David Boyle writes… Choice works – so why not in legal aid?

Barristers wigChoice is a funny thing.  I spent seven months studying how it worked in practice when I was running the Barriers to Choice Review for the Cabinet Office.

Despite the rhetoric from parts of the left, I believe that people can improve public services by being able to choose between different providers.

I’m also only too aware how many people are excluded from that – by a lack of information or advice, by a lack of transport and any number of other factors.

I am also aware of the political confusion around the term, when words like choice, competition and co-production, are often used interchangeably. As service users know very well, there are times when choice and competition are aligned, but there are also times when they cancel each other out.

This is so, for example, when the actual choice is made, not by patients, but by service commissioners choosing between two alternative candidates for block contracts. Or when the weight of demand is such – as it is for some popular schools or GP surgeries – that the choice is made by the institution, not by the user. In both cases, there is competition, but no user choice

But the basic concept is right.  Nobody should have to put up with poor or patronising service – and people’s ability to choose does give the poor or marginalised the right to say no, and go elsewhere.

I also believe in the underlying purpose of choice in public services.  It puts pressure on managers to be aware of what people want.  It reminds staff that services are not designed for the convenience of professionals.

The systems set up over the past decade or so miss out a great deal, but holding the basic price steady, and letting service users choose, can improve services.

The evidence can be ambiguous on this point, but the basic argument is widely accepted inside and outside government – giving people some choice between providers is a safeguard for service quality and it often improves it.

But there is a peculiarity at the heart of this.  It may even be a stark contradiction.

For some reason, successive governments which believe these things suddenly stop believing them when it comes to services for poor or desperate people.

Some services directed at the at the most disadvantaged people are notable by their almost complete absence of choice.  If choice encourages responsibility, flexibility and better success rates in other areas of public services, then it is probably time some element of choice of providers was introduced also in drug and alcohol rehabilitation services, and in employment services.

None of these services are intended to be punishments – they are there to support people back to work or out of addictions – and they would benefit from the same kind of choices that users enjoy in other services.

Which brings us to the proposed changes to legal aid.  If choice improves services in the health and education sector, and underpins the rights of individuals not to put up with careless or uncaring professionals, why does the same not apply to legal aid?

Unfortunately, the Justice Department seems to have fallen for one of the other great mistakes of successive governments – that economies of scale will make services more efficient.

There is no evidence for this at all.  What evidence there is suggests that where there are big providers, which owe nothing to the individuals they are supposed to be helping, then the diseconomies of scale – the small inefficiencies and miscarriages – very rapidly overtake the economies.

We will see.  But I suspect the plans will not just decrease choice, they will also increase costs.

* David Boyle is policy director of Radix, co-director of New Weather, a fellow of the New Economics Foundation, and the author of The Xanthe Schneider Enigma Files and other books.

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18 Comments

  • Melanie Harvey 13th Jun '13 - 1:53pm

    Justice is not for all and mainly only the rich.. In part at least this is because being poor and poverty itself is seen as a crime.

  • Melanie Harvey 13th Jun '13 - 1:57pm

    Further to my previous comment. If the police must remain a neutral and unbiased authority why are victims not given automatic legal reps ? Trust me victims can end up being more abused by the authorities than the Defendants in many cases and may contribute to criminals getting off the hook so to speak.

  • Melanie Harvey 13th Jun '13 - 2:01pm

    In point of fact the notion the police support and investigate crime thoroughly on behalf of the victim is a complete and utter fallacy, particularly when the are cooking the crime statistic books and/or the crime is connected to another and police shown as negligent in regards to.

  • A brilliant article, David, which perfectly highlights why the Government’s justifications for it proposals are not just plain incorrect, but against the very ethos they keep telling us we should be pushing forward.

    The problem is, this never has been and never will be about cost effectiveness or providing a more efficient service. It is about making it harder to challenge the decisions of public bodies, whether they be in the justice system or elsewhere.

  • Helen Dudden 13th Jun '13 - 5:45pm

    This will also effect the subject of Family Law seriously.

    I never could understand the fact, that tax breaks would keep people together.

    Of course, this will restrict the access to law and this in turn, restricts human rights .

  • I can’t help thinking that very often ‘choice’ is really about sugar-coating some plan to make the unpalatable acceptable and to deflect public debate onto safely irrelevant terrain – like those lizards that shed their tail as a distraction when threatened by a predator. So, for example, in the NHS it sounds like it ought to be a good idea. But is it really just a way to open up immensely lucrative contracts to private interests that would never win the business on their merits? Meanwhile, in education it provides cover for an attack on local control and autonomy. The Right must know that for a ‘buyers’ market’ to exist (which is what they claim to want) there must be oversupply which, funnily enough, they conveniently forget to mention (it would cost too much).

    This theory explains why there is, entirely hypocritically, no serious push to maintain ‘choice’ for the disadvantaged. No-one close to the government has yet come up with a profitable business plan to exploit their plight that hasn’t crashed and burned (think ATOS). So that leaves help for the disadvantaged as merely an expense to be minimised.

    No doubt there are also true believers on the Tory benches but when you go into coalition with profiteers (and the Tories were a coalition all on their own long before the Lib Dems joined in) you must expect ideas to be hijacked.

  • Melanie Harvey 13th Jun '13 - 11:11pm

    David ..choice is about being in control of what you want/need and availability to go the avenue you choose. and not one of being told your choice is A & B only like it or lump it… Our justice system and access to it is being restricted for one reason and one reason only, to falsify and steer justice rather than address it in truth fairly and openly… I have been and am there and am totally appauled that our system is this way…

  • Eddie Sammon 14th Jun '13 - 12:11am

    These legal aid reforms are very unjust on both the defendant and the barrister. Are they still just offering cases to the lowest bidder? How about we offer jobs in the Justice Department to the lowest bidder and see what happens to the quality of the work?

  • Helen Dudden 14th Jun '13 - 7:39am

    I agree, with pay rises for MP’s in the offing, are we really in this together?

  • Greg Foxsmith 14th Jun '13 - 8:25am

    One of the worst things about the comprehensive restructuring of legal aid, ( sash and burn) is that the proposed changes will go through after a rushed consultation and no Parliamentary debate.
    To get issues like those raised in this article, we at trying to get at least a discussion in the Commons- please sign and promote this petition to help get the 100k sigs we need https://submissions.epetitions.direct.gov.uk/petitions/48628
    The depressing thing from a political level is the lack of visible Lib Dem opposition at senior or Parliamentary level.
    Please ask LD MPs to sign EDM 36 http://www.parliament.uk/edm/2013-14/36
    Lib Dem lawyers oppose Graylings attack. See here http://www.libdemlawyers.org.uk/articles/ldla-moj-response-final-%5B1%5D/
    Thanks

  • David – I don’t think I’m confusing choice and competition, only querying how genuine the commitment to choice is when for legal aid any choice for defendants is so easily brushed aside. The only remaining ‘choice’ will be for the government and that will be determined by cost it would appear. The shallowness of commitment to choice leads me to think that sometimes it’s just window dressing for policies that would never pass muster on their merits.

    Incidentally, I agree with Greg Foxsmith (an unrelated GF!) that the lack of visible opposition from senior Lib Dem figures is deeply depressing. This is an attack on some of our most ancient and treasured liberties which are a core function of a properly functioning state. Just what are the Lib Dems for these days?

  • Melanie Harvey 14th Jun '13 - 9:45pm

    Gf, Defendants at least have choice victims dont . No representation for them they are on their own hence the police can get away with crimes not even being investigated properly in the first place…

  • Alex Macfie 15th Jun '13 - 8:20pm

    @Melanie Harvey: The problem with representing the “victims” in criminal investigations is that it begs the question (I’m using that phrase correctly, something that people rarely do these days). It presupposes that there is a crime, and there is a victim: this is not necessarily true; a good example is that of false rape/abuse allegations. It is also not true that police investigate a crime on behalf of the victim: they act for the benefit of society as a whole. And the victim (or victim’s family) may have a fixed idea of who is the guilty party, but the purpose of an investigation is to determine the truth about what happened, not to assuage their fears and suspicions.

  • Shirley Campbell 16th Jun '13 - 8:26pm

    Melanie you are right: justice is merely an illusion.

    Firstly, it is unlikely that the majority of people choose their legal representatives. It is more likely that they accept the advice of the “duty solicitor”, who may be good, who may be bad, or who may be merely indifferent. How many people, when they are randomly arrested, have the name of a good solicitor at their disposal? But, however unjust the current system might be, the thought of “state-sponsored legal advisors” fills me with dread. I have signed all the petitions that seek to outlaw further tampering with the existing system of legal aid.

    Secondly, Alex’s contention that police investigations are fair and impartial is yet another myth. The police service is a law unto itself and there are many of us who have absolutely no respect for any of them. We see high profile cases of gross dishonesty investigated but the little man or woman is fobbed off.

  • Helen Dudden 17th Jun '13 - 8:16am

    Your lawyers seem to be making the case for Criminal Law, little is said about Family Law.

    Of course the situation of children and court action has fallen before, we need justice and the UNICEF Bill of Rights for the children should be oe that is seriously taken on board.

  • Alex Macfie 17th Jun '13 - 4:12pm

    Um, I did not say that “police investigations are fair and impartial”, I was describing the way things are supposed to work, not trying to imply that that is how they work in practice.

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