Third Way Regulation? Community Legal Service Partnerships

AuthorRichard Moorhead
Publication Date01 July 2001
Third Way Regulation? Community Legal Service
Richard Moorhead*
This article examines recent changes in the civil legal aid scheme in Englan d and
Wales (now called the Community Legal Service) and the creation of Community
Legal Service Partnerships in particular. The article explores three main
interests: it illustrates how third way thinking has been applied to the reform of
the legal aid scheme under the Access to Justice Act 1999; it explores how
partnership fits within theories of public regulation; and it illustrates how
professionalism is being re-shaped by a combination of new public management,
contractualism and partnership. It points to important limitations in new public
law theories of extended accountability and democratised governance as
manifested in partnerships.
The Community Legal Service (CLS) is a New Labour modernisation of the old
welfare system of legal aid. This article seeks to examine the CLS and focus on one
particular aspect of the New Labour approach: ‘partnership’. The article builds on
theoretical perspectives of government, regulation and the professions and
empirical work conducted on the forerunners of Community Legal Service
Partnerships (CLSPs), ‘Pioneer Partnerships’.1The CLS is of interest for three
main reasons. Firstly, it illustrates how contractualism, new public management
and third way thinking have been applied to the reform of the legal aid scheme
under the Access to Justice Act 1999. Secondly, it provides an example of a
ubiquitous New Labour device, ‘Partnership’, and examines how it fits within
theories of public regulation. Thirdly, it illustrates how, in the context of legal aid,
established notions of professionalism are being re-shaped. A combination of new
public management controls and ‘Third Way’ notions of civic society challenge
traditional professional paradigms of autonomous self-regulation. This may evolve
a more mediated, reflexive and contingent form of professionalism and
government. Finally, the article sheds empirical and theoretical light on whether
partnerships can improve the quality and accountability of public administration.
To provide some context and demonstrate the linkage between legal aid and
public law theory, the article begins with a brief overview of public law theory and
the changing face of legal aid. Three phases are sketched in the development of
legal aid: growth, crisis and reinvention. Alongside these three elements of public
law theory are considered: the rule of law, the regulatory state (especially aspects
of contractualism and new public management) and extended governance (particu-
larly notions of extended accountability and third way notions of democratised
governance). The relationship of these three theories to the three phases of legal aid
emphasises the broader regulatory and political context of legal aid reform. It also
ßThe Modern Law Review Limited 2001 (MLR 64:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 543
* Richard Moorhead, Senior Research Fellow, Institute of Advanced Legal Studies, University of London.
An earlier version of this article was presented at the Working Group of the International Sociological
Association Research Committee on Comparative Studies of Legal Professions Conference, Peyresq, July
2000. I am grateful to Avrom Sherr, Terence Daintith and Colin Scott for their very helpful comments ona
draft of this article. Errors and opinions are my own.
1 R. Moorhead, Pioneers in Practice: The Community Legal Service Pioneer Project (London: LCD,
2000) and Community Legal Services and the Beacon Council Scheme (London: DETR, 2001).
demonstrates how certain key aspects of new public management, economism and
contractualism (as a shorthand these ideas are all referred to here as new public
management (NPM) controls) arose during the legal aid scheme’s period of crisis
but have been strengthened during the scheme’s reinvention as the CLS. These
strengthened forms of control, directed in particular at the suppliers of legal
services (and more specifically at the legal profession) have been supplemented by
attempts to re-engender trust and participation in the system by the ‘victims’ of
such regulation through partnerships. It is this attempt to move beyond, whilst
simultaneously strengthening, NPM controls, which is of interest to the testing of
the extended governance models. Partnerships are at the heart of the government’s
attempts to do this.
The middle section of this article tests the theory by looking at the ideas behind
CLSPs and drawing on research into their operation. It suggests some ways in
which partnership represents a different approach to new public management and a
move towards extended governance. More specifically, the article treats partner-
ship as a regulatory technique for coping with fragmentation and the structuring of
extended accountability.2Similarly, it is argued, partnership can be seen as
regulation through culture management, giving government a further level of
control alongside their traditional powers of dominium and imperium through the
process of engagement and interaction inherent in partnership.3A key aspect of the
reform is the regulatory problems posed by an ostensibly self-regulating, and
resistant, professional group. It suggests that the combination of new public
management controls and extended governance mechanisms are reconceptualising
the professional paradigm. Equally, however, there are important ambivalences in
the partnership concept which suggest limitations to the practical functioning of
extended accountability and democratised governance. Whilst the inclusivity and
reflexivity of these new public law concepts have an intrinsic appeal, the beneficial
effects of extended governance are circumscribed by the larger forces of power
relationships and NPM technologies of control.
The changing face of legal aid and links to public law theory
For the purposes of this discussion, the history of legal aid is divided into three
phases: growth, crisis and reinvention.4Similarly, the literature suggests three
parallel phases, or views on, government and accountability: the rule of law, the
regulatory state and newer theories of extended governance. As will be seen, in
particular, the regulatory state and extended governance phase parallels legal aid’s
periods of crisis and reinvention.
In the first phase of public law theory, which here will be called the traditional
rule-of-law phase, accountability is sought through a concept of legality which sees
judicial review as a way of policing adherence to statute law and the expression of
‘democratic will’ contained within that statute law.5To this is added the traditional
conception of ministerial responsibility. There are a number of problems with the
2 C. Scott, ‘Accountability and the Regulatory State’ (2000) 27 Journal of Law and Society 38–60.
3 T. Daintith, ‘Legal Analysis of Economic Policy’ (1982) Journal of Law and Society 191, identifies
the notion of dominium through the use of government powers over funds.
4 Crisis and reinvention are of course fairly closely linked and future commentators on the public
funding of legal services will be able to see more clearly whether crisis and reinvention are more
appropriately described as part of one phase.
5 See Scott, n 2 above, 39.
The Modern Law Review [Vol. 64
544 ßThe Modern Law Review Limited 2001

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