In the summer of 1998, I visited the US to look at contracted public defender schemes. This was triggered by the prediction that they would be the ultimate destination of the Legal Aid Board’s franchising initiative. Public defender horror stories, particularly in the south of the US, are easy to find. But what lessons could be drawn from states which were held to have made a success of such a delivery system? Happily, this created a plausible case for wandering up the west coast from San Francisco to Seattle.
It took longer than I thought but finally the government is moving to a system of delivery which is new for us but routine in places as far apart as the US and Chile. You would not, however, guess that anyone else had thought up the idea of contracted public defenders in the Ministry of Justice’s consultation document Transforming Legal Aid. But the debate about – and experience of – contracted public defence services has been going on over decades. We know a lot about how contracted services are best managed. It is odd – and presumably deliberately parochial – that the ministry appears not, as the saying goes, ‘bovvered’.
Transparency would be helpful. Ministers should openly recognise the fundamental transformation that they are proposing. Our old ‘judicare’ legal aid scheme will go. In its place come contracted public defenders. Clients no longer choose their lawyer from those willing and qualified: they are allocated a defender chosen by government. The Legal Aid Agency should be renamed the Public Defender Agency. Plenty of countries operate on such a basis and it is probably lawful under the European Convention. However, it creates a clear – and surely somewhat uncomfortable – distinction between private clients, whose right of choice is protected by article 6, and those allocated representation by the state.
The impact is not just constitutional, it is practical. If you want to find the rising legal stars of the moment, go to a remand prison. Its residents constitute a remarkably well-informed market through which rising stars are identified and followed. By contrast, contracted public defenders touch the market only once, at the point of the contract. Thereafter, their economic incentive is to reduce cost and maximise profit. The contracting body has to be on the alert to uphold standards. What is more, enlightened contractors actually have a long-term interest in arguing for upholding standards because it will help to provide ammunition against further price cuts. The section on quality in the consultation document is frankly pathetic. Contractors have to get a peer review grade 3 rating within nine months: there is not much else.
We know the tendencies with contracted public defenders. Guilty pleas go up; experts are not hired; work is switched to more junior employers; workloads increase; and experienced lawyers drop out within a couple of years of contracting being introduced. All this has been adequately documented by independent entities such as the respected Spangenberg Group in the US, which has written report after report on the topic.
The policy issue is how to grapple with these disadvantages. You might not, as a minister, care in the short term about the quality of defence provision. You might even think that the worse, the better. But just wait until the appeals and miscarriages start piling up. Remember the crashes for which an under-regulated Railtrack was responsible in the first flush of privatisation? However populist you may be in terms of tough justice, the criminal justice system needs an acceptable level of legitimacy.
Contracts are not a ‘fire and forget’ mechanism. Oregon and Chile both have staff whose job it is to monitor the allocation of cases to contractors to ensure a fair and manageable caseload level. They also keep the work of the contractor under constant surveillance. The hidden hand of the market is a wonderful thing, but take away client choice, and there is little concealed in the deal between contractor and government which will work to keep up standards. If you care about quality, you must adjust the bid process to discourage disadvantages and monitor post-contract performance closely. In Chile, it gives allowances within the competitive process for the relatively high cost of experienced lawyers. After the award of the contract, it checks acquittal rates and not-guilty pleas.
In the US, the National Legal Aid & Defender Association and the American Bar Association both suggest caseload limits on employees to stop the overloading of staff and consequent shoddy work. You need mechanisms to protect the proper hiring of experts. Otherwise, contractors don’t – they keep the money.
The advent of price competition will be messy and induce much protest and litigation. Personally, I would not have bothered. I would have made required savings directly, maintaining competition and choice. But, if it is to be done, then it should be done competently. Little evidence of that.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice