Regulating a diverse HE provider market – what can Brewdog teach us?

BrewDog’s rather, shall we say, strident response to the Portman Group’s decision that the advertising for its Dead Pony Club beer contravened the industry Code for marketing alcohol got me thinking (as very many things do) about regulating HE with an increasingly diverse provider base.

A quick recap. The Portman Group was established by leading alcohol producers to promote responsibility and now undertakes a “self-regulatory” function for the drinks industry in connection with responsible marketing of alcohol.  It has promulgated a Code setting out standards to which all those involved in the production of alcohol in the UK should adhere. 

BrewDog is, apparently, the leading independently owned brewery in the UK.  Its beer fell foul of this Code and the Complaints Panel ordered it to take steps to address the breaches and advised retailers to take steps not to order further stocks of the product in unmodified packaging after 8 July.

BrewDog’s response was robust and colourful.

Apart from being enjoyable to read in its own right, it raised some points that I thought might also need to be borne in mind by designers of any future system of HE regulation, particularly given the sector’s passionate commitment to institutional autonomy and self-government. It is safe to assume therefore that the sector will push for as much self-regulation as possible if and when a proper new framework of regulation is developed to accompany the new market.  (Incidentally, although I refer to self-regulation, I think the points raised will be equally applicable to a system of co-regulation, as UUK prefers to describe the HE model).

So against that background, here are the questions that occur to me:

Does self-regulation work only where all those regulated share broadly similar characteristics and values? Can any form of self-regulation accommodate a very diverse collection of providers that do not share common values?

Any system of self –regulation thrives only where all those subject to it are willing to abide by the rules of the game. Can the credibility of a system of self-regulation survive an act of outright defiance by one of the regulated, especially in the absence of any effective sanctions?

Do systems of self-regulation inevitably reflect the status quo and thus militate against creativity and innovation? A complaint made in response to the OFT’s call for information in to HE in England was that current regulation, patchy and incomplete as it is, it risked discouraging innovative provision by assessing all providers against the standards of the “traditional” sector. 

The challenge for the sector will be to devise a credible system of self- or co-regulation that all varieties of providers feel equally committed to up-hold (thus reducing the risk of a credibility destroying BrewDog-style riposte from any “rogue” provider) whilst being sufficiently robust to give public assurance about standards and quality in HE.

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
DD: 0800 763 1332
M:  07909 925946
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E: smita.jamdar@sghmartineau.com
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From → General Interest

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