Even the famously phlegmatic Willie Whitelaw (who might easily have been the butt of his own jibe about Harold Wilson, that he ‘[went] round the country stirring up apathy’) was seduced by the allure of announcing the ‘short, sharp shock’. Governments don’t like being accused of not having big ideas; it happened to John Major’s government, which had just been going, in relative terms, through an admirable phase of uninventiveness – then rail privatisation was announced shortly after.
The field of justice (a phrase which increasingly has the ring of newspeak about it) has not gone untouched by big ideas. My time at the Bar has seen the coming and going of the automatic strike-out, the replacement of the RSC with the CPR, the de facto abolition of civil legal aid, the rise and partial fall of the conditional fee agreement, the Jackson costs reforms, and in the field of criminal justice, a host of arbitrary fee regimes. Last year, the 10th anniversary of the Court of Appeal case R v Bradley  EWCA Crim 20, went unremarked. The case concerned the Criminal Justice Act 2003, in which Lord Justice Rose V-P said: ‘It is more than a decade since the late Lord Taylor of Gosforth CJ called for a reduction in the torrent of legislation affecting criminal justice. Regrettably, that call has gone unheeded by successive governments. Indeed, the quantity of such legislation has increased and its quality has, if anything, diminished.’
The marginal gains approach
‘Excellence’ could not be described as a small idea, but the impressive roster of medals British cycling has amassed in recent years shows that sometimes the foundations upon which it is built can be a series of small ones: the two gold medals in the Athens Olympics; the eight golds earned in both Beijing and London (as well as the 17 London Paralympic Cycling Golds) were the fruits of the application of the principle of ‘marginal gains’ pioneered (and christened) by Sir Dave Brailsford. He was the performance director of British Cycling from 2003 until 2014, when he left to concentrate on Team Sky, which he established in 2009. Team GB’s cycling successes were paralleled by those enjoyed by Team Sky and they have continued under Sir Dave’s leadership: 2016 saw it take its fourth, and team rider Chris Froome’s third, Tour de France win.
So what are marginal gains? In an interview in 2012, Sir Dave explained the principle thus: ‘If you broke down everything you could think of that goes into riding a bike, and then improved it by one per cent, you will get a significant increase when you put them all together.’
Professor Gloria Laycock, the director of the Jill Dando Institute of Crime Science at University College London, believes legislators and policy makers could learn ‘a great deal’ from this approach. Professor Laycock, in her previous incarnation as a senior civil servant at the Home Office, had her own experience of trying to persuade a minister to apply what would now be called a marginal gains approach towards policing. Research had shown, remarkably, that 40% of recorded crime affected just four per cent of victims and what Professor Laycock and her colleagues wanted the minister to do was to recommend a small shift in police resources towards these serial victims. The research suggested that improving the clear-up rate in relation to the crimes suffered by the serial victims could have a significant impact on the overall level of crime. However, as she explained on a Radio 4 ‘Analysis’ programme Dead Cert, broadcast in November 2008, the minister wouldn’t bite on the idea; it seemed too modest and he couldn’t see how he could sell it in a catchy media-friendly way. Perhaps, had she had the tag ‘marginal gains’ to hang on the policy, she might have had a different response.
At its CORE
The interaction betvween the minister and his civil servants that Professor Laycock described highlights another aspect of the marginal gains approach which is absent from the field of political policy-making: the application of the CORE principle (the first three letters of the acronym stand for ‘Commitment, Ownership, Responsibility’ which lead to the E, ‘Excellence’), in particular, the need for a collective approach and a collaborative mindset – the ‘ownership’ element. In the same 2012 interview, Sir Dave explained how marginal gains and the CORE principle operated in Team Sky: ‘We’re looking for little things collectively all the time that’s going to make us improve…we’re open to new ideas…we don’t see it as somebody scrutinising us in an area…we don’t see it as criticism…that’s the kind of philosophy we wanted to develop.’ He went on to say that this involved taking the crown off the coach and putting it on the person with ultimate responsibility for delivering the performance – the athlete. The approach had boosted both morale and motivation levels, which had ‘gone through the roof’. Translating that across to the political arena would cast politicians in the role of the coach and those responsible for delivery – teachers, doctors, lawyers, probation officers, the police, etc – in the role of the athlete. In politics, however (as many of those professions listed can attest), policy tends to be handed down; the minister still wears the crown.
Professor Laycock does not see this as entirely the politicians’ fault: an essential part of the process of achieving improvement through marginal gains is ‘acknowledging failure and learning from mistakes’ and, when things have gone wrong, that requires both candour in acknowledging that something has gone wrong and a dispassionate analysis as to why it did. She comments that ‘in policing and for that matter politics, people who make mistakes are hung out to dry. There is, therefore, no incentive to acknowledge [mistakes] never mind learn from them…until we change the media and the blame culture in this country we will get nowhere any time soon’. The problem is that politicians look for big ideas and big solutions in part because that is what the press and public expect of them, in short, we are locked in a vicious cycle.
The Law Commission’s remit, the stripping down and rebuilding of legislation, which typically is politically neutral and often based on consensus, could be seen as putting a marginal gains approach at the centre of the legislative process. As Professor David Ormerod QC, the Law Commissioner for Criminal Law and Evidence, explains: ‘We view consolidation and streamlining as a way to fine-tune the law incrementally in areas which are inefficient and lumbering under a weight of complex and confusing rules. Aggregating these marginal gains is to the benefit of practitioners and the public alike.’
Professor Ormerod sees parallels with the approach adopted in cycling, commenting that small refinement of some provisions, coupled with their featuring in one Act, can have ‘huge efficiency gains for those working in an area of law’.
‘In common with the Sky team,’ he says ‘the Law Commission’s approach to a streamlining project begins with a discovery process, whereby all of the case law and statutory provisions on a topic are found and analysed in detail. Disassembling an area of law allows each rule or provision to be examined and assessed for effectiveness...Exposing each rule to scrutiny in this way allows for some minor refinement or polishing without necessarily making major policy changes.’
He cites the Law Commission’s work on the regulation of health and social care professionals (Law Com 345) and on charities as good examples of this approach, observing that Lord Hodgson had likened deregulation for charities to removing barnacles from the hull of a ship – ‘individually each barnacle has very little effect, but cumulatively they slow the vessel’.
The special procedure which allows the Law Commission to introduce non-contentious Bills in the House of Lords and for the Bill to be dealt with in committee, rather than taking time for debate on the floor of both Houses, could be seen as an instance of a marginal gains approach. It has now been used to pass six Bills; the Intellectual Property (Unjustified Threats) Bill 2016 will be the seventh.
However, the trend appears to be running against a marginal gains approach. Even in British Cycling, events – likely now to be ascribed to pre-Rio jitters – appeared to have raised questions as to whether marginal gains and the CORE principle had survived Sir Dave’s departure. The question marks are mirrored by the experience of the Law Commission; as Professor Ormerod explains: ‘When pitched against legislation which seeks to make more far-reaching or headline grabbing policy change, reform of this sort can struggle to compete for restricted legislative drafting resources, Parliamentary time and ministerial attention…this is an increasing issue in Westminster.’
By way of illustration, he points out that between 1965 and 2006 the Law Commission was responsible for 220 consolidation Acts, an average of slightly more than five per year, whereas, since 2006, just two in total – the Charities Act 2011 and the Co-operative and Community Benefit Societies Act 2014 – have been produced. This is a sobering statistic.
Causes for hope?
Against her bleak analysis, Professor Laycock points to the aircraft manufacturing and airline industries, in which a culture of reporting and learning from mistakes, and seeking marginal gains has led to a progressive improvement in safety standards. The approach is analysed in detail in Matthew Syed’s 2015 book, Black Box Thinking and contrasted with that which prevails in, in particular, the medical profession (which stands as a microcosm of the more usual approach that tends to be adopted in most fields of endeavour): be warned the book begins with a harrowing account of a routine operation which ended in an avoidable death. It has been highly praised by, among others, Sir Dave Brailsford, and Professor Laycock believes it ‘should be required reading for politicians and the police’.
The report into patient safety by Don Berwick, under the auspices of the respected independent health care think-tank, the King’s Fund, commissioned in the wake of the Mid-Staffs crisis, is another instance cited by Professor Laycock as an attempt to introduce a marginal gains approach into public policy. It is a little early to say if it will bear fruit, however. It will be remembered that the coalition Health Secretary, Andrew Lansley, had spoken against ‘top-down’ health service reforms not long before introducing top-down health service reforms in the form of the Health and Social Care Act 2012. The legislation was described in the 2015 report by the King’s Fund, The NHS under the Coalition Government, as the ‘biggest and most far-reaching legislation in the history of the NHS’ which had resulted in government policy for the subsequent two years being ‘devoted to limiting the damage’.
The tendency to favour more far-reaching or headline-grabbing legislation is, however, something Professor Ormerod says the Law Commission is continuing ‘to develop ways of countering’ and it is, perhaps, only by educating policy makers and legislators (as well as the media and public) about the benefits of marginal gains that the vicious cycle will be fixed.
Contributor Rawdon Crozier is a barrister at KBG Chambers and a member of the Counsel Editorial Board