The Purchaser-Supplier Approach in Legal Aid
8. The PS Approach And Legal Aid As A Socio-Legal Institution
The penultimate question in the Terms of Reference asks, what are the implications of a shift towards a purchaser-supplier approach to funding for legal aid as a socio-legal institution? The answer is that there are implications, but we should take care not to overstate them, and to properly understand their significance.
A shift towards a PS-approach to funding does not threaten the survival of legal aid as a sociolegal institution. Legal aid is a modern, if not ancient, institution (see 2.0). As such it is part of the immeasurably larger institutional project of the Anglo-colonial legal system and its companion liberal centralist law ideology. In countries such as Canada and Australia the sociopolitical significance of this project and its law has changed since the 1970s, some of the reasons for which are discussed below. Nevertheless institutionally the modern legal system remains
"a giant machine for making and applying law [and for] social control . which is exercised through law" (Friedman 1985: 2), and no one can avoid its impositions,
"everyone is involved with law" (Stager 1990: 61). The capacity of changes in legal aid funding to change its socio-legal institutions including legal aid is necessarily limited.
Moreover the ups, downs and turnarounds in funding probably have far less impact than we might imagine. We can easily over-estimate the significance of money in sustaining legal aid as a socio-legal institution. The early 20th century and pre-1970s charitable and Judicare schemes in Canada, Australia and elsewhere were not dependent on state funds. Yet both the schemes and legal aid survived. Similarly we can over-state the significance of money in the post-war expansion of legal aid that saw new, national responses in the advanced capitalist societies. The political significance, profile and "noise" surrounding such responses far exceeded the economic significance of the new legal aid schemes. In most countries national expenditure on legal aid were a fragment of GDP, and represented a small proportion of the economy of the legal services industry (Abel 1985). In Australia in 1990, for instance, total national expenditure on legal aid represented approximately 1% of the gross income of the legal services industry, comprised of solicitors' firms and other practising private lawyers (National Legal Aid Advisory Committee 1999). There is little doubt that as a socio-legal institution legal aid will survive PS-approaches to funding national legal aid schemes, even if such approaches involve significant funding cuts, or diversion of resources away from lawyers' services towards PDR and other solutions.
A PS-approach to funding does imply changes to the significance of legal aid as a socio-legal institution. It does so because the PS-approach is symptomatic of other changes, external to the processes of funding and providing legal aid. In this context the most profound of such changes is the emergence since the post-war legal aid response of a new politics of law. In the 1980s and 1990s the role and functions of law, its capacity to meet the needs of governments, business, and citizens, the cost of legal services, and the activities of courts and lawyers assumed an unprecedented social significance. Over 1987-97 in Australia, for instance there were four major public inquiries into the problems of the cost of legal services, legal aid, and inequality in access to the legal system (see Senate Standing Committee on Legal and Constitutional Affairs 1993(a) & 1993(b); National Legal Aid Advisory Committee 1990; Access to Justice Advisory Committee 1994; Senate Legal and Constitutional References Committee 1997(a) & (b)). In Australia, Britain, and Canada the civil justice systems were reviewed to achieve new efficiencies, and concerns with effective access to justice replaced legal aid as the centrepiece of state law and social justice policies (see Woolf 1996; Ontario Law Reform Commission 1996; Australian Law Reform Commission 2000).
The reasons behind the emergence of a new politics of law are complex. The driving force was the sea change in public policy that began in the Anglo-American societies in the late 1970s. In Australia, Canada, New Zealand, the United Kingdom, and the United States, both social democratic and conservative governments abandoned long-standing national maxims of social policy in favour of the neo-liberal, laissez-faire norms of market capitalism (Castles 1990).
The interposition of the market as the governing icon of public policy had two direct effects on the politics of law. First, it renewed the focus of the legal system, its officials and the legal profession on servicing the needs of business, finance, and public contracting. Secondly, the "financialisation" of public policy saw governments' retreat from their post-war role as legal guarantors of social wellbeing (Dore 2000: 2-6). The growing social distance of the state and its agencies fractured the modern configurations that had governed its relationship with officialdom, including administrators, courts and judges, and the legal profession, and its citizens since the previous century. This development was compounded by new restrictions on expenditure, access, and eligibility for social welfare services such as education, health, and legal aid. For waged and middle-class citizens the result was to frustrate the promises and material expectations of social citizenship that had flourished in the 1970s. The new, consumer style of citizenship made them more reliant on access to legal advice, lawyers, and the courts in increasingly price and resource conscious private and public markets for legal services, thereby adding to their collective sense of frustration.
The emergence of the market welfare state also changed the politics of law for the poor, and others with ambivalent attitudes to the legal system. Social justice was amongst the liberal democratic socio-legal ideals with a fractured resonance in public policy in the 1980s and 1990s. Moreover the demise of social welfarism reduced the safeguards against social disenfranchisement that modern public administration had long provided. For the poor therefore the new politics of law included an element of a return to their earlier marginal status in the modern legal system. For others with cause to be ambivalent about the legal system dismantling of the gendered and cultural assumptions of the wage earners' welfare state and the fracturing of the hegemony of liberal legalism offered fresh opportunities to engage with the politics of law. Law's identity, institutions, sites, and functions became newly susceptible to the voices, claims, and ideas of indigenous peoples, feminists, environmentalists, women, ethnic and linguistic minorities, and gay communities.
Changes in public policy alone did not account for the new politics of law. Since the end of WWII the politico-economic supremacy of the United States had expanded its cultural frontiers, proselytising its civic ideals across the Western world (Strong 1980: 50-1). In particular, in the 1950s and 1960s its version of legal centralism had shaped the images and social construction of law in the culminant phase of western modernisation, and media disseminated global culture (Rustow 1980: 30). The other Anglo-Saxon societies were not immune from these processes. By the 1990s in Australia, for instance, popular conceptions of legal citizenship were modelled on the pro-active American ideal, and its expectations of lawyer-accessed, court-processed vindication of socio-political rights.
Other external factors contributed to the new politics of law. Globally the late 20th century saw what Hobsbawm describes as the decline of the western empire, and the illusion of stability its modern states brought to national and international social ordering (Hobsbawm 2001: 31-59). Furthermore technological advances in western society since the 1970s made the managed economies of post-war welfare capitalism unsustainable (Gray 1999: 19-20). The unemployment, redeployment, social exclusion, and re-ordering which accompanied the rise of market capitalism and the 'network economy' produced forgotten levels of economic insecurity and unemployment throughout the former welfare capitalist world (Rifkin 2000: 5). Moreover regionalisation and globalisation
"blurred and splintered" the reach of the modern nation state, and in various respects the spread of refugees on an unprecedented scale is challenging the social integrity of many advanced capitalist states (Snyder 1999: 7;
see also Hobsbawm 145-6). Moreover the dictates of the new world economic order, international treaties such as NAFTA and GATT, and new institutions such as the WTO "have further weakened traditional rights of sovereignty" of the modern nation state (Rifkin 2000: 227-8).
The new politics of law has changed the social significance of all the institutions of the legal system, including the socio-legal institution of legal aid. A PS-approach to funding legal aid is also symptomatic of two micro but nevertheless highly important aspects of the new politics of law. One such micro-feature is the transformation of the culture of government. In Australia, Britain, Canada and New Zealand modern public administration paradigms of social regulation in the "public interest" under the 'rule of law' have been displaced progressively since the 1970s (see Deakin & Michie 1997; Wettenhall & Beckett 1992; Easton & Gerritsen 1996). Public administration was replaced by NPM, "managerialism" or "new managerialism", philosophies of government that adopt 'economic efficiency' as core values, i.e., the central managing test is whether what has been, or is proposed to be done, represents the maximum output for the minimum input of resources. NPM has not
only revived contract and contract-like controls such as the PSM
"as the foremost organising mechanism of economic activity" (Deakin & Michie 1997 1). It also has an uneasy relationship with the civic-governmental assumptions of pre- 1970s, modern law and society. The "discourse of management sits uncomfortably with, and by its logic tends to preclude, reference to substantive public service obligations like maintaining the rule of 'law', upholding citizen' rights of access to fair and equitable government administration, and providing high quality legal services (Yeatman 1987: 341; see also Pusey 1991). There is an ambivalent relationship between NPM and modern socio-legal institutions such as legal aid.
The other micro-feature of the new politics of law impacting on legal aid as a socio-legal institution is the access-to-justice approach. Like legal aid itself the access-to-justice approach is a slippery phenomenon, its concepts also inherently incapable of ultimate definition (see Gouldner 1973). In Cappelletti and Garth's formulation it is a third wave of reform towards equal justice (1978: x-xi). In any event, designedly system-wide, coordinative approaches to improve popular access to civil and criminal justice and law now dominate state public policy legal system projects. In each country the historical prompts to an access-to-justice approach differ (see Rueschemeyer 1989), as do the contemporary public policy configurations. In Australia, for instance, Commonwealth/Federal government access-to-justice strategies have been closely linked to consumer interest reforms of the market for legal services and work practices of private lawyers, and the re-regulation of the legal profession through National Competition Policy (see Williams 1997; see also Access to Justice Advisory Committee 1994; Attorney-General's Department 1995; Australian Law Reform Commission 2000).
Not unexpectedly however the access-to-justice experience in countries such as England, Canada, Australia and New Zealand has many similarities. One such similarity is the diminished role of the socio-legal institution of legal aid as a public policy template for the state project known as legal aid. Governments now insist that legal aid systems do more than react to citizens' needs for legal representation by providing free or subsidized lawyers' services. In the access-to-justice approach state legal services policy
"is about ensuring that people with problems are able to find the information and services that best meet their needs to achieve the right outcome" (Williams 2001: 15). Legal aid systems and their managers are now expected to pro-actively manage, and, to an extent, engineer new socio-legal relationships, so as to mobilise legal services to maximise resolution of citizens' legal problems, free of the need representation by lawyers, other than in criminal defence,
and in-court type civil litigation. This is particularly true of national funding/policy agencies, such as the Legal Services Commission in England, the Department of Justice in Canada and FLLAD in Australia. The result is that "legal aid" and "legal aid" policy have become proxy terms for the new, legal services mobilisation policies and strategies of the access-to-justice approach. When we refer to "legal aid" policy today in reality we are referring to access-to-justice/state legal services/state legal mobilization policies. Such policies still extend to the provision of publicly funded lawyers' services. But both their scope and the functions of national legal aid systems are no longer defined or confined by the socio-legal institution of legal aid.
Other dimensions of the new politics of law have also diminished the importance of the sociolegal institution of legal aid, independently of the shift towards a PS-approach legal aid funding. Since the 1960s significant changes have occurred in the political economy of national legal professions, including changes to its work and workplaces, the composition of the legal labour market, and the relationship between the legal professions, the state and the community (see Abel & Lewis 1988). In part these changes are a result of historical trends and socio-economic transformations underlying the new politics of law. In some countries state intervention has influenced the pace and direction of change. A role played since the late 1980s in England and Australia, for instance, by de-regulation and pro-competition policy interventions (see Farmer 1994; Paterson 1996; Deighton-Smith et. al. 2001; Office of Fair Trading 2001).
Neither the immediate nor the ultimate impact of such changes is known. One interpretation is that the legal profession has lost control it exercised historically over the numbers and personal qualities of lawyers admitted to practice, and that practising lawyers have lost control over production, i.e., the work they do, workplaces, and how they work (Abel 1988; Abel 1989(b)). Its advocates argue that the legal profession is in terminal decline, and that for
"the mass of lawyers ... occupational life will mean either employment in a large bureaucracy, dependence on a public paymaster, or competition within an increasingly free market" (Abel 1988: 66). Others reject or are less convinced by the market control thesis, and are less pessimistic. Paterson, for instance, interprets the new dynamics of legal professionalism as evidencing processes of renegotiation, in which the state and consumers are re-defining the role and their expectations of the legal profession. Such
re-definitions include the access side of the equation that formed the basis of its relationship with the state and the community since the mid-20th century, and is impacting on the significance of the socio-legal institution of legal aid (see Paterson 1988, 1993 & 1996).
Instances of re-negotiating legal professionalism are already evident. In Australia, for instance, the legal profession has embraced the challenges of NCP (see Law Council of Australia 1994 & 2001). Another instance is pro bono, a project that substitutes professional corporate responsibility for the traditional ideals enshrined in the socio-legal institution of legal aid. Causelawyering is another new version of the socio-political responsibilities of the legal profession (see Sarat & Sheingold 1998 & 2001). Vanguard theorists are re-discovering or articulating alternative points of reference to conceptualise the role of the legal profession. Parker, for instance, recently articulated a republican perspective (1999). Others have argued legal professionals should recover their 19th century role as architects of civil society, a role insufficiently performed last century (Halliday 1987; Halliday & Karpik 1999). These instances of renegotiating legal professionalism relegate the socio-legal institution of legal aid and its transformative ideals to a lower status than it previously enjoyed.
For these reasons a PS-approach to funding has only a marginal impact per se on legal aid as a socio-legal institution. Its diminished significance as a consequence of the new politics of law, access-to-justice approaches and the changing dynamics of legal profession does have the potential to adversely impact on the participation of legal professionals in legal aid programs. Price is obviously an important factor influencing participation in legal aid, as salaries for legal professionals employed in legal aid agencies, and as fees paid to provider lawyers and firms supplying legal aid services. We would not expect otherwise. Private practising lawyers must operate profitable businesses, pay competitive salaries and secure their own incomes, and salaried legal aid lawyers are not unaware of their saleability in other employment markets.
Lawyers, like other professionals, do not work for economic reward alone, notwithstanding popular mythology, and glaring instances to the contrary. Historically the altruistic/social service/social justice ideals of the socio-legal institution of legal aid have been important factors motivating practising lawyers to undertake legal aid work (Abel 1985). In 1998-2000, for instance, such ideals were present amongst lawyers undertaking legal aid cases in Australia, England, New Zealand, the United States, the Netherlands and Canada (see Fleming 2002).
Such socio-legal ideals act to confer a sense of nobility of purpose on legal aid work, and those who perform it. Such personal and professional fulfilment may sometimes be associated with pie-in-the-sky idealism. But the desire for paid work to include a super-added, non-economic quality is not restricted to lawyers who undertake legal aid work. That work should have a special character is by definition an expectation of working in a professional occupation such as the legal profession. There is a body of literature and anecdotal evidence which records the disillusionment of highly paid, young lawyers working in the bureaucratised environments of large commercial law firms. Often these lawyers are said to be amongst the best and the brightest. The problem is that much work at lower levels in large law firms has become routinized, requiring little input of professional skills, judgment, autonomy and discretion. This phenomenon is often referred to as the proletarianization of professionalism.
To a degree the altruistic/social service/social justice associations of legal aid work is a remnant of 20th century legal professionalism (see above). Nevertheless the opportunity to perform personally and professionally fulfilling work will not alone guarantee lawyer participation, or ensure competent practising lawyers continue to supply legal aid services. Price, profitability and income outcomes are important, and ultimately decisive factors (see 7.0 above). If the price paid for legal aid drops too far below profitability or salary horizons two major groups of lawyers are likely to remain as participants. One group is the least competent, or the least marketable. The other group is the most socially/personally committed. In the United States, for instance, consistently low salaries and adverse working conditions since the 1970s mean that lawyers working in Legal Services are said to be the
"top ½ of 1 percent of lawyers in the country on the "altruistic motivation" scale (Fleming 2002: 17).
However the decision to abandon legal aid may be easier in legal professions and workplaces in societies such as Canada, England and Australia in which the socio-legal institution of legal aid has a diminished resonance, arguably far more so that in the United States. Similarly PS contracting which unduly emphasises cost-cutting, shaving output costs and minimizing trust and exercise of discretions by legal professionals will add to the commodification already present in much legal work, and increase the cocktail of disincentives for lawyers to withdraw from legal aid programs. Alternatively PS contracting and contract management that is sensitive to the pluses of maintaining legal professionalism, whilst sceptical of its claims to privilege past their use-by-date, has the potential to foster workplaces in legal aid delivery that will be attractive to private and salaried agency lawyers alike, whilst also creating new and different bridges with law societies, bar associations and law academe in the re-negotiation of legal professionalism.
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