Justice for some

In this post I want to draw the links between two current UK news stories. The first concerns the report today that forensic science services are operating in a risky way. These services, which are crucial to the criminal justice system, were largely privatised in 2012 in a move that was heavily criticised at the time. Since then, repeated concerns have been raised about it. It is a story with many affinities with the horsemeat scandal of 2013 that I posted about at the time, and with several other examples of privatization.

However, it is not this aspect I am going to discuss, but something more specific: that within today’s report one thing highlighted was that cuts in the legal aid budget meant that defence lawyers were unable to commission adequate forensic science. This is linked to the wider issue because it arises from there being a private market in forensic science, but results from a different political decision, that to restrict legal aid.

This brings me to the second news story from this week. Because legal aid is no longer available in the vast majority of family law cases, there has been a huge rise in people representing themselves (in 80% of cases only one party has legal representation, in 60% of cases neither party has legal representation). This means that abusive ex-partners can get to cross-examine their victims in court (something that cannot happen in criminal cases of abuse) causing massive distress.

The issue of the consequences of cuts to the legal aid budget has been highlighted for some time but inevitably it has taken a while before they begin to bite in a widespread way. Lack of legal aid in immigration courts has led to children having to represent themselves. Even where legal aid is available, the cuts have led to a shortage of legal aid lawyers (whose fees have been cut), impacting on housing disputes and causing homelessness.

These are amongst many of the (presumably) unintended consequences of the reform of legal aid provision and serve as an illustration of that concept, discussed in my book (pp. 26-31). But they are of a particular sort. As with the organization of prisons, discussed in another post, or in the superficially very different but in this respect similar case of the organization of dental services, they impact primarily upon the marginal and/or demonized: the poor (obviously), immigrants and asylum seekers, those accused of crimes, those on the edge of homelessness, the (largely) women who suffer domestic abuse. In fact, it is perhaps because the latter group is not confined to the socially marginal that the government have now launched an emergency review of the problem?

It doesn’t seem an outrageous proposition that justice should be available to all. It’s not even particularly expensive to provide it. Although the cuts to the legal aid budget have been large in percentage terms, the absolute amount (£200-£300M a year) is quite trivial in the context of overall government spending. The effects are huge, not just on the individuals affected but on the wider sense of a civil society to which law and justice are both fundamental and paramount.

Pulling teeth

Many thanks to those readers of this blog who have written to me commiserating with the dental problems I talked about in my last post. Treatment is still ongoing.

But it seems that I am lucky in having a dentist who offered me the choice of root canal treatment rather than an extraction. Because it is reported today that many dentists now extract teeth unnecessarily as they receive the same amount from the NHS as for more lengthy and expensive treatments such as root canal surgery. NHS dentists are paid per ‘unit of dental activity’ and both extraction and root canal surgery constitute three units of dental activity. But since an extraction takes on average half the time of root canal surgery, there is an incentive to extract.

Here we have a very precise illustration of the perverse effects of targets, discussed on p.33-34 of the book, and the nature of bureaucratic dysfunctionalism. Like so much else that I write about in the book, the issue is not just one of the technicalities of organizational systems. Rather, dentistry in the UK has fallen apart for ideological reasons. Unlike other NHS services, it is no longer free at the point of use and quite hefty charges have to be paid. Indeed in many parts of the UK it is impossible to get access to an NHS dentist at all.

The roots (hah!) of this go back to the 2006 dental contract, the high watermark of New Labour infatuation with quasi-market and managerial solutions to the provision of public goods. In the intervening period there have been numerous complaints and reports, but nothing much has changed so that in March 2016 the British Dental Association (BDA) said:

​“The 2006 dental contract is not fit for purpose. It rewards dentists for hitting government targets for treatment and repair, not for improving their patients’ oral health. It was meant to improve access to NHS dentistry and put prevention at the heart of the service, but it has failed on its own terms. It has deskilled and demoralized the profession, and received criticism from patient groups, government, the Health Select Committee and the Chief Dental Officers for England and Wales.”

It’s important to understand that behind the bloodless formulation of being ‘not fit for purpose’ lie real people and real suffering. The consequence is self-dentistry, meaning, to be blunt, people extracting their own teeth with pliers. This in one of the richest countries in the world.

Tax but don't spend

Last February I wrote a post in which I peevishly listed various experiences of organizations not working very well. One item on the list concerned the problems of getting through the HMRC (the British tax office) on the telephone. So I was interested to see that this week the National Audit Office (NAO) published a report on HMRC’s quality of service. This identified a “collapse” in customer service over 18 months in 2014-15 with call waiting times tripling and some customers being kept on hold for up to an hour.

What lay behind this were massive cuts in staffing levels, which in personal tax fell from 26,000 to 15,000 between 2010-11 and 2014-15. This of course is just one of the many consequences emerging across all parts of the public sector as ‘austerity economics’ bites deep under the ideology that eliminating the government’s budget deficit is the sole aim of policy (what Nobel economist Joseph Stiglitz calls “deficit fetishism”). But there is more to it than that: associated with the cuts was the technocratic fantasy of paperless (on line) tax returns and automated telephony.

We’ll break here for another oldster rant: why does everything have to be done online, with endless passwords and usernames in hundreds of different formats? How I long for the days when you could just fill in a form and send a cheque in the post. There are still a few places you can do this and I would single out from my own experiences the insurance company NFU Mutual as particularly good not just for this but for that fact that they have an ordinary phone number that goes to the local office where I talk to a person I have met and who has been in post through all the years I have dealt with them. And, on the one occasion I’ve had to make a claim, they are excellent to deal with. Is it because they are a mutual organization?

Back to the HMRC and what is interesting is to note how this story illustrates some of the recurring – and linked - themes of my book, namely those of unintended consequences and of the ambiguity of efficiency. In terms of unintended consequences the issue is how cost savings in one budget show up as new costs somewhere else. This is especially obvious in relation to HMRC because an effective tax gathering system is vital to meet the costs of government spending departments. So to impinge on the first inevitably has consequences for the second.

The issue of efficiency is linked in that what may be efficient for the HMRC maybe inefficient for other departments but, beyond that, inefficient for the user – in this case the taxpayer or, as they are now called, with tragic inevitability, customers. And let’s just have another break here to remind ourselves how crass, how nonsensical, it is to describe people paying taxes as ‘customers’. The NAO Report is helpful in quantifying this by reference to the HMRC’s own costings of people’s time (£17 per hour, apparently). On this basis, the time spent waiting and talking, and the cost of the call, added up to £97M (of which £66M was the cost of waiting to be answered) in 2015-16. So HMRC’s efficiency savings become its “customers’” costs. According to the NAO and the HMRC things are now getting better, though I must say that this is not my personal experience and, anyway, we have been here before. A damning 2012 NAO Report on phone call waits was also met with promises of improved performance and assurances that this was beginning to happen.

There’s a bigger organizational story here. The HMRC is the result of a merger, in 2005, between what were previously the Inland Revenue and the Customs and Excise office. Culturally very different, many date the problems at HMRC from this archetypical example of reform through reorganization. Subsequently, there have been repeated high-profile scandals. Dave Hartnett, its boss until 2012 when he joined global accountancy firm Deloitte as a consultant, was accused of cutting lax ‘sweetheart deals’ with big corporates like Vodafone and Goldman Sachs, and called “a liar” by the chair of the Public Accounts Committee. His successor, Lin Homer – dubbed ‘Dame Disaster’ by satirists – was criticised for failures in relation to the HSBC tax scandal and also for claiming the HMRC to have had its best year ever in 2015 despite – yet again – massive problems with phone systems. She stood down in April 2016.

As for the future, who knows? HMRC have taken on more staff, but the ongoing closure of 137 local tax offices in favour of 13 regional centres does not bode well, and the latest NAO Report says that HMRC’s capacity to sustain planned cost reductions rest upon its Making Tax Digital initiative, another techno-fantasy, which has already been met with scepticism, if not outright derision, by tax accountants.

It’s tempting to ascribe all this to the well-attested failures of neo-liberal ideology in general and the effects of its application to the public sector in particular. But it’s more complex, and worse, than that. Even the most assiduous neo-liberal assumes, accepts and expects that the State will act as a ‘nightwatchman’, undertaking the basic functions of tax collection, law and policing. But cuts have “brought the court system close to breaking point” and are causing a crisis in policing and in the prison system. It used to be the leitmotif of anti-state ideologues that cuts could be achieved by getting rid of ‘five-a-say Czars’, ‘diversity officers’ and, of course, that perennial favourite ‘faceless bureaucrats’. Now it turns out that even the most basic functions of the state are up for grabs. If proof of that were needed, look no further than current plans to privatise the Land Registry, the body that administers that most basic feature of any capitalist economy, property ownership.

Nothing works

One of the persistent themes in the book (which I am engaging with closely at the moment as I prepare the fourth edition) is to probe the meanings of efficiency to argue that these are often ethically deficient, and beyond that to say that it is not just that they are deficient and yet ‘work’, but that often they simply don’t work.

With that in mind, I have been thinking about a series of things which have happened in the last week or so. These include:

·       I arrived in good time at a train station. The ticket office was closed and two of the four machines were out of order, with long queues at the remaining ones. I missed my train. Soon after one of the ticket booths opened and the ticket seller told me that the company now only employed one seller because there were now machines, and so when she had her break the office was closed. When I finally got the train, there were no seats and it arrived 20 minutes late due to faulty signals.

·       I received payment for some work I did – last May. It has taken seven reminders to get paid.

·       I was due to pick my wife up from the airport. She texted me to say that boarding was two hours delayed, but the airport website still showed her arrival as being on schedule even after that scheduled time had passed. I phoned them (on a premium rate number), went through a long automated sequence, then was put on hold, then spoke to someone who told me the flight had landed. I pointed out that it had not even taken off yet, and that the flight he mentioned was the earlier one from the same destination. He hung up.

·       My phone line and hence broadband connection went down (this happens every couple of months). The usual horrible process of the automated phone call system to report it, and it was almost 24 hours until the fault was fixed.

·       I needed to contact HMRC (the UK tax office). This isn’t the usual horrible process of the automated phone call system. It’s far worse. Because it has a voice/word recognition system that doesn’t seem to recognize anything I say. I gave up.

·       I had arranged to have some ironing and dry cleaning picked up one afternoon (yes, I know, a first world problem if ever there was one). They don’t turn up so I call them – they say that they came in the morning when I was not in. And this, unlike the other examples, is a small, family-run firm.

I think that this was a fairly typical week. Now it could be said that I am ignoring the many other transactions and interactions I have had with organizations this week that have gone perfectly well. That is true (although I could add to my list of problems as well, although with fairly trivial examples). But even so I experience these transactions and interactions as a constant struggle. A struggle against inefficiency, against organizations just not being very well organized, but also a struggle against efficiency in that many of the problems (the ticket office closure, the automated phone systems) derive from company’s introducing what for them are efficient systems.

It might also be said that I am unusually tetchy or impatient with such problems. That may be true – it’s difficult for me to judge. But my sense is that I am not alone and certainly things like train overcrowding and delays, automated phone lines in general, and the HMRC phone line in particular are quite widely complained about. There seems to be some basic sense in which, across a wide range of transactions and interactions, organizations just don’t work very well.

It’s also the case, to reprise another of the book’s themes, that the notion of choice in all this is quite bogus. In most of the cases listed above I had no choice about using the company I did, even though with the exception of the HMRC they are private companies (albeit often formerly public utilities). And even in cases where similar problems are common like banks where I can choose a different bank (although not, realistically not to have a bank at all) I’m unlikely to find much difference between them.

It’s not just that these things are irritating - although they are – it’s that they transfer inefficiency to others. When my broadband connection isn’t working, there are many work tasks I can’t do; when my train is late, I miss a meeting (actually, I didn’t, because knowing that delays are highly likely I factor them in, but that still means that had I got the train I planned I would have wasted time hanging around due to being early). These things in turn mean that I may cause problems for other people. It’s not that I am wedded to some productivist notion of constant work – I quite enjoy, for example, the ‘wasted’ hour when I am early for a meeting, or the respite from emails when the broadband is down - but there is an irony in the fact that those who are create through their practices the unintended consequence of eroding its possibility.

Intended consequences

In the book, I make much use of the concept of ‘unintended consequences’ – the way that, in particular, rational-legal rules give rise to effects that were not only different to those intended but run directly counter to what was intended. My last post on the VW emissions scandal provided a current example.

But sometimes the situation is more complex, and I return here to the case of regulations around smoking, about which I have written in another post on this blog, and, with Jo Brewis, also written an academic paper (Brewis & Grey,2008). The latest development is that today a law has come in to force banning smoking in cars when a person less than 18 years old is present in the car. It’s by no means an objectionable law, in and of itself, because who would want to claim that smoking in a car with children is in any way a good thing?

What is interesting about this law, though, is that it is manifestly doomed to failure. Police representatives have already said that it is unenforceable, partly due to lack of resources but also because of detection problems. For example, electronic cigarettes are not included in the legislation so a police patrol would not easily be able to tell whether an offence was being committed, nor is it easy to know the age of passengers from a patrol car. Moreover, the legislation allows 17 year olds to smoke in cars if the passengers are 18, allows smoking in convertibles with the hood down, and allows smoking in caravans and motorhomes, even if children are present, so long as the vehicle are not at that point moving.

We might, then, assume that the intended consequence is to stop smoking in cars with children and that the unintended consequence is it not working. But in fact the situation is more complex. The long-term aim of anti-smoking activists is the eradication of all smoking, but they approach this goal stealthily because smoking is such a strongly culturally embedded practice. From that perspective, the failure of this latest legislation will be desirable, because when it fails it will justify a new law banning all smoking in all vehicles in all circumstances.

Social science research is sometimes criticised for lacking the predictive power of natural science, so here I will make a prediction. Within, say, five years (and I would expect less rather than more) a total smoking ban in cars will be in force. And as soon as it is, or even, possibly, before there will be lobbying for a ban on smoking in houses where children are present. Once again few will object, because no one could really mount a case that it would be good to allow it. So a law will follow, which will of course be even more unenforceable than that against smoking in cars with children. From which will ‘logically’ follow that all smoking by anyone in any house will be banned.

By that point, the situation as regards public spaces (e.g. bars) and private spaces (e.g. homes) will be identical: smoking in both is banned. So what happens then? Well, look at what is happening around the regulations on public spaces. At first, it was just indoors. Now, it is increasingly in parks and on beaches which are public spaces but outdoors, including outside pub doorways. The rationale for this is not that others might inhale the fumes, but that those (especially children) seeing it might think that smoking was ‘normal’. So, once there is a ban on smoking inside homes, it will get extended to smoking outside home, for example in gardens. In other words, as each new rule ‘fails’, that failure provides the rationale for a new rule. It is in this sense that failure is an intended consequence of regulation since it paves the way for successfully extending regulation.

With smoking now very much a minority activity in the UK and many other countries, few will shed a tear about any of this (and it’s not my intention that anyone should: I just want to provide an interesting illustration of a particular phenomenon around unintended consequences). But it’s worth reflecting that with the campaign to reduce smoking now being acknowledged as the gold-standard of public health campaigns, the same tactics are being applied to another deeply culturally embedded practice (as smoking was a generation ago), namely alcohol consumption.

As with smoking, the initial restrictions have been around advertising. Then (rather like the 1970s campaign that smokers should choose cigarettes with filters and leave long stubs) there has been the definition of safe drinking limits, which turn out to have been ‘plucked out of air’. Now, as happened with smoking, some campaigners say that there is no safe limit for alcohol, and although that is not mainstream in the way that it is for smoking it is accepted to be true for pregnant women. Meanwhile, just as there used to be a differentiation of ‘light’ or ‘social’ smokers from the hardcore we have a similar differentiation of social and ‘binge’ drinkers, with a binge drinker being someone drinking more than 3 pints of beer. The key move in anti-smoking discourse was to establish the notion of passive or secondary smoking, and the same shift has been mooted by former UK Chief Medical Officer Sir Liam Donaldson, who is also responsible for the Orwellian declaration of aiming for the complete denormalization of smoking.

So here’s another prediction – as smoking fades away, restrictions on alcohol will increase along with restrictions on sugar and ever more demonization of obesity. Each restriction will give rise to failures which far from being unintended will have been designed to fail, in order to justify further restrictions. But the law of unintended consequences will still hold, and indeed it is already very clear that this is so. Because the more that unhealthy practices, such as smoking, drinking and over-eating are reduced, the more we see the degradations of dementia, of old age blighted by complex and intractable multiple illnesses, of obscure cancers that were rarely known before.

Moreover, since taxes on smoking are, massively, a net contributor to the NHS (and the same is true for alcohol) the less we smoke the more difficult it will be to fund the healthcare for the longer lives we will indubitably – for, of course, the anti-smoking campaigners are quite right to point to its dangers – be living. But that, too, is not really an example of an unintended consequence since, as Jo Brewis and I argued in our article, the real motivation of the anti-smoking movement is not public health, but the imposition of a morality about smoking that long precedes, and proceeds quite independently of, any scientific or medical rationality. They simply reproduce, in modern language, King James I's (1604) Counterblaste to Tobacco:

Have you not reason then to bee ashamed, and to forbeare this filthie noveltie, so basely grounded, so foolishly received and so grossely mistaken in the right use thereof? In your abuse thereof sinning against God, harming your selves both in persons and goods, and raking also thereby the markes and notes of vanitie upon you: by the custome thereof making your selves to be wondered at by all forraine civil Nations, and by all strangers that come among you, to be scorned and contemned. A custome lothsome to the eye, hatefull to the Nose, harmefull to the braine, dangerous to the Lungs, and in the blacke stinking fume thereof, neerest resembling the horrible Stigian smoke of the pit that is bottomelesse.