Who should run the justice system?
By:13 commentsMarch 4, 2016
Let’s be honest: the justice system is a mess. This is quite simply because we don’t have anyone who can run it effectively.
Very few barristers, perhaps frustrated actors in their wigs and gowns, come from commercial backgrounds. They choose their profession for many reasons but a desire to run a commercially successful business isn’t usually one of them. In practice few have to worry about running their chambers. Instead they worry about managing their personal overdrafts against collecting in their fees which might be outstanding for a long time. Business men they ain’t.
Our senior judiciary is drawn from an even narrower pool. They are chosen for their powerful intellects, their grasp of the law and their ability to make sound legal decisions which will become precedents and thereby form the basis for future interpretation of the law. It’s an incredibly tough and difficult task.
But are they chosen for their ability to run a business? No. Why should they be?
On the other hand, in other areas of the legal profession, many lawyers have no choice but to become businessmen or women in order to run their firms. They have to grow their firms, eradicate debt, invest the funds needed to keep it flourishing, provide excellent levels of service and finally hand them on in good shape for those coming up behind. Law is, like it or not, a business, offering the public a service. If they have confidence in you, they instruct your firm. If they don’t, well, they don’t.
Some lawyers succeed. In fact the majority do, but some fail spectacularly as well – witness those law firms which have gone to the wall in recent years. The risk that commercial success could turn to failure applies to law firms as much as any other business. Disasters are frequently predictable when firms indulge in rash decisions or over expansion with roots built on sand. Such firms have crashed and burned. But other law firms with sounder bases have grown and expanded over these last few tough years because they understood their market and met supply and demand appropriately.
I run a comparatively small law firm, and I was fortunate because as I grew up I saw how my father, from the poorest of backgrounds, became a self-made man. The lessons I learned from him about how to run a business have remained with me. My father, for example, enjoyed going to work, had a sense of humour, knew how to make a good deal with a handshake and stick to it. He was always pleasant to people and they were to him, but he was also shrewd and a good judge of character. He could buy and sell on a large scale. He knew how to make a profit. And above all he knew when enough was enough. I used to enjoy lunchtime chats with him and his business partner and I learned a great deal from them about running a successful business. He used to tell me I had the best job in the world because I was selling my brain and was never left with old stock. I learned plenty from him over those years. He arranged for me visit his friends in the commercial world, so I could so see in practise what I was studying in books, has proved invaluable to me as I run my law firm. Nowadays the pressure is on and law firms must be as commercially-focused as they have ever been.
So with my own particular background and my knowledge of far more fantastic, extremely successful law firms, some of them international, I am left in despair when I read about the mess the justice system has fallen into. There is a vast public demand for its services but so often all we ever hear about is an ever-growing debt mountain, and seemingly useless, backward-looking efforts to try and address that,. Instead we should be talking about how to improve and strengthen the system so it becomes as modern, fit for purpose and the best it can be.
Surely every business is capable of success? Even from my lowly vantage point I believe this to be the case. When I helped set up the Law Society’s Family Law Panel from scratch, it became the most successful of all their panels, and profitable too.
It starts of course at the top.
It’s certainly not the fault of the senior judges who came into the profession for other reasons and now find themselves tasked with addressing these issues. It’s clear from their attendance before the Parliamentary Justice Committee how frustrated they are. Their comments merit a thorough read. They clearly have little confidence in what’s being done but faced with pressure from all sides they are doing their best. It is clear that they know the justice system has been set on a destructive course. They have my sympathy.
Government ministers no longer come from commercially successful backgrounds where they have proved themselves and can put their experience to use for the good of the country. Ministers today seem to be career politicians, seduced early by the lure of the limelight and the power.
But what commercial know-how do they have? The current Lord Chancellor wasn’t ever a lawyer, he was a journalist – the one before him ditto, but a TV executive. Yet they are tasked with running the justice system profitably, with absolutely no proven ability of any kind to do so.
And what of our civil servants? The faceless people we never hear from? If they knew how to run a business, I imagine they wouldn’t be civil servants.
So we are bedevilled across our justice system with rafts of people from the top down who don’t appear to have the faintest idea and certainly no track record in taking the reins and turning a legal business around.
The starting point surely is to recognise the nature of public demand and be passionate about improving the business you are running, in order to meet that demand profitably. To work 24/7 if need be, to build, strengthen, modernise, and not waste time looking backwards and making drastic cutbacks that ultimately end up saving any money at all. Ascertain what is clearly needed and then work how to provide it at a profit. Law is a business, not a charity – but commercial success does allow lawyers to help the genuinely needy.
So just what would it cost to provide a modern, streamlined and productive service and how should we charge properly in order to provide it? For example it can’t be right to provide the attention of a High court for the cost of a single application fee. Lawyers charge by the hour, so why can’t the courts charge the public more appropriately for their use? We should not be be scared to levy properly costed bills for court time. People do pay for good service. There are all kinds of charges that could be levied, across the board. They could be means-tested and perhaps combined with a form of statutory charge similar to the one that used to be used with legal aid, but this time properly administered and set at an appropriate level.
Modernisation means use of streamlined, proven, online technology of course. Ideas are mooted developed and seized upon by academics, judges ministers and civil servants alike but everything that’s been done so far and everything set to continue into the future seems doomed to abject failure. That is because the endgame isn’t about producing a better system but one that ignores public demand and seeks to impose an unwanted system solely focused on saving money.
But does it do even that? Can’t lessons be learned from other failures? The CSA, now in its fourth reincarnation, is as bad as always. Its abolition is long overdue. Yet doggedly on they go, ploughing more and more money into a failed system the public demonstrably do not want.
Withdrawing legal aid too was supposedly done to save millions but in reality it hasn’t solved any problems. It never could, as we discussed in my last post. And there are now all the socioeconomic problems of people who are much less brave, living miserable lives unable to go to court at all. It all leads to countless miscarriages of justice. So what money has been saved overall here? I suspect it’s costing the country more than ever before.
Is it really necessary to abolish 86 courts? The government can see masses of short term money coming in from the sale of the buildings. But isn’t it swings and roundabouts in reality? They promise an online system in lieu, one that isn’t even yet fully developed, operable or proven. And yet we are told divorces are supposed to be coming online next year.
Costly government IT disasters have been happening for years, costing taxpayers huge sums. Just yesterday, Supreme Court President Lord Neuberger recalled, in a speech to the Northern Ireland Assembly Committee for Justice:
“…the Supreme Court has a very effective IT system. The judges are very happy with their systems in court, in their chambers and when away from the Supreme Court. I believe that the staff are very happy too, although we have had teething problems. When the Supreme Court was being established during 2007-2008, we had a two year programme liaising with the Government to produce an IT system which turned out to be mediocre so far as the Judges were concerned and worse than mediocre so far as the court staff and court users were concerned. However, two years ago, we installed a new system, which has worked very well. I think that there are a number of lessons which can be drawn from this experience.”
Then there is the plan to increase divorce petition fees, not because the administrative cost of a divorce requires it (it actually only costs £200) but because they have a captive audience. They are that clueless.
Every business big or small faces bad times. Some sink and others survive when they boldly accept the bad times as a challenge and come through it with sensibly costed products fit for purpose that suit demand. Profits then follow.
We should get the justice system working cost effectively, successfully meeting supply and demand, ploughing profits back into the system. Otherwise, as we have seen in the last few years, all the floundering, tinkering and desperate cost-cutting measures designed to save money and produce a second rate system are nothing but a continuing recipe for disaster.
Photo by smlp.co.uk via Flickr
March 4, 2016
Categories: Family Law