The empirical evidence suggests that, far from creating a democratic and effective culture of accountability in the public sector, the new bureaucracy has contributed to a culture of suspicion, a culture that threatens to undermine already fragile relations of trust and respect. One striking aspect of this culture of suspicion is the rise of jurisphobia – fear of the law – specifically manifested in the perceived threat of litigation but also entangling itself generally in the fabric of professional work. The seminar explores the significance of this development in the context of debates over accountability and its role in shaping forms of democracy in public life…

It appears that no aspect of public sector work has remained immune from litigation culture, with hospitals, police and even universities seeing steady rises in the number of lawsuits and a parallel increase in the number of complaints brought against public services by end users. The increasing tendency of people to resort to litigation strongly suggests that recourse to the law is seen as a more immediate form of taking public services to account. Where concerns over legitimation surface, law is never far behind.

However, it is sometimes forgotten that it was concerns over professional decision-making that acted as a key driver of the new bureaucracy in the first place. The advent of new bureaucratic mechanisms was itself spurred on by a set of legal challenges to public sector professions. Cases of medical malpractice and incompetence (in the health profession generally) led to the introduction of stronger systems of government surveillance in the NHS. Increasing concerns over professional incompetence in the NHS in the 1980s (including the famous Bristol Royal Infirmary incident), resulted in the creation of a new Inspectorate for the NHS, a development that took place despite strong resistance from GPs to increased control from central government. There was a series of child abuse investigations in the 1980s which gave rise to the development of further reporting and monitoring procedures in the field of social care. The period also witnessed more strident attacks on failing schools and ‘bad’ teachers, education therefore not immune from the demand for quality and accountability across the public sector. Question marks have been raised over its ability to deliver quality services while weeding out professional incompetence and institutional stagnation. Here, the values of discretion and judgement, so important to notions of professionalism, are as much sinners as sinned against.

That said, based on the current research, the increase in legal regulation and the presence of jurisphobia in the ranks of public sector professionals, suggest that professional space for judgement and discretion can be called into question. On one level, the steering mechanisms of regulatory governance have the combined effect of diminishing the distance between state and street-level bureaucracy, the dangers of liability exposure tending to conflate political and professional imperatives. On another level, the concerns over litigation have ensured that forms of street-level bureaucracy are increasingly having to grapple with forms of street-level accountability. Wedged in between state and street-level accountability, teachers, nurses and social workers are, in effect, caught in the crosshairs of a double regulatory whammy.   

The seminar itself will provide more detail on the nature of legal risk and evidential exposure in the public sector – Mark Murphy, February 11th, 2013

(c) Mark Murphy