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Lessons from evaluating the modernisation of the Dutch judiciary 1996-2010

Dr. F.C.J. van der Doelen
Ministry of Justice
The Netherlands

1. Introduction

I would like to share with you some of my experiences with the modernisation process of the Dutch Judiciary. But first I would like to tell you about an episode of the Dutch cartoon Sigmund, which deals about a psychiatrist and his patients. A manager and the psychiatrist discuss a reorganisation:

Manager: “Seventy percent of the reorganisations fail. People don’t work more efficient and the service isn’t improved.”
Psychiatrist: “Amazing!”
Manager: “This is by a great deal caused by the fact that employees can’t handle insecurity in their jobs.’’
Psychiatrist: “And, are you learning lessons from this?”
Manager: “Sure. It is better to fire everyone immediately and then to start the reorganisation.”

At the end of my presentation you can draw the conclusion that this conversation did not take place in the Netherlands after the reorganisation of the Dutch Judiciary. But first led me give you some background information.

The need for modernisation in the Netherlands was put on the political agenda in 1997 by the report of the committee Leemhuis. Ten years later the modernisation process was evaluated by the committee Deetman. Of both committees I had the honour of being the secretary. So I had the experience of going through a complete policy cycle in ten years. From managing the political agenda, to the dealing and wheeling in the lawmaking process, going through the labour intensive process of implementation to finally the evaluation of the results of the modernisation. I would like to concentrate in this presentation on my experiences with the evaluation.

The evaluation itself took mainly place in 2006. It was carried out by an independent committee with five members. The evaluation report ‘’Judiciary is quality’’ integrated the material gathered in 30 working visits of the committee and of 17 separated research reports on productivity, financing, user satisfaction, employee satisfaction, ICT, quality management systems, court collaboration, etc. The total costs of the evaluation were about one million euro. An English translation you can find on the CEPEJ-website, in the literature list of the working group on quality, from which you can download this report. Without exaggeration one might say this was a huge evaluation of a radical change of the Dutch judicial system. So it is important to draw lessons from this evaluation.

In this presentation I would like to deal with the following topics:

2. The modernisation law of 2002

After an agenda setting and policy preparation period of about five years the Dutch law concerning the organisation of the Dutch judiciary has been changed drastically in 2002. One key element of this modernisation law is that the presidents of courts now fully are responsible for policy, management and the operation of their court. The other key element is that a Council for the Judiciary is introduced in the Netherlands. This Council is responsible for the budget, oversees the management, recommends in legislative matters and is the focal point for the Judiciary. In this law it is also stated that the functioning of the new system should be evaluated after five years.

3. The evaluation of the modernisation law in 2006

In December 2006 the evaluation report "Judiciary is quality ' was published. It concludes that the modernisation of the Dutch judicial system is a success. All objectives of modernisation were achieved.There is more unity and transparency, the administrative power of the judiciary is increased, and the turnover times have become less. The modernisation also increased the satisfaction of citizens and professionals of the law. All courts have conducted customer appreciation surveys in recent years. The general satisfaction of the users of the courts increased between 2002 and 2005 from 78% to 82%.

Moreover, since 2002 the productivity also increased. In figure 1 the development of employees, production and productivity between 1995 and 2006 is shown. As the line below illustrates that since the start of the modernisation in 2002 there is a productivity rise, after a dozen years of a downward trend. This productivity rise was for a great deal due to the economic recession in 2002, which increased workloads significant. Research showed that this gave the judiciary an incentive to handle cases more quickly. Another important factor was the introduction of the new output oriented financial system of the judiciary in 2002. This stimulated the courts to handle more cases by single judges rather than by a of panel judges.

Figure 1: Staff, production and productivity of the judiciary1995-2005 (indices 1995 = 100)

personeel = staff
productie = production
productie per arbeidsjaar = production by one full time equivalent of staff

Source: Council for the Judiciary, 2006

All in allthe modernisation law has made the Dutch judiciary become more productive with more satisfied users. One might expect a celebratory mood among the judiciary. Unfortunately though, the judges and the court clerks are less satisfied. Asked about the quality of their own work, employee appreciation appeared to have dropped between 2003 and 2005. Among judges from 86% to 84%. And among clerks from 91% to 84%. Of course the general employee satisfaction in the Dutch judiciary is outstanding compared to other professions. But, how is this decrease of satisfaction among judges and clerks to be explained? Does the Dutch judiciary consists of people who cannot keep up with modern times and therefore complain about past times that were better? Or, as one of the most influential Dutch newspapers commented the evaluation report rhetorically: has Dutch politics only modernised the judicial organisation, while at the same time forgetting to modernise the judges? In this presentation I will outline two different views on the apparent gap between the results of the evaluation and the experiences of the judiciary.

4. An organisational perspective on the results: “From an organisation of professionals to a professional organization”

The complaints about high pressure, decreased quality and increased bureaucratisation in part can be found in the natural resistance that a reorganisations always calls, especially when it concerns professionals who are accustomed to organise their own work themselves. In that respect, in a relatively short time much has changed in the Netherlands.
Even still in the early nineties a Dutch judge worked in a small organization. Judges often worked at home, were largely planning their sessions themselves, typed their own judgments and studied jurisprudence by reading the Dutch Judicial Review. And there was a large gap between the judges and their staff.
Now - fifteen years later - the picture is almost completely changed. Judges don’t work individual anymore, their sessions are scheduled through a workload system, monthly output states issued. The jurisprudence can be found in expert systems, computer-Wizzards are standardising the content. Judges work in large teams in collaboration with their staff, in modern office buildings.

This description is perhaps a little over the top, but it highlights a clear development. The individual judge has become part of a greater whole. An organisation for professionals has developed into a professional organisation.

How is this rapid change experienced by the professionals ? In this respect especially the people who for a longer period are working in a court are interesting. It appears that nearly 40% of the staff of the courts work there longer than ten years. Precisely this latter group of highly experienced staff is less satisfied with their work: ''The group more than ten years in the courts is said to experience more pressure. 59% said they always have to work hard. 22% of them is of the opinion that their work rate is too high. This group is also least satisfied with the amount of work. "
This subjective experience is difficult to reconcile with the objective finding that Dutch courts with relatively many young judges are more productive than courts with relatively many older judges. Of course it applies to most organizations that the employees longer employed relatively are more dissatisfied. But for an organization like the judiciary – where judges are appointed for life - this is an extra point of attention.

This organisational perspective also takes into account that the modernisation process was accompanied by an increase in the budget for the Judiciary between 1998 and 2006. From nearly 500 million euros to nearly 800 million euros. The per capita expenditure increased from 32 euros to 48 euros in the Netherlands. The Netherlands now belong internationally to the forefront in terms of relative expenditure on the judiciary, as is shown by the CEPEJ-report of 2006.The modernisation law has changed the intrusive judicial organisation, but there is also invested of lot of money extra.

5. A judicial perspective on the results: “the threat of bureaucratisation”

The hard statistics put the subjective complaints of judges into a different perspective at the first sight. But the statistics cannot remove that broad sense of unease about the direction in which the modernization law threatens to develop the judicial organization. The voice of the professionals should therefore be taken seriously. For it is undeniable that in recent years the dominant focus was on the improvement of the finances and logistical organization. The attention for the judges, their staff and the quality of the work has been relatively neglected.

This statement should not be misunderstood. The modernization had not major negative consequences for the independence of individual judges. Almost three-quarters of judges at district courts and courts of appeal feel that they are free to deviate from agreements on the substance of decisions. As was formulated in the evaluation of the University of Utrecht: 'During the self-assessments and interviews, almost no complaints were put forward about professional autonomy being compromised. There is therefore no question of the independence of judges being compromised (in terms of third parties interfering with the handling of cases or the substance of judges' opinions). One explanation of this perception by judges is that they are rarely held to account directly for the substance of their decisions. Managing unity of justice is difficult because chairpersons of sectors and of divisions generally do not wish to coerce their fellow judges in a certain direction on matters of substance. As board members, they are also forbidden to do so in concrete cases. (See Article 23(3) of the Judiciary Organisation Act).”

To ensure the future stability of the current organisation and its employees, the Deetman-committee warns for an imminent bureaucratization of the judicial power. There is now a to strong emphasis on business, which neglects the importance of the human capital of an organisation. According to the committee it is the main cause that employees experience higher workload and more bureaucracy. Consultation and management are central in the organisation, the importance of judges and their staff for the long term development of the organisation is underestimated. The pressure of critical customer and of the output financing system of the judiciary have become so strong that the professional standards and values of the judiciary may erode. The professional pride of judges is threatened. The profession may bureaucratise and will in the long run be unattractive for highly educated people who tend to feel themselves personally accountable for their work. This hampers the effectiveness of the judicial organisation in the long run.

Judiciary = Quality, to rephrase the title of the report, stresses the central view of the Deetman-committee that the human capital and the quality of the work should be a central issue in the future agenda of the Dutch judiciary. So as a matter of fact, the judicial view is the central perspective of the report. The committee recommended to relax productivity targets of the output financed system and stressed the importance of replacing the handling of cases by single judges to a larger extent to panels of judges. A panel of judges is in the view of the committee an efficient quality system by peer review, which serves also as an instrument of education and as a mean of socializing internal judicial norms. The recommendations of the report lead in 2007 to more money for the Dutch judiciary, especially to be spend on improving the quality. And the measured productivity, as shown in the graphic before, has gone further down since 2005 again.

6. Lessons to be learned

The Dutch modernisation of the judiciary learns that not all reorganisations inevitably lead to less efficiency, poor service and complaining employees. The cynical conversation between the manager and the psychiatrist did not take place in the Netherlands, as I revealed before. This is the first lesson to be drawn from the Dutch experiences.

The second lesson is that the human capital of an organisation should be taken into account when measuring the performance of the judiciary and courts. If the evaluation of the Deetman committee had only taken into account the productivity and the user satisfaction a complete different report would been have written. For a sustainable development of the performance of the judicial organisation, one should not analyze the short term development of the indicators of productivity and user satisfaction, but also take into account the employee satisfaction. This is one important lesson to be drawn from an evaluation point of view.

The third lesson is that in evaluating the performance one should not only apply a judicial perspective, but also include a more organisational and sociological perspective. The judiciary isn’t an island and on an organisation level has to deal with new social and economical developments, like for example the current credit crisis. As a result of this crisis the Dutch government started in 2009 an operation to prepare a cut of twenty percent of the budgetary trend of all public services, including the judiciary, for the next ten years. As a result undoubtedly a new equilibrium between the various stakeholders of the judicial organization will be established. The interests of tax payers, users and employees of the judiciary will be brought into a new balance. The tax payer will pay less. The users will pay more. And the employees, well they are challenged to organise their work more productive, while keeping up their standards of quality, and becoming a professional organization.