Responsive Law and Governance in Public Services Provision: A Future for the Local Contracting State
| DOI | http://doi.org/10.1111/1468-2230.00148 |
| Published date | 01 May 1998 |
| Author | Peter Vincent‐Jones |
| Date | 01 May 1998 |
Responsive Law and Governance in Public Services
Provision: A Future for the Local Contracting State
Peter Vincent-Jones*
Following the Labour victory at the 1997 General Election which ended 18 years
of Conservative political domination of the UK, the precise future of the
competitive contracting state is uncertain.
1
The question of how public services
should be provided — specifically, whether the role of the state should be that of
direct provider, purchaser, or market regulator — remains pressing in respect of a
wide range of health care, ancillary, social and community services.
2
Against this
background, the present paper considers the usefulness of the concepts of
responsive and reflexive law and governance in the evaluation of contractual as
distinct from bureaucratic arrangements for service delivery.
3
Particular reference
will be made to local public services such as social housing management, refuse
collection, and building and street cleaning.
The focus on local authority services is timely. Councils will soon be freed from
the legal requirement to engage in competitive tendering as a prerequisite to
providing services by their own employees.
4
Without compulsory competitive
tendering (CCT), there will be no need for ‘contractual’ relationships between
local authority clients and internal provider units. Many commentators believe that
the removal of compulsion will result in a return to bureaucratic organisation. This
paper suggests, on the contrary, that the positive aspects of the recent experience of
internal contracting (notwithstanding the damaging effects of compulsion), and the
The Modern Law Review Limited 1998 (MLR 61:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
362
* Department of Legal Studies, University of Central Lancashire.
This paper is based on a continuing project for which the support of the ESRC is gratefully acknowledged
(R000 236416). The paper draws on research themes developed in association with David Campbell,
Andrew Harries and Willie Seal, whose contributions I would like formally to acknowledge. I would like
also to thank the anonymous referees and particularly David Campbell for detailed comments on earlier
drafts.
1 The term ‘contracting state’ is used here to refer, not to public procurement and contracting out, but to
the ‘contractualisation’ of a variety of state functions associated with the New Public Management,
involving competition and internal and quasi-market relationships in the provision of public services
— see I. Harden, The Contracting State (Buckingham: Open University Press, 1992).
2 See K. Walsh, Public Services and Market Mechanisms: Competition, Contracting and the New
Public Management (London: Macmillan Press Ltd, 1995) for a comprehensive review of thecurrent
situation in the UK; J. Boston (ed), The State Under Contract (Wellington: Bridget Williams Books,
1995) on recent developments in New Zealand; and D. Kettl, SharingPower: Public Governance and
Private Markets (Washington DC: Brookings Institution, 1993) on the USA.
3 The limited purpose here is to distinguish and compare bureaucratic and internal contractual forms of
provision. For a wider discussion including contracting out, externalisation and other forms of
‘hybrid’ arrangement from an institutional economics perspective, see P. Vincent-Jones, ‘Hybrid
Organisation, Contractual Governance and CCT in the Provision of Local Authority Services’ in S.
Deakin and J. Michie (eds), Contracts, Cooperation and Competition: Studies in Economics,
Management and Law (Oxford: Oxford University Press, 1997).
4 The Government’s intention to abolish CCT was announced in a written Parliamentary Answer by the
Minister for Local Government on 2 June 1997. The CCT programme will continue for several years
however — see n 5, below. For recent modifications to CCT see Departmental Circular 16/97 (Welsh
Office 62/97); and Guidance on the Conduct of CCT, 3 December 1997, under the Local Government
Act 1992 s9 and Regulation 15 of Local Government (Direct Service Organisations) (Competition)
Regulations 1993 (SI 1993/848).
potential of this form of governance under more voluntary conditions, merit careful
consideration. The paper argues that CCT has given rise within some local
authorities to reflexive adaptations of the contracting mechanism, in spite of the
inherently unreflexive qualities of the regulatory regime. There may well, for good
reasons, be a future for the internal contracting state in the provision of local public
services under the less prescriptive Best Value framework which is to replace
CCT.
5
Drawing on empirical research conducted in metropolitan local authorities
over the past five years, I will argue that the contracting process can develop
responsively within the local authority environment and so help to secure the
benefits of increased efficiency, effectiveness, and responsiveness to consumer
needs.
The assessment of the future of the local contracting state from the perspective
of responsive and reflexive law and governance touches on issues of more general
interest. The radical transformation of the public sector in recent years has created
novel arenas for the exploration of the boundaries between private and public law.
Contract lawyers increasingly are being forced to think beyond traditional public-
private divisions,
6
often with the aid of other disciplines such as economics and
sociology.
7
In this light some broader implications of the present analysis are
considered, in particular the necessity of providing adequate consumer remedies
and redress for public contracting failures, and the necessity of developing
‘relationality’ in the contractual nexus both in legal doctrine and as reflected in the
quality of the multi-party relationships involved in service provision.
The structure of the paper is as follows. The first section establishes a theoretical
framework and defines the terms ‘responsive law’, ‘reflexive law’, and ‘responsive
governance’. A distinction is drawn between the concepts of law and governance,
and explanatory priority accorded the latter, broader notion. The second section
provides a brief outline of CCT and traces the movement from bureaucratic to
contractual organisation. The third section examines the relationship between the
process of contracting and responsive governance with reference to a range of
consumer and citizenship interests in local public services provision. The fourth
section analyses the responsiveness and reflexivity of law relating to contracting
for services, focusing on the limits of regulatory intervention, judicial and extra-
judicial remedies, and the general law of contract. Finally, some wider implications
are briefly explored and overall conclusions drawn.
5 DETR, ‘Best Value Criteria’ and ‘A Framework for Best Value in England’, 14 November 1997.
Councils will be required, inter alia, to set standards, to establish mechanisms for monitoring and
evaluating service provision, to maintain trading accounts, and to allow stricter public audit and
comparability with other local authority providers through ‘benchmarking’. Balanced against the new
mandatory requirements will be greater flexibility for local councils to decide how services should be
provided, in contrast to the restrictive specification of process that applies under CCT, but with strong
sanctions for failure to meet the new standards. CCT will run in parallel with the Best Value
framework in 30 pilot local authorities for two to three years before the details of the abolition of CCT
and its replacement are finalised. The transitional period is likely to see mutual inter-penetration of
new and old ideas and practices, with much of the discipline associated with CCT being retained in
less ‘coercive’ form in the Best Value authorities. On the transition to Best Value see P. Vincent-
Jones, ‘Competition and Contracting in the Transition from CCT to Best Value: Towards a More
Reflexive Regulation?’ (1998) Public Administration, forthcoming.
6 eg J. Wightman, Contract: A Critical Commentary (London: Pluto Press, 1996). There is a
corresponding need for ‘public’ lawyers to rethink their attitudes to ‘private’ law and particularly
contract — see D. Oliver, ‘Common Values in Public and Private Law and the Public/Private Divide’
(1997) PL 630; C. Scott, ‘The ‘‘New Public Law’’’ in C. Willett (ed), Public Sector Reform and the
Citizen’s Charter (London: Blackstone Press, 1996).
7 For an overview of socio-legal analyses of contract see D. Campbell, ‘Socio-Legal Analysis of
Contract’ in P. Thomas (ed), Socio-Legal Studies (Aldershot: Dartmouth Publishing, 1997).
May 1998] Responsive Law and Governance in Public Services
The Modern Law Review Limited 1998 363
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