Fog in the Channel – Continent cut off
Political frustration with the niceties of law is always entertaining to watch. The Appeal Court denies Government leave to appeal to the Supreme Court on the Abu Qatada case. Media reports then have the Prime Minister responding by considering a temporary withdrawal from the European Convention on Human Rights. Interesting, since the Qatada decision was an entirely domestic one and the Convention, far from being a nasty invention of the perfidious foreigner, was the result of a drafting process led by Tory MP and lawyer Sir David Maxwell-Fife. Nonetheless, both ‘Europe’ and ‘rights’ are dirty words right now..
But underneath the rhetoric, the engagement of the UK justice system with Europe continues to get ever closer. The latest manifestation of this is the European Directive on Alternative Dispute Resolution (ADR), which has just received formal assent from the Council of Europe. Scarcely the most snappy title, I know, and scarcely the most enticing subject for a blog. However, it gets slightly more interesting, I promise.
The Directive is part of the “Single Market Act” package designed to ensure that providers and consumers of goods and services operate in consistent markets across the EU. It requires that all member states offer ADR mechanics across all sectors, with those mechanics being based on similar principles. ADR must be impartial, transparent and efficient, it says, with the outcome generally known within three months of the ADR provider receiving the file. Member states have two years to incorporate the new provisions into their national legislation.
So what’s the relevance here? In theory, it could be massive. Taken at face value, the Directive will require the UK Government to revisit its patchwork system of ombudsman schemes and private ADR providers covering most Government and some private functions, and the complete absence of ADR for the rest. More significantly, it will end the distinction between service and product – an increasingly specious distinction in a world where you can either get a will written by a human provider or write one yourself using an online smart-form.
Let’s not get carried away. The Directive does not say that ADR has to be mandatory; only that it should be available. And there is no indication that the UK Government (BIS is the lead department) is seized with excitement at the prospect of implementing it. Suffice it to say that our consumer landscape will not be transformed overnight but changes will occur sometime in early 2015.
We should not dismiss the importance of the new legislation. Whatever the Government view, it is mandatory and ministers will have to take action. I imagine it won’t be easy to achieve without at least formulating a strategy for ADR, something which some of us have been urging for some time. The Directive will not mean that every transaction will have an ombudsman attached to it – that would be preposterous and unnecessary. But in an area like ours, where some consumers of legal services are protected and some are not, and where the broader landscape of redress for those buying professional services is more the result of happenstance than planning, it may just give Government the spur it needs to bring some long-overdue clarity.
Adam's blog archive
Back from a gossipy lunch with a former colleague. Decent grub, reasonable prices and good conversation. But what put a pall on proceedings for both of us was the depressing news, buried under a deluge of coverage on Margaret Thatcher, of the resignation of the wonderfully-named Paris Brown as youth police commissioner. Now let’s be clear, no-one, least of all me, would deny that her Twitter postings were at the very least juvenile. But that was scarcely a surprise: she was, after all, just that - a juvenile. To expect a teenager occupying a minor honorary post to behave like an adult MP (indeed, to behave rather better than many adult MPs) is a big ask.
But what depressed both of us was the way the “scandal” had been broken. Here we are just weeks after the publication of the Leveson report and with the Government actively considering how to ensure responsible press behaviour and then we have the newspapers filled with horror stories about – admittedly offensive – comments a teenager had made three years before she held any office. It is a useful reminder that issues of press behaviour are not just to do with the treatment of Hollywood actors; what newspapers define as public interest goes much wider than that.
And my colleague and I should know. Both of us had been on the receiving end of press operations, in my colleague’s case over a family matter, in mine over an entirely untrue allegation, which had resulted in the door-stepping of friends and acquaintances. Both of us had, fortunately, emerged with our integrity and reputations intact. But for both of us, the memory of the stress and sense of powerlessness was still very raw.
So much for revelation - where is the relevance? Well, for an ombudsman, there are two lessons here, I think. First, there is the understanding that those who come to us are often feeling just as we did then: stressed and powerless. Our lives have been in the hands of influential people – journalists, doctors, lawyers, government officials – and we are hurt, angry and – sometimes – a little irrational. Those professionals are usually playing by a set of rules which we, as outsiders, don’t understand and which often feel to us to be designed for their benefit rather than ours. Any service set up to respond to that situation has to be at least as much about dealing with the emotional as the logical.
And the second one is perhaps a wider point. If Paris Brown is a legitimate target for press interest, so is anyone who occupies any sort of official position. And that goes for those of us who run services like mine. We at LeO have always known that – that is why we have been so careful to keep up-to-date registers of interest for our senior staff and Board members. As someone occupying a quasi-judicial position I have to ensure that everything I do is not just bomb-proof but Mail-proof.
That I can just about do. What concerns me more is the thought that almost anything any public servant has done in the past is apparently fair game. Like every teenager, I had my moments and while there is no deep dark secret I am hiding, there are some minor embarrassments I wouldn’t particularly care to have blazoned all over the front page of the papers. And what goes for me, I am sure, goes for most of my peers. Having spent a while in a quasi-disciplinary position at my college, I know that there are a number of former undergraduates now in public roles whose youthful behaviour wouldn’t survive closer scrutiny.
So what do we want from our public servants? To have lived the life of saints? If so, there are going to be precious few to choose from. And more than that, we know that cleanliness is next to godliness but is saintliness next to effectiveness? I’m not so sure. I spent some of last week interviewing candidates for positions as ombudsmen. What struck me was how much more convincing were the candidates who had evidently seen a bit of life before coming to us than those from a more sheltered career. Given that so many of our customers – lawyers as well as complainants – are so emotionally raw in their dealings with their complaints, a bit of experience may be a critical aid to empathy.
Many years ago, when I was a young – and probably insufferable – probation officer starting out in my career, my boss said that I needed to experience failure to become a success. I didn’t understand then what he meant. Having failed a bit in my time, I do now. It would be a shame if our society decided that past failure disqualified you for future success.
* “… isn't so wise as he thinks”. The seventeenth century French writer François de La Rochefoucauld, in case you’re interested. I’m not showing off: I had to Google it to find out who it was by. And, I’d never heard of him either…
Paradise Lost - 28 March 2013
There is a big hole in the centre of Paradise Forum; the ironically named 1960s brutalist shopping mall through which I have to walk every day to the office.
I noticed it first the other day when I was wandering back from my first visit to Villa Park, fresh from hearing at a breakfast meeting the usual spiel of Mervyn King, Governor of the Bank of England, about how the economy is poised on the brink of recovery. A heartening message to be sure, but one whose effect on me was somewhat undermined by the experience of strolling back through Lozells and Ladywood, past boarded up factories and empty workshops. The only industry flourishing in that part of Birmingham, it seems, is turning industrial sites into car parking.
The breakfast had been sponsored jointly by Forward Birmingham, the accountants’ regulator ICEAW, and the local Law Society. Despite their billing, the legal community in the audience had listened in silence, seemingly regarding the debate about the macroeconomic picture as something of an academic irrelevance. The only question from a solicitor had been to ask the Governor to settle a bet about whether the Bank was owned by the state or by other, commercial banks.
So it was perhaps symbolic that as I walked past Greggs and McDonalds, it became apparent that the Lawyers2You stand, which had occupied a prime site in the middle of the Forum was no longer there. As my press cuttings confirmed for me when I got into the office, its parent company Blakemores had gone down. And, as proponents of the new ‘Save the Legal Industry’ campaign would have us believe, they won’t be the only ones who fail to survive and see the Governor’s bright new dawn. Even the Co-op appears to be affected by the wintery economic winds, with a banking loss hitting its plans to acquire former Lloyds branches to help, in part, make family law more accessible.
When he spoke, Eddie George was largely silent on the shape of the legal market. However, the one mention he made chimed closely with a recent initiative by the Lord Chancellor on growing the legal sector. Key to the country’s economic future was shifting activity from retail to manufacturing and from import to export. Law was a growing and important area of export, with Russian billionaires among others increasingly using British courts to fight out their battles. Other economic commentators such as Will Hutton have also seen law alongside creative arts and academic research as an important part of the knowledge economy, the one area in which the UK continues to outperform many of its competitors.
Which is all very well. But we have a regulatory system which still clings stubbornly to our traditional national boundaries. The writ of the OLC and the LSB is limited to England and Wales, or at least to the lawyers who are authorised to practice here. And as the legal services world becomes more complex - with offshoring of key activities, foreign law firms beginning to circle traditional English providers and English and Welsh firms opening branches overseas - negotiating the complex edges of the Ombudsman’s world becomes more challenging. As I write this, I have another letter on my screen from a firm in Spain, which is in some sense attached to a provider here but who is arguing that they lie outside my jurisdiction. Last week, I had to decide on whether we could deal with a firm that appears to exist largely in cyberspace. If we are going to trade off the reputation for expertise and integrity of British law, we need to make sure that the guarantees are the same for all.
Tragedy is media catnip - 13 March 2013
There’s a striking piece in today’s Sun about Chris Huhne’s humiliating reception in Wandsworth Prison. And the story has a grim inevitability about it. In the past, I have seen similar tales about other establishment figures who spent time inside: Conrad Black, Jeffrey Archer, Jonathan Aitken, and so on.
Beyond the fact that I met him a couple of times when he was in opposition and I was at Shelter, I hold no brief for Huhne and have little or no knowledge of the why and wherefore of the drama we’ve been watching play out. But I do know this: whenever this sort of thing happens, someone, somewhere, will be wondering how to exploit the tragedy. Sometimes it’s for money or personal gain; but sometimes too for more honourable motives.
Tragedies like that of Chris Huhne and Vicky Price are a gift not just to people wanting to make a few quid from a journalist but to campaigners. As I write this, you can be sure that in shabby offices up and down the country, think tanks will be brainstorming the best way of using what has happened to highlight the problems of marital breakdown, or middle class dishonesty, or the overuse of custody. And when Chris Huhne emerges from prison in 17 weeks, one of the options open to him is to follow Aitken and earlier progenitors like John Profumo into a lifetime of using his experience to help others.
The truth is that personal tragedy is endlessly fascinating. As a campaigner, which I once was, one of the first things you learned was that if you wanted to highlight an issue, you needed a story, a face, an individual who was willing to stand up, show their scars and explain how they came by them because however good the cause, a campaign without a human face will fail. But pretty much any story with a compelling, articulate and sympathetic individual at the heart of it is going to be media catnip.
Sam Feely, for example, the woman whose story of being overcharged for her divorce was at the heart of the media’s interest in our divorce report, was brilliant: sensible, balanced and entirely credible. She had learned of our existence through the coverage of our costs report last year and understood the value of helping the media put a face to some of the issues we were raising. She had thought through the possible impact of appearing on her relationship with her ex and had decided what questions were on and off limits. Critically too, she was not on a witch-hunt against the firm concerned: she understood that the story was about legal services in general, rather than about what had happened to her.
And the best stories also touch a chord in the listeners. One of the most striking things about doing media interviews for the divorce report was how often off camera the presenters would begin discussing their own experiences in divorce proceedings. More than one confided that they had not been happy with their legal service and wished us luck. I ended up with the sense we had tapped into a very real seam of discontent.
That said, I did have a concern that the media sympathy for the story might unbalance it. One of our key aims in the report was to impress on customers their responsibility for approaching divorce in a reasonable way. Along with the stories of customers let down by lawyers were those of customers who were the architects of their own downfall, holding out for settlements which were never achievable or pressing on with strategies that were only going to cost them money. The media prefer simple Manichean stories of good and evil, hero and villain. Of course, the reality is always more complex than that.
Fielding victims for the benefit of the cameras can also be a form of exploitation, no matter how good the cause. Years ago, I found myself sitting next to the mother of one of the Moors Murder victims on a TV programme which had billed itself as a serious examination of issues of crime and punishment (these days I would know better). What struck me was the sheer rawness of her wounds, which 30 years of constant media scrutiny had never allowed to close. Yes it was her choice – no-one was forcing her to take part. But that had become her sole identity, it seemed, a professional victim who was invited every day to cry her tears for the camera.
As for Chris Huhne and Vicky Price, it is all too easy to be outraged at the hubris of the privileged or to cast Vicky Price as the victim of masculine bullying. But in truth these are all-too human stories of talent and failure. I am too conscious of my own manifold weaknesses to condemn too easily.
Small earthquake in Chile: not many dead - 26 February 2013
When writer Claude Cockburn worked on the Times in the 1930s, there was a regular competition to devise the most boring headline possible. The above was his only winning entry. 80 years on I guess its modern equivalent would be “Katie Price remarries: a nation rejoices”. But high on the list of entries might also come “Legal Ombudsman changes its rules: some lawyers object”.
The most recent example has come in response to our recent Scheme Rules revisions. And if not objections then at least confusion in some quarters. So let me try and clear things up. There are two issues which appear to have caused concern. First, there is the removal of the two ’free cases’. The Legal Services Act requires (and I stress this – it is in the Act) that we charge lawyers a fee for every complaint about them that we investigate. In the past, we have only in practice charged that fee on the third case in any 12 month period. From 1 April, that will cease and every case will become subject to the £400 fee.
Naturally, this has not gone down well with some lawyers. But there are two points worth stressing. First, we only charge a fee (and again this is in the Act) if the case is decided “in favour of” the complainant (i.e. if we order the lawyer to make some sort of remedy) or if we find that the lawyer did not handle the initial complaint properly. In other words, if lawyers do what they should (i.e. the complaint is baseless) and they take all reasonable steps to resolve the complaint, then there is no charge. In practice, we are waiving some 40% of case fees.
Second – and this perhaps has got lost in the debate – ending the two free cases was not our idea. The change was made at the request of the Law Society and was also supported by consumer groups. Both want to see more of the cost of running our scheme fall on the lawyers whose actions are generating the complaints. Although we had our doubts about the measure, since both sides of the debate were in agreement, and after some careful analysis of the implications, we went along with their request.
The other issue which has got people into a two and eight is perhaps more understandable: the notion that we can now accept complaints from prospective customers as well as people who have actually received a legal service.
We already know that some lawyers are uncomfortable with us looking at the way they have treated people other than what they regard as their “clients”: the fact that the Act already allows us to entertain complaints from beneficiaries of wills, for example, has come as a shock to some. But the notion that we can now look at complaints from people who have unreasonably been denied a legal service or who have persistently been offered a service they do not want has caused some consternation.
But again, the concern is misplaced. These are powers which some of our fellow ombudsmen have had for years and which are, in truth, rarely used. However, they are important to have: if we find someone who has suffered a loss because a lawyer has unfairly discriminated against them or who has suffered because of misleading or bullying marketing tactics, it is fair that we should be able to offer them access to some sort of redress. Everyone accepts that lawyers who engage in this sort of practice (and thankfully there are very few of them) are guilty of regulatory infractions; why should they not be subject to a proper complaints mechanic too?
And as we said in our consultation process, we will put in place mechanisms for minimising the possible impact on lawyers of dealing with complaints from people who they have entirely reasonably turned away. We have taken an explicit power to refuse to investigate cases where there is no immediate evidence that there is any case to answer. For a case to get to investigation – and the lawyer to be put to the bother of answering it – the complainant has to produce evidence that the denial of service, for example, was unreasonable and that they suffered a loss as a result. If they cannot produce such evidence, we will turn the matter away.
What this means is that there is no additional burden on the profession. As now, if a lawyer wants to turn away a client for any normal reason – pressure of work, cost, area of law, complexity of the case and so on – they are free to do so. But if they promise to help a client with an urgent case and then never get round to doing anything about it, if they discriminate on the basis of race or religion, if they lead people on or ape the aggressive marketing techniques of some of their claims management peers, we may be interested in taking the matter further.
Motes and beams - 05 February 2013
An interesting couple of hours at the think tank NESTA discussing how complaints can feed into public sector improvements. There was the usual collection of ombudsmen and consumer groups, larded usefully with some individuals who are key players in the burgeoning on-line 'service feedback' sector, including the moving spirits behind the FixMyStreet and Patient Opinion websites, for example.
And some of what we were hearing was genuinely exciting. There is no question that if we can harness the power of the consumer both to feedback learning and to support each other in driving providers of services to improve what they offer, the impact could be transformative. Not only is it intrinsically right in principle that complainants are empowered to feedback directly on the problems they are experiencing but the practical result may be to shape services more in the interests of the end user than the provider.
But, as ever in these discussions (and this is a critique as much of me as anyone else), however much we tried to have the interests of the consumer at heart, our discussions were irredeemably coloured by our role as service providers. The very question we were there to debate betrayed the fact: rather than asking how the complaints system could be improved to get individuals redress, we were debating how complaints could be used to help improve services. Most complainants want reparation; what we wanted was information.
Of course a good complaints system – and a good Ombudsman scheme – will provide both. The more a service provider signals a willingness to admit fault and attempt to make reparations, the more likely it is to encourage complaints (and – yes, it is worth seeking to encourage complaints) and the more feedback about what it needs to improve it receives. A poor complaints process chokes off one of the few free sources of customer feedback some organisations possess.
So that's not the bit that worried me. What left me uneasy was the apparent presumption that what we should be focussing on was how to improve other people's service, rather than thinking about how good our own were. Maybe it was just me but there was a quiet whiff of complacency in the air.
Perhaps I am wrong. I certainly hope so: there are little grounds for complacency about the way complaints are currently handled. Individual ombudsmen, by and large, aren't bad in what we do. But I have written here before about my unease around the separation between schemes, which give rise to processes and rules developed in isolation, creating boundaries between us which mirror the boundaries of the service providers we police rather than the understanding of the consumers they serve.
Which is why we continue to reform and try to bridge these gaps. Our scheme rules changes, which came into effect on 1 February, are deliberately constructed to reduce the differences between our processes and those of our closest peer, the Financial Ombudsman Service. Our contact centre and IT systems are designed with accessibility and simplicity at their core and we resolve most complaints within 12 weeks. Our customer satisfaction scores are very high.
No – it is not ombudsmen as individual organisations but the way the ombudsman system works overall which I wonder about. And I know that feeling is shared by some of my peers and it is something which we are talking together about finding ways of tackling. At one point in the meeting, Geoff Mulgan, who was hosting, suggested that the new online, consumer-led feedback models might pose a challenge to the ombudsman model. I agree. But I don't see that as a problem: our job is to resolve complaints for individuals and help improve the way services are provided. If there are better systems to do that – and I suspect there are – bring 'em on.
Season of Good Will - 21 December 2012
We are beginning to get the hang of this seasonal stuff at LeO. Our first Christmas, we simply had no idea how much custom we would have. We had a fair idea that most law firms would be running a reduced service over the holiday period. But would complainants use the break from work to take forward that burning grievance against their lawyer they had been nursing for the last few months - or would they succumb to the spirit of relaxation and forgiveness?
In the event, as usual, the answer is "a bit of both". There is no doubt that many of our customers do take the opportunity to forget their troubles and put their complaint to one side for a few weeks. Overall demand does drop over the holiday period, and there is a noticeable spike of activity as people return to real life early in the new year. So for staff here, as for so many people, Christmas is a time when the pressure of work suddenly dips.
But not everyone is infected by the spirit of good will. For some of our more highly charged correspondents, the extra time they have on their hands is time they can spend sending us even lengthier missives or honing their arguments to an even sharper point. When I got back from my Christmas break last year, the first email I opened (from a disappointed complainant) began "If you think I have forgotten about you, you ****, you're wrong" and went on to wish me a less than happy new year.
Which is a shame. If there is one thing which we try to achieve here it is reconciliation. Yes, we can impose our decisions: if the complainant accepts an Ombudsman's judgement, it becomes binding on the lawyer whatever their views of its worth. But I always regard an enforced outcome as a bit of a failure; far better are cases where we manage by dint of calm exposition or skilled mediation to bring the two warring factions together or convince them at least to share a common view of what happened.
But sometimes of course that just isn't possible. I am currently dealing with a complaint about a lawyer where I ordered an apology for a complaint response which was – how can one put it? – less than optimal, indeed downright offensive. Sadly, the resulting apology letter only served to confirm the lawyer's apparent deep-rooted dislike of my findings. My firm reminder of the fact that my finding is legally binding on him and must be complied with in full may not be enough to bring Christmas peace to this dispute.
But, as I say, cases like that are not the norm. And over Christmas, something like calm descends on our little piece of central Birmingham. And calm is rare enough here to be a treasured gift.
Where the great wave breaks - 07 December 2012
I'm writing this while sitting in the offices of Lexis Nexis waiting to do a webinar to what I'm told are 197 lawyers eager to share in what (allegedly) passes for my wisdom. It is a far cry from my usual way of spreading the word to the profession: slogging hundreds of miles through rainy dark evenings to address rooms full of weary lawyers who are seemingly only there to see if I truly have horns and a forked tail or, more prosaically, to qualify for some much needed CPD points.
But most of the time, despite my whinging, the effort is really worthwhile. Take the other night – an after dinner speech to the North West Law Society in a hotel on the outskirts of Preston. Nothing particularly striking either about the gathering or the speech: the people were perfectly nice and I didn't noticeably misbehave. So far, so good.
But for me, the trip was something of a sentimental journey. Not that I have any family connection with the area: far from it. Nor had I studied or worked there. No: what pulling into Preston station with the rain sleeting down brought back to me was the days I had spent slogging round the back streets of Burnley, Accrington and Nelson with John Prescott and his senior officials looking at the progress of regeneration plans for the area. And, after the site visits, we retired to the same hotel to listen to presentations from the other regeneration areas – Manchester, Stoke, Newcastle, Birmingham etc, etc – about the progress they were making and their plans for the future.
That was nearly a decade ago now. But from my brief detour to see some of the same streets before I caught my train back the next day, one thing was clear: for all the talking and analysis, for all the impressive-looking computer simulations and expensive consultants' reports, not a lot had changed on the ground. As the solicitor from Burnley I sat next to over dinner had warned me, the city's decline had seemingly continued unaffected. Abandoned homes were still being bulldozed and shops still lingered empty. Burnley's population was haemorrhaging as its inhabitants went in search of jobs and a new life.
And as I stood there that night, uttering my usual pleasantries to the usual smattering of polite indifference, I was very conscious that at the same time the Co-op was holding its glitzy reception in London to mark the official launch of its new legal service. The two events were separated by more than just 300 miles of motorway. They were, in a real sense, worlds away. Most of those I was talking to were traditional, high street providers; my neighbour told me proudly that he had inherited his firm from his solicitor father. And just as a decade before I had walked the streets of Burnley talking to homeowners whose homes are now rubble, I wondered how many of my audience would still have their practices if I came back in 2022.
Every morning when my train pulls into Birmingham, I look out of the window at the newly renovated Birmingham city centre and compare what I am seeing to the computer visions the architects of the Birmingham regeneration presented to us that time in Preston. Much of what they promised has been built. But south of the Bull Ring still lie the exposed ruins of factories which used to occupy the site, ruins which should by now have been homes, parks, offices and shops. They mark the spot where the money ran out and the regeneration dream died.
Hunter S Thompson has a line somewhere in – I think (as I say, I am not in reach of my books right at this moment) – The Great Shark Hunt about walking up into the Californian hills one morning and seeing the spot where the great wave of the 1960s counterculture crashed and retreated. Certainly that is true of the wave of regeneration of the early 2000s. Law has been a surging wave for two decades now, with universities churning out more and more law graduates and legal revenues growing exponentially. At a time when the amount of money going into legal services may be beginning to plateau and even recede, it may be time to start imaging what will happen if the legal wave also breaks.
One more drink at the last chance saloon - 29 November 2012
Age has its difficulties. I have to admit that if my body is a temple, bits of it are crumbling more than I would like. And I won't mention the increasing unlikeliness of attracting many worshippers.
But getting on a bit does have its advantages. The wisdom of the old may be overstated (when I was younger, I suspected that this was the case; I now have rather more evidence to support my suspicion). But there is little in the world that is new and what the years do bring is the prior experience of dealing with things that younger people are facing for the first time.
Take the current debate about press freedom. Today, Lord Leveson publishes his 2000 page report into the hacking scandal. If you read the newspapers, the suggestion that the state might intervene to give some sort of statutory regulation to press regulation and complaints handling is an outrageous attack on freedom of speech and the liberty of the individual. One organisation has produced an advert featuring the faces of Mugabe, Castro and Putin with the legend "these people believe in the state control of the press".
But as the legal profession knows, the ending of untrammelled self-regulation is not the start of an automatic road to tyranny. Yesterday I attended a meeting of the Legal Services Board where their and our draft business plans were discussed. At no point did anyone express any concern about how Government might react to what we were suggesting. Far from it: one piece of feedback we got on the OLC (Office for Legal Complaints) plan was that we might redraft one sentence to emphasise how independent we were from Government interference. And even where I have been dealing with complaints from high profile political players – and we have had one or two of them in the couple of years we have been operating – I have never felt any pressure to decide them according to the prevailing Parliamentary view.
Which is not to say that the sort of arrangements that have been put in place for lawyers should be adopted wholesale for journalists. For one thing, the regulatory arrangements in the legal profession can reasonably be criticised for their complexity and cost. For another, any regulation of the press has to take account of how broadcasting organisations are regulated and the growing concerns about the wild west of online activity. Media regulation is likely to be a far trickier affair than legal regulation.
But there are some principles which appear to me that should guide any new arrangements. First, there is the question of independence. Critics of the notion of statutory underpinning are very quick to talk of the need for independence from Government. Of equal importance is independence from the profession under regulation. How can any consumer have confidence in the integrity of the regulatory and redress arrangements when they are in the hands of the very people whose behaviour they are seeking to control? That is why the LSB has been so quick to press the first tier regulators on the make-up of their boards and why, as Chief Legal Ombudsman, I cannot myself be a lawyer.
Second, there is the principle of effectiveness. Any regulatory or complaints handling arrangements have to be able to enforce decisions. Whether this is by statute or by contract doesn't appear to me to be profoundly important: whatever works in the individual circumstances. However, the more powerful the interest group, the more need there may be to consider enforcement arrangements which bind that group closely and make it impossible for them to flex their considerable muscles when things go wrong. When newspapers have multi-million pound incomes and will sell huge numbers of additional copies when they print particularly scandalous stories, relatively small financial penalties for transgressions may have little impact on behaviour.
The final principle is perhaps the most parochial one. One of the things to irk me in the coverage of Leveson is the confusion between regulation and complaints handling. While the two are linked, they are very different things. It is possible, for example, to have statutory complaints handling with almost no statutory regulation: estate agencies have to sign up to an accredited Ombudsman scheme but there is no estate agent regulator. The issues faced by the Press Complaints Commission in enforcing a code of press behaviour are very different from their effectiveness (or otherwise) at obtaining redress for individuals who have been wronged. Being clear about the role of redress and regulation is a key principle which needs to be adopted.
We will see what Leveson has suggested and what the Government will do. But, as I say, I am old enough to know that this is not the first time we have been here. Indeed, it was only in 1989 that the press last faced this sort of crisis, when the Calcutt Committee examined newspaper ethics and then Minister, David Mellor, warned editors and owners that they were drinking in the last chance saloon. It will be interesting to see whether Government calls time.
The revolution will not be televised - 20 November 2012
That we live in an information age is now a banal statement. But I sometimes wonder if we've truly grasped how deep our assumption that we have an absolute right to information now is.
And the extent to which we should share the information we possess is, as you will all know, one of those things we at LeO have been grappling with. Given that one of our core values is openness; our starting position is that we should share what we know unless there is a very good reason to the contrary. Although there are legal limitations on what we can tell people – sections 150-152 of the Legal Services Act, if anyone's interested – this is relatively empowering so long as we avoid putting personal information into the public domain.
But legal niceties are not the only thing making living up to our aspiration of openness difficult. Sheer practicality is a very real issue. When our customers decide – as some of them do – that we are biased against them and in league with the other party, they often bombard us with demands for information: about their own case or just as often our policies, practices and finances. There is usually no philosophical difficulty with this; it is merely that the time and cost of tracking down every email and memo is significant.
But the one I've recently been wrestling with is something different. One of the few recommendations from the Ministry of Justice review of our workings earlier in the year (reassuringly, we emerged largely with a clean bill of health) was that we looked again at how open we were with our Board processes, suggesting that we might consider having open Board meetings. We have also had a request for papers from our meetings, which has now been made formally under the Freedom of Information Act.
Instinctively, these are suggestions that we would like to accommodate. We are a public body, paid for by the legal profession, and both the public and the profession have a right to know how we are discharging our responsibilities. Nor do we have anything significant to hide: it's not as though the world would end if the detail of our Board discussions were revealed; indeed, I suspect the vast majority of what we talk about would be of interest only to legal policy anoraks for the most part.
But, as the recent way in which our plans for our Scheme Rules (which we have published formally today) appeared prematurely in the press shows, there are real problems with effectively conducting our Board meetings in public. At the point when Legal Futures broke the story, we were still in the middle of Ministers considering the proposals. Fortunately, the Ministerial letter agreeing to our suggestions came a couple of days later so no damage was done. But there had been a real danger of our relationship with the Ministry being damaged by premature media coverage. And putting the bones of the proposals into the public domain without the rationale behind it (which you can find on our consultation response elsewhere on this website) risked creating misunderstandings on the part of the lawyers who will have to respond to the new Rules.
What made the story slightly embarrassing, though, was the source of the leak: us. When we came to look at it, there had been enough information in our Board minutes – which we do publish – for Legal Futures to piece together what we planned to do. The draft is considered by the Board before it is signed off for publication. None of us had spotted the timing issue.
Does this mean that we will be publishing our papers and holding open meetings? No. Trying to conduct meetings in public forces you simply to go through a charade: whatever happens in public, the real discussions happen in private. When I attended a meeting of the Legal Complaints Service before we began our work, the agenda for the closed session which followed our open session contained all the important decisions; my bit was just for show. The same applies to Board papers: papers written with a mind towards publication necessarily gloss truths and omit others. Rather than write down what you want your Board to know, you wait until the meeting and say it then.
Which doesn't mean that we won't be doing anything. On papers, we will of course look positively at any requests made for disclosure. Clearly, when the papers are suggesting ideas to the Board, which they may or may not adopt, we won't be putting those in the public domain. Nor will we be publishing early drafts of policies or purely operational detail. The range of what we publish proactively is growing all the time: decisions, KPIs, consultations etc, and we will not be hiding behind the exemptions set out in the Freedom of Information Act – we will try to be as open as we can.
So, while we will not be holding public meetings in the formal sense, we will be building on our normal consultation process to include an annual event where we invite people to feed back on our performance and input into our decisions about our plans for the coming year. We are just putting the finishing touches to our draft Business Plan and Strategy and are looking to stage the first of these events in the spring to help us decide on the final version. Knowing what we are doing is all very good; influencing it is perhaps even better.
You know what you are - 07 November 2012
Another day, another Chelsea racism story. I see from today's papers that the Chelsea supporter alleged to have made monkey signs at the United match has been arrested. It never ends, it seems.
Fun though it is chanting "You know what you are" at John Terry – and it is fun (especially for an Arsenal season ticket holder) – it isn't great to see the sport you love implode. For all that the football world is sometimes arrogant and unpleasant, it is still a very important part of my life. And seeing the massive strides it has taken in eradicating racism from the terraces threatened by behaviour on the pitch is depressing indeed.
But for me it is a salutary reminder of how easy it is to get complacent about the issue. Years ago, I worked as a probation officer in Tottenham in the aftermath of the 1985 riots (I was Winston Silcott's probation officer). There we were, an idealistic, largely white team, determinedly trying to bring fairness and understanding to a divided and very unfair society. The trouble was, when the researchers came to analyse our work, they revealed – surprise, surprise – that without realising it we had been recommending slightly tougher approaches to young black males than we had to their white counterparts. All the time we had been seeing ourselves as part of the solution, we had been part of the problem.
It shouldn't have come as a shock – even then, we had been through enough diversity training – but it did. We were part of the Rock Against Racism generation (ask your parents). We'd been on the marches and worn the badges. How could it be us?
But it was. And for any service industry – and we at the Legal Ombudsman are a service industry – that is the real danger. Here, while the majority of our cases are relatively clear-cut, there are complaints where we are forced to make marginal judgements about who's right and who's wrong, whose evidence is more convincing and whose account less so. If we allow those judgements to be affected by irrelevant characteristics – age, accent, ethnicity or the colour of people's ink - the outcome would be contrary to everything we're trying to achieve.
So we have made massive efforts here to get things right. For starters, we've been very careful in our recruitment to ensure that our staff here are truly representative of the communities we're here to serve. Of course, you can't get that perfect: you never manage to fill all the gaps satisfactorily. But we've not done too badly. We have also worked hard to emphasise our commitment to diversity in action, providing training and support, education and a regular programme of awareness-raising events. We collect reams of data, asking all those whose cases are due for investigation about their race, religion, age, sexuality etc, and use this information to identify gaps and plan what we're going to do to address them. All our policies are checked for their diversity impact and we have an active programme of engagement with marginalised and hard-to-reach communities to ask what else we can do to improve our service.
Which all sounds pretty comprehensive. But will it entirely cover off the risk? No, of course not – nothing is guaranteed to do so. It is entirely possible, for example, that we see lower satisfaction levels from some communities than others. Research from elsewhere indicates that marginalised groups often express greater levels of dissatisfaction about services they receive: that is one of the reasons why we have been so quick to do the engagement sessions we have with those groups. We don't yet know how they feel about us – we are still too early in our lifespan to have reliable data – but we can't afford to be complacent.
An ombudsman, like a referee, is an easy target if people don't like our decisions. But it is only if you are prepared to recognise the possibility that you may have made a mistake that you are able to improve. And that is what is so disappointing about what is happening at Chelsea. Given the devastating critique of the club's handling of the Terry/ Ferdinand affair – and the full judgement of the FA panel is worth reading – it is at least heartening that they were so quick to co-operate with the police about their fan's actions. It is one thing to acknowledge someone else's fault; it is far more difficult to admit that your own club captain and secretary may also have something to apologise for.
The foolishness of crowds - 29 October 2012
My Monday night ritual has been ruined. Monday is the day I stay over in Birmingham and, sad man that I am, I have developed a little routine: work late, dump my stuff in the hotel, and then wander off to a restaurant nearby for a cheap meal and a crafty bottle of wine in blissful, anonymous solitude.
But last Monday, the inevitable happened. There I was, elbow-deep in tapas and a deeply un-improving book (one of Kim Newman's steam-punk vampire mash-ups, since you ask), when cutting through the babble like a reproving dog whistle came the three letters so beloved of so many: SRA. And, yes, there they were at the table next to me. Not only had the SRA landed in Birmingham, but their staff were now colonising my restaurants.
There are two sorts of reaction to this sort of stuff. Many – most – people love being part of a close professional community. When I was talking to the President of the local Law Society the other day, she was celebrating the fact that Birmingham is increasingly building a reputation as the most important legal centre outside London. And certainly, there is a certain truth in her claim: the SRA, the Criminal Cases Review Commission and LeO, the solicitors firms in Colmore Row, the barristers chambers and the courts all add up to a sizeable presence.
And British professionals have long shown a predilection to cluster together for warmth. Seventy years ago, the Hungarian writer Georges Mikes commented archly that it was not enough that all London's tailors were in Savile Row and booksellers in Charing Cross Road, but all public toilets should be moved to WC1 too. It is still happening. The watchmakers of Clerkenwell may have left but the area now has the world's highest density of architects. Just along the road is the so-called Silicon Roundabout on Old Street, the spiritual home of the nation's techno-nerds (and where Rocket Lawyers, among others, is now based).
But me – I am characteristically uncomfortable about being seen as part of a growing legal hub. Part of that is perceptual: when we were looking at offices in Birmingham three years ago, we deliberately avoided buildings at that end of town precisely because we didn't want complainants to see us embedded in the heart of lawyer-land. Nice though it is to have easier access to Anthony Townsend, if only so that I can join the long list of people nagging him about the SRA's IT difficulties (the lack of up-to-date data about who exactly is regulated is playing merry hell with our efficiency stats), having the SRA a stone's-throw away risks adding to some complainants' impression of us being too close to the profession.
But clustering carries with it a more fundamental risk. Sure, the proximity of many similar entities enables easy transfer of knowledge and quick career progression for talented staff. But there is a danger too of ghettoisation, of communities becoming inward-looking and closed to outside influence. And with the world changing so rapidly around us, that is something we all need to avoid. No-one wants to end up like the dodos in Ice Age, squabbling over the last melon.
I hate you so much right now - 19 October 2012
One of the problems with having a clippings service is that it forces me to read my own reviews. The journalistic stuff isn't usually too bad. But I am still coming to terms with the interactive nature of social media and the cultural memes of internet debate (that isn't the reason you can't currently post responses to these blogs, by the way. That is apparently some sort of technical issue with the way our website is currently set up which we are working hard to sort).
So there I was this morning scrolling down the posts commenting on my recent Guardian law piece. Two stood out: one declaring that I have "a transparent dislike of lawyers", the other dubbing the Legal Ombudsman "the solicitors defence team". Between them, they represent the yin and yang of the sort of responses we often get when we venture into the press.
Despite the recent flurry following the publication of ombudsman decisions furore, it is disgruntled complainants who dominate my postbag. As I write this, my other monitor is showing an email from one of my regulars, a deportee who now writes from his new country threatening dire consequences on us for our manifold sins; judging from today's missive, he has moved on from promising to bomb us and will now be sequestering UK government assets in a magnificent show of one-man economic sanctions. This time yesterday it was the latest from a man who once told me my decision in his case made him physically sick, attaching a video link to prove it. This time he has simply signed off "Yours with pure, undying hatred". Progress, I think.
Lawyers rarely reach the same giddy heights of abuse. Despite the steady diet of threats of judicial review or Human Rights challenges, I suspect their heart isn't usually in it. But I know that my Guardian commenter speaks for more than just himself in presupposing that I have a personal beef with lawyers as a breed. I have heard too many mutterings from too many lawyers to dismiss the charge outright.
But of course it starts from a false premise. There is a former nun called Karen Armstrong who now writes eminently readable books on theology (an oxymoron, I know, but her biography of Muhammad, for example, really is worth a look). The central thesis of her Case for God is that there is something anomalous in our current obsession with religious belief. For the vast majority of human history, she argues, religion was a rooted in practice, not belief: what mattered was not what you thought, or who you were, but what you did. There is precious little in the Gospels about religious doctrine; there is an awful lot about how religious people are supposed to live their lives.
And so it is for lawyers with me. I am profoundly uninterested in lawyers per se; it is what lawyers do that matters. At its best, that can be truly worth celebrating. Last night's Law Society Excellence Awards rightly recognised lawyers who had done sterling work in the Gary McKinnon case, in defending the rights of gypsies and travellers, and in furthering the cause of marginalised sexual groups (producing in the acceptance speech a magnificent, Clary-esque wise crack, sending a noticeable frisson round the room).
But that is legal practice at its best. Inevitably enough, that isn't always the sort of legal practice which we see here. And when we see practice which falls short, we do ask searching questions. That is what we're here to do. If that upsets some lawyers or if we disappoint some complainants – so be it. I'd prefer us to be liked by both sides. But at least, as the Guardian responses show, there is an equality of dislike out there. I'll settle for that.
The circus is in town - 09 October 2012
The summer-flower has run to seed,
And yellow is the woodland bough;
And every leaf of bush and weed
Is tipt with autumn's pencil now.
Autumn – John Clare
For the past decade or more, the signs of autumn have meant for me not the mists and mellow fruitfulness of harvest but the fugs and curled sandwiches of party conferences; and the signs are certainly here in Birmingham this week.
The Olympic iconography, which has dominated Victoria and Centenary Squares for the last three months, has been taken down and replaced by brand marketing material aimed squarely at the chattering classes up from London for the week. My regular Monday night hotel room is suddenly beyond my price range and will be occupied instead tonight by one of the hordes of politicos who have descended on the town. And my diary for the next two days is full of meetings with legal professionals and wanna-be ABS's who just happen to be passing.
For seven long years of my life at Shelter, these three weeks were a blur of cheap lodging houses, rushed speeches to sweaty fringe meetings and late night boozing. In the three years since, my role has been as a distant (or this week not so distant) observer: in my current role, I've not felt the need to suggest staging any meetings to publicise our work, even if I could be bothered to seek exemption from the general bar on public servants doing so (although I note that both the Financial and the Parliamentary and Health Ombudsmen have been on the stump from time to time).
Do I miss it? Malcolm Muggeridge once said that male libido is like "being shackled to a madman" (for some strange reason, it is one of Russell Brand's favourite sayings, although he attributes it to Socrates). The same could be said of getting closely involved in the ebbs and flows of political debate. There is a real relief in watching the scurrying and posturing from my window without feeling any particular yearning to be part of it all.
But politics matters and regardless of how self-important and self-indulgent much of what is going on out there appears to be, real work is being done. The meetings I will have over the next two days with my various visitors will not just be words, and a few of the drunken conversations which will be taking place in bars across the city tonight will have actual meaning. If it was all just show, hard-nosed business people would not be flogging their expense accounts quite so hard for the next few days.
And for us, while for the past three years we have kept our distance, we may at some point have to consider going back into the fray. As the Legal Services Act recedes into the past and as its remaining provisions are enshrined in action, the debate about what comes next begins to gather pace. Not only will the results of that debate shape our future, it is also a debate to which we can – and should – contribute.
I had better dust off my old clown's costume just in case I'm required to rejoin the circus.
Back to the coalface - 8 October 2012
An afternoon spent grappling with a couple of tricky complaints, both alleging conspicuous failures in service - by us.
It is commonplace when I do speeches to groups of lawyers for someone in the audience to say plaintively: "But you don't know how it feels to be the subject of a complaint. You do your best for some awkward so-and-so [this isn't always the exact term they use] and after you've sweat blood for them, when they don't get what they want, they go and file a complaint against you. And you have to watch while someone who doesn't understand investigates what you've done."
Oh but I do. As I often say, while much of my world is unpredictable, there is one thing which is certain: there will be more complaints this year about my office than about any room full of lawyers I address. Don't forget: we get the distilled essence of all lawyers' complainants, and a fair percentage of those will be just as hacked off with us if they don't get the result they think is their due. And since it is often some of the more combative and intractable lawyers whose behaviour gives rise to complaints, we also end up dealing with the legal awkward squad too.
So from the start (from before the start, since we'd had three death threats before we even opened) we geared up to deal with what we knew would be a steady stream of dissatisfied customers. We have a team of three whose job it is to handle the gripes when they come in (and the associated requests for access to files etc) and have the former Chief Financial Ombudsman, Walter Merricks, as our Independant Complaints Adjudicator. And, before you ask, yes - we publish the results, in this case in our Annual Report.
But of course we can't just blame our complaints on the awkward nature of some of our customers. We are a medium-sized organisation, a bureaucracy, and just as prone to cock-ups as any (although of course any suggestion that I personally am prone to periodic outbreaks of pomposity represents an insult to the dignity of my office and a treasonable attack on the democratic process which invested me with my humble powers). No matter how much work we put into training, supervision, quality auditing and all that - and we do - mistakes are made and standards sometimes slip.
So while I am conscious that as an organisation charged with critiquing others' service standards, we need to show that we can provide a decent service ourselves, I know that perfection - for us as for lawyers - is not possible. But what we can hope for, the minimum that we should provide, is a decent response when we do get things wrong.
As I was wrestling with these two cases today, I also had open on my computer the research we are publishing later this week on lawyers' first tier complaints handling. What the research re-emphasises is the central necessity of looking carefully at what the complainant is actually saying, of trying not to presuppose, of putting yourself in their shoes, of not being defensive. The research has also informed two guides, one for lawyers and one for consumers, which we'll be publishing at the same time.
Yes, there may be precious little we can do to convince some of our complainants that we are not part of some massive conspiracy to deny them justice (or to destroy the legal profession). But where we have messed up - or even when we've just not taken enough care to explain why things happened as they did - we should say so. And apologise. And try to put it right.
Grumbles from the inner circle - 3 October 2012
I'm sitting in my front room with my discarded hired morning suit scattered around me after getting back from the ceremony to mark the opening of the legal year. When the invite came through, I tried as I usually do to palm it off on one of my colleagues; parades at Westminster Abbey might not be my thing but some of my colleagues delight in all that flummery. But stand-ins were not allowed, I was told, so off I dutifully trooped.
Predictably, it was a bit tedious. But on another level, it was also gloriously surreal. As I descended into Westminster Hall for the reception afterwards, the sight of the nation's finest legal minds in a bewildering array of bizarre costumes was cinematic in its impact: think of the trial scene in A Matter of Life and Death only in technicolour (and I mean the Powell and Pressburger film, not the Iron Maiden album).
The trouble was, it was to some extent an irony-free zone. What I hadn't banked on was how seriously it would be taken. For all the conversations about the discomfort of the judicial tights and the ethics of ermine fringing, there was a real delight at the opportunity to make a show. Wandering past Chancery Lane on my way down to Westminster, I had passed a fleet of coaches parked outside presumably to ensure that the bigwigs of the solicitors' profession (although in truth they were comprehensively out-wigged by their fellow lawyers on the day) did not have their chains of office rusted or robes moistened by the drizzle on the mile or so between there and the Abbey. On a day when appearance is everything, every raindrop matters.
But underneath the pomp and pride, there were signs of growing insecurity and unease. As the wine began to loosen tongues, conversation turned to gossip about which high street firms were on the verge of going under and fears about the long-term future of the junior Bar. As ever, the move towards ABS, gripes about over-regulation and the Government's legal aid policy took the brunt of the blame. But there were mutterings too about the intrusion of lay people into the legal world – politely voiced, considering my presence, but palpable. If it appeared that the mooted judicial refusal to address Chris Grayling as "Lord Chancellor" did not show itself, the pointed debate about how a lay Chancellor should be styled revealed much about some traditional legal minds.
But of course we are not the issue. Lay people are usually easy meat: dress 'em in golden robes, initiate 'em into the arcane mysteries of lawyers' rites, and watch 'em slide happily into co-option (although in my case requiring me to dress like a penguin has the opposite effect). The legal establishment hasn't survived unchanged for 800 years without learning a trick or two. Events like today's aren't meaningless rituals; they have a purpose.
Part of that purpose is to invite people such as a lay Ombudsman into the circle. But part too is a legitimate celebration of what they have in common, of their history and traditions, of their roots and principles. No matter how apparently exclusive some lawyers' behaviour may be, law as practiced in countless small offices up and down the country is a fine thing and to be cherished, not attacked.
And at times like this, the appeal to those common traditions is doubly important. Like all closed societies, it's the threat from within which matters. Far-sighted legal minds have spotted the growing interest from outside finance in investing in one of the few sectors still performing strongly in a depressed economy. The law is seen by potential investors as an earner, both at retail and at corporate level, and ripe for transformation and profit. Some lawyers will see that as an opportunity to share in the enticing prospect of wealth. Others will see an opportunity to build a legal service model which is more accessible, more affordable, and more equitable than what has gone before.
Today's event was invitation only. Up to now, the legal establishment has been relatively united in maintaining its common culture; in barring the gates to the outside world. The question is: who in that gathering of the legal great and good is going to be the first to let the new world in?