This article is written by Crispin Passmore, until recently of the Solicitors Regulatory Authority and previously the Legal Services Commission and Legal Services Board, now a consultant. Ever an interesting, and often a controversial, thinker, Crispin explores a particular problem for legal aid in England and Wales – how we might encourage innovation and greater use of technology within a system where public services are delivered by private lawyers, barristers and solicitors. As he says, I encouraged him to write but the views that are expressed are his own.
I recently wrote a blog about the future of corporate law and was challenged by Roger Smith to do the same for legal aid. Never one to duck a challenge, I agreed. I’ve been wracking my brains ever since, but it is hard to predict when none of the rules of a normal market appear to exist. Government is the sole purchaser: they decide what they buy – it constrains price without doubt but also constrains any real competition and the innovation that flows from that. And we suffer from short termism driven by the turnover of ministers and the low priority afforded to legal aid. In my experience, ministers feel they get criticised by the lawyers whatever they do so they might as well save money and spend it on something that the public cares about.
By competition, I don’t mean pushing prices down but competing on quality, access and innovation. Legal aid services are delivered, so often, in the same ways as they were 70 years ago.
So this is definitely not a set of predictions about a market. It’s a scan of some issues in the current system and some plain old wishes about a different structure.
Risks managing legal aid
One of the problems with the legal aid system and attempts to manage the budget (whether by cutting fees, introducing price competitive tendering or some other selection criteria) is that it never really deals with the risks that exist in delivering public services. Key risks include demand risk (that demand is higher or lower than expected); complexity risk (that more or fewer cases are unexpectedly difficult) or quality risks (that services are either gold plated or simply not acceptable). You cannot shift these risks from the public sector to private providers – the state always faces the bills for those risks and often passes them on to the public by way of unserved or under-served citizens.
What you can do is decide who is best placed to manage those risks. At the right price the private sector might manage some of those risks – trading the potential for higher returns against the risk of unexpected demand. But that must be at a higher price than the ‘market’ price for each case. That can be through longer term contracts that bake in a price, but this creates new risks. The reality – as we have seen with prisons and probation – is these risks are much harder to manage in the private sector than, say, delivering household waste collection. The fragmented and erratic provision of legal aid services makes those risks almost entirely unmanageable for almost all legal aid law firms. That is perhaps why Governments keep coming back to scope and eligibility cuts and then fee cuts.
Other factors that matter
We also need to think about three other external factors that impact. Can technology help provide services? Can the private legal market increase the number of problems solved at prices more people can afford and thus reduce need for legal aid? And can better public services reduce failure demand? Examples are plentiful. Poor decision making in welfare benefits or asylum. Or in the criminal courts we see poor coordination between prosecution and defence; unavailable interpreters, or problems with prison transport services.
We are a long way away from technology replacing lawyers. That to me isn’t the real issue anyway. How can process engineering and technology get lawyers focused more on lawyering and less on process management and administration – much as General Counsel are trying to do when they use alternative providers such as Elevate or United Lex or Axiom. We still seem to produce legal aid services as if the industrial revolution happened recently while the fourth industrial revolution is going on around us.
The reforms that have happened in the legal market that are bringing in non lawyers, external capital, different business models and more flexibility about how solicitors can practice may also impact. If a need is met by private providers, there is no need for legal aid. There may only be marginal gains in terms of access to justice but it could, for example, impact private law family or much of immigration work. Reform of family law (a type of failure demand in so many ways) would also help tackle legal aid crisis in this area. Better family law might not only provide some standards for splitting assets that the public understand, it could also move most of these disputes out of the court all together. Resolution by design is a better slogan than dispute by default.
Failure demand in legal aid is more complex than in other public services. It is often a cost of failure demand elsewhere and thus tackling it is difficult. Perhaps more triple lock funds as we saw in asylum in the mid 2000s when the Treasury, Ministry of Justice (including legal aid and tribunals), and the Home Office (including processing casework and asylum support) took a whole systems approach might help. In practice, this meant that one part of the system could not take reform decisions without the agreement of the other parties to the triple lock. So, if a Home Office reform saved them £1 but cost MoJ £2 it could not go ahead. It was innovative at the time – and very difficult for Ministers and civil servants to work within. But it helped manage costs overall. Could we replicate this in social welfare law such as benefits or tax credits? Or in other areas where poor decision-making drives legal aid.
How might all of this play out over the next twenty years? Sadly, I expect we will continue to see the ebb and flow of legal aid that looks a lot like the last fifty years. There will be some grand announcements and false dawns, but little will change. Lawyers don’t embrace change and Ministers will continue to focus elsewhere.
But in an alternative universe what might I like to see?
No competitive tendering – it is just too hard in a market where neither side behaves as if in a vaguely rational market. And the risk issues described above are best managed by the state anyway.
I’d like a public defender for crime – one that removes profit seeking on individual cases and aligns interests – including the consumers interests around access and quality. This is the only way to deliver in such a stretched service. That applies to police station, magistrates court, and to higher courts. There is no reason why this cannot also be the service model for other rights-based work such as asylum and public law children – though perhaps dedicated NGOs might be an alternative to a public service? That might be either a network of regional organisations or a couple of national ones – all required to required to collaborate to secure nationally agreed standards on quality and access.
A public service for social welfare law is also essential. We can no longer have this fragmented service where everyone complains of advice deserts but resists any reallocation or change. A coherent and joined up service like Sure Start needs to be planned (we just need a name, something that suggests centres focused on communities’ legal and advice requirements. I’d prefer a partnership between a public employed service and Law Centres delivering a mix of web, telephone and face to face, and not paid for case by case. Perhaps like NHS GPs? It should bring in the expertise of the great legal process outsourcers to help redesign delivery. And that probably leads us to a single national Law Centre structure with fewer managers, coherent patterns of delivery and systematised processes.
All of this could be supported with a coherent approach to workforce. The Solicitors Qualifying Examination allows a more flexible approach to training, with a mix of apprenticeships, work based training for graduate solicitors and a route from solicitor to barrister, where the very best go on to independent bar
The highest levels of advocacy in all areas of work should be done by independent advocates. In crime, I would require theme to do at least 25 per cent of every three-year period doing defence and prosecution I would appoint a panel for five years and only very best kept for a second, with some mechanism for new barristers to be added every six months.
In each area of work I would appoint a senior lawyer, equivalent to the DPP perhaps, to lead. That might be one each for crime, public law family, asylum and social welfare law. And I would appoint a single overarching external inspector for a single five year term with no public appointment allowable afterwards (to create genuine independence) to produce an annual report on the services. Perhaps this approach might learn from prisons and probation?
I have tried to avoid the issue of how much should we spend. International comparisons are interesting, misleading and helpful. In the end we get the public services we vote for. Or more accurately the poorest and most vulnerable people get the public services other people vote for. My view is we need to win the argument for legal aid all over again – as something for clients and not for lawyers. The structural changes above could help shift the focus on to the users.
There is little point in making arguments that legal aid saves Government money. This sort of analysis is not taken seriously because it misses the point about public policy and allocation of resources. It may be cheaper to tackle one person’s problems early rather than let them escalate. But that isn’t the calculation being made in Government. What they decide is who they want to help and how much they want to spend. Others go without – either legal aid or housing or whatever public service we consider. The reality is that as less has been spent on housing legal aid in recent years the Government has let more people become homeless rather than spend more money on those services. Legal aid may sometimes be a cheaper way of solving problems – but not solving them at all is even cheaper sadly.
Our argument in favour of legal aid has to be won on the real argument that trying to support equal access to justice, and in particular protecting individuals against state overreach, is a core part of a democratic system and an underpinning of the rule of law. In my view that it’s a public service to vote for.