RESEARCH REPORT
The Purchaser-Supplier Approach in Legal Aid
Professor Don Fleming
Visiting Scholar
Centre for Socio-Legal Studies
Wolfson College
University of Oxford
June 2002
The views expressed in this report are those of the
authors and do not necessarily reflect the views of the
Department of Justice Canada.
Executive Summary
Introduction
This paper is a preliminary paper. The 8 questions in the Terms of Reference (see Appendix A)
address two models of legal aid funding legal aid. One model is the mutual interest (MI) or cooperative,
partnership approach. The other model is the purchaser-supplier (PS) or contracting
between funders/policy agencies and providers for the supply of legal aid services.
A demonstrable international shift towards the PS legal aid funding model prompted the
Department of Justice to commission the paper. The Canada/Australia federal legal aid workshop
that followed the International Legal Aid Group meeting last year assisted in clarifying the issues
to be addressed.
Q. 1: The features of a MI approach to funding legal aid
Such an approach shares many features with other MI models of public policy projects. MI
models are predicated on high levels of reciprocity and co-operation in inter-relationships
between state/government agencies and other actors invited or required to participate in public
policy projects. A high level of agreement exists with respect to policy fundaments.
Operational responsibilities and functions are shared, and consultative techniques of decisionmaking
and resource allocation deployed, in a general spirit of collective enterprise. In a legal aid
context a MI approach operates as a social partnership, financed by the state, but built on mutual
understanding, shared fundamental values and trust between governments, legal aid agencies and
the legal profession.
Constellation around the socio-legal institution of legal aid is the distinctive feature of a MI
approach to legal aid funding. That socio-legal institution serves as the template of MI legal aid
schemes. Legal professional ideals of legal aid as providing lawyers for the poor dominate legal
aid policy, and lawyers and the interests of the legal profession play a major role in the
institutions, administration and supply of legal aid.
Q. 2: The features of a PS approach to funding legal aid
No ideal-type of a PS model exits. PS models are complex inter-mixed New Public Management
(NPM) concepts that delineate and separate funding and policymaking and service delivery
functions.
In practice the PSM has two general features. The PSM resorts to contract norms and techniques
to manage public policy projects to supervise expenditure, ensure value-for-money and
accountability, and to manage relationships between funding/policy agencies and suppliers of the
services necessary to achieve expenditure targets and policy outcomes. Secondly delineating and
separating functions in the PSM makes new demands on funding/policy agencies, including the
need to increase to investment in applied, policy-orientated research. Such new investment is evident in both England and
Australia.
Q. 3: The advantages of a MI model, based on the Australian experience
The principal advantage of the MI model in Australia was that it worked, providing a reasonably
effective and generally efficient system of legal aid. An official report in 1990 suggested five
reasons for its success: one, the MI model acknowledged the different socio-legal responsibilities
of Federal and State/Territory governments; two, the model worked; three, in the 1970s and
1980s the MI model was consistent with other federal policies; four, it emphasized goodwill and
co-operation, and drew on the expertise and experience of participant partners; fifthly, the MI
model facilitated conflict resolution and positive outcomes in a complex, multi-interest public
policy project.
Other contextual factors included a favourable ideo-political climate, widespread acceptance of
the significance and importance of the socio-legal institution of legal aid, the influence of the first
"wave" towards equal access to justice in post-war western society. A MI model of funding also
had strong attractions to its partners, offering Federal and State/Territory governments a vehicle
to cap or limit outlays on legal aid, appealed to the socio-legal predisposition of the legal
profession, and benefited the economic and collective interests of its members.
Q.4: The disadvantages of a MI model, based on the Australian experience
Australia was never a big spender on the MI model. Comparatively low funding probably
impacted on the availability of legal aid, and probably affected the performance of the MI model.
In the Australian experience the MI model advantaged a majority of its partners, notably State
and Territory governments, legal aid commissions, the legal profession and CLCs.
Other partners were disadvantaged. The voices of social welfare organizations such as the
Australian Council of Social Services were muted, and social welfare policymakers frustrated by
the concentrated on "in litigation" legal aid services.
Whilst substantially funding the MI model Federal governments encountered problems in
promoting/protecting Commonwealth interests, managing federal expenditure, difficulties in
controlling and monitoring costs and ensuring national uniformity in access to legal aid in
Commonwealth/Federal matters. To a significant degree the Federal government was hoisted on
its own petard, concentrating in the 1980s on capping expenditure, and paying insufficient
attention to national legal aid policy, and developing accountability mechanisms.
By 1990 a MI model was out of step with trends in federal public policy, and legal aid funding
the object of critical scrutiny by the federal Department of Finance, and Federal and
State/Territory managers and the legal profession faced new ands very real problems in demonstrating the effectiveness and efficiency of the MI model of funding legal aid. The MI
model in Australia was also criticised for lacking a policy or solution oriented focus, emphasizing
instead the delivery of in litigation services by lawyers.
Q. 5: The advantages of a PS model, based on the Australian experience
It is premature to evaluate the Australian experience. Nevertheless PS models promise funding
agencies greater control over expenditure and greater co-relation of policy objectives and service
delivery outcomes. PS legal aid funding is also likely to improve financial accountability and
create flexibility and choice in policy and service delivery strategies.
Application of the PS funding model in Australia has already enabled the Commonwealth/Federal
government to assert and exercise control over its legal aid expenditure, and escape the twin
legacies of funding by case numbers and bloc funding of State and Territory legal aid
commissions. The PS model has also improved lines of accountability, incorporated new
performance and data collection standards, imposed new monitoring and reporting frameworks,
and moved towards quality standards.
Adoption of a PS model has seen legal aid more closely integrated with other
Commonwealth/Federal access-to-justice policies, including a system wide shift towards nonlitigious,
out of litigation legal services. It has also fostered new, commercially oriented
relationships between the Commonwealth/Federal government and State and Territory
governments in supplying legal aid, and encouraged pre-existing PS initiatives in legal aid
commissions. Adoption of a PS model of funding has improved the capacity of managers to
satisfy Department of Finance program evaluation criteria, and to bring legal aid funding into line
with PS and other NPM administrative technologies in the Australian public sector.
Q. 6: The disadvantages and potential negative impacts of a PS model, based on the
Australian experience
It is too soon to finally evaluate the shift from a MI model to a PS model in the Australian
national scheme in 1996/97. Australian experience. A PS model has only just begun to operate
nationally in a complete 3-year funding cycle.
Potentially the advantages of a PS model outweigh its disadvantages. Nevertheless the
Australian experience of the transition to a PS funding model was dramatic and difficult. The
balance of power in the national legal aid scheme shifted to the Commonwealth. State/Territory
governments, legal aid commissions, CLCs and the legal profession viewed the actions of the
Federal government as peremptory, bereft of consultation and devoid of sensitivity to their 20-
year investment and performance in the MI scheme. Whilst creating great promise for policy
targeting and accounting for federal expenditure introduction of the PS model left a bitter if
slowly fading legacy amongst State/Territory legal aid commissions and staff, CLCs and the legal
profession.
In shifting to a PS model the Federal government also significantly reduced Commonwealth
grants to legal aid commissions. This exacerbated ex-partner concerns about process, and an
already parlous funding situation. Restricting spending of federal grants to matters identified in
funding contracts as Commonwealth/Federal matters and priorities and restrictive Means and
Merits Tests and Guidelines negatively impacted on the availability of legal aid, adding to
administrative costs in the States/Territories, and at times leading to iniquitous consequences for
citizens with in litigation cases. Evidence presented to a parliamentary committee in 1997/98
indicated that changes to legal aid funding accompanying introduction of the PS model has
significant adverse consequences for the health of the national scheme, and the interests of
ordinary citizens needing financial assistance through legal aid to address legal problems.
The Australian experience aside the PS model has other potential disadvantages. Purchasing
funding/policy agencies should take care not to elevate efficiency and effectiveness above the
professional cultures, work practices and discretions that have sustained viable markets for the
supply of legal aid services by practising lawyers. Nor does the PS approach overcome the risk
of supplier capture. Taken to extremes PS and other NPM approaches potentially threaten the
participation of the legal profession in legal aid schemes.
Q.7: The implications of a shift towards a PS approach to funding for legal aid as a
socio-legal institution
Legal aid as a socio-legal institution will survive PS approaches to funding national legal aid
schemes. Even if significant funding cuts or diversion of resources towards PDR and other nonlawyer
focused solutions to enhancing efficient and effective popular access to law occur.
The significance of the socio-legal institution of legal aid will change. Shifting to PS models will
not be a primary cause. The driving force behind changes to the socio-legal institution of legal
aid is the new politics of law evident in market capitalist societies such as Canada and Australia.
The forces behind such politics include changes in economic policy, the iconic role of the market
and re-regulation for a networked global economy. Within the new politics of law NPM and
access-to-justice, integrated approaches to public legal services have been particularly important
in changing the significance of legal aid as a socio-legal institution.
Other new political factors include changes in the political economy of legal professions, legal
workplaces and labour markets and state and consumer re-negotiation of the 20th century compact
between the legal professions, state, and society. The eventual impact of a shift towards PS
funding and the new politics of law on the socio-legal institution of legal aid are unknown.
However such impacts have the potential to adversely impact on the participation of legal
professionals in legal aid programs.
Q. 8: The implications of the shift towards a PS model in a federal state in which the
national government is a major funder of legal aid
Many of the implications of a shift to a PS model are canvassed in answering earlier questions.
The lessons of the Australian experience are applicable elsewhere provided the distinctive
national experiences of socio-legal institutions are acknowledged.
Those lessons are generally applicable to legal aid public policy projects. In federal and unitary
states shifting to a PS model policy-making processes should become efficient and effective,
governments should invest in research and managers in funding/policy agencies need to ensure
that staff administering PS programs have appropriate inter-personal, negotiation and bargaining,
accounting and financial, contract, risk and change management skills. The implications for
program management need further exploration, drawing on cross-national experiences, and the
use of PS funding models in non-legal aid public policy projects. Nevertheless we can posit a
preliminary description of the pluses and minuses of the PS model, compared to the MI model of
funding legal aid (see Appendix B).
Particular implications of a shift to PS funding legal aid in federations such as Canada and
Australia include raising the profile of central governments, increasing expectations of
federal responsibilities and action, risk shifting to the centre, cost-shifting to regional
provider/suppliers and re-emphasizing the need for effective, system penetrating intranational
communication between funding/policy makers and providers/suppliers of legal
aid.
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