November 12, 2006

The publication of this issue immediately precedes the SCL Conference, Public Sector – Private Challenge. The issue is dominated by IT law pieces and focuses especially on the public sector and some of the special issues that are associated with public sector contracts. The contributions of Clive Davies, Viv Nissanka and Martin Sloan take a large bite out of the magazine but that does not reflect an attempt on my part to compete with the excess verbosity of an NHS-related IT contract, it reflects the necessary and continuing focus on public sector issues in most if not all IT law departments. (Not only do you get to be briefed on these issue, you get the chance to go to the SCL Web site  thereafter after and get free (Yes, free) CPD by answering the online questions.)


IT lawyers need to understand a different ethos when dealing with the public sector – and SCL and its Conference are focusing on improving that understanding. There are I think two special traps to be avoided. The first is to concede to public sector fear of manifest error, which can lead down the path of doing nothing at all for fear of being held accountable for a mistake. Conceding to that fear is I suspect reflected in the interminable contracts that some IT lawyers have produced, which cover every eventuality and impose onerous terms in every direction but which do nothing to define or grow the basic aims behind the deal. The second trap is more subtle. I have seen a number of IT lawyers making all the right noises about the public sector ethos but betraying thereafter, in subtler actions or in their faces, an attitude which clearly indicates that what they actually have is a tolerance of the public sector ethos not a respect for it. It as if they feel that they are avoiding discrimination and that they privately believe that ‘public sector ethos’ is a non-treatable disability. The minority, who do really ‘get it’, are set to prosper in decades where government IT spending is set to remain high.


To be fair to IT lawyers, the looks on their faces when betraying a lack of true sympathy for the public sector compares well with the looks on the faces of most public sector workers when talking about lawyers.




Given SCL’s aim of improving understanding, it was fairly easy for its Trustees to agree to help with a new piece of research. Professor Mari Sako of the Said Business School at Oxford University is involved in research about aspects of outsourcing contracts. She aims to arrive at a fine-grained understanding of the role of contracts and lawyers in promoting effective outsourcing relationships through a questionnaire survey and interviews. The study will explore a number of issues, including the role of lawyers in the outsourcing lifecycle, the use of SLAs and gain sharing arrangements to structure incentives, built-in mechanisms to adapt the scope of the contract to changing circumstances and the career background and professional identity of the lawyers involved. There is more about this on the SCL Web site but it suffices for me to say here that we need SCL members to take a little time to answer her questionnaire if the SCL Trustees offer of help is to have any meaning.


The great benefit is of course that we get to share in the results of Professor Sako’s research.




Space constraints mean that my article on the call from the Legal Software Suppliers to the Legal Services Commission for more consultation and consideration on proposed changes stemming from the Carter report has had to be held over. But there is just room to offer some support for the LSSA in its struggle (see the Web site for details). This magazine is in no way dependent on LSSA members for advertising revenue or other material and has no automatic support for its positions but it is hard not support their eminently sensible stance. You cannot make large-scale changes without adequate notice and without including the full constituency in your plans – but that does seem to be acknowledged by the LSC. The LSC may well feel that the symbiotic relationship that they have with LSSA member firms is that of the host and the parasite but, even if that is true, the LSC should remember that some parasites are vital contributors in the fight against smaller but more deadly bugs.