The Purchaser-Supplier Approach in Legal Aid

Appendix A: The Purchaser-Supplier Approach in Legal Aid Terms of Reference

Background

A trend that is emerging in public policy related to legal aid in several countries is the increasing separation of purchasers of legal aid services and providers or suppliers of legal aid services. With respect to government as a funder of legal aid, increasing pressures from central agencies for clear objectives and performance measures, and value for public money is changing the balance of elements comprising the foundation of legal aid funding. The traditional funding model is a "mutual interest model" of funding that views the funder as a "partner" with the provider in the provision of legal services, having a basic interest in the provision of the service. The interest is diffuse and the risk with respect to cost is shared. The new model, taken to its logical extension is the "purchaser-provider model" in which the funder becomes a purchaser who determines what will be purchased at what unit cost. Shared risk with regard to cost in the mutual interest model is replaced in the purchaser-supplier model by certainly of costs and optimal cost-effectiveness. More typical of the purchaser-supplier model, the purchaser of services decides what services represent its greatest interest. Those areas of service become priorities.

The purchaser-supplier model in England and Wales has taken the form of a massive contracting initiative by the Legal Services Commission. This initiative is fundamentally changing the nature of the relationship between the Commission and the Bar. There is a growing body of literature about the consequences of the English initiative (Moorhead, 1998; Sommerlad, 1999).

In Australia the move to a purchaser-supplier model was made in the context of a federal system in which the Commonwealth or national government has priorities with respect to areas of law that are distinct from those of the states and territories. The move to a purchaser-supplier model by the commonwealth five years ago has brought about profound changes in many aspects of legal aid; changes in the relationship between levels of government, in the alignments of interest groups within legal aid, in the operations of the legal aid plans, and in the level of service provided.

The trend toward supplier-supplier approaches to legal aid funding reflects the increasing influence of the "new public management" in public policy. Further, this may reflect a long-term, fundamental change in the foundations of legal aid. In the earlier years, especially in common law countries, the legal professions became a controlling influence in the emerging institutions of access to justice - legal aid being the principal one among them. The dominance of the mutual interest model of finding may reflect the decisive presence of lawyers within government policy structures and within legal aid organizations in this early period in the history of legal aid. It is possible that the emergence of the purchaser-supplier models reflects a fundamental shift away from early foundations. The impact on the nature of legal aid as an institution in the overall justice system is uncertain.

Research Questions

  1. What are the features of a mutual interest approach to legal aid?
  2. What are the features of a purchaser-provider approach to funding legal aid?
  3. Based on the experience in Australia, what are the advantages of a mutual interest model?
  4. Based on the experience in Australia, what are the disadvantages of a mutual interest model?
  5. Based on the experience in Australia, what are the advantages of a purchaser-supplier model?
  6. Based on the experience in Australia, what are the disadvantages and potential negative impacts of a purchaser-supplier model?
  7. What are the implications of a shift toward a purchaser-supplier approach to funding for legal aid as a socio-legal institution?
  8. What are the implications of a shift toward a purchaser-supplier model in a federal state in which the national government is a major funder of legal aid?

Statement Of Work

The contractor will prepare a preliminary paper based on his own views and experience addressing the research questions outlined above. The documentation for the paper will be limited to material already in the possession of the contractor.

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