UK Government bids for a world-class legal reputation whilst neglecting the basics back home

MoJ paper - Plan for growthThe UK Ministry of Justice has launched a paper called Plan for Growth: Promoting the UK’s Legal Services Sector. The opening, at least, is admirably crisp for a civil service document:

It identifies the law as one of Britain’s strengths….

People turn to us because they know they will find world class, highly specialised practitioners and expert judges in the specialist courts. They understand that a decision from a court in the UK carries a global guarantee of impartiality, integrity and enforceability.

…. which is a major contributor to the economy….

These strengths help to explain why the Legal Services sector generated £23.1 billion or 1.8% of the UK’s gross domestic product in 2009 and constituted £3.2 billion in exports – nearly three times more than a decade earlier.

….but which faces competition:

…worldwide competition for legal services is set to intensify over the coming decade. New York, Stockholm, Paris, Geneva, Dubai, Singapore and Hong Kong all stand ready to compete with London and other UK jurisdictions as a hub of legal expertise. While the UK’s excellence and reputation is undoubted, costs and speed may affect where companies choose to resolve their disputes. We intend to do all we can to protect our competitiveness and build on our success.

Steps are to be taken as part of the Government’s Plan for Growth…

the Ministry of Justice is committed to working closely with UK Trade & Investment and the sector to promote the UK as the global centre of legal arbitration and commercial law services.

As part of this we have a fine new Commercial Court building:

Dedicated, high-spec business court under one roof – the Rolls Building brings together the Chancery Division, Technology and Construction Court and Commercial Court under one roof, offering a streamlined service to businesses and maintaining the UK’s reputation as first choice for business law.

The paper goes downhill a bit after that – one can almost see where the draft left Justice Minister Ken Clarke’s office and passed to a grey little man in a dusty office, up from Surbiton on the 07.46 and still mourning his bowler hat:

UKTI, working with FCO and BIS, have developed specific market development programmes and initiatives such as Joint Economic Trade Committees (JETCO), which also provide a senior ministerial bilateral platform in a number of key markets (India, China and Brazil).

Stirs the blood, that sentence, doesn’t it?

The coalition government’s Plan for Growth reflects Chancellor George Osborne’s requirement that every department must work towards a revived economy. Every department plan must be tested against this over-arching intention.

The papers which result are rather different from those of the New Labour government, which always seemed aimed either at banning something or at throwing money around. As ministers came and went through incompetence, misconduct, or (in one brave case) as a matter of principle, a procession of nonentities came and went from the back-benches, each determined to make his or her mark on society before they too were caught lying, fiddling their expenses or generally proving inadequate. That, coupled with Labour’s relentless hunger for daily “initiatives”, resulted in a constant stream of badly-drafted, disingenuous reports and consultation papers, only too many of which made their way into half-considered law. Thirteen years of Blair’s half-truths, exaggerations and evasions and Brown’s always fraudulent tractor-stats-for-the-Comrades have made us wary of government documents.

The coalition, of course, has no shortage of over-eager nonentities with character-defects. The government’s chief problem, however, is an excess of enthusiasm over thoughtfulness when it comes to cutting expense. The little dogs go ferreting in the bushes for some money to save, up goes the public outcry, and the government either retreats in disorder (the sale of public woodlands, slashing the coastguard service) or ploughs on regardless (emasculating the defence capability just before launching a war). None of it inspires confidence that anyone is looking to the future.

However enthusiastic one is for economies in hard times (and I am), government must have regard to business efficacy, as well as its obligations to those whom they govern. A cut is not an economy if it results in expense elsewhere. Closing a court saves its running costs and, perhaps, yields a tempting capital profit when the building is sold, but either shifts the burden elsewhere or deprives the public of access to justice; cutting legal aid increases the number of litigants in person and slows down the whole justice system; sacking the (generally low-paid) front-line staff is both a bar to access and the cause of additional work for those who remain, and is unconscionable whilst regiments of highly-paid paper-shufflers keep their jobs.

Turning to my own area of interest, case management and e-disclosure, it is no good talking, as the MoJ document does, about a “streamlined service to businesses” and “expert judges” whilst neglecting the training of judges in the management of cases and the control of electronic disclosure. Court users (both law firms and parties) have been demanding such training for years, and Lord Justice Jackson specifically recommended it, but it forms no significant part of any judicial training agenda. The cross-over between the rules and practice on the one hand and technology on the other it is not one to be acquired intuitively, even by judges.

Every official meeting is attended by a little man from the ministry whose sole function is to say “my role is to ensure that government money will not be required for this initiative”. You cannot blame them: with a few exceptions (I have met one or two of these, though not in the MoJ) these people became civil servants because they were at the back of the queue when commercial acumen was handed out and, besides, the government has so decreed – that same government which is proudly boasting of Britain’s place as a centre of excellence for legal services and of its legal system as a revenue-earner.

Singapore ConferenceThere is a mismatch, in other words, between the aspirations set out in the MoJ’s document and the hard, practical reality. The MoJ is quite right in warning of worldwide competition for legal services. You get some idea why Singapore is seen as a threat for dispute resolution work by looking at the details of the forthcoming International Conference on Electronic Litigation taking place in Singapore on 11 and 12 of August 2011 and jointly organised by the Supreme Court of Singapore and the Singapore Academy of Law, with an address by the Chief Justice of the Supreme Court of Singapore. The opening keynote is to be given by Lord Justice Jackson and the closing remarks will be given by – well, me, as it happens, together with Singapore lawyer Brian Ghowes, a former in-house counsel at Microsoft and IBM in the US. The speakers in between include a Singapore Judge of Appeal, our Senior Master Whitaker and many well-known authorities on the law and the practice of managing electronic evidence. The conference will, I think, be of more value in promoting Singapore as a place for dispute resolution than the “specific market development programs and initiatives” referred to in the MoJ paper.

We will have to wait and see if this forward- looking document is just a pile of words churned out to comply with the Chancellor’s demand for outward commitment to growth or something more meaningful. I am not particularly optimistic: between the Justice Minister’s public pronouncements and the hopes of any progress lies the thin grey line of men from the ministry who will mouth all the right words about growth whilst standing firmly in the way of anything which might encourage it – back-office systems and judicial training, for example. No one can argue with the focus on invisible exports implicit in the encouragement of foreign corporations to litigate in the splendid new Rolls Building, but if Britain is to retain its role as a litigation forum of choice, it will be because of the quality of the people – the senior judges and those who appear before them and prepare their cases – and not because of any government initiative yet visible. It is no good just inducing wealthy foreigners to spend their money in the Commercial Court and Specialist Courts whilst small and medium-sized companies (who generate most of our GDP) cannot afford to bring and defend claims. It is disingenuous to boast of one shiny new building whilst neglecting the courts in which most of our litigation is run.

The MoJ document says that “costs and speed may affect where companies choose to resolve their disputes”. Domestic litigants do not have that choice.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, eDisclosure, eDiscovery, Electronic disclosure, Litigation, Lord Justice Jackson, Ministry of Justice, Singapore. Bookmark the permalink.

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