The business of justice

: state-driven market failure in immigration and asylum legal aid

  • Joanna Wilding

Student thesis: Doctoral Thesis

Abstract

This thesis argues that demand and supply in publicly-funded immigration legal services have been fundamentally misunderstood at policy level, and proposes a more complex and
critical model of supply and demand. The Legal Aid Agency does no research, unlike its predecessor, and this study argues that it fails to adequately understand the market it manages. The research is primarily based on case-studies of solicitors’ firms, not-for-profits and barristers which are peer-identified as high-quality legal aid practitioners.

The work first locates the asylum legal aid market in England and Wales within wider changes to public services since the 1980s, including processes of marketisation and managerialism. It then analyses the operation of specific practitioners and organisations, beginning with the rise and fall of the Refugee Legal Centre, a large not-for-profit provider which went into administration in 2010 as a result of legal aid changes. The tensions between quality and financial viability are further explored in chapters on provider organisations - solicitors and caseworkers - and on barristers, concluding that it is possible to reconcile quality and financial viability, but only at the expense of reducing access for legal aid clients.

High-quality providers and barristers lose money on legal aid cases and rely on subsidy from grant-funding, privately-paying clients or higher-earning areas of law. They therefore reduce their legal aid market share to limit losses to the amount they can raise in subsidy. The current market protects lower-quality providers, who are therefore maintaining or increasing their market share, and driving down overall quality in the market. The thesis concludes that the current contract and fee regime are inconsistent with both quality work and the not-for profit business model.

The thesis then sets out a detailed framework for understanding how demand arises,
identifying four types of demand, which are set out in a matrix together with cost
consequences. Key drivers of demand are analysed through this matrix. Finally, it sets out a
model for exploring how lawyers mediate that demand, challenging the supplier-induced demand theory which has dominated legal aid policy-making in recent decades. The ultimate conclusion is that there is a market failure in immigration legal aid provision, both in the sense of a lack of supply in some geographical areas and in the sense of any meaningful quality control through the market. This is caused by dysfunctional state interventions in the market, combined with spending cuts, meaning it is a state-driven market failure.
Date of AwardMar 2019
LanguageEnglish
Awarding Institution
  • University of Brighton
SupervisorMarie-Benedicte Dembour (Supervisor), Phil Haynes (Supervisor) & Alex Newbury (Supervisor)

Cite this

The business of justice: state-driven market failure in immigration and asylum legal aid
Wilding, J. (Author). Mar 2019

Student thesis: Doctoral Thesis