Overview
Executive summary
This report sets out a vision of what a justice system should be in the twenty-first century. The main focus is on civil and administrative justice, namely disputes among people, or between people and businesses or the state, including consumer, family, housing, property and employment disputes.
Why is a fresh vision needed?
We have traditionally looked at each type of dispute separately and focused just on resolving the dispute. We have also assumed that the ultimate means of resolving disputes is through law, lawyers and courts. But we are learning that these traditional assumptions are unsafe.
The cost of a system based only on law is too high for many people, and for the state, so access to justice is often a mirage. Other techniques such as advice and mediation are successful and cheap but not deployed effectively. Much traditional thinking has occurred in silos, with the justice system focusing largely on dispute resolution whilst regulatory systems focus on ensuring compliance with laws – in both cases on the assumption that upholding the law through enforcement in individual cases will affect future behaviour and ensure compliance with the rules.
But finalising a dispute does not mean that changes in behaviours or procedures occur so that similar disputes are prevented in future. In addition, we know little about the causes of many common disputes, as we do not study or collect data on them and use it for learning and feedback. In short, several elements are currently missing, or at best inadequately delivered, in traditional justice systems.
The recent description of the justice system as one of ‘fragmentation by design’ is accurate. Civil and administrative justice systems remain undeveloped, working largely within their own siloed vacuums – such as civil justice, administrative justice, regulation, business support, and social advice and support. The challenge is to join up these different silos and systems to form an effective comprehensive one. Additional mechanisms such as providing information and education, data collection, and supportive oversight of changes are critical for success.
What is needed is a holistic system that delivers outcomes such as widespread good behaviours, constant improvement in learning and performance, the ability to face unknown risks and innovation with confidence, and levels of trust that support social cohesion and commercial vibrancy. This system also needs to address current challenges such as the inability to fund advice services or provide universal access to courts.
Achieving this requires the reconfiguration of multiple elements so that the system delivers a series of additional functions, especially prevention, learning and change, rather than simply dispute resolution. Significant lessons can be drawn from the experience of modern regulatory systems, which are adopting a systems approach and thereby delivering better outcomes, preventing problems and contributing to a society that is more cohesive and vibrant both socially and economically.
Refreshing the system as proposed in this report involves the following core elements:
- Establish clear ethical principles and rules that will lead to the outcomes desired by society, community, market and nation, reviewed and updated in response to fresh information or insights, in an ongoing self-reinforcing process.
- Make the principles and rules known and accessible to people, with adequate support for adopting them and accessing the system in practice.
- Solve disputes, deliver redress and restore balanced relationships, including ensuring that harm is repaired and damages or losses are compensated.
- Identify problems by capturing data that can confirm how well the system is working and support learning.
- Provide information and feedback on issues and problems.
- Support voluntary change and improvements by individuals and bodies, based on the evidence, to improve behaviour and culture, achieve the outcomes desired by society, and reduce future risk.
- Achieve change by intervention or enforcement, through formal means such as professional advice and support and the intervention of regulatory authorities with mandatory powers, if it does not occur spontaneously.
- Monitor the situation and action taken to see if any further or corrective action is needed.
Recommendations
- Create a governance authority with responsibility for designing, managing and reforming the whole system. This ‘Justice Institute’ or ‘Justice Council’ should comprise all stakeholders, basing decisions on adequate data and research.
- Create a single, independent regulator for legal professionals to replace the existing eight frontline regulators,4 also including other professionals such as Ombudsmen.
- Create a comprehensive complaints landscape that produces relevant data.
- Review what changes are needed in relation to each type of dispute and in each major sector in order to create the holistic system of functions. The system should:
- support information and education on what constitutes good behaviour;
- identify problems and be capable of taking positive actions so as to improve behaviour and reduce risk;
- deliver effective protection from multiple and mass harms; and
- innovate through accepting risk but managing it; and thereby
- grow social cohesion and economic growth.
- Establish a single, uncomplicated portal, readily identifiable to users, behind which individual pathways and techniques are provided as required for particular disputes and their types.
- For each sector or type of problem, ensure that pathways are user-friendly, cost-effective, strongly digital and usually investigative rather than adversarial, and that they automatically deploy relevant techniques. For example:
- In the NHS, urgently switch from a medical negligence regime to a ‘no blame’ administrative injury and care scheme – essential in supporting information sharing in an outcomes-focused culture involving constant learning.
- For consumers, establish a single integrated network of consumer ombudsmen, coordinated with (national and local) regulators and support functions, with coverage gaps filled and individual alternative dispute resolution (ADR) schemes upgraded into ombudsmen functions that contribute to an integrated database of relevant information.
- In relation to property and housing, create a simplified, integrated pathway combining tribunals, the county court, ombudsmen and ADR schemes.
- For neighbour disputes, establish a system that delivers local integrated expert support, based on feedback and coordinated local expertise.
- Families, debt and social issues: a fresh arrangement that starts with integrated support from multiple local and charitable organisations and leads directly to relevant pathways of problem resolution and change.
- Review which victim compensation systems need a ‘front door’ with personnel trained in mental health and ensure data collected once can be used for multiple subsequent purposes, without re-traumatising victims.
- For employment disputes, create an integrated pathway of ACAS/ombudsman/ tribunal plus local experts, that collects and feeds back relevant data to support collaborative workplace culture and behaviour, with an agreed code to resolve disputes in a positive atmosphere.
- Public sector: upgraded public ombudsmen and a fresh solution to investigating facts, reducing the need for huge public inquiries (which operate only in relation to major scandals anyway) and ensuring that appropriate change occurs. Redress processes could be more efficient and less acrimonious through the establishment of a permanent compensation authority.
- Establish a single database (or linked databases) that maximises the volume of data collected while avoiding the confusion produced by having multiple unconnected pathways, organised within a single national pan-sectoral framework as created by the consumer ombudsmen in Belgium.
- Appoint trusted data controllers with the ability to analyse and investigate the data, signals and facts. There are particular implications here for endowing public ombudsmen with additional powers.
- Establish independent bodies with the authority to instigate and oversee appropriate action that ensures that two categories of responses occur:
- Retrospective: repair, redress, compensation.
- Prospective, or regulatory: ensuring whatever effective changes are necessary to stop and prevent harm are taken. Some of the responses may be formal enforcement actions, others may support changes of various types, such as involving education or behavioural changes.
- A major example is in the public sector: there is a need for a performance of functions overseeing the operation of the system and ensuring that change occurs, equivalent to an independent regulator in private sectors: absent this, more disasters in the public sector will inevitably occur.
- Ensure coordinated delivery of support services, differentiated from but alongside traditional enforcement, such as multi-disciplinary problem-solving forums and local support networks for e.g. SMEs and the housing sector.
This report sets out a vision of what a justice system should be in the twenty-first century, focusing on disputes among people, or between people and businesses or the state.
