The Purchaser-Supplier Approach in Legal Aid

1. Introduction

This paper has its genesis in the cross-national inter-active approach to legal aid policy-making and research encouraged by the work of the International Legal Aid Group (“ILAG”). ILAG is an association of CEOs and policy-makers from national legal aid agencies and academic experts from Australia, Canada, England and Wales, Germany, the Republic of Ireland, New Zealand, Northern Ireland, Norway, Scotland, The Netherlands and the United States.

Since it was established in 1992 ILAG has held four meetings, in The Hague in The Netherlands in 1994, in Edinburgh in Scotland in 1997, in Vancouver in Canada in 1999, and in Melbourne in Australia in 2001. The next ILAG meeting will take place at Harvard Law School in the United States in June next year. The ILAG meetings have proved to be a unique forum for managers and policy makers to meet and exchange ideas and experiences about funding and providing legal aid on a national basis. ILAG meetings have also generated valuable collections of papers, and encouraged networking amongst managers, policy makers, researchers and academics (see Ministry of Justice 1995; Scottish Legal Aid Board 1997; Reilly et al 1999; International Legal Aid Group 2001). These networks are developing into a new and important resource for managers and policy-makers in participant countries who often face comparable problems in funding and administering national legal aid systems.

In the case of Canada and Australia such comparability extends beyond common issues in legal aid management. These two countries each have federal systems of government, share a comparable Anglo-colonial socio-legal heritage and social democratic traditions, and are examples of successful multi-cultural immigrant societies. Moreover like other English-speaking welfare capitalist societies the state and its public policies have undergone significant transformations in the past 20 years (Castles 1990).

Consequently the ILAG meeting in Melbourne in June last year presented federal legal aid managers and policy-makers in Canada and Australia with a cost-effective and timely opportunity to meet to exchange experiences, and discuss common problems. A proposal for such a meeting was put to senior executives in the Canadian Department of Justice and the Australian Commonwealth Attorney-General’s Department. The initiative was readily agreed to, and strongly supported. The result was that on 18th June 2001 a day-long workshop attended by Ms Carolina Giliberti, Director-General, Programs Branch, and Dr Ab Currie, Principal Researcher, Access to Justice, Research and Statistics Division, of the Department of Justice and senior managers and policy-makers and operational staff of the Family Law and Legal Assistance Division (“FLLAD”) of the Attorney-General’s Department was held in Canberra.[1]

Participants exchanged overviews of the legal aid systems in Canada and Australia. Issues of common concern such as providing legal services to indigenous people, legal aid in refugee and immigration matters, the problem of extraordinary, high cost cases, developing and monitoring program objectives, performance indicators, and data reporting requirements imposed on legal aid plans, the special requirements of rural and remote areas, and staged approaches to granting legal aid were identified and discussed.

The Canadian representatives outlined emerging directions in Canadian legal aid. In particular, the problems facing governments and managers in ensuring equitable distribution of federal legal aid funding, defining clear federal objectives and accountability frameworks, developing uniform national standards, and achieving a focus on federal priorities in service delivery. The Australian officials explained it was the presence of comparable problems that had prompted remedial Federal government interventions in 1996. They outlined the objectives of the changes to Commonwealth funding and policy, the unanticipated consequences of such changes, and the lessons learned by the Federal government and Attorney-General’s Department legal aid managers.

Thereafter the workshop discussion concentrated on the practicalities of emphasizing central government funding and policy goals in national legal aid schemes in federal systems. Question such as appropriate federal objectives in a national approach to legal aid, what should be considered exclusively provincial/State responsibilities, and optimum policy instruments were discussed. The latter included priority fixing, prioritising federal funding paid to legal aid plans, and cost-effective delivery models. Workshop discussion also addressed the importance of ‘needs’ assessment in managing for efficiency and priorities, including the role of indicators, how indicators might be incorporated in the Federal/provincial or State funding formulae, and methods of reliably identifying client ‘needs’ for legal aid services. Policy issues such as equal access to services and managing for quality associated with maximizing the presence of central government funding and policy objectives were also discussed.

All involved in the Canada/Australia Workshop considered it to be a valuable exercise. From the Department of Justice perspective it highlighted the possibility that the post-1996 changes to Federal legal aid funding and policy in Australia could be relevant and applicable in the Canadian context. Accordingly the Department has commissioned this paper as an initial step in moving the lessons of the Canada/Australia Workshop forward.

The subject matter of the paper is the eight questions reproduced in the Terms of Reference in Appendix A. Three of these questions consider the features of the mutual interest model of legal aid funding, and the advantages and disadvantages of that model or approach, based on the Australian experience. In this context the “mutual interest model” or “mutual interest approach” is a concept used to describe the dynamics of the legal aid funding system in Canada, a system comparable to that operating in the Australian national scheme until 1996-97. The mutual interest model envisages the relationship between governments and agencies funding legal aid and providers of legal aid services as a “partnership”, or a mutual or collective enterprise. Those funding legal aid schemes and those providing its services are regarded as sharing common if diffuse interests, and responsibility for expenditure, resource allocation and policy making is distributed, to varying degrees, amongst federal and provincial/State governments, legal aid plans/legal aid commissions, legal aid clinics/community legal centres (“CLCs”), law societies and bar associations and practising lawyers.[2] A collective operational approach means that financial risk is distributed across participant funders and providers. The meaning of the mutual interest model or approach to funding legal aid is elaborated in the answers to Qs. 1, 3 and 4 (see 2.0, 4.0 & 5.0 below).

Questions 2, 5 and 6 of the Terms of Reference consider the features of a “purchaser-provider approach” to funding legal aid, and the advantages, disadvantages and potential negative impacts of that approach or “model”, based on the Australian experience. In this context the “purchaser-provider approach” or the “purchaser-provider” model is a concept used to describe the administrative, quasi-contractual arrangements separating funding/policy and service delivery functions now widely used in the public sector in the English-speaking countries. The model applied to legal aid schemes envisages governments and funding/policy agencies as purchasers, enabled through policy and bargaining processes to determine which legal aid services are required to achieve policy objectives, what type and quality of services are appropriate, and which services governments and funding/policy agencies will buy, and at what price, from providers such as legal aid plans or commissions, in the case of Federal/central governments, clinics or CLCs, not-for-profit (“NFP”) agencies, practising lawyers or other potential suppliers of legal aid services. The purchaser-provider approach is said to enable funders to maximise policy and expenditure outcomes and optimise cost-effectiveness in service delivery, although at the expense of the collectivities of the mutual interest approach, including risk sharing amongst all participants. The meaning of the purchaser-provider model or approach to funding legal aid is elaborated below (see 3.0, 6.0 & 7.0 below).

The remaining two questions in the Terms of Reference explore, first, the implications of a shift towards a purchaser-supplier approach to funding for legal aid as a socio-legal institution, and, secondly, the implications of such a shift in a federal state in which the national government is a major funder of legal aid (see 8.00 & 9.00 below).

The research contract with the Department of Justice specifically required answers based on the author’s own views and experience, and limited the scope of any research to documents or other material already in his possession. The answers set out below have complied with these requirements, although in some instances reference is made to other documents or materials. As such the paper is a preliminary one, and should be read in the context of the research contract specifications, and recognising that the views it presents form part of more extensive public policy processes and in many cases highlight issues that will require exploration through additional, more systematic research.

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