Leading Article: Democracy the cure for classroom malaise

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The Independent Online
Funny how the people who most dislike pupils sueing their schools for bad exam results are also the noisiest in proclaiming the virtues of the market. Surely the two teenagers who are demanding damages from the school which failed to get them through enough GCSEs merely want to provide all "failing" schools with a market disincentive, in the form of large financial penalties, to raise standards? Instead of being praised for their initiative and public-spiritedness, however, they are condemned for trying to lead us further into an American "litigation culture".

There is an element, and not just on the right of politics, which objects to financially-rewarded whingeing. They argue that, as with the compensation for the police officers traumatised at Hillsborough, this case could lead us from the sad to the silly, defined for these purposes as the woman in the United States who sued McDonald's for making its coffee hot, after she tried to hold the cup between her knees while driving. But the free marketeers have a strong argument. The best way to enforce rights and responsibilities, they say, is to make people pay for failing to live up to them.

What is wrong with bludgeoning education authorities into defining what their schools are supposed to achieve and concentrating efforts and resources on the poor performers? If the education chiefs are "horrified" at the prospect of 70 former pupils queuing up to sue schools which have been condemned by inspectors, will this not give them a real incentive to do something the causes of poor schools? An honest free marketeer would decline the temptation to crack jokes at the expense of lawyers, and instead accept that they are only the mechanism for enforcing contracts - in this case, implied contracts - between individuals, corporations and the state. An honest free marketeer would insist that there is nothing wrong with a litigation culture. After all, litigation is simply citizens asserting their rights in a way that actually has some bite, including their right to properly run public services.

If people had not been able to sue in the wake of the King's Cross fire and Zeebrugge, would London Underground and the ferry operators now be so concerned about safety? There are complications and anomalies, such as the McDonald's coffee ruling, and the fact that dead people cannot suffer damages. But, in circumstances where the courts may not be able to instruct service providers to tighten up their safety procedures, the threat of claims for damages may be the only effective and constant pressure for safety in public buildings, public transport and public services. Litigation pressure, indeed, might provide Citizen's Charter commitments some real teeth.

So, honest marketeer, what is the problem with all of this? The problem is that the free market is not, in practice, the sole arbiter of value. In the case of children suing their former schools, the honest free marketeer would push the idea of legally-enforceable contracts beyond the logical extreme. Most lawyers seem to agree (unusual in itself, this) that the two 17-year-olds, who are retaking their GCSEs at sixth-form college, have a slim chance of success. In the jargon, their problem is one of multiple causation. In plain English, the plaintiffs have to prove to the court that their poor exam results were not, at least partly, the result of laziness or a bad attack of exam nerves.

Consider the case - a hypothetical one, but for how much longer? - of a 50-year-old man suing the government for the distress experienced during a long spell of unemployment, which he claims was caused by the Treasury running a monetary policy that was too tight. How can he prove that government policy was primarily responsible for he, as an individual, being unable to find work? More practically, the health service is plagued by claims with a questionable prospect of success.

There is a fundamental weakness in the American model of a society based on the law of contract. It is that the state is not a company. Few citizens are at liberty to withdraw from their contract with the state in the provision of services such as health, education, public transport, policing. The alternative model is of a society ruled by politics, in which those who are responsible for services are subjected to discipline, and ultimately the sack, for failing to deliver. What is striking about much of the unnecessary litigation which threatens to overwhelm this country is that people say they don't want money, they want justice. What they need is a political system that delivers justice (it largely fails to do that at present); but turning to the courts will end up creating as much frustration as it dispels.

The answer is to strengthen the accountability of our system. That in turn means welcoming another kind of litigation - that of judicial review. It is often derided as an esoteric branch of law invented by clever and rich lawyers, but it achieves the aim of ensuring that ministers and officials have to behave reasonably and to account for themselves.

A Bill of Rights and a written constitution are sometimes seen as part of the problem, when in fact they should regarded as part of the solution. Of course, Americans regularly take to the courts to dispute their constitutional rights; but here those broad principle laws would have the advantage of sealing those rights through consensual acceptance, rather than opportunistic adversarialism.

So the answer to our educational ills is not to call in an army of solicitors and well-paid QCs. It is, instead, to call teachers and governors and politicians and administrators to account through all our available points of democratic pressure. We can sack councils, governments, and school governors with our regular vote. We should use it.