The Operation Cotton appeal has been heard and we await the Court of Appeal’s response. One aspect that caused some level of derision in the legal community is the fact that the MoJ’s answer to the fact that people won’t do VHCCs at a 30% reduction is to bulk up the Public Defender Service (PDS), bringing in barristers (and I think that it has all been barristers. So far). Given that it’s always more expensive to employ people than have them freelance, and the salaries that they are paying are pretty tasty, how can this make any sense?
On the face of it, that’s clearly right. If the point of the PDS is just to ‘firefight’ when naughty barristers go on strike, then this is madness. But many suspect that there is a slightly more sinister agenda. I have always thought that the Government would pay more money for legal aid if they can have control over it, rather than having lots of pesky independent lawyers making trouble for themselves. Grayling, being in name a Tory right winger, can’t advocate nationalisation, but he does love control. The VHCC fight gives him the excuse to bulk up the PDS.
Isn’t this fiscally irresponsible? As I say, my view is that he’d pay more to have a PDS, but leaving that conspiracy aside, the aim will be to give the PDS a monopoly, and once that is done, you will see real savings. I’ve set out why below on a sort of ‘back of a fag packet’ calculation. This would be done by scrapping legal aid in crime for private firms (“stop public money going to fatcat lawyers” – the headlines write themselves) and giving anyone arrested who is ‘indigent’ the PDS.
What about quality? Well, who cares? The Government isn’t required to provide an excellent, let alone even good, service. Just the bare minimum to cover their asses on an Art 6 appeal. And a PDS would do that.
I’ll start with Police Stations. Once they are the monopoly supplier, it is straightforward – anyone arrested can have the PDS, or the lawyer of their choice (if they pay for them) or they’re representing themselves. I imagine that the PDS will employ Accredited Representatives to give police station advice. They will have a nice office near (or even in) the Police Station. The Rep turns up at the start of their shift and deals with cases that arise, as and when. And then goes home. A quick look at the figures –
Let’s take Barking. I’ll look at this as it’s the first alphabetically in the London area. Also, it is an Outer London one and may be more similar to the rest of the country. One of the consequences of the closure of magistrates’ courts and centralisations of custody suites is that it makes the calculations easier (and the figures more palatable for the PDS).
In total, there were 3,613 police station fees paid. This includes 10 that were escape fees. This will equate to slightly more than that number of police station attendances due to bail backs for further interview and/or charge and attendances at ID parades etc. However, I will exclude those as the PDS would only be doing re-interviews, which is pretty rare.
I will exclude the escape fees from now on on the basis that certain cases may either by contracted out or, more likely, there will be a specialist unit in the PDS which will deal with these London wide.
Look at the figures. There are 365 days in the year which are currently split into three 8 hour slots. This is 1,095 blocks of these. The total cost of these currently is £892,511.67. At the new rates of £200.93 per case this is £705,867.09. If you’re looking at the MoJ figures and can’t get the maths to work, remember that the MoJ are masters of abusing statistics and their data includes VAT. It doesn’t include disbursement, which will give further savings as the MoJ would not be paying any, or anywhere near as much, by way of disbursement to their employees.
I will take an average figure of 2 hours per police station interview. Whilst this may not sound much, travel time won’t be included for obvious reasons (and if you’re full time down the nick then the waiting gets rolled into the other cases). PDS employees work 37½ hours a week, or a 7½ hour day. This fits slightly inconveniently with an 8 hour slot, but what I will do is allocate a nominal 6 hour slot per ‘working day’ per police station rep employed. That means that each rep can do 3 police station attendances for each slot.
Taking 6 hours per ‘slot’ this gives 1,460 slots per year. Which in turn gives an average number of 2.47 attendances per slot. This means that, by and large, one rep per 6 hour slot will cover all the cases (comfortably so). I’m tempted to do a poisson distribution on this, but I’m not sure that that is valid, so will leave that. Sometimes they may be twiddling their thumbs and have a quiet period, sometime they may have to go over their ‘slot’ period, but that would be rare.
Remember also that they are the PDS, the only game in town. If, 6 hours into their ‘day’ they get a shoplifting ready now, then great – Mr Rep will do it. If it’s a more complicated case that will be ready ‘soon’ then the next guy can pick it up. Will the client be pissed off he has to wait? Probably. If they were in a private firm then the market would drive that firm out of business, but not the PDS. It’s the guy in the cells fault for not being rich enough.
A police station rep will work, say 230 days a year (or that equivalent), 30 days a year holiday (inclusive of bank holidays). How many reps need to be employed? Doing the sums gives us a figure of 6.35 reps for Barking. If they were to employ 7, then this would cover sickness etc, as well as any escape fee cases (especially as they will probably not be working at capacity the whole time). I would suggest that this would be more than enough.
How much would a police station rep be paid? Let’s take a figure of £30,000. That is high, and far over the odds (even allowing for some anti-social hours). Given also that there’s going to be a whole load of duty solicitors out there being made redundant in the next year with the consequence that the salary that they can command, which is already going down, will go through the floor, this is being generous to the MoJ (note that today people are advertising non-duty solicitors for £21,000-23,000 in London and 25-32K for a duty).
As this is a ready reckoner exercise, I’ll take a multiplier of 1.85, so each Police Station Rep costs the PDS £55,500 (note that this is higher than you may expect as it includes admin support and premises costs). Total employee costs therefore are £388,500.
Go back to the current costs – £705,867.09 (when the new contracts come in). That’s a huge difference, and a big ‘kerching’ for the MoJ.
How does this compare with the current costs? It’s substantially lower. I’m not putting this forward as a complete business plan, but as a rough analysis. The key is that whilst you may be able to poke holes in it here or there, or your area may be different, or your scheme has two police stations or a busy BTP station as well, it doesn’t matter. The figures above are conservative (or generous, depending which end of the telescope you’re looking at). Nationalisation saves money here, certainly when you don’t have to worry about quality. And it’s on quality, justice and fairness that we have to fight our battle.
To make even more of an incentive for the MoJ to go down this route, it may well be that police areas will be combined to have less ‘down time’ which will save staff numbers. Also, as well as complete control of budgets, the MoJ get a far greater chance to shape the culture of work. Why not just give a shoplifter a consultation only – they don’t need a rep for interview? And as it starts there, so on it goes. This is how they can reduce their costs with employees, even without reducing those people’s salaries, but relying on natural wastage.
Does this work with Courts?
Yes (look at the CPS doing the PCMH lists). I will have a look at Mags Court, then LGFS and AGFS together when I get a chance. There are different challenges in calculation there – fewer courts than police stations, that just sit five (or six with some magistrates’ courts) days a week and with relatively fixed hours. But more people will need to be at work at a time, and there will need to be allowances for non-legal staff for investigation costs etc.
But you get the point. The PDS cannot compete with private solicitors on price or quality. However, if the MoJ don’t allow competition, then suddenly the PDS becomes a lot more attractive proposition financially.
But this couldn’t possibly happen/work?
This isn’t going to happen today or tomorrow. And as long as there is a free alternative to the PDS it won’t happen. But once there is just the PDS then the rules of the game change.
As a quick example there were parts if the USA where the public defender spent an average of 90 seconds with a client before pleading guilty. That could never happen here now as a firm that did this would be driven out by market forces pretty quickly. Not so in a monopoly.
More fundamentally, if there is no incentive to do a good job then there is a huge temptation to cut corners. You’ve got your boss piling on the pressure, your shift ends in half an hour, you don’t get overtime and you’ve got two shoplifters who look bang to rights. Far better to steamroller them into a no comment or full admissions and get out ASAP rather than sit and carefully investigate each account. Ok you’ll miss the occasional one with a valid defence of duress or something else, but that is the way of the world?
This won’t happen overnight, but be careful when you rubbish the PDS, they could have the last laugh.
So it comes back to the principles. Time it was that a Government could privatise with ease and nationalisation was a dirty word. No longer in the world of legal services it seems.
As I say, you can look at the figures as I’ve done them above and pick holes in them, but I maintain that they are broadly accurate. For the MoJ, this is a rough halving of their spend on police station attendance (allowing for disbursments). This is how, broadly, the PDS saves the MoJ money, although it costs them more in the short run. This is the benefits that you get from being a monopoly.
I say this not to advocate a PDS, I have grave concerns how that would work, but to say that those that dismiss the PDS as an expensive fad that will disappear once the Public Accounts Committee get their hands on it are maybe being too optimistic. In a fair fight with private sector firms and the bar, the PDS is toast. It is also much more expensive. But the MoJ can rig the market and save money and keep more control. Ignore the PDS at your peril.