Right to choose

Unlike many commentators of the government's proposals to introduce competition to the Criminal Legal Aid market, I have become convinced that price competition is the best route available to deliver a sustainable supply of criminal defence services. Having led the policy development of best value tendering (BVT) in 2009-2011, I am fully aware that this is not a popular view among the profession. My conclusions have been reached from a public good perspective - that is ensuring access to the right advice and representation for the right cost to the tax-payer.

That is, however, one of the few points of convergence between my views and those proposed in the recent consultation paper. At a principle level, what the government is attempting to achieve is difficult to argue against; making much needed savings in public expenditure, increasing efficiency and boosting public confidence in the criminal justice system are all laudable aims - but the proposals on how these aims will be achieved are, in my view, at best naïve, and at worst potentially cataclysmic.

Unproven assumption Establishing the right price to pay for the service is undoubtedly difficult; administratively set fees are unlikely to be the answer, hence my support for price competition. But if price competition is adopted, it must be allowed to reveal the right price. An administrative cap on rates set at any level will artificially disrupt the competition. We fully accepted in BVT that prices in some areas must be allowed to rise over time through the competition if the then aim - to achieve a sustainable supply - was to be achieved. In my view, what can be seen as a very complicated and disruptive way to implement at least a 17.5 per cent rate cut may lead to supply failure in some areas of England and Wales. While government argues that economies of scale will deliver efficiency, this argument is far from proven (and there is contrary evidence to suggest the opposite holds true- this is, after all, for the most part about human to human interaction). This unproven assumption is a key driver for the way in which the proposals have been shaped. Caution has seemingly been thrown to the wind with a big-bang approach to implementation. A pilot would, at least, test the theory.

Suicide bidding

So, if bigger does prove to be better for now, will it always be? Sustainability means ensuring long-term security of supply. The proposals will craft oligopolies - high barriers to entry will be established as potential suppliers will, in the main, be required to deliver across a whole criminal justice system. Lack of supply fluidity significantly reduces the benefits available through competition - longer term, prices may well be artificially inflated. And even in the short term, the need to bid for work in unfamiliar areas at unfamiliar scales, coupled with the one-off sealed bid approach that appears to be proposed, increases the potential for suicide bidding on a wide scale. While the public defender service is being retained, it would not be sufficiently resourced to counteract market failure on anything other than a small, local level. The cost to government of rescuing a failed service is difficult to estimate - but would certainly put a large dent in any expected savings.

And what of the client in all of this - will they get the 'right advice and representation'? Client choice is a thorny issue in professional services - the very nature of such services means that there is information asymmetry. While some may argue that clients cannot possibly know what the 'right advice and representation' really looks like, others see client choice as a key driver for quality. We know from the Scottish experience that direction of clients proved impractical for their public defender service. In the states, commentators have suggested that lack of choice is a key driver for poor service. Despite the economic arguments for the direction of clients to services (which would indeed deliver more volume certainty), during the development of BVT proposals we became convinced that the removal of choice would lead to a deterioration in quality. In a system where it is difficult (and costly) to measure and determine what an acceptable level of service is, my view remains that choice is a necessary safeguard against the risks associated with the 'stack them high and sell them cheap' approach that these proposals may well drive.

The law of requisite variety suggest that in a complex system a complex response is required. The criminal justice system is undoubtedly complex. In my view the proposals attempt to respond in a simplistic way. Such a response significantly increases the risks both to clients and the public purse. While I remain an advocate of what the government is attempting to achieve, I would suggest a significant reconsideration of how they intend to achieve it is essential to secure a sustainable criminal defence service that continues to drive for the public good.