Why propriety matters


Do I really have to spell it out? Prospects of the outsourcing of justice functions seem to say so.

It seems like my last blogpost Are there some moral lines that outsourcing of public services should not cross? may not have gotten through. So I’ll make it clear: Privatising the courts is a bad idea.

Some of you may have seen the headlines. Some of you may even have seen the Twitter storm. Someone’s started a @SaveJusticeUK Twitter account (it follows Puffles) along with a hashtag of the same name. Some of you may have read a few blogposts going around, such as Selling Justice by the Pound by Professor Alex Marsh of the University of Bristol’s School of Public Policy.

As a result of The Times’ front page that broke the news, and the Twitter storm that followed, the Ministry of Justice hurried out a press release to deny the claims. But the thing is, we should have already been aware of it. The reason why we were not was because ministers buried the whole thing in an avalanche of written statements on the day Parliament broke for Easter recess. As the old saying goes, if you want to bury something, make a written statement to Parliament. The key quotation from the written statement is this:

I am today announcing that I have asked my Department to explore proposals for the reform of the resourcing and administration of our courts and tribunals

[Lord Chancellor & Justice Secretary, 26 March 2013 to Parliament]

Justice in the hands of big business

A lot of it already is – much of it in the hands of G4S as the second half of Scriptonite‘s blogpost here shows. The G4S state? We know how well things fared at the Olympics – it was the public sector that had to bail them out, just as it was the public sector that had to bail out the bankers.

When is independent not independent?

You hear the word ‘independent’ bandied about all over the place in the world of politics. “This person is independent and will…” etc. Why do we place so much importance on such independence? It’s because of the perceived view that whoever is doing the commissioning might be seen to gain personally, politically or financially – and/or might not act in the public interest. The problem with the (self-inflicted) low status of politicians  is that they are now choosing to rely on ‘independent figures’ to do things that arguably should be done in-house. One of the best examples is The Browne Review of Higher Education. Labour ministers at the time didn’t have the courage to promote such an unpopular policy (higher university fees) in the run up to a general election, so commissioned an ‘independent review’ to report just after a general election that, if re-elected could implement early in the parliamentary cycle. I shredded it here.

“[A] £68,000 research budget for a policy [review] that was inevitably going to send shockwaves throughout a sector that spent £25,900,000,000 last year?”

Undermining the standing of independent reviews? It would have been far better for politicians – particularly the Conservatives to have simply said that unlimited tuition fees was a policy that reflects their philosophical world view and principles, rather than to hide behind the fig leaf of ‘independence’ that clearly was anything but.

Real independence – speaking truth to power

There are two philosophical things that make me really uncomfortable about proposals to privatise the courts:

  1. The money-saving motive being the priority ahead of the deliver of justice to all people before the law
  2. The idea that “English Law” is a commodity that can be marketed

When it comes to not delivering projected savings, governments past and present have form. It is perfectly reasonable to be sceptical about claims in the headline figures, let alone some of the wider big picture false economies that are included with outsourcing. For example the reduced pay, terms and conditions with those at the bottom rungs of big outsourcing firms are not without zero social and societal costs. The challenge I would like politicians and policy types to grapple with is this:

Deliver improved efficiencies and outcomes for your organisation while at the same time improving the terms and conditions of your lowest paid staff while keeping everyone inside the public sector

Is that possible? Has anyone tried that and if so, what have been the results?

The second one is the commodification of justice – and of English Law. Nick Cohen mused upon this in late 2012. One of the reasons so many seemingly random (to the general public) cases are held in the High Court is because so many contracts contain clauses saying that they are bound by English Law. Hence when there are disputes that cannot be resolved by arbitration, things head to the high courts and the expensive high profile commercial lawyers and barristers get their fortunes. There are very few that can command such high fees, but those are the ones that grab the headlines in the same way for civil servants and dare I say it, even bankers.

Once you start commodifying the justice system like this and selling it off to the highest bidder, wealthy vested interests who may have taken issue with a specific judgement may look to influence the legislative process to get laws changed in their favour. How do you do that? You go after the politicians and their political parties. Remember what David Cameron said about lobbying being the next big unexploded scandal?

Killing the goose that is laying golden eggs?

By commodifying justice, you risk killing the very thing that is the source of its value: People’s trust in it. Cohen was spot on when he wrote:

“The law is the first public service of a nation. Without it, the public realm and private contracts cannot be policed.

He’s on less stronger ground by pointing to the legal profession as a whole as being the key driver to the commodification…

“Now that the legal profession is seeking to internationalise English law, we risk watching the birth of a special interest that is no longer tied to the nation state. How long will it be before lawyers warn that legal reform threatens a vital export industry?”

The reason being is that the legal profession is not a monolith. There are many different specialisms within law, each with competing pressures and tensions. Certainly those with the incentive and the desire to make more money from the commodification of the justice system might talk in language of it being an export industry, but not all lawyers are like that. The lawyers I worked with in the civil service would not recognise or want to associate with some of the values that others within the very wide and diverse legal profession have.

If the justice system is undermined by the commercialisation of it, the international firms that politicians seek to attract as a means of raising revenue will switch to another jurisdiction. All they have to do is to change the clauses in the contracts. It’s not as if there’s a shortage of other countries that would be more than happy to take the place of English Law as far as international commerce is concerned. The big law firms too already have offices worldwide so the key infrastructure as far as they are concerned is already in place.

The big picture: Political, legal and constitutional reform

In this sense, Nick Clegg snatched defeat from the jaws of victory that were the concessions he won in the negotiations leading to the Coalition Agreement. This is how I think he’ll probably go down in political history too. As the policy-holder for political and constitutional reform, should the Justice Secretary’s written statement have been vetoed by him?

What seems to be missing are the links between the various different policy strands that form a vision of a political, legal and constitutional system that can regain the trust – and the participation of the people. This includes but is not limited to:

  • Transparency on lobbying
  • Transparency on taxation with large firms
  • A system of public policy making suitable for a social media age
  • Re-enforcing rather than undermining key institutions of the rule of law, such as legal aid and judicial reviews
  • Improving the system of public and parliamentary scrutiny – and parliamentary independence of the executive
  • Improving the political literacy of citizens
  • Removing more of the barriers to people’s participation in local as well as national democracy
  • Modernising some of the archaic rules, systems, procedures and conventions within Parliament – such as ridding us of hereditary peers
  • Improving the civil service so that it can gain from the input outside expertise can bring to bear in the policy-making processes, break the departmental silos rather than engaging in the risky business of outsourcing policy

…and those are just a few that come to mind!

On the point about transparency on taxation, I come to this written answer from ministers to Paul Flynn MP, following his question on meetings with some big online firms around financial transparency.

“Treasury Ministers regularly meet with businesses and their representatives to discuss a wide range of issues. As has been the case with successive administrations, it is not the Government’s practice to provide details of such meetings.”

Why ever not?

On the issue of tax avoidance and tax evasion, I think there’s a very strong public interest case for information to be released on this. What have they been lobbying for? Recall what Cameron said about lobbying in 2010, and how it has stung him before. Time for some sequenced Freedom of Information requests?

To conclude?

Propriety has to underpin our political and legal system because without it, both collapse. Then what are we left with? A corrupt oligarchy of the 1%? There are those that argue we are there already. But as with the NHS, justice will survive so long as there are people willing to fight for it.


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