There is something deeply suspicious going on. I was struck the other day how the Ministry of ‘Justice’ no longer seems to carry the strapline of its predecessor, the Department for Constitutional Affairs – ‘justice, rights and democracy’. They probably thought they didn’t need it, given they have the word ‘justice’ in their name. Expect that to be dropped soon, since it is becoming increasingly clear that this government doesn’t know the meaning of the word.
This isn’t so much a post about the legal aid cuts and the threat this poses to the whole justice system, rather, the absurdity at the heart of the government’s uncomprehending and catastrophic reforms. Why is choice, regarded as so vital for empowering consumers and improving quality in many policy areas, apparently of no importance at all when it comes to choosing who defends you in court?
I am, of course, being a bit disingenuous. It’s only unimportant if you can’t afford to pay for your own lawyer; if you’re rich enough, you can choose all you want. Oh, and if you’re the state trying to convict someone you don’t just get to choose your own lawyer, you choose the lawyer for the defendant too.
This isn’t the only inconsistency in Chris Grayling’s approach to choice. While it is lauded as a powerful tool for improving the quality and affordability of, say, conveyancing or will writing, it is not considered important when it comes to criminal defence work. Maybe that’s because the only people who only ever need defence lawyers are obviously guilty, if only of the crime of being poor.
There are, I am sure Grayling would be the first to point out, some drawbacks to choice. The king of choice philosophy, American psychologist Barry Schwartz, who coined the term ‘the paradox of choice’, argues that while ‘autonomy and freedom of choice are critical to our wellbeing… freedom and autonomy’ having more choice than any other people in history has not made us any happier.
In fact, quite possibly the reverse. Whereas some choice is undoubtedly better than none, more is not always better than less, whether you are deciding which flavour of jam to buy or which mortgage would work best for you. The evidence suggests too much choice is making us miserable. The Lord Chancellor probably thinks he’s doing us a favour.
There is a very legitimate debate about whether, by promoting choice so vigorously at the ‘high-street’ end of the law, price is becoming a proxy for quality, particularly if consumers are using comparison websites to navigate their way through the unfamiliar territory of legal services. In this scenario, consumers plump for the cheapest option rather than the most suitable and there is little or no incentive for providers to improve the quality of their services, just lower their prices.
And yet, this is exactly what Grayling wants to do with price-competitive tendering in criminal legal aid, effectively ignoring quality, experience and suitability and plumping for the providers who ‘say’ they can deliver what he wants at the lowest possible cost. If what he’s trying to create is some sort of efficient market for these services he’s going the wrong way about it.
If he doesn’t care at all about choice, he’s nothing but a shabby cut-price capitalist who doesn’t even understand the basic rules of the market, never mind the principles of a free, fair and democratic society. I think I’m on to something there.