On the assumption that this development bears fruit, other chambers would then follow. The “critical friends” would offer support (the “friend” part) and challenge (the “critical” part). It is always easier to accept challenge from someone whom you know to be on your side. Critical friends would help chambers continue with improvements in strategy, operations and governance. In embracing this development the Bar would be adopting an idea which has spread across the Civil Service from the company world, and now to law fi rms. The essence of the role is sensitive enough to adapt to the world of chambers, where the effort to make “the whole greater than the sum of the parts” is so important.
How would it work? Read on…
Having worked at board level in Civil Service departments for over 15 years I came to value the role played in governance by individuals who are variously called non-executive directors in the company world or independent board members. One good description of the role is a person external to the department, who is friendly towards it, has an understanding of it and who is invited to hold a mirror to it and offer a constructive critique of its strategy and performance on the department’s board and its sub-committees. Typically the “critical friend” will give a number of days to the department – say, between 10 and 30 – over the year for about a three-year period, which can be renewed up to, but not normally beyond, six years. This is more days than I am suggesting for chambers, which operate on a smaller scale. They will normally have experience in a professional field, eg finance, people, IT, law, and in the leadership and management of change. Critical friends on a department’s board will usually also sit on one of its sub-committees, eg people, audit and risk, change management, operations.
The word “critical” in this context is not code for “invariably negative”, still less “destructive”. It is important for an organisation to be told about what it is seen to be doing successfully as well as what it needs to do better; and all organisations, successful or less successful, benefit from being made to articulate to outsiders where they want to be in three, five, or 10 years’ time. So the “critical” aspect is aimed at helping the organisation to be good and to become better and is done by someone who speaks to it honestly and in a “safe space” and at a time when it can make a real difference.
It has been my experience that where critical friends operate on boards and committees in complex organisations the best arrangement is for there to be two or three of them rather than just one. This gives a greater breadth of opinions and challenge and produces a higher level of discussion and debate with the executives around the table. How do critical friends find out about the organisation and learn to understand it? Partly through taking the meetings which they attend very seriously, asking probing questions which often contain the word “why?” and demanding the advance and timely circulation of high quality papers; partly from meeting the organisation’s people at all levels in various formal and informal settings between the formal board meetings; and partly also from feedback from the organisation’s customers, clients and stakeholders.
Effective critical friends take time to get to know the business and are good listeners. They don’t deliver lectures on how everything was better “where I came from”.
Critical friend convert
I am a convert to the value which can be added by critical friends. When it was first decided that government departments had to use them, my first thought was, “Why do we need these folk? They will automatically think ‘private sector good, public sector bad’ and lecture us interminably. They will tell the Government how bad we all are in the Civil Service.” But my experience did not bear this out. The critical friends with whom I have worked over the years – as fellow board members, chairs of committees on which I have sat or members of ones which I have chaired – have been trustworthy individuals of high calibre, who were adroitly challenging and constructively supportive across a whole range of issues, from strategy to people, delivery of results, change management, project management and audit and risk.
In my last 10 years as Solicitor and General Counsel to the Department of Trade and Industry (the forerunner of the Department for Business, Innovation and Skills) and HM Revenue & Customs, I created a strategic management group to oversee the running of my legal department. To give an idea of scale, my team in HMRC was over 400-strong, had a budget of over £50m and was responsible for tens of £billions of tax litigation and for the legal work on the Finance Bill. The strategic management group included a senior team of lawyers and others who ran the legal department and also two critical friends. The critical friends were both lawyers, one drawn from the private sector and one from the public sector, one from Scotland and one from England. We met formally every three months to review our strategy and performance. We looked at the work and morale of the legal department and its relationship with its internal clients and external stakeholders. We considered whether we were on track with our strategic plans for our people, our clients, our large programmes of legal work, training and development, knowledge management and change management; and we did this against the background of an active management of the various risks we were facing – legal, operational, financial and reputational.
In this context “risks” were not all negative: failing to spot or take advantage of an opportunity is also a risk. The advice and challenge of the critical friends was much valued. I am not for a moment claiming we were perfect, but I am certain that, with a good executive team and high calibre critical friends around the table, we had better processes than we otherwise would have and were better placed to be successful.
In my final year my office won The Lawyer public sector in-house team of the year award, which doesn’t happen unless the team enjoys a high reputation.
My critical friends worked with the team in between the formal meetings, attending away days and receptions, mixing with staff at all levels and getting under the skin of the legal team. They also followed the reputation of HMRC closely from the outside, which enabled them to give an expert perspective when needed. Similarly in the case of developments in the wider legal world.
Application to chambers
Having seen the value added by critical friends in the skeptical Civil Service world, I am more than ever convinced that they would also be of benefit in the world of chambers. This is especially so at this time of great change and challenge at the Bar. Critical friends could assist chambers – perhaps for somewhere between 10 and 20 days in the year – by giving constructive challenge and support to the setting of strategy for chambers (structure, size, areas of practice and where it offers its services), and on other issues such as how it governs itself, its committee structure and membership, finance, recruitment, people development and staff remuneration. The skills and experience which they bring to these subjects are likely to be more highly developed than those possessed by many members of chambers, however successful the latter are at the day job.
At a time of change, especially when there can be perceived winners and losers and tensions between different parts of chambers, the presence of external individuals can be seen as helpful and reassuring to all in chambers, including heads, chief executives, clerks and other staff . It is quintessentially the role of the critical friend to consider the good of chambers as a whole. As heads of chambers and chief executives know, this is a more vital role than ever. The presence of critical friends can give the leaders of chambers what I have referred to above as a “safe space” to discuss confidentially the handling of those fraught issues and crises which sometimes arise.
The use of critical friends should play well with enlightened thinking at the Bar Council, including helping to attract the best people to the Bar and ensuring that they remain there, and with the Bar Standards Board as regulator, where the presence of senior external individuals with a brief to consider the good of chambers as a whole will be seen as supportive of good process. I can hear some heads of chambers wondering why they need a couple of critical friends in their chambers. “We are doing fine as we are, and there is so much change going on that we really don’t need to take on any more.” To that I would say, as experience in other organisations shows, that it is precisely when there is so much change on the table that good critical friends will prove their worth to chambers by the supportive challenge which they will offer and their focus on learning lessons and preparing to identify and embrace the opportunities of the future.
I conclude by asking, “Who’s going to be first?”