no reason to think not. Making regulation is complex process, often involving deeply technical elements (some of which are contested), many layers of different stakeholders with varying levels of interest in (and influence over) the outcomes.

The best test if Co-design can work for creating regulation is to run the five principles of the Authentic Co-design Framework over it to see if we can find a pathway to create regulations using co-design:

1. Be Substantial

This means that those in co-design will need to feel that they are actually involved in building something important, substantial, large, relevant. If stakeholders are asked to co-design actual regulation, that IS substantial. If there is no appetite for that scale of co-design within the regulator, stakeholders could co-design the principles that underpin the regulation, or the framework for the regulation, or for the compliance regime. Or even the core problems that all stakeholders can agree need to be regulated (as sometimes even they differ across stakeholders).

2. Be collaborative, inclusive and safe

This is entirely possible and relates to setting up a process that achieves the intent of this principle.

3. Foster mutual learning

This one is crucial as often regulations cover deeply technical areas where some knowledge is seen as more important than others. All stakeholders will learn something about the knowledge and knowledgebase of each other be going through a co-design process. We see this can break down some long-held views about the “positions” of others. Again, this principle can be met by a good design process.

4. Be open & transparent

This principle is about how the regulator and stakeholders approach the co-design, and can be enabled by systems, processes, behaviours and/or clear leadership.

5. Be jurisdictionally aware

Again, a super important principle for co-designing regulation mainly because there are few areas needing regulations that do not crossover, or bump up against, various jurisdictional boundaries. These can be national, state and territory, or the roles of different, but overlapping regulators, or even the roles of private and public entities in regulation. Being jurisdictionally aware during co-design means including the breadth of the players needed in the room for the co-design to be a success.

Be in the know! Add your details to get your copy of the six-step Authentic Co-design Framework.

What should you consider if you are attracted to co-design regulations?

While there are likely a few important items to consider, these three are right up the top of the list.

  1. Who is “in the room”, i.e., involved in the co-design process? If you want some valuable recent reflections on how to do stakeholder mapping differently, check out this recent blog by my colleague @Max Hardy.

  2. How to bring in experts? This is a crucially important question to answer as almost all things that need to be regulated have some element of technical complexity. I recently wrote a blog about how scientific and technically complex co-design can work.

  3. Align your mandate and make it “stickable”. You will need mandate to co-design and there is both science and art in how to gather one. Whatever happens, the mandate needs to be “stickable”. A stickable mandate is a mandate that sticks. It is one that outlasts the original decision-makers and persists into the next generation of people in the same, or allied, roles. Check out my recent blog on stickable mandates for more on why and how.

Why would co-design be any better than any other process?

This could be a whole blog in itself! As long as the groundwork has been laid, here are about 6 reasons why co-design over any other process:

  1. The pathway to implementation is clearer if the regulations are co-designed.

  2. There is less chance of missing important stuff.

  3. There is less grief later from poorly “managed” stakeholders if the co-design is done well.

  4. There will likely be smarter regulations in the end given the input from the key stakeholders.

  5. The process itself will promote the work being done - giving exposure and awareness to the coming regulations. Thus saving more future “information” or engagement.

  6. And last… it is likely cheaper in the long-run.

Great – so there is nothing to worry about then…

As discussed in past blogs, co-design can be challenging for some organisations to do. It requires giving away a little of your power and sharing decision-making with others – sometimes with groups who have been on opposing or fraught sides of debates.

Hence any co-design project that is “authentic” needs be meet the principles of Authentic Co-design and be delivered in a way that addresses the core issues (and/or opportunities) of the stakeholders as well as the regulator.

And just to make sure you are ready for it, a genuine co-design project that hits all five of the principles of Authentic Co-design, requires a stickable mandate and will still need to overcome common challenges.

In our Authentic Co-design course, Max Hardy, Susan Carter and I discuss in detail the ins and outs of being ready for, designing and “doing” co-design. Take the course or sign up to the Community of Practice to get a free Authentic Co-design Framework.

What other topics that you deal with could be open to using co-design?

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