We’re on GCloud 14
There’s a new GCloud framework open from 9 November and FF Studio is on it. For those as clueless as I was 18 months ago, that basically means there’s now a legal vehicle for public sector bodies to give us some money to do some work.
We knew frameworks were important, but we’d not applied for one before. I quickly recognised that the move of Digital Marketplace from GDS to CCS in 2019 is still having repercussions in terms of information and service design, which is to say: the volume of information displayed across multiple websites and in varying formats when applying for GCloud was initially intimidating. Engaging with a non-internet-era process is frustrating for those born in the 1980s. Nonetheless, once through the information overload (thanks to Liz Whitefield, Sarah Gold and Clare Young for pointing us in the right directions), applying was a good forcing function for us to write down what we do and the services that we offer. We made an Arc Easel of the rate cards of some other relevant companies, to inform our own, and were happy to find that the actual application process remains consistent with the Design System.
After applying we learned that if you’ve not yet filed your first year’s accounts, CCS think you’re pretty sketchy. Our accountants helped us file our year 1 accounts within a week, and we were able to grapple with a poorly-designed spreadsheet to prove our Economic and Financial Standing.
One page of the 14 tab spreadsheet required to prove our economic standing
GCloud likes to think of itself as suitable for small businesses, but it’s not so friendly to new ones. How do you stay alive in the meantime? You hack procurement as best you can, day rates and contracting and subcontracting. In our first year we learned that it was true what someone had told us, “hacking procurement is the most creative thing you’ll do in the first two years”.
So after all of that, I’m really glad we got the siren to say we’re on GCloud - we’re open to business in the public sector. But I’m not sure this is the silver bullet given the way the wind is going in public sector procurement. DXW recently wrote their response to Jeni Tennison’s call out for ideas around DSIT, and top of the list was procurement. Because “commercial teams procure digital and tech skills as commodities”, and “only larger suppliers can compete on price like this”.
There are squeezes on budgets everywhere, and looking at all those rate cards made us realise that some organisations are designing their business models for lower unit costs rather than prioritising “expert, agile delivery”. Procurement is a tiring process for civil servants as much as it is for suppliers (I remember this keenly from bringing in some extra brains to work on identity and accounts in GOV.UK), so there’s a smidgen of rationale to putting out “four contracts worth around £19 million each” as one department did in 2023. That stretched-for-time head of product whose morale has been battered by Brexit, COVID and Jacob Rees-Mogg just wants people in the door to do the work and not to have to bother with procurement every six to nine to twelve months.
Those who win that work though are the “companies with deeper pockets [who] can gain incumbency with a public sector organisation by offering low prices before rates inevitably rise”. It’s the same suppliers who can afford to employ specialists in procurement into their organisations. Again, all well and good if that’s your game - but it’s not the ‘friendly to SMEs’ story that GCloud, or DOS (closed as a framework since 2022) try to tell.
Anyway - market share and winning large, long, high contract values isn’t really our game. We’re trying to bring together good, smart, experienced people who can develop thoughtful, well crafted outcomes. We know that’s not a scale game, either in company size or the work we take on. Most of our work so far has been with great, smart buyers who for whatever circumstance are able to invest in the methodical and diligent act of making change happen. Long may that continue, and now with less procurement faff than ever before (I hope).
If you want to see our services on GCloud, here’s a link.
AG
Parental leave is a society-sized problem
Anna is about to become a parent, so in January we sat down and talked about what a supportive environment for new parents looks like. At FF Studio we reckon parental leave for directors whose partner is having a baby is 3 months at full pay. Ideally taken in two blocks.
Personal context
For context, we don’t currently have any employees; Anna and I are both directors, and we have a gang of highly skilled freelancers who weave in and out as projects need them. So rather than a policy for employees, we’ve started with what directors do in this scenario.
A present father and mother was my normal. I was quite young when my dad retired. My childhood memory is of domestic and caring work done by both of them. And tbh this family history has shaped my views on parenting and care.
I was working at the Ministry of Justice as a contractor when my first child was born. My contract basically meant no paternity pay - but that’s part of the contractor game - you save money for holidays, sick pay and parental leave. You look after yourself.
With this freedom to make my own choices, I decided to stop working for one month initially directly after birth. Two weeks felt like a very short time given quite how transformative having a child is to life, norms and routines.
Seven months later in the summer, I decided to stop working for 2 months. (In reality, I quit the contract I was in and hoped to get another contract two months later.) Those two months were when my daughter was 8 months and was just starting to interact with me and the world around her.
This worked really well for me and my wife. Our household income took a hit, but the time with my daughter and my wife in those three months more than made up for it.
Experimenting our way forward
I’ve looked at government policies, and I’ve looked at what other companies do. Broadly I don’t think that there is enough support for non-birth parents to take time out from work to spend time with their new families.
As ever - all problems sit in their next bigger context - and so does this. Parental leave is a society-sized problem. Two weeks as a standard should be left in the 20th century. Where there are two parents, more equality of leave is more beneficial to the birth parent’s mental health, and it helps to spread the responsibility of care across both parents. That has repercussions for career progression and workplace equity across a lifetime, not just the first year of a child’s life.
We think it should be different. We want to model a compassionate and flexible approach that supports families while also acknowledging the economics of running a new business. I want to be able to point at things we have done, not ideas that we have.
So, there you have it. Having a child enter the family? Take a month off, then another two months off when the time is right.
We’ve only had to think about non-birth parents for now, in one very specific scenario. But we know that life brings loads of other scenarios too: being pregnant and giving birth, caring for older or disabled family members or friends, adopting, fostering and a million other nuanced scenarios as yet unlabelled. In an ideal world, I’d like us to head towards a broader ‘carers’ policy’; fingers crossed we grow enough to make that a reality.
So without writing policies for every possible scenario that could lie ahead, our broader position is this: new parents should be supported by their workplaces, their families, their communities. People who look after other people are great and should be supported. Caring is what life is for.
EF
Time is a design material, too
This is a post about patience: patience in the sales cycle, and patience in the work.
And it’s a post about pace layers - and how some of our standard industry practices force clients to work at a different pace than might actually be effective.
Slow down to see further
The long game is a long game.
But the dominant agency or consultancy industry model isn’t: it’s a quick close, a fixed day or weekly rate, set an engagement length, send an invoice at the end and off you go. If you’re working with a public sector organisation then maybe pass a service assessment at some point and chalk it up as success.
But trying to change the way humans behave, act, interact, and organise themselves… that doesn’t happen in the pre-defined time block of a discovery or an alpha. It happens in a different, slower layer of time.
So at FF Studio we attempt to work at the pace of our clients, with the grain rather than against it. Because while a lot of our work is about imagining, sharing and prototyping digital products, services, and futures, a lot of the rest of it is about how people working in organisations become more capable, resilient and confident doing those things themselves. You can only do one of those things quickly.
(Of course there’s another option for that standard operating procedure for consultancies: don’t move on. Land, expand and never leave. This might look like it’s a way of saying yes to a client’s natural pace - often it’s simply profit seeking, and taking advantage of any mix of the factors that often exist client-side: goodwill, the procurement headaches of bringing in a new supplier, cultural complacence, inexperience.)
Winning the work takes time
Often the first time we notice the pace of a client, it’s in the biz dev. When the bizdev is slow and needs a persistent, patient approach, this is often a sign that the actual work will also be. We try to accept that rather than work against it - we aren’t very good at hard sells anyway. Because we’re working alongside, not against a client. The time it takes to close on some work isn’t time lost, it’s time spent building up trust between us.
In fact it reminds me a little of getting a new job, in those circumstances where the salary negotiation happens right before accepting. It always felt to me like the last moment that I was in an adversarial relationship with the (potential) employer. From the moment we agree on a number, we’re working together, we’re on the same side. And yet right before we’re working in opposition. Our incentive structures differ and we want different things.
Treating the sales cycle as a generative rather than an extractive process, thinking of it as a phase to go through and build trust and stay on the same side, is an attempt to counter that feeling. We value the accrued trust over the ‘lost’ cashflow. We accept the pain of not needing to close urgently, and we believe that agencies that can’t accept the pain inherent in waiting to close don’t get to play the longer game later. And we have to trust that we can sniff out the bullshitters who will keep us talking, without any intention to give us any work - that if we turn up being honest and hopeful, the same will come back in our direction.
We can act in this way, by the way, because we made a decision to stay solvent for as long as possible instead of paying ourselves bigger dividends every month. We’ve broadly been quite conservative about the business choices we’ve made around where, what and how much money gets spent every month. Economically we’ve behaved like the last two years have been a bear market - because we are in a bear market. We have more choice about the work we take on and how quickly we do it because we have prioritised staying solvent enough to be around if it takes another six months to send an invoice.
A slow sales cycle can also hint that the work might be bigger than it first seems. When we’re patient and take the time to get close to the client, we end up having better conversations, which leads to better outcomes for the work, which often leads to more work. That slower sales cycle allows us to be better suppliers, and to do better work. As an example: last year we did three days of work with a client who didn’t think they’d be able to pay us any more in the short term. We kept having coffees with them every couple of weeks, and trusted them to tell us if there wouldn’t ever be any more budget heading in our direction. They are now our biggest client.
Doing the work takes time
Then you get to the work itself. I’ve already talked about how discoveries and alphas are the right tool for the job if the outcome you’re seeking is an improved digital service. But we’ve seen them done in silos, or go at such a pelt that they don’t change the weather in an organisation that’s trying to change from within. So how do we allow patience to creep in? How do we design a project to be impactful in the context of an organisation’s natural tendencies?
We acknowledge the tension between working at their natural pace and ours, instead of denying it. Then we try to find ways to go slow while staying fast. We know that we can’t go slowly and lose momentum. And we can’t go fast and burn out. The work needs a pace that a client won’t reject out of hand, and that we and they can sustain.
One way is to keep our attention persistent but partial. We spread ourselves out, but in a way that doesn’t dilute the value or dissipate the momentum. This is hard because it requires balancing the energy and attention of humans across multiple things, as well as repeated context switching in a week.
Another way is to parcel or slice our work up into an on/off cadence of intense periods of work followed by breathers where the client carries it forward before we return. If the work needs a break, we take a break: we’ve paused projects for two or three weeks before. But this is hard too: we need to hand it back to them in a way that transfers the momentum neatly. And not every client will carry the work forward in those gaps. Other things creep in, as they always do.
So neither way is as easy - or financially lucrative - as putting in a full time team for a short burst. But we think it’s worth it.
All the problems are 20 year problems
If we zoom out a bit: Most of the important problems the industry takes on are 20 year problems, whether they’re about technology, justice or anything else. We’ll need to repeatedly make a dent in them and keep going because it will take a long time to get to the final destination.
That means our practices, incentive structures and expectations need to support playing the long game. And to build on what’s been done before, and to do that sustainably. So we optimise for patience.
Anna Goss
Future of Courts Panel talk 14 May 2024
I was invited by Professor Dame Genn to be a panel member at The Future of Courts: Expert Panel and Discussion at University College London on 14 May 2024.
The premise of my talk was that no matter what work is done, we need to work on the system that does the work—in this case, middle management.
Full context: I’m infuriated by the public sector and deeply in love with what it does and why it exists. I believe we should socialise more problems, not less. I’m also a fan of avoiding a cheems mindset - I’m an optimist.
I know that strides have been made in the years since I worked in the Ministry of Justice. Where technology skills and norms were previously lacking, they are now present. I’m happy about the improvements, and sad and angry at their speed of change in the last 5 years. I’m pleased with how things have moved on and sad that the technology incumbents of 10 years ago are still the technology incumbents. Having contradictory views makes me human.
But from afar, after almost 10 years, three things remain true. The £1.3bn courts transformation programme budget is mostly spent. The incumbent suppliers are the same. And the size and power of the technology and user-centred design (UCD) community remain - broadly - the same.
We must move away from what Dave Rogers, the previous Ministry of Justice Chief Technology Officer, referred to as Toxic Technology—a calcified set of technologies and behaviours that slow meaningful progress. If past behaviour is the best predictor of future behaviour, it is worth reflecting on that and designing new habits.
Lastly, this is also a political and economic problem. The design industry talks of “designing a chair in a room”, and HM Court & Tribunal Services’ activities similarly sit inside a matryoshka doll of other activities and contexts. I’m keenly aware that our GDP growth, an austerity budgetary model and an imminent general election make things difficult.
So we need to design within existing constraints at the same time as we design to change those constraints. It’s not one or the other, it’s both: power, vision and pragmatism is a continuous tussle, and intelligence is holding multiple positions in your head at the same time.
Being hopeful and driven is in short supply. So I want to supply it. I hope my recommendations do that.
This was what I said on the panel:
Future of Courts Panel talk 14 May 2024
Hi everyone, it’s a privilege to be here, and I appreciate Dame Professor Genn for organising this and extending the invite to me.
I have a long career making tricky technology projects happen. Normally when various disciplines need to work together in new ways. I now run a design and technology studio called FF Studio, which does that.
I was a member of the senior leadership for MoJ Digital a few years ago during the first wave of digital transformation projects.
I’d like to talk about middle management. It is where the work starts, ends, grows, succeeds or fails.
I will tell you 3 quick stories to illustrate this, and make 3 recommendations…
1st story. In 2014 I was the project lead for a very early digital project with Civil Claims.
We aimed to make a property claim understandable to litigants in person and allow them to do it online.
When doing this, everyone’s response to almost everything was “that’s not legal”. In the world of middle management - that kind of response is a showstopper.
To navigate that, I would hang around the Royal Court of Justice during the Civil Procedure Rule Committee. Judicially influential people didn’t have enough time dedicated to this project and the nature of the work means you need 5 minutes here, 5 minutes there.
Me doing this gave us enough time to discuss things in detail with someone with enough legal authority. This gave me the confidence to respond to people with, “Yes, it is legal.” I had to have the technical skills, tenacity, and self-confidence to do that repeatedly.
2nd story. I was a keyholder on the Criminal Justice Exchange project in 2015.
That role meant I attended a fortnightly critique of the project and was a voice in its governance: I needed to report whether it was going well or poorly. One quarter, the project lead put together a report for the oversight board. I labelled it amber. But I was immediately inundated with calls to change my mind, as it would draw attention to the project.
Sometimes I would deputise for my boss and attend the court transformation programme board. The power relationships and lines of communication between senior and middle management often meant that it was safer to say that everything was proceeding well, even if it wasn’t. I knew what was being presented there was theatre, but to say so would have been career limiting heresy.
There is a joke in project management circles about “watermelon projects” which look green on the outside, but are red in the middle. Large institutions have a history of running them because senior individuals aren’t close enough to the details and lack the technical literacy to know what questions to ask and see when the whole truth isn’t being communicated.
3. Last story. In 2015, I was the accountable lead for the first project to move into delivery on the court reform programme. Fee Remission.
Starting a project requires documentation, but documenting the project also flattened nuances, codified false confidence, and heightened expectations. For cultural reasons, the wider environment was deeply averse to “we don’t know yet” as a documented answer in a plan. This is where organisational norms diverge from practical reality.
To avoid writing “we don’t know yet”, we secretly started the project 8-12 weeks before we were officially allowed to. We had to prototype in areas we lacked confidence or didn’t know the answer.
In the wider technology industry, this approach is test and learn. But really, it is failure and learning. But being allowed to fail takes trust and power. Converting a vision into practice takes trust and power. I realise this has ultimately been my professional obsession.
That’s 3 stories.
The environment in which middle management work is done is deeply hierarchical. Power rolls downhill, so you must ensure that a trusting environment between the doers and the power base is built early.
To that end, I have 3 recommendations.
1. Hire people who speak truth to power no matter how uncomfortable that will undoubtedly feel for all involved.
The power comes from the Minister or the Master of the Rolls. The individuals responsible need to manifest that power, and they need to be technically literate.
Getting the right people in is hard enough. Procurement and hiring are flawed processes in government, so I would focus there.
In my experience, once you have the right people, building this system of trust takes way more time, effort, and emotional energy than anyone expects.
2. Orchestrate the outcomes you want by understanding and using incentives.
Organisations and markets are islands of people with their own biases and personal incentives. Incentives drive behaviour and outcomes. Ask everyone involved, “What is your business model?” and very consciously align people, or place them in creative tension.
On a human level, I’m pretty certain I could achieve what I did because my skill set was not wholly reliant on conforming to civil service norms. I knew I could get a job and pay my bills based on my skills, not the social environment I was operating in.
I was in the role at a systemic level for well-orchestrated reasons too.
Major systems integrators and technology providers have essentially captured the public sector. With all the connotations that capture involves. I was explicitly in a role to try to stop that from happening. To generate a creative tension that drove quality.
This was very helpful, given that major sections of the civil justice system are built and run by some of the world’s largest IT and business consulting firms.
3. Avoid false confidence by prototyping as you go.
False confidence is an inherent and unavoidable human trait—so much so that it is part of the public sector green book on financial modelling. It is referred to as optimism bias. Know you have an optimism bias and incorporate it into your plan.
You never have perfect information so do not model your processes around having it. Don’t accept the myth that if you just think harder, design in more detail and document more brilliantly you can manage this risk up front. Nor should you simply outsource that risk at a cost. The practice never matches the theory.
Instead, accept that there is inherent uncertainty and risk, always. Explore and prototype to learn more about your largest uncertainties and risks.
- Which privileged litigants get to be early adopters, who can afford the costs of this new practices and what does meaningful consent look like?
- What legal firms are interested in doing this, will they conform to common data standards and what are the risks to them in not doing so?
- Which courts will trial this new practice first, what signals indicate wider roll out is worth the costs?
Plan, prototype, measure results, repeat. Because confidence and certainty can be built one prototype at a time.
In conclusion, the vision is a good one. But as I said to Professor Dame Genn when we spoke about this, we are not short on theories; we are short on practices.
My recommendations may seem obvious, or maybe even parochial. And frankly, they are. However, when taken together, they build and compound.
Eliot Fineberg
Future of Courts Panel talk 14 May 2024
I was invited by Professor Dame Genn to be a panel member at The Future of Courts: Expert Panel and Discussion at University College London on 14 May 2024.
The premise of my talk was that no matter what work is done, we need to work on the system that does the work—in this case, middle management.
Full context: I’m infuriated by the public sector and deeply in love with what it does and why it exists. I believe we should socialise more problems, not less. I’m also a fan of avoiding a cheems mindset - I’m an optimist.
I know that strides have been made in the years since I worked in the Ministry of Justice. Where technology skills and norms were previously lacking, they are now present. I’m happy about the improvements, and sad and angry at their speed of change in the last 5 years. I’m pleased with how things have moved on and sad that the technology incumbents of 10 years ago are still the technology incumbents. Having contradictory views makes me human.
But from afar, after almost 10 years, three things remain true. The £1.3bn courts transformation programme budget is mostly spent. The incumbent suppliers are the same. And the size and power of the technology and user-centred design (UCD) community remain - broadly - the same.
We must move away from what Dave Rogers, the previous Ministry of Justice Chief Technology Officer, referred to as Toxic Technology—a calcified set of technologies and behaviours that slow meaningful progress. If past behaviour is the best predictor of future behaviour, it is worth reflecting on that and designing new habits.
Lastly, this is also a political and economic problem. The design industry talks of “designing a chair in a room”, and HM Court & Tribunal Services’ activities similarly sit inside a matryoshka doll of other activities and contexts. I’m keenly aware that our GDP growth, an austerity budgetary model and an imminent general election make things difficult.
So we need to design within existing constraints at the same time as we design to change those constraints. It’s not one or the other, it’s both: power, vision and pragmatism is a continuous tussle, and intelligence is holding multiple positions in your head at the same time.
Being hopeful and driven is in short supply. So I want to supply it. I hope my recommendations do that.
This was what I said on the panel:
Future of Courts Panel talk 14 May 2024
Hi everyone, it’s a privilege to be here, and I appreciate Dame Professor Genn for organising this and extending the invite to me.
I have a long career making tricky technology projects happen. Normally when various disciplines need to work together in new ways. I now run a design and technology studio called FF Studio, which does that.
I was a member of the senior leadership for MoJ Digital a few years ago during the first wave of digital transformation projects.
I’d like to talk about middle management. It is where the work starts, ends, grows, succeeds or fails.
I will tell you 3 quick stories to illustrate this, and make 3 recommendations…
1st story. In 2014 I was the project lead for a very early digital project with Civil Claims.
We aimed to make a property claim understandable to litigants in person and allow them to do it online.
When doing this, everyone’s response to almost everything was “that’s not legal”. In the world of middle management - that kind of response is a showstopper.
To navigate that, I would hang around the Royal Court of Justice during the Civil Procedure Rule Committee. Judicially influential people didn’t have enough time dedicated to this project and the nature of the work means you need 5 minutes here, 5 minutes there.
Me doing this gave us enough time to discuss things in detail with someone with enough legal authority. This gave me the confidence to respond to people with, “Yes, it is legal.” I had to have the technical skills, tenacity, and self-confidence to do that repeatedly.
2nd story. I was a keyholder on the Criminal Justice Exchange project in 2015.
That role meant I attended a fortnightly critique of the project and was a voice in its governance: I needed to report whether it was going well or poorly. One quarter, the project lead put together a report for the oversight board. I labelled it amber. But I was immediately inundated with calls to change my mind, as it would draw attention to the project.
Sometimes I would deputise for my boss and attend the court transformation programme board. The power relationships and lines of communication between senior and middle management often meant that it was safer to say that everything was proceeding well, even if it wasn’t. I knew what was being presented there was theatre, but to say so would have been career limiting heresy.
There is a joke in project management circles about “watermelon projects” which look green on the outside, but are red in the middle. Large institutions have a history of running them because senior individuals aren’t close enough to the details and lack the technical literacy to know what questions to ask and see when the whole truth isn’t being communicated.
3. Last story. In 2015, I was the accountable lead for the first project to move into delivery on the court reform programme. Fee Remission.
Starting a project requires documentation, but documenting the project also flattened nuances, codified false confidence, and heightened expectations. For cultural reasons, the wider environment was deeply averse to “we don’t know yet” as a documented answer in a plan. This is where organisational norms diverge from practical reality.
To avoid writing “we don’t know yet”, we secretly started the project 8-12 weeks before we were officially allowed to. We had to prototype in areas we lacked confidence or didn’t know the answer.
In the wider technology industry, this approach is test and learn. But really, it is failure and learning. But being allowed to fail takes trust and power. Converting a vision into practice takes trust and power. I realise this has ultimately been my professional obsession.
That’s 3 stories.
The environment in which middle management work is done is deeply hierarchical. Power rolls downhill, so you must ensure that a trusting environment between the doers and the power base is built early.
To that end, I have 3 recommendations.
1. Hire people who speak truth to power no matter how uncomfortable that will undoubtedly feel for all involved.
The power comes from the Minister or the Master of the Rolls. The individuals responsible need to manifest that power, and they need to be technically literate.
Getting the right people in is hard enough. Procurement and hiring are flawed processes in government, so I would focus there.
In my experience, once you have the right people, building this system of trust takes way more time, effort, and emotional energy than anyone expects.
2. Orchestrate the outcomes you want by understanding and using incentives.
Organisations and markets are islands of people with their own biases and personal incentives. Incentives drive behaviour and outcomes. Ask everyone involved, “What is your business model?” and very consciously align people, or place them in creative tension.
On a human level, I’m pretty certain I could achieve what I did because my skill set was not wholly reliant on conforming to civil service norms. I knew I could get a job and pay my bills based on my skills, not the social environment I was operating in.
I was in the role at a systemic level for well-orchestrated reasons too.
Major systems integrators and technology providers have essentially captured the public sector. With all the connotations that capture involves. I was explicitly in a role to try to stop that from happening. To generate a creative tension that drove quality.
This was very helpful, given that major sections of the civil justice system are built and run by some of the world’s largest IT and business consulting firms.
3. Avoid false confidence by prototyping as you go.
False confidence is an inherent and unavoidable human trait—so much so that it is part of the public sector green book on financial modelling. It is referred to as optimism bias. Know you have an optimism bias and incorporate it into your plan.
You never have perfect information so do not model your processes around having it. Don’t accept the myth that if you just think harder, design in more detail and document more brilliantly you can manage this risk up front. Nor should you simply outsource that risk at a cost. The practice never matches the theory.
Instead, accept that there is inherent uncertainty and risk, always. Explore and prototype to learn more about your largest uncertainties and risks.
- Which privileged litigants get to be early adopters, who can afford the costs of this new practices and what does meaningful consent look like?
- What legal firms are interested in doing this, will they conform to common data standards and what are the risks to them in not doing so?
- Which courts will trial this new practice first, what signals indicate wider roll out is worth the costs?
Plan, prototype, measure results, repeat. Because confidence and certainty can be built one prototype at a time.
In conclusion, the vision is a good one. But as I said to Professor Dame Genn when we spoke about this, we are not short on theories; we are short on practices.
My recommendations may seem obvious, or maybe even parochial. And frankly, they are. However, when taken together, they build and compound.
Eliot Fineberg
Future of court reform - early thoughts
On 14 May 2024, the Master of the Rolls released this speech on The Future of Courts.
I spoke on the same panel after The Right Honourable Sir Geoffrey Vos and others.
Court reform today
This is my understanding of where Court reform stands today:
The court reform programme is out of money.
They won’t be building a “pre-court funnel” to help people navigate that space for two reasons: firstly, many of those user journeys are non-linear. People don’t want a pre-court funnel - it would be great to see the research that concluded this published. Secondly, they ran out of money.
They want to let the pre-court market of mediators deal with mediation… and then, if a resolution between parties isn’t found… they post the information they have into a court management system via API. Seamless. (Or, ideally, seamful.)
Public money will be spent supporting mediation suppliers for the problems the market fails to reach (read: to sufficiently incentivise the market). And defining standards and protocols they want/hope/force everyone to use.
They have set up an Online Procedure Rule Committee (OPRC) to run this (a group of judges who ratify how you can run things). It has two subcommittees, rules and technology. I assume one group agrees on policies and the other agrees on API documentation.
The amount of money they have to do this is unclear.
Let’s not obsess about that for now because, frankly and pragmatically, the plan makes sense. Money will turn up.
Getting it done
There are some gaps in policy and operations, which I will talk about. But first, to remain optimistic, here is the outline of a plan and some risky assumptions to test. I spoke to some people involved in Open Banking.
Following the principles I outlined in my talk, give a small team the power and autonomy to make good decisions. Don’t surround them with armies of Programme Management Offices and people desperately wanting to announce something.
Ideally:
- Build a team of 15 people, half of whom are technologists.
- Allow them to work for 6 months.
The hard bits are:
- How do you identify and authenticate users?
- What data is sent over, and in what structure so it’s relevant to the court process?
- What case management system does the data go into?
I assume the Digital Justice System (DJS) case management system is impressive after 10 years of the transformation programme.
However:
- There are many hundreds of small mediation suppliers. Small firms are unlikely to run their tech - it’s a very human process.
- There are only a handful of suppliers of the underlying technology.
- So, this is fundamentally a question of getting someone like Thomson Reuters to build a pipe into a system probably run by CGI.
- That means calling the suppliers and asking for the price as there is no alternative.
- See my previous post for my thoughts on market capture. For now, let’s move on.
Unanswered questions
How will the market of mediation suppliers pass information between each other?
And how will that litigant journey be signposted?
I’m guessing the answer to complicated human matters that sit in the liminal space between policy, advice, and support is—as usual—“Pro-bono lawyers and Citizens Advice will do that.”
How can the poor state of tooling in the mediation space be improved?
I assume it’s a pretty varied picture from a user experience perspective. Maybe the OPRC could informally publish some kind of service standard and drive it.
Many of the negative experiences of digital services in the wider market mirror the issues I discussed on the day. We have been referring to this as the “unit cost problem”. Small organisations with low volumes of users find it tricky to achieve a good digital service. Tooling will help to overcome this, much like Squarespace helped in the private sector.
How will public money be diverted to civil issues the market fails to support?
The market has its incentives. Private health care is great at fixing ski injuries for a reason. Which civil cases are important but don’t have a clear business model? Those will need public money.
It would be good to know the forum that makes those choices and how they have mapped current need/provision.
As a fellow panel member argued, socially excluded groups have low trust in technology. We need to actively work against that. Opening up the design process will help. I’m sure there’s lots to learn from DWP on doing this.
How can we make sure that AI or automation is thoughtfully used?
Automation is clearly going to play a role in this. It was said as much, but, it’s important to avoid issues like the Home Office found with their supposedly innocuous use of facial recognition.
These tools are powerful. Automation often drives conformity - it’s just easier (read: cheaper) to agree with the machine. But in doing so, we embed any norms further into the state.
Maybe this is too important for automation to take hold? Maybe slow is a feature? If Liberty’s official position on Facial Recognition is to ban it, maybe we should really heed the power of inbuilt discrimination.
If we are to use this technology there should be an open register on who has reviewed the training data for bias. And an operating principle that an automated agent’s outcomes are only a helper. The legal authority rests with the Judiciary.
How can we slow, reverse or avoid market capture?
We find ourselves in this situation because the public sector is pretty wasteful at doing these things. I observed that on the ground, and in my talk said:
Major systems integrators and technology providers have essentially captured the public sector. With all the connotations that capture involves. I was explicitly in a role to try to stop that from happening. To generate a creative tension that drove quality.
This was very helpful, given that major sections of the civil justice system are built and run by some of the world’s largest IT and business consulting firms.
CGI are still the major provider, they have just renewed the contract. Elsewhere major consulting firms are winning large swathes of contracts, probably to do strategic work.
Does the Ministry of Justice, HMCTS and the Judiciary have a sufficiently insourced team to avoid consultancy capture? Why not spend the margin on insourcing? We said this 10 years ago. If not, avoid unnecessary deliverables management by signing a time and materials contract.
Better still, create a dynamic ecosystem of suppliers. Yes, it introduces complexity into your contract management environment. But it’s worth it. From my talk again:
Getting the right people in is hard enough. Procurement and hiring are flawed processes in government, so I would focus there.
Reform this process, bring specialist buyers in, increase the political power of technicians. Avoid the trap of aiming for fairness, aim for defensibility. Exactly as they did in the Covid vaccine roll out. It shouldn’t take the Prime Minister and a global pandemic to experiment with delivery models:
20. The establishment—following the suggestion of Sir Patrick Vallance—of the Vaccine Taskforce outside of the Department of Health and Social Care, and comprising a portfolio of experienced individuals from industry, healthcare, science and Government was vital to its success, as was the bold, authoritative leadership of Kate Bingham. The Government was right to act to accelerate the delivery of institutions like the Vaccines Manufacturing Innovation Centre proposed in the Industrial Strategy, and to have invested further in manufacturing capacity.
How can the Treasury, Cabinet Office, NAO and ONS help?
Reform is difficult. Court reform’s “next larger context” is the Treasury, Cabinet Office, National Audit Office and Office for National Statistics, so reform must happen in that context.
It would challenge current Treasury orthodoxy, but recent research publications point at ways forward:
- Public Digital and Nesta published The Radical How, which presents a way to build a mission-oriented government that delivers better outcomes, reduces risk, saves money, and rebuilds trust
- Tony Blair Institute for Global Change and Faculty published Governing in the Age of AI: A New Model to Transform the State, which advocates that NAO “urgently review its value-for-money evaluation approach in a way that would increase a department’s tolerance for risk of failure.”
- Sarah Gold, Dr. Natalie Byrom and Rachel Coldicutt published People first, always, which focussed on what a new government must do to make the future possible - I was delighted to contribute to it.
Eliot Fineberg