The Necessity of Choice

The proposal in the PCT Consultation that client choice be removed in its entirety will result in a two tier system between the haves and the have nots. It is also in direct conflict with the aim of the Prime Minister and the original Carter Report – which the MoJ claimed to have read, writes Stephen Halloran.

David Cameron delivered his ‘Big Society’ speech in July 2011. It was/is his manifesto for change and reform of public services. He emphasised how it would impact on every citizen:

‘The old dogma that said Whitehall knows best – it’s gone. There will be more freedom, more choice and more local control. Ours is a vision of open public services – and we will make it happen by advancing five key principles.

First, the principle of choice.

Wherever possible we are increasing choice by giving people direct control over the services they use.

Why? First because it’s a good in itself.

You wouldn’t pay for a gym membership and then get told you’re only allowed to use the running machine or only allowed to come in on a Tuesday……and neither should you pay your taxes then get told you’ve got to take what you’re given.

You need the right structures in place. And this is where choice is so vital.’

Directly analogous to the situation with legal aid and the provision of criminal defence representation are his comments as to the provision of education. They are both ‘public services’, whether run by private contractors or state owned. The importance of ‘choice’ cannot be understated:

‘When you have the power to choose where your child goes to school… and that choice is backed up by state money. Schools will start bending over backwards to give you what you want: better discipline, more sports, after-school clubs.

That’s how standards rise in public services – when you get the structures right.

And this isn’t some theory – the evidence is already there.

A study published by the London School of Economics found hospitals in areas with more choice had lower death rates.

So right across our public services we’re extending choice.

For the first time ever we are looking at how we can enshrine a general right to choose in law.

No ifs, no buts, no more get-what-you’re-given… this is get what you choose.

A clear, legal right to make the best choice for you.’

David Cameron specifically acknowledged and noted that with the exception of National Security, policing and the judiciary itself, diversity should be of fundamental importance:

‘So in national security – yes, there’s a case for the state taking care of things on its own. In frontline policing and the judiciary – yes, a monopoly makes sense.

Pretty much everywhere else – we want to see diversity.’

He gives an example of why diversity is so important, acknowledging its role in ensuring quality through competition, essentially noting the importance of a free market with choice as a fundamental factor. Just as in private industry, his example of the mobile phone shop applies equally to the provision of public services, such as legal advice and representation:

‘Imagine you’re buying a mobile phone.

You go to the shop – only one shop – and there they’re selling one model of phone.

You can guarantee the service wouldn’t be what you’d expect, the quality wouldn’t be great… and yet we apply the same tired, old monopolistic thinking across so much of our public services.

These plans put an end to all that.’

Ironically, the current proposals would actually cause what the Conservative Government wished to avoid and eradicate. The current system is a competitive one, whereby clients do have a freedom of choice and with that choice can and do make informed decisions as to who should be advising and representing them, this decision is so often determined by their appreciation of quality.

David Cameron spoke of the fourth principle as one of fairness. He specifically acknowledged that:

‘In this world of restricted choice and freedom it’s the poorest who lose out.’

This, of course, would not be fair. It would be a two tiered system. Those who could afford quality representation above merely the ‘standard to be expected’ would do so. Those who could not would be simply allocated a lawyer who would simply do just that. As the Ministry of Justice acknowledged in paragraph 23 of the Price Comparison Impact Assessment, the restriction of choice would do just that:

‘The removal of choice may reduce the extent to which firms offer services above acceptable levels. We will ensure that quality does not fall below acceptable levels by carefully monitor quality and institute robust quality assurance processes to ensure it does not fall to an unacceptable level.’

With the element of choice and competition which currently exists, there is a criminal legal aid service which is able to ensure that the quality of representation provided is consistently ‘above the acceptable level’ irrespective of a person’s means.

That a person’s representation and by implication their liberty should be so entwined with their financial predicament and whether they can afford to pay for a service above the “acceptable” level is deeply worrying and flies in the face of everything that could be considered “fair”.

In his speech, David Cameron spoke of the fifth and final principle as being accountability. Quite rightly so, those who receive payments from the state, those that provide a public service should be accountable.

‘Useless providers were given big cheques just for laying on a service, regardless of whether that service was good or not….It doesn’t make sense.’

The quality of the service is ensured by the competitive nature of the free market that currently exists. For those firms who fail to provide a suitable standard of representation, they are judged harshly by their peers, their clients and by the auditing processes of the Legal Aid Agency and the Legal Services Ombudsman. The greatest imperative for quality is for a firm’s reputation to be preserved. Through their reputation, firms should succeed or fail. Under the current proposals, this will not be the case. Competition is vital in this respect.

If the view of the Prime Minister is not sufficient perhaps the MoJ should also reflect on the Carter Report:

‘Choice is also seen as an integral part of the legal system. The right for clients to choose their legal representative is considered to be critical to both the commercial viability of suppliers and the confidence and co-operation of clients in the justice system.’
Carter Report 2006, p 19

‘Clients need to have confidence in their legal representative in order for justice to be fair and effective. Clients may want to choose a specific lawyer or firm for a number of reasons:

  • some vulnerable clients and persistent offenders tend to relate better to those solicitors they know, and therefore this may help the process to focus on the key issues; and
  • clients may also wish to choose and take up recommendations from friends, family and others, based on the reputation of a specific lawyer or firm

The recommendations in this report should ensure that clients continue to receive quality advice and an efficient service. Clients that wish to retain links with a specific person or firm can do so if that person or firm has a suitable contract. There is also scope within the new scheme for practitioners to continue to provide advice to those clients outside their General Criminal Contract area(s).’
Carter Report 2006, p 94

No rationale reason exists for the removal of client choice. It is anti-competitive, penalises the vulnerable, is in direct conflict with government policy and ignores the conclusions of the original Carter Report. In fact, it can only benefit those who do not currently work in the Criminal Justice System.



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