The Purchaser-Supplier Approach in Legal Aid

2. The Features Of A Mutual Interest Approach To Legal Aid

Question One in the Terms of Reference asks, what are the features of a mutual interest approach to legal aid? The legal aid literature does not offer us an express model of a mutual interest approach. The charitable, Judicare, salaried and mixed models of legal aid (see Paterson: 1991) are essentially typologies of service delivery. They characterize legal aid schemes by reference to which lawyers serve as suppliers, or, in the case of the charitable model, why lawyers supply legal aid services. Such characterizations do not address the public policy dimensions of legal aid systems. Whether, for instance, a legal aid system is 'generous' or 'mean' in scope (Regan 1993: 000), embraces public administration of New Public Management ("NPM") techniques, or incorporates centralised, or de-centralised, unilateral, or consultative, styles of decision-making and resource allocation. [3]

A mutual interest approach is implicit in Cappelletti's history of modern legal aid (1972), and Cappelletti and Garth's portrayal of the new, post-war national schemes as a "first wave" towards equal justice (1978: 21). However, these are essentially historicist and apolitical conceptualisations, and do not explore the significance or features of the socio-legal mutualities of modern legal aid. Nor does the public policy or public sector management literature offer us a model of a mutual interest approach, or describe the features of such an approach applied in a legal aid system.

Mutual interest approaches are not unique to legal aid. The experience of public policy is replete with such approaches. The institutions and politics of social democratic states are mega instances of a mutual interest approach to the complexities of modern social governance. The politicolegal institutions of federalism are one example, as are particular expressions of the relationship between central and State or provincial governments, such as co-operative federalism in Australia in the late 1970s and early 1980s (Jones 1983). The multi-level, social partnership approach to governance in the EU is another, more contemporary instance of a mutual interest approach (Commission on the European Communities 2001: 11ff.). Examining such instances, including the 1976-96 version of the Australian legal aid system, highlights three features common to mutual interest approaches to public policy projects.

The first such feature is its ideological dimension. A mutual interest approach is predicated on high levels of reciprocity, agreement and co-operation in the inter-relationships existing between the state and the actors it invites or requires to participate. This does not mean that the state and other or all participant actors must agree on a single or common objective, or that disagreements might not exist or arise as to public policy emphases or resource allocation within the project. It does require a high level of reciprocated participant agreement or acquiescence in the fundaments of a project, first, as to its core social functions, and secondly, as to the means, policies or instruments by which those functions will be translated into social action. In a mutual interest approach to legal aid, for instance, legislators, governments, the legal profession and other interested actors agree, or at least concede, that the social functions of legal aid is to meet needs for legal assistance, representation and advice, and that the socio-legal institution of legal aid should provide the principal, governing norms of legal aid policy.

The second common feature of the mutual interest approaches is its cultural aspect. The presence of high levels of agreement about fundaments encourages reciprocal expectations of shared purpose and responsibility for a public policy project, and the task of mobilizing its objectives. Thus, in a mutual interest approach we would expect to see a legal aid system envisaged as a collective project of governments, legal aid agencies and the legal profession. In Australia, for instance, the pre-1996 national scheme was officially described as "partnership" between governments, legal aid commissions, CLCs and the private legal profession (see National Legal Aid Advisory Committee 1990: 108-110). Similar ideals of social partnership, financed by the state, but built upon mutual understanding, shared fundamental values and trust was captured in the idea of a "legal aid community". In successful mutual interest approaches the collective culture goes beyond mutualism rhetoric. Non-state participants assert their expectations of shared purpose and responsibility, and are pro-active in mobilizing the objectives of a public policy project. The mutual interest approach to legal aid in Australia, for instance, saw legal aid commissions, CLCs, and law societies develop as de-centralised, pro-active and autonomous sites claiming the right to participate in policy making, and decision-making in the mobilization of resources. Much to the benefit of the national scheme, as considered in answering Question Three below, although frequently discomforting the Federal government and its legal aid managers.

The sharing of operational responsibilities and functions is the third common feature of a mutual interest approach. The culture of collective endeavour referred to above is translated, to a greater or lesser extent, into the administration and institutions of a public policy project. Thus, we would expect to see responsible state agencies and officials engage in inclusive, consultative techniques of decision-making and resource allocation. Whether such co-operative approaches are by design, or a pragmatic response to quasi-proprietorial stakeholder expectations engendered by a mutual interest approach. The influence the Federal government conceded to the meetings of the CEOs of State and Territory commissions in administering its interests in the Australian national legal aid scheme in the 1980s is an instance of the latter.

We would also expect that the institutions of a mutual interest approach would reflect the sense of collective enterprise. Whether informally in the developments of the mechanisms of meetings between central and regional governments, and bodies such as the Australian Directors. [4] Or formally through the establishment of the administrative legal machinery of the system. In Australia for instance the national scheme initially included a statutory commission including members nominated by the Law Council of Australia and the Australian Council of Social Service ("ACOSS") to oversight Commonwealth interests in the national legal aid scheme (seeCommonwealth Legal Aid Commission Act 1977, s 5). The aim was to ensure that no single interest should dominate policy and other proposals (Attorney-General's Department 1985: 22-3).

Different configurations of Commonwealth, State, legal profession, social welfare, and legal aid agency interests were successively incorporated into the Commonwealth Legal Aid Council and the National Legal Aid Advisory Committee ("NLAAC") in the 1980s. [5] Institutional recognition of the quasi-proprietary rights was also given in the State and Territory legal aid commission legislation. In Victoria for instance the Legal Aid Act 1978, s 4, provided that the governing board should include nominees of the Commonwealth, State, law society, and the Bar, the Council of Social Service. In some States provision was later made for representation of CLCs.

A mutual interest approach to legal aid is also distinguished from its application to comparable public policy projects. As discussed above the ideological premises of such an approach to legal aid are constellated by the socio-legal institution of legal aid. Consequently a mutual interest approach to legal aid does not merely reproduce state policies of the kind we find in other social welfare projects such as income support, health and education. One reason is that as a socio-legal institution legal aid pre-dates the emergence of the 20th century state welfarism. As a legal institution legal aid is said to have medieval if not ancient social origins (Cappelletti 1972: 347). In any event the socio-legal institution of legal aid in post-war Canada and Australia was a product of legal modernisation, and the reception of the modern Anglo-colonial legal systems in the mid-19th century. [6]

As an institution with a minimum 150-year pedigree we would expect to have a definitive account of the socio-legal institution of legal aid. However that is not the case. Modern legal aid displays what Abel describes as a condition of "value incoherence" (1985: 485). Even at the peak of the post-war expansion of legal aid systems it was not possible to definitely say what ideas lay behind legal aid. In Australia for example 20th century legislators, Attorneys-General, legal profession spokesmen and lawyers variously described legal aid as socio-legal institution designed to protect the legal rights of the poor, promote universal equal access to justice, achieve legal equality for "rich" and "poor" alike, to advance social justice or to mobilize the professional aspiration of lawyers, and sustain their occupational privileges (Fleming 1999).

Nevertheless it is generally agreed that the socio-legal institution of legal aid has three elements. First, it is the institutional response of modern law and society to the problem of providing lawyers for the poor (Cappelletti 1972: 347. The second element is that the legal profession is seen as the occupation responsible for the operation of the institution. In Australia in 1918, for instance, a State Attorney-General expected that lawyers would participate in a new legal aid scheme. In his view, they were doing "only what the doctors are already doing in the hospitals ... [a] poor person who has a disease or desires an operation is not denied the services of the most eminent medical men in Sydney" (Hall 1918: 2271). The third element is that lawyers are expected to participate in the operation of the socio-legal institution of legal aid because they are the responsible professional occupation. Such participation was the part of the bargain between legal professions and the 20th century Anglo-colonial state and society (see 8.0 below). In Australia, for instance, in 1943 another State Attorney-General observed that "the legal profession is a profession, and there is every good reason to expect that it should give the same social service as do other professions" (Martin 1943: 2714).

The other distinguishing feature of a mutual approach is that the socio-legal institution of legal aid serves as the dominant template. Its ideals and implicit lawyer/lawyers' services focus are imbricated into the legislative philosophy and legal machinery of a legal aid system. In Australia, for instance, the original functions of the State and Territory legal aid commissions were designed around the premise that providing and supplying legal aid was properly the business of the legal profession. In Victoria, for example, the Legal Aid Act 1978, s. 9(1) provided that the function of the legal aid commission was to provide legal services via its own staff lawyers or "by arranging for the services of private practitioners to be made available wholly or partly at the expense of the Commission". The legislation also enshrined the role of the legal profession in other ways. Section 4(3), for instance, required that the Chair of the Victoria Legal Aid Commission be a private legal practitioner of not less seven years standing. Of the other members of the Commission, two were required to be nominees of the law society and the bar. In practice it was likely that as many as six of the nine-member Commission would be members of the legal profession, either judges, private practising lawyers of legally qualified civil servants.

The template of the socio-legal institution of legal aid was also evident in other parts of the machinery of the Australian mutual scheme. The legislation protected the position of the legal profession, incorporating the assumptions of a protected occupational market implicit in its mid to late 20th century relationship with the state (see Q. 7; see also Paterson 1988, 1993 & 1996). Typically the legislation provided in the performance of their functions State and Territory legal aid commissions should:

  • Carry out their activities consistently with, and not to prejudice, the independence of the private legal profession;
  • Liaise with law societies and bar associations to facilitate the use, in appropriate circumstances, of services provided by private legal practitioners;
  • Make maximum use of services that private legal practitioners offered to provide on a voluntary bases;
  • Encourage and permit law students to participate, so far as the Commission considers it practicable to do, on a voluntary basis, under professional supervision in the provision of legal assistance.

The legal aid legislation also protected other rights claimed by the legal profession. In Victoria, a person granted legal aid was entitled to select a private practising solicitor of her or his choice from a panel of solicitors. Clients' legal privilege was extended to legally aided litigants and accused, thereby creating a lawyer/client relationship with the provider of legal aid services, whether private practitioner, or employed legal aid commission solicitor.

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