Legal Aid in the Eye of a Storm: Rationing, Contracting, and a New Institutionalism

AuthorRichard Moorhead
Publication Date01 Sep 1998
This article discusses possible rationales underlying a legal aid system
through an articulation of theories of distribution in the legal services
market, considers the idea of prioritization and planning or, in the
political vernacular, rationing of public funding, and addresses the impact
of economic and social theories of the professions on legal aid structures.
Finally, the emerging concepts of ‘new-institutionalism’ and ‘new public
management’ are introduced to indicate the organizational and socio-
logical complexity of reforming the legal services market. Each of these
threads illustrate competing values and institutional influence on publicly
funded legal services. Bureaucratic rules mix with professional and
economic incentives to articulate entitlement to public money in a
predominantly private forum. Drawing on research in the field of ration-
ing health care, sociological and economic work on legal services, and
organizational theories, it will be demonstrated that conceptual, policy,
and research tools need to play closer attention to this competition
of values.
. . . [T]he role of legal aid should be to ensure that less well off people have access to
justice on a broadly equal basis to everyone else, but that this objective has to be set
against the background of limited resources . . .
The issue is not whether to limit expenditure, but how to devise a legal aid scheme under
which decisions about resources, priorities and targeting are taken in a transparent and
accountable way.1
Rising legal aid expenditure has driven the debate on structural reform of
the legal aid system for several years. Allied to the concern for fiscal restraint
© Blackwell Publishers Ltd 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Faculty of Law, University of Birmingham, Edgbaston, Birmingham
B15 2TT, England
I would like to thank Professor John Baldwin and Professor Avrom Sherr for very helpful
comments on an earlier draft of this article. All errors and opinions are my own.
ISSN: 0263–323X, pp. 365–87
Legal Aid in the Eye of a Storm: Rationing, Contracting, and
a New Institutionalism
1Sir Peter Middleton, Review of Civil Justice and Legal Aid: Report to the Lord Chancellor
(1997) 35.
is a concern about the nature and impact of current legal aid provision. The
appropriateness of particular methods of service delivery (courts, mediation,
Alternative Dispute Resolution, and public legal education) and particular
forms of legal service organization (private practice, non-profit making
agencies, and law centres) has moved towards the centre of public policy
debates from their more radical origins. At the same time, new institutional
tools have begun to be introduced for organizing provision: contracts,
competition, and ‘contestability’ are all making their way into legal aid
services.2A recent spate of publications on reform of the legal aid scheme
have all threatened major change.3The Middleton report is one of the most
recent.4These publications point to the tension between the current demand-
led system of funding and the political desire to restrain costs and facilitate
greater planning and prioritization.5This article is not a point-by-point
examination of the strengths or weaknesses of the Middleton report or any
related set of proposals, but examines the broader aspects relevant to an
understanding of legal aid reform.
Readers of recent government proposals on legal aid will be perplexed if
they seek a developed and clearly articulated view of the purpose of a
reformed legal aid scheme. The overwhelming focus of language and ideas
promotes ideas of efficiency and managing scarce resources. In part, the
current economic orthodoxy justifies such an approach: scarcity of resources
is a political fact which legal aid policy must address. Yet the purpose of
any legal aid scheme requires careful and detailed analysis and explanation
if efficiency and effectiveness are to achieve any meaningful end beyond
minimal cost.
The Middleton report begins with a conventional formulation: ‘the role
of legal aid should be to ensure that less well off people have access to justice
on a broadly equal basis to everyone else.’ Even a superficial understanding
of the legal services market suggests the unreality of such a phrase as a
meaningful guide to policy formulation. There is no ‘everyone else’. Different
sections of society have very different needs for legal services which cannot
be measured in simple terms of equality. Impoverished clients dealing with
© Blackwell Publishers Ltd 1998
2See id., para 3.11, p. 39 and Legal Aid Board, Reforming the civil advice and assistance
scheme, exclusive contracting – the way forward (1998).
3id.; Lord Chancellor’s Department, Striking the Balance: the future of legal aid in England
and Wales, (1996; Cm. 3305) (hereafter, ‘the White Paper’) and Legal Aid – Targeting Need,
(1995; Cm. 2854); Law Society, Design for the Future (1995).
4See, also, Lord Chancellor’s Department, Access to Justice with Conditional Fees (1998) and
Legal Aid Board, op. cit., n. 2.
5There is no cap on the number of clients or cases which can be funded under the legal aid
scheme and no limit on the amount that can be spent on cases as a whole.

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