The great legal aid franchising fraud
12 February 1997
Fifth Circuit decision exposes contractors to vicarious liability for double damages when employees receive personal kickbacks
9 August 2013
9 June 2014
29 August 2013
14 October 2013
23 April 2014
Christie Davies believes that the franchising of legal aid work as proposed by the Lord Chancellor will threaten civil liberties and lead to a decline in the quality of defence work.
As we now know, it is the intention of the Lord Chancellor, his civil servants and the Legal Aid Board (LAB) to introduce a scheme whereby criminal legal aid work is given exclusively to franchised firms on the basis of block contracts.
The aim of the scheme is to reduce the overall cost of criminal legal aid. In consequence, there is now a demand for legal aid work on the cheap. It is the inevitable result of a system in which the State and not the client pays. Whatever the LAB may claim, the proposed solution is going to prove a threat both to the quality of defence work provided by solicitors and to civil liberties. It is the great franchising fraud.
Even the defenders of franchising admit it cannot deliver quality, though they say it is a necessary condition for obtaining quality. On the contrary, franchising will lead directly to a decline in the quality of the work carried out by solicitors, in the same way that increased central government control of education has led to a decline in the quality of schools.
The so-called standards set by the franchisers will lead to a decline in quality because that is what they are intended to do. Whenever minimal standards are set by a bureaucracy they soon become the norm. They are a way of disguising the fact that a withdrawal of funding has lead to a poorer service.
The non-legally trained franchise auditors who troll around solicitors' offices checking the files and "monitoring management systems" are an irrelevance and a distraction; by focusing on unimportant aspects of lawyers' work that are measurable they draw attention away from less tangible but more vital questions.
The franchisers are unable and unwilling to consider questions such as accuracy of decision making, skill in handling clients and local and implicit knowledge, all of which will dwindle away as bureaucracy drives out commitment, and defence solicitors are herded into larger, non-specialised units.
The Law Society seems unaware of the nature of the problem. When I asked its spokeswoman on franchising what the benefits of this exercise were, she replied: "Well, at least when a solicitor is run over by a bus, he will have written his notes down in the file and not on the back of a fag packet."
When I asked her how often solicitors were run down by buses, and what proportion of the profession still smoked, she did not have the statistics available. I do not criticise the Law Society: information costs money, a fact not appreciated by the franchisers who treat it as a free commodity because other people gather it for them.
Behind the great franchising fraud lies the assumption that clients are unable to make discerning choices about who is and who is not a good solicitor, and that the decision is better made by a higher authority. Like our schools, this is an insult to the intelligence of the working classes. Why should the same thesis not apply to middle-class clients paying for themselves after a brush with the law? Is it safe to let them choose their own lawyer? They are far less able to make informed choices than the average villain. Take away client choice and quality will collapse, as will civil liberties.
The main threat to civil liberty lies in the way that franchise auditors are allowed to examine confidential files in solicitors' offices. If you were a defendant, would you want someone who is simply an administrator burrowing through the details of your case?
The major problems, however, lie in the future, when the system will be reduced to a monopsonistic LAB franchising a handful of large legal firms, none of which specialise in crime. Where are the lawyers who have worked against injustice in the past going to come from in such a system?
Given that the LAB will have absolute power to grant or withhold a franchise, and that there will be no sustainable right of appeal, how do we know that this power will not be used to exclude individuals who are causing trouble for the criminal justice system. All power tends to corrupt and unappealable power is unappealingly corrupt. It is irrelevant to argue that the individuals in the LAB are persons of integrity. We cannot guarantee that this will always be the case.
Quis custodiet ipsos custodes? Who is to guard the Guardian readers? Comparisons with the US are not helpful for it has constitutional guarantees of due process and equal justice that do not exist in the servile state of Britain, where the executive authority of boards and quangos cannot be challenged.