The following is the substantive section of my response to the Government’s legal aid consultation. The deadline for submission of responses is 4th June.
I acknowledge the Government’s overall aim of making significant further savings in the legal aid budget. Whilst there is a substantial possibility that the proposals will increase, rather than decrease, overall costs to the Ministry of Justice and/or sibling departments; the more important and substantial issue is the significant detriment to very vulnerable clients. Cuts of the magnitude proposed will lead to a significant diminution in the quality advice and assistance clients will receive in cases of the utmost significance. Criminal law cases most often deal with significant risk to a person’s liberty; and the public law cases targeted by the reforms will often deal with substantial matters of liberty, harm and acute vulnerability. Practitioners in legal aid who do not exit the market altogether faced with unit cost cuts will be forced to accept lower levels of overall income and, in particular, as they attempt to limit the decrease in income they will seek to increase case volumes and decrease the time spent on those cases. Whilst it is conventional to hope for efficiency gains in such circumstance, given the labour intensive nature of legal services work, the overall impact is almost certain to be a significant diminution in quality.
On top of any impact from reduction in unit costs, PCT also raises matters of significant concern. Research in the health sphere is clear in establishing that price only competition damages quality. It is vital that the Government reconsiders how competition on quality can be built into any system of competitive tendering. It is also vital to consider broader monitoring and development of quality. Consideration should be given to developing system wide outcome measures (as has been employed in Chile); case load limits; and, recognition and incentivisation of experienced staff in pricing.
I acknowledge the difficult fiscal and political position within which the Ministry operates but I am afraid the speed with which PCT is proposed to be implemented can only be described as reckless and short-sighted. It has long been the wish of administrations to introduce a form of competitive tendering. That wish has been frustrated by the severe practical difficulties in implementing any scheme. Those practical difficulties are exacerbated both by an undeliverable timetable and the extremely troubling proposal to force contractees towards one size.
I hope the MoJ consider very carefully the lessons from the development of CLACs and CLANs where there was a similar (but less severe) attempt to push providers into single new providers and consortia. There is a very high risk of failure, waste and mismanagement in such a system. The Public Defender Service also provided a lesson in how administrative dictation of size of provider can lead to inefficiency.
I wish you to note my concern at the misuse of the Public Defender research by Bridges et al which I co-authored. The quote has been taken out of context and is misleading.
The Choice Issue
The proposed model suggests client choice must be removed to make the proposals work. There are a number of problems with such proposals. Let me emphasise the ones on which I, as a researcher, have a particular perspective:
- The Scottish Public Defender pilot attempted to direct clients by birth date. This failed for a variety of reasons, including the practical importance and operation of the exceptions. Any system must have exceptions and there is a risk to the stated aim of the proposals that such exceptions will simply build in too much instability for direction to work as a tool for managing contract sizes.
- A secondary impact of direction was significant reductions in client satisfaction with the service. Having been forced to go to a ‘state’ provider, the legitimacy of the service declined significantly. This may have a range of knock on effects, not least a reduction in the willingness of clients to accept advice on plea, venue, conduct during interviews and the like. This impacts on quality and cost to the court and police budgets.
- Client choice also provides important long stop protection of quality. It is true that clients are not sophisticated consumers of advice. Nevertheless they can assess service quality and the extent to which the lawyer remembers relevant facts about their case. Client views are also related to the impact of outcomes on their judgments about lawyers. Thus client satisfaction, and client choice, are proxies for quality which it is important to maintain within the system if at all possible.
Litigants in person
There is a growing concern with litigants in person in the criminal justice system. The removal of choice and changes to financial qualification requirements are likely to exacerbate this. As far as I am aware, there has been little consideration of the issues posed by this in cost or practical terms, a position which contrasts unfavourably with family work in particular. In research and policy terms it is a black hole into which some light ought to be shined.
Public Law Cases
There are a number of potentially serious results which could flow from proposals on public law cases. Rather than assume a Government that takes seriously legal obligations and the rights of unpopular individuals in positions of significant vulnerability, let me concentrate on some more pragmatic implications.
By taking matters out of scope, it may generate large numbers of exceptional funding applications. When turned down some of these will be subject to judicial review. Judicial receptiveness to such claims, which I would anticipate would be high, may produce a cascade of further reviews and funding decisions.
Linking payments to results on leave applications is an interesting idea, and I understand the desire to encourage greater sharing of risk to the fund. This is a de facto remuneration cut which has a number of potential (and rather unpredictable) consequences. The remuneration cut may force some firms, particularly better firms able to diversify, to give up the work. There is not the evidence on which to judge this objectively, but given the proportion of pre-leave settlements, there is the potential for such a change to decimate such work. A second response is that firms will rush to get leave and ensure payment. This would increase unit costs to the fund and increase costs of those responding to judicial reviews. A third response is that the judiciary, mindful of the need for judicial review, will increasingly be asked to, and award, inter partes costs orders. This too may increase costs to other government departments.
There is a further concern that specialists in prison law cannot practice without criminal defence contracts. The forced merger/consortia approach of the PCT proposals risks spreading its harm further. One potential upside to such firms, but a downside for the Ministry, is that merged firms will become better at identifying potential prisoner cases because they are working more closely with criminal defence practitioners. If this were true (and there is evidence of such effects from the Trouble Shared research I conducted for the Ministry of Justice) then there would be upward pressure on case numbers and costs to offset reductions from stricter merits tests.
The way legal risk is managed in government
The Government Legal Service does a difficult job. There is pressure from Ministers to deliver proposals which bear sometimes substantial risks of illegality. Judicial review acts as a not insignificant check on arbitrary abuse of power; careless implementation of reform; and poor judgment on legal risk. Good government has both political and economic benefits and these proposals weaken it.
A second way of thinking about this issue is to consider how lawyers may respond to cases if illegality is no longer funded, or rendered uneconomic. Often it may be nothing can be done in legal terms and the Ombudsman may see a significantly increased workload (as may politicians) from self-representers and organised campaigns. Lawyers will, on occasion, find other litigation mechanisms through which to bring client grievances. Given the nature of funding more generally, such litigation would be likely involve compensation claims and inter partes court costs.
These risks should be borne in mind when considering the modest predicted costs savings associated with reducing the legal aid budgets in these areas.
The paying public
A final point is that partly because of the changes predicted by this document, and partly because of broader changes in the legal services market (especially direct access to barristers), there will be an increase in private work being conducted by practitioners. The potential for regulatory problems (such practitioners overcharging vulnerable clients) is significant.