Courts and Justice Reform: speech to Courts Services of Ireland, Northern Ireland, Scotland and England and Wales

in Talks and Lectures

My question this morning is: “what are you going to do to improve your court service over the coming year?”

What is going through your head right now in response to that question?

Excitement, enquiry, opportunity to lead at whatever level, what to do first, what do I need to do to get round X or Y?

Or, are the organisational obstacles springing to mind?

Or, is the unfunded, final salary, index linked pension uppermost in your mind and thus the need to keep your head down and not make mistakes?

Do you own the problem and do you want to attack it?

Does your ability exceed your vanity? Or vice versa?

Do you know that engaging the public will improve your  decisions and their implementation?

Are you limited in your decision-making by your experience (we all are), or are you determined to learn everyday to extend your knowledge and thus improve the decisions you take?

Do you avoid accountability by hiding behind process and secrecy, or do you embrace accountability?

Context

Let’s think about the context for your actions (taken from England and Wales with some international examples):

a)  Public service reform has made progress, but it’s got stuck. There are lots of neat theories around from: New Public Management, 2020 Public Services, Prime Minister’s Strategy Unit, McKinsey, Michael Barber, and others. But, the outcome has been L-shaped government: the record in the first six years of New Labour was outstanding,  from unemployment to crime to road deaths to devolution to rough sleeping to reading and primary schools. Since then performance improvement has been limited. Hence, L-shaped government.

b)  You have had loads of money for the last decade. And that’s it. As Denis Healey said in late 70s to local government, the party’s over. Progress, the New Labour research group, says taxation is a choice between investment and cuts. It’s not. The taxpayer takes a quite sophisticated view as to whether it’s worth it or not to give government more or less money. How well is it being spent? Is it value for money? In the future, increased funding will have to be earned by the public services delivering real performance improvement. And possibly those pensions too.

c)   The criminal justice systems, of which you are part, perform poorly. The last figures I saw showed 340,000 bicycles stolen in a year…… and 802 people found guilty. And , no, each was not stealing an awful lot of bicycles. This is an end-to-end service performance of less than 1%. What if only 1% of trains arrived on time and schools produced 1% of successful pupils. There would be outrage. In private, senior police officers, judges, ministers agree that performance is woeful.

d)  The system was built for justice, punishment and incarceration. But, its greater purpose now is treatment and to reduce reoffending. But somehow we expect institutions built for the former to be able to do the latter. By and large our prisons do the job on incarceration and punishment. But organisation theory and practice found years ago that because an organisation is good at one thing, retailing maybe, it won’t be good at another, say manufacturing. It’s called “stick to your knitting”. Can you imagine an organisation having simultaneously the culture, values, systems and measures to do incarceration well and rehabilitation. It’s not surprising the prisons only dabble at incarceration. You are in the middle of a bipolar system.

e)  We have far too many laws. I am not a fan of legislation as a change tool. We have hyper regulation of the individual and of public space. Laws on drugs which are not just futile but net crime generating.  We romanticise the vineyards of France and demonise the cocoa fields of Columbia, both producing drugs of similar strength. And some other facets of life should never go to court, notably relationship breakdown.

f)    Several of the legal processes are flawed but retained because they mean employment or rich pickings: family courts generally, chancery law, and the use of the adversarial system when, in certain circumstances, the inquisitorial system would work better.

g)  The system operates in silos. As an example, the last time I looked, Her Majesty’s Court Service in England and Wales did not have a performance measure to reduce reoffending, but that is the primary purpose of the CJS for government.

h)  Everyone has a get out of jail card…of the monopoly variety. The police rely on the “ police numbers to be cut” headline. Judicial independence is essential but is used too often by the judges to prevent change. The lawyers claim all human activity as amenable to a legal solution. The criminal barristers successfully prevent proper reform of the legal aid system by demanding equal pay with their commercial brethren. Saving £50m on the £240m bill for prisoner transport is put in the too difficult box by the Home Office as the budgets and savings fall in different silos. The minister won’t wear it. Etc, etc,etc.

i)     And the balance of centralisation and decentralisation is struck in the wrong place. The theory of national services taken out of the hands of local authorities to produce standardisation and economies of scale is a good one. The practice results too often in higher costs of coordination, less joining up across the CJS locally, less innovation as local initiative is stopped, and less community engagement.

j)    Authority and responsibility for a court is split between the judiciary and the administrators. In Australia, where the local judge sees a need for a separate drugs court he sets one up. As a senior judge at lunch at the Old Bailey said to me, “ but judges here don’t have budgets, Ed”.

k)  Gratuitous inefficiency. I use this word advisedly, but public services are replete with wholly gratuitous inefficiencies. Practises which have no justification but which retain the status quo. And aren’t we all so fearful of changing that!

l)     And finally in this context section, virtually all the CJS organisations are monopolies. And the fact is that throughout organisational history,in the long run monopolies  always perform badly.

The surprise is that some things are done well!

Why no change?

But it really is a dog’s breakfast. And I have not got into the police! I think we hang onto the CJS as we know it,  because it’s perceived as just about holding the line on crime, and it feels too risky to change it fundamentally. We all have the justice story in our heads almost from birth: offence-arrest-court-punishment which equals justice and deterrence – a story which has pertained since the 18th century in our institutional framework. The alternative story is not articulated. Surely in our fast moving world, if something has been around since the 18th century, is it not time to change it?

There is quite a lot of vested interest, of course, to keep things as they are. All this nonsense about cutting crime, why would the average police officer do that? In the long run, he would be out of a job! Family judges believe they own divorce. Keep legal aid as the barristers’ benevolent fund and sod the people it was designed for. Etc.

The politicians find the whole complexity of the system too much to grasp for reform. The fate of the offender management approach under successive home secretaries is testament to the inadequacy of our political system to master big change.

 So what is to be done?

1.      Come to work with the right attitude. Treat me as your shareholder. I am a taxpayer. I pay you to punish and to rehabilitate. I don’t pay you to run a court, sup from legal aid or operate a judicial process. Whatever you do, look over your shoulder at the shareholders and put them first in every decision and action.

2.      Be dissatisfied. Don’t accept the status quo. Look for every opportunity to change. Conspire with like-minded colleagues to circumvent the internal rules and bureaucracy. Ask for post approval not pre permission.

3.      Learn, learn and learn again. I had coffee with a successful young entrepreneur on Tuesday with a 10 person business who talked fluently about how to run an organisation: focus, alignment. I asked how he knew so much. He has read about 100 management books. Learn how the justice systems and courts work in other countries. Secondments between countries. International journals.  This event is or should be an excellent learning crucible. Judicious use of consultants and other outsiders. High quality management programmes, often outside your sector. Humility not vanity.  Training. Talking to each other. For example: the North Liverpool Community Justice Centre, Reducing Reoffending plc, prisoner transport study, virtual courts, domestic violence reform, relationship breakdown analysis, debt consumer segmentation, Evidence-based sentencing.

4.      Apply the learning. Which includes hiring the right people to do the right job. Professionalisation and specialisation. ( and not having a generalist as head of IT security when the data was lost as at Ner Majesty’s Revenue and Customs). You are not obliged to screw up IT projects. Some are run well.

5.      Customer analysis and segmentation.  All analysis must be based on the customers or consumers of the CJS and segmented  along attitudinal lines. An old-fashioned demographic or crime-type segmentation is not helpful, because you need to know about the likely behavioural response of your customers to the services you provide.

6.       Align the organisation. Get the accountabilities right. If there are no imperatives, create some. Let’s think about accountability for the bankers. So far as I can tell there is no effective accountability for them. Local councillors can be personally surcharged for their decisions. Partners at PwC can have all their assets, including their homes, taken to pay for claims for poor work. It is very unlikely to happen, and  it really concentrates the mind. We need bankers who can have all their assets seized to recompense investors they have failed.

     How should accountability play out for you? For any organisation to function effectively, there have to be real personal and organisational consequences for performance, good and bad. One of the biggest failings in the public sector has been the lack of these consequences.  MoD versus Enron.

     Why does the Environment Agency drop its Efficiency savings programme, the moment its funding pressure stops? Because there are no imperatives, and no prizes for efficiency.

     What about appraisal for Judges? Barristers already appraise and score judges by the number of successful appeals against them. The data is not hard to find.

Conclusion

Finally, much real change and reform does not have to wait for the big bang of a Carter report, mass legislation, or a new government. How often have those levers worked anyway? Get on and do what needs to be done.

But, where, genuinely, higher level change is needed, then talk about it. Don’t miss an opportunity to explain and expose the shortcomings of the system, be it to a colleague in another part of the system, a judge, a minister, a councillor, a journalist, an academic. Create the groundswell we need. As John Harvey Jones of ICI and Trouble-shooters fame said, step one in any change programme is to create dissatisfaction with the status quo. I’m dissatisfied. I implore you to be!

Ed Straw

13 November 2008, Belfast

Latest from Talks and Lectures

Go to Top