The ‘New Public Management’ and the Courts

Abstract

In recent decades, greater salience has been given to the economy, efficiency and effectiveness of governmental activity, often at the expense of other values such as accessibility, openness, fairness, impartiality, legitimacy, participation, honesty and rationality. The courts are not immune from this trend towards ‘new public management’. Benefits have been realised by more assertive case management by judges. This paper explores the conflict between the values of economic efficiency and fairness, in the sense of a fair result arrived at by fair procedures. The paper questions the applicability of the new public management toolkit of strategic planning and performance indicators to the administration of justice. Litigants should be treated as citizens with rights, not as consumers with needs. A particular focus is the dangers associated with the preoccupation amongst some managers with quantitative measurement. Quantitative measurement is ill equipped to provide meaningful information on the activities of the courts, as it measures outputs not outcomes. Moreover, it often distorts outcomes by creating perverse incentives to manipulate statistics. A wide range of examples is given of the pathology of measurement, including in the form of performance pay.