Bucking the market

We have learned to accept – or at least attune ourselves to – the primacy of ‘market forces’. Yet exceptions can always be made for reasons of political expediency.

This often happens where people sell their labour to the state. If remuneration lags inflation for long enough, professionals who have a choice will switch to more lucrative work, or do similar work elsewhere for more money. (And who’s going to want to replace them?).

Striking junior doctors, whose pay has crashed 26% in real terms in 15 years, are a case in point. One in three plans to emigrate. No honest free marketeer can cavil at this, however grim the consequences for the nation’s health.

The same goes for civil legal aid lawyers. Four in 10 providers intend to quit this emaciated sector in the next five years, according to a survey commissioned for the government’s sustainability review. Over half of firms which do civil legal aid either make a loss or break even. Many carry on doing it solely for reasons of altruism (David Cameron’s ‘Big Society’, anybody?).

As a false economy, taking a hatchet to civil legal aid ranks right up there with refusing to meet the (hardly outrageous) pay demands of mutinous medics. It is fiscally illiterate, wilfully ignoring the fact that civil legal aid is a boon to the state further down the line in multiple ways, from health to housing, to the productivity of a well workforce.

So what to do? Some Gazette readers have suggested reviving the notion of a contingent legal aid fund. This idea has been periodically disinterred since 2009, when Lord Justice Jackson included it in the suite of reforms he wanted to be introduced as a coherent whole.

A non-starter, it appears. The sorts of cases a CLAF could handle are already catered for by conditional fee agreements. And the areas legal aid still covers rarely involve damages, and therefore there is nothing that could generate success fees to make a CLAF sustainable.

What else then? Artificial intelligence might help a bit – but that will need investment too. But the best argument for more money remains ‘pay up now to save more later’. Unfortunately, that is a tough sell to ministers for whom longer-term benefits are someone’s else’s political capital.