If the Government's ruining law, the solution is not more Government

More lawyers should be hired directly by the state; but the rest should get used to living without legal aid, writes Preston Byrne.

It seems that the entire legal profession – solicitors, barristers, and social welfare advocates alike – opposes the Coalition's reforms to legal aid, arguing that jobs will be lost, firms will close, lawyers will earn less, and the rule of law will be undermined. Under the Coalition's watch, the extent of legal aid for civil proceedings has already been limited; now, the Government proposes to reduce it still further, by:

  1. introducing competitive tendering for publicly funded criminal defence work,
  2. reducing the fees payable by the state to private lawyers for legal aid work, and
  3. restricting the types of work and classes of claimants eligible for legal aid.

Very few have come out in support of the Government, and those who have point to the system's significant costs, arguing that the only problem with the budget cuts is that they “don’t go far enough.” They assert that “we’ve let a small group of not particularly gifted people monopolise the legal control of… routine, if crucial, acts” some of which, they maintain, only requires an online form and some simple instructions. In the hands of high street lawyers, it is argued, this results in a “staggering waste of money." This is, however, the minority view.

The New Statesman's David Allen Green likened the proposals to “[bulldozing] an entire market square,” cutting the number of criminal defence firms eligible to provide legal aid from 1,600 to 400. This constitutes, in his view, an “attack on a whole sector of small and medium sized enterprises.”

Similar pessimism is heard from the Chairman of the Criminal Bar Association when he said that the cuts will “destroy… the criminal Bar” and “we are facing absolute devastation to what is the finest legal system in the world.”

Opposing this perspective is the view that their professional ire is misdirected, taking the position that in the legal aid arena, budget cuts are merely the symptom of a wider problem: the state's role in providing legal aid in the UK is so significant that it distorts the market for legal services in general. Using criminal defence as an example, where assistance is presently granted automatically for serious crimes and in Magistrates' Courts a government study (pdf) showed that “nearly all” of the represented defendants “were publicly funded,” legal aid has been criticised as being a “publicly funded monopoly.” (page 119) But is this view correct?

Remuneration structures for legal aid mean that service providers have traditionally had no incentives to “compete on price,” competing instead on “the basis of reputation.” This arrangement, pointed out the final report of the Labour-commissioned Carter Review in 2006, penalises “the efficient practitioner who manages to dispose of a case efficiently in circumstances where this is the right course of action” as he or she would “receive less in case fees than the inefficient practitioner who does not succeed in addressing case issues efficiently.” (page 26)

The inefficient practitioner, in certain circumstances, is thus rewarded. This is not to say that reputation should not be a factor in selecting a lawyer – far from it. Even with classes of goods that are more homogenous in function, such as toasters, an individual product can command a higher price if it is of better quality. In the private sector, a client's selection balances a lawyer's reputation against his or her fee, with the client benefiting from price competition between equally talented providers. No such competition, however, exists, nor can it exist, within the current legal aid structure.

The Labour government attempted to address these issues in 2008 by introducing graduated fee arrangements – termed differently, price controls. Lawyers found these problematic when they were introduced, (paragraph 11) and continue to find them problematic today (paragraph 389); much of available state-funded work is “plainly inadequately remunerated,” says the Bar Council, despite the fact that the cost of the system to taxpayers continues to rise.

But where the Spectator's Harry Mount blames “Georgian terraced houses, Buckinghamshire country piles and children’s school fees” for the high and rising cost of legal aid, anyone who knows junior practitioners in either of the two professions (apart from City solicitors or the Chancery Bar) will know such a statement is sensationalist in character. The proposition put forward by the Carter Review, that despite “many well-known anomalous and exceptionally high cost claims on the legal aid budget, the scale of the continued rise in spending… is the result of systemic weaknesses in the way legal aid services are procured and therefore inefficiencies in the way those services are delivered,” seems more likely to be correct. Which goes some way to explain why both taxpayers and lawyers are unhappy with the system. To lawyers competing with the state for clients (particularly volume criminal work), legal aid is a monopoly. To lawyers competing with other lawyers for funding, legal aid is a price-controlled monopsony. To the taxpayer, it is a system that by its very nature rewards inefficiency.

But by opposing the cuts, does the profession demand access to justice, or state aid for lawyers? Simply refusing to accept the Government's proposals while making no alternative suggestions is to ignore the fact that two sets of competing and equally valid interests are at play: the need to reduce costs and the need to ensure the fair administration of justice.

Is a hybrid approach possible? Can we widen access to justice while reducing costs? Given a fixed pool of taxpayer money and a state monopoly, no: any increase in legal aid service provision requires either (1) cuts to lawyer remuneration or (2) additional support from the taxpayer, a problem which is potentially never-ending for, as the Ministry of Justice has suggested, increasing legal aid funding creates a positive feedback loop which only draws more lawyers into the system (page 11).

Create a free market, however, and no-one has to choose how much legal services are "worth" – leaving only the matter of how to widen access for the needy.

On the criminal side, the the all-encompassing state apparatus would need to be replaced with an expanded corps of salaried public defenders to (1) act as a backstop guaranteeing representation for all in criminal matters as a last resort and (2) ensure the continuation of steady work for the segment of the profession which currently services the indigent (though in exchange for this security, public defenders would give up the possibility of taking on privately-paid work).

Free from state dominance, lawyers whose primary practice would be in the newly-private markets would be able to compete for contracts at reduced rates to supplement the corps of civil legal aid lawyers or public defenders. Such a system would operate on the understanding that (1) the quantity of cases which would be received supports the practitioner's overhead costs in a reliable way and (2) at the junior end, achieves the objective of developing expertise which can be leveraged in that practitioner's private practice.

Though clearly a greater proportion of middle class clients would be made to bear the costs of their representation than is the case today, a greater number of private sector lawyers servicing this new pool of (formerly legal aided) clients should drive down the market price of private representation. Reducing the threshold of eligibility for civil legal aid, in particular, such that only those who are genuinely unable, rather than merely unwilling, to pay for a lawyer receive representation would eliminate market-distorting effects of legal aid in relevant areas.

Services for the indigent could be provided by non-profit legal aid providers which compete with each other for a substantially smaller pool of state funding (hundreds of millions of pounds, rather than billions). Such a model has, at least in the United States, been found to generate positive outcomes for clients, while still incentivising a significant part of the population to shop for a lawyer based on reputation and price. Add to this an hour-per-hour alternative to Continuing Professional Development by donating time on a pro bono basis to eligible non-profit legal aid providers, and the profession could generate a robust and high calibre legal aid sector at no additional cost to the taxpayer, profession or state.

Despite all this, there would be gaps. As lawyers would stand to gain the most from market reforms of the legal aid sector, it only seems fair that – post-liberalisation – responsibility for addressing any shortcomings should be the profession's burden, not taxpayers'. This realisation is not new: in a 1954 article in the Louisiana Law Review, Professor John S. Bradway pointed out that “if we work out a [voluntary] system whereby everybody… actually does get the same quality of justice according to law… reasonable men will find fewer grounds for criticism,” thus heading off the “threat of socialized law… we see in Great Britain.”

Ultimately, it is up to the lawyers to make the choice between a self-sufficient profession where individual members volunteer their energies to ensure access to justice out of a sense of professional obligation, or allowing the state – and the changing whims of one government to the next – to make those decisions for us. I know which I prefer.

The Royal Courts of Justice. Photograph: antmoose/Flickr, CC-BY

Preston Byrne is a fellow at the Adam Smith Institute.

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Aid in whose interest?

The government appears to be raiding the aid budget to subsidise big business and the security state.

In March 1988, Scottish aristocrat and Defence Minister to Margaret Thatcher, George Younger visited was part of a controversial offer of £200m of the UK aid budget in exchange for Malaysia signing a £1bn arms deal.

The government promised public money to subsidise UK construction giant Balfour Beatty to build a hydroelectric dam named Pergau in Malaysia’s mountainous north east.

Malaysia’s national utility, the World Bank and auditors at the Overseas Development Administration, the UK aid ministry, questioned the human development value of the project for the middle-income country, finding its costs to be “markedly uneconomic" compared to other options then available.

But these warnings were summarily dismissed.

Thatcher, who I believe saw aid not as a vehicle for eradicating poverty but as a means to advance Britain's commercial and geostrategic interests, wanted the arms deal.

In Malaysia, Prime Minister Mahathir Mohamad wanted an infrastructure project in Kelantan state, which was held by a rival party, which he wanted to wrest votes from.

But the National Audit Office soon got wind of the deal and parliamentary committees started to ask awkward questions of those involved.

The press published dozens of articles and the Pergau scandal was born.

Newspapers soon unearthed other white elephant development  projects resulting from the tying of aid to private British interests that did little for reducing poverty but were a boon for the contractors involved.

The Permanent Secretary to the ODA (Overseas Development Administration, now Dfid – the Department for International Development), Tim Lankester, said that Pergau was “unequivocally a bad buy”, “an abuse of the aid system” and “not a sound development project”.

The World Development Movement (renamed Global Justice Now) won a judicial review in 1994 against the government in the High Court which ruled the payment of aid “for unsound development purposes” illegal.

The Tories reacted, not by untying aid from UK vested interests, but by slashing the aid budget as punishment for the bad press – it seems that Thatcher saw little use for aid that could not be used to subsidise private interests.

Labour came to power in 1997 with an agenda to reform how Britain did development. It established a better-funded and politically-stronger aid department, the Department for International Development (DFID), with a seat in cabinet.

It scrapped the Aid and Trade Provision, the official mechanism by which aid was used to subsidise British company contracts, and in 2001 untied aid from UK commercial interests. The International Development Act of 2002 for the first time legally committed the UK to spending aid only on poverty reduction.

But since the Conservatives won a clear majority in last year’s general election, the government has been wilfully unlearning the lessons of Pergau.

Out of the hobbling coalition with the Liberal Democrats, Prime Minister David Cameron and Chancellor George Osborne have unpicked Labour’s reforms by effectively retying aid to the interests of the private sector and its perceived security interests.

They appear to have deprioritised poverty reduction as the principal purpose of the aid budget. “There is a real risk of the budget being recaptured by commercial interests as it was in the 1980s,” Sir Tim Lankester told me recently. “[International Development Secretary] Justine Greening has been making sure British commercial interests get more and more of the cake.

“What’s remarkable these days is the huge contracts going to the big consultancies to advise government and manage projects – The Adam Smith Internationals. The Crown Agents and others.”

November’s aid strategy “tackling global challenges in the national interest”, written largely by the Treasury rather than by Dfid, announced that aid would be a tool to “strengthen UK trade and investment opportunities around the world”.

The retying of aid spend is sold in the strategy in the same way the Conservatives sell austerity and privatisation at home.

Using the language of “prosperity” and “economic opportunity” (“inequality” was not mentioned once in the 22-page document), the government spins the dubious argument that communities in the world’s poorest nations share the interests of both UK business and the UK security state.

This “what’s good for us is good for you” aid strategy’s promotion of the UK interest over those of the poor grossly undermines the government’s legal duty under the International Development Act.

The aid strategy leaves it to the concurrently published National Security Strategy to enumerate what these imaginative interests are: to “protect our people”, to “project our global influence” and to “promote our prosperity”.

To achieve these ends, the government has allotted half of the aid budget to conflict-hit states, which are expected to be the states Britain has helped destabilise in recent years: Afghanistan, Iraq, Libya Syria and Yemen.

The government also successfully lobbied the OECD to widen the official definition of “Official Development Assistance” (aid) to include military spend on counter-terrorism and expand the use of aid subsidies for private – and inevitably British – projects in the developing world.

Over the course of this Parliament, the Tories will triple to around £5bn the amount of aid to be spent outside of Dfid. The main beneficiaries of this diversion of aid are the Ministry of Defence (MoD), the foreign office (FCO) and the business department (BIS). These departments are considerably less transparent than Dfid and, according to the National Audit office, spend most of their aid on middle income countries, rather than low-income countries.

This slide towards using aid to subsidise British business and as a slush fund top up its military and security budgets means that development projects devoted to public health, education and countering the agricultural and ecological destruction wrought by climate change, will suffer.

***

Take the growing spend by Dfid on private consultants and accountancy firms.

Under the Tory austerity programme Dfid’s staff has been slashed, which means there is less public capacity to allocate, monitor aid projects.

To compensate for this under capacity the government has farmed out the aid budget in bigger and bigger parcels to private contractors and accountancy firms to do the work for a profit.

Dfid spends some £1.4bn directly through private contractors and several times more than that through its payments to multilateral development banks that recycle British aid back through the private sector.

In 2014, Dfid said 90 per cent of its contracts are awarded to British companies, strange for a department that claims to have untied aid. Almost no contracts are signed directly with NGOs or contractors in the Global South.

In 2014 alone, it spent £90m through a single private consultancy, Adam Smith International (ASI), which that year declared £14m in profits, a profit that doubled in two years on the back of Dfid and British taxpayers.

ASI, which was spun off from the neoliberal think tank Adam Smith Institute, is in the business of privatising public works in the Global South from Nigeria to Afghanistan and deregulating the Nigerian economy under its “Business Environment” stream of Dfid’s £180m Growth and Empowerment in States scheme.

In 2014, Dfid spent £42.9m on the services of one accountancy firm alone (PwC), in spite of its part in the LuxLeaks tax avoidance scandal. It is this tacitly sanctioned flight of wealth that costs poor nations (non-OECD) three times more each year in tax avoidance to tax havens than they receive in aid from rich nations (OECD) according to the OECD itself.

Contrary to the public perception, aid is for the most part not “given” to poor countries. At present, only 0.2 per cent of the world’s humanitarian aid goes directly to local and national non-government agencies and civil society organisations. This is despite a consensus that these groups are the most effective engines for development.

The increasing use of private contractors and large bilateral financial institutions to get aid out of the door constitutes nothing less than a capture of the aid budget by corporate interests, which also advise the government on where to direct future aid flows.

Under this government, aid has become less a tool for development but a rent for a veritable industry that concentrates the knowledge, skills and finance in the companies and institutions of rich nations.

***

Take the amount of British aid that subsidises the fossil fuel industry and therefore promotes global warming, which affects the poor considerably more than the rich because they lack the resources to adapt.

The effects of climate change are already biting. The rising frequency of drought on the world’s semi-arid regions of the world, including the Middle East constitutes, to borrow a term from Professor Rob Nixon, a “slow violence” enacted by industrialised nations on the poor.

Our refusal to take commensurate action on climate change means that water stress is rising across the world, which impairs development and has even been linked to conflict in Nigeria and Syria.

In April, I visited Somaliland, which is experiencing the worst drought in living memory along with the rest of east and southern Africa. Agriculture has collapsed, the animals are dying and migration is rising fast.

Many of these climate refugees are washing up on the shores of Italy and Greece. Survivors in are being sent back to Turkey because there is no international protection available to a subsistence farmer without water or a parent who cannot afford to feed their children.

In 2009, the UK pledged at the G20 to phase out inefficient fossil fuel subsidies but instead it has been using public funds to increase them, according to the Overseas Development Institute.

Using aid money to give the fossil fuel industry a leg up and imperil us all to the onslaught of global warming entrenches inequality and hampers sustainable development.

***

Last year the EU signed a €1.8bn aid package with the governments of 20 African nations, including Eritrea, a totalitarian state financed by slave labour, to keep Eritreans in their country and to accept planes filled with their citizens who are denied asylum in Europe.

Clearly, this aid money is being spent principally the interests of the donors and not the world’s poor.

But aside from using aid to forcibly return people at risk of human rights abuses, this aid holds development back in other ways. Migration is the biggest driver of development because economic migrants from poor countries who work in rich countries back remittances that amount to three times the international aid spend.

“Migrants are the original agents of development,” William Lacy Swing, director of the International Organization for Migration, told the World Humanitarian Summit in May.

In effect we are spending public money legally allocated for reducing poverty on keeping the world’s poor mired in it.

***

Take the UK’s “preventing violent extremism” agenda – borrowed, of course, from the Americans – under whose banner projects can be now funded with UK aid.

Britain’s successful lobbying of the OECD – in opposition to other large donor states, including Sweden – to include some counter-terrorism military spend in the definition of aid is of deep concern.

The OECD already allowed for the provision of aid to prevent conflict and promote peace but this new extremist lens, as opposed to the purely conflict lens, allows the aid spend to become politicised.

After all, governments across the world call their political enemies “extremists” or “terrorists”, but the term is rarely ascribed to governments themselves, even when they brutalise their populations.

The government seems ready to exploit to this change, having set up its new £1bn aid-funded Conflict Stability and Security Fund (rising to £1.3bn in 2020), of which 90p of every pound is spent by the FCO and the MoD.

The stage has been set for Britain’s security state to raid the aid budget to pursue the ill-conceived and expensive military strategy du jour.

The government’s agenda to spend aid in conflict-hit and fragile states on counter-terrorism projects has a bad precedent. The US development agency USAID spent billions in post-2001 Afghanistan, which was embezzled or spirited out of the country.

Even worse, the aid was destabilising. “Instead of rescuing the [political] transition process, aid contributed to its failings,” said the NGO Saferworld in a report this year on the lessons learned from the American state-building strategy in Afghanistan. “Large aid volumes overwhelmed local absorptive capacity and sustained a rentier state . . . The influx of aid funds and the competition over the illegal economy strengthened predatory and opportunistic elites that the US and its allies tried to reform.”

The British government risks falling into the American trap of using counter-terrorism aid to remake conflict-hit fragile states into democracies.

The Independent Commission for Aid Impact (ICAI), the government’s own aid watchdog, has criticized the government’s failure to learn lessons from the past, adding that its security initiatives are “naïve” and perform “poorly” in terms of both effectiveness and value for money.

***

In another dangerous case of aid not being used in the interests of development, the Tories are using it to establish private healthcare and education across the Global South.

Publically provided, free and universal health and education of the type we enjoy in Britain should be pursued across the Global South because it reduces inequality and strengthens democratic accountability.

Private provision of these services in the words of turns these basic needs into commodities whose price variable and unaffordable to poor and marginalised sections of society.

In Britain we should be internationalising the principle of free-at-the-point-of-use health and education, a privilege hard fought for by a generation of Labour politicians interested in social justice and the condition of the poor.

Instead, Dfid’s Education Position Paper calls for “developing new partnerships across the public-private spectrum” and commits Dfid to promoting low-cost private schools “in at least four countries”.

Its flagship education programme of the Department of International Development, in partnership with Coca Cola and PwC, is the £355m Girl’s Education Challenge, which rolls out private education across 18 countries, including 15 African nations.

In signing up to last year’s Sustainable Development Goals last year, Britain committed to “achieve universal health coverage”, which is directly undermined by a development agenda which favours fees.

***

The privatisation of our aid budget alongside its entrapment by enormous multilateral financial institutions is symptomatic of the wider erosion neoliberalism is enacting on the British – and global – economy.

In 2016, aid should be about empowering the losers of neoliberalism across the Global South to cut poverty and reduce inequality. This means placing more emphasis on working directly with the poor, colonised and, more-often, the women of the Global South.

Aid should not be spent on the five and often six figure salaries of the global financial elite, nor should it be tied to Britain’s commercial interests to provide public subsidy for private interests. If we wish to subsidise our private sector, that’s fine, but should do it using export credit and not disguise it as aid.

I can already hear the outcry from development experts that spending money at the grassroots is harder to track and the shrill headlines that taxpayers’ money is being wasted on bee-keepers in Kyrgyzstan or on a Somali radio drama that gave tips to illegal immigrants (all real headlines from the Murdoch press).

But I would accept more “waste” by employing more Dfid civil servants to monitor a greater number of smaller grassroots aid projects on a trial-and-error basis than I would accept the other now ubiquitous form of waste that we do not call waste: the subsidising poverty barons, who enrich themselves off the aid ‘industry’.

This is not a particularly radical agenda. Aid under Labour’s Clare Short, Dfid’s first head, targeted the grassroots and there is a growing consensus among the establishment that we must return to this model to make development more effective and give poor people ownership over projects rather than imposing them from above.

More power and capital needs to go into the hands of grassroots groups.

We must recall the lessons of Pergau and redesign our aid system so that it is not captured by industry or distant elites for their own profitability but a means by which the poor can bring about transformative social change for themselves. 

Diane Abbott is Labour MP for Hackney North and Stoke Newington, and shadow secretary of state for international development.