Trust, Distrust and Betrayal: A Social Housing Case Study

AuthorDavid Cowan,Karen Morgan
DOIhttp://doi.org/10.1111/j.1468-2230.2009.00739.x
Publication Date01 Mar 2009
THE
MODERN LAW REVIEW
Volume 72 March 2009 No 2
Trust, Distrust and Betrayal: A Social Housing Case Study
David Cowan and Karen Morgan
n
This paper discusses the importance of trust, distrust and betrayal in the context of relational
contracts in the modernwelfare state.Weuse a speci¢c case study of the allocation of social hous-
ing.That context is one in which the local authority has statutoryobligations towards households
in housing need but limited ability to ful¢l those obligations without reliance on other social
housing providers, speci¢cally registered social landlords. Relationships between providers are,
in theory, negotiated through nominations agreements. In this paper, we draw on data from a
research project concerned with ‘problematic nominations’ to illustrate the production of trust,
distrust and betrayal. Our analysis is structured by reference to three frameworksfor the produc-
tion of trust: characteristic-based, process-based and institutional based trust.
The map of service provision in the welfare state has been transformed over the
past twenty or so years. There is now, perhaps more than ever before, a mixed
economy of welfare providers beyond the state which have been bound together
with the state in increasingly complex con¢gurations.
1
Governing this mixed
economy is accomplished often through some form of contract or agreement
between the state and these providers,
2
which has transformed the ethos of the
social.
3
There may be an element of compulsionin such contracts, either as a result
of a particular legislative framework (for example, in relation to compulsorycom-
petitive tendering) or as a result of the particular local or national context (for
n
School of Law and Centre for Market and Public Organisation, University of Bristol. This paper
draws on data from a research project funded by the ESRC under grant reference number RES-
000- 22-1930,‘Risk, Trust and Betrayal: A Social Housing Case Study’. The authors are grateful to
Morag McDermont,our collaborator on this project,who graciously allowed us to develop the ideas
in this paper under our names.We are also grateful toDavid Campbell, PeterVincent-Jones, and the
MLR’sanonymous readers for their comments on an earlier draft of this paper.
1 This is sometimes referred to as‘post-Fordist’^ see R. Burrows and B.Loader,Towardsa Post-Fordist
Welfare State (London: Routledge,1994);W. Hutton and A. Giddens (eds),On the Edge:Living with
Global Capitalism (London:Vintage, 2001).
2 See, generally, P.Vincent-Jones,The New PublicContracting: Regulation, Responsiveness, Relationality
(Oxford:OUP, 2006).
3 See, forexample, E. Ferlie, A. Pettigrew,L. Ashburner, and L. Fitzgerald,TheNew Public Manage-
ment in Action (Oxford: OUP, 1996); N.Rose, Powers of Freedom: Reframing PoliticalThought (Cam-
bridge:CUP,1999)ch 4; M. Dean, Governmentality:Powerand R ule in Modern Society (London:Sage,
1991),who refers (at 171et seq) to these types of relationships created under the banner of ‘a post-
welfarist regime of the social’.
r2009 The Authors. Journal Compilation r2009 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 7 2(2) 157^181
example, in relation to the provision of housing or education).
4
Such contracts or
agreements may well lackenforceability in traditional legal terms, perhaps being
designed . . . as a framework of reference by which the parties should
orient their conduct’,
5
but rely for their e⁄cacy on behavioural expectations and
norms.
6
The expectations and norms are descriptive and therefore‘stand alone as a
subject of investigation’.
7
We investigate these norms and expectations in this
paper.
In particular, we focus on trust as a foundational element of this e⁄cacy.
8
The
mixed economy of provision produces relations of interdependence between the
providers and the enabling state over time, which explains why the maintenance
of trust over that period is so important.
9
That,i npart, also explains why we have
found the work of some of the relational contract theorists helpful in thinking
through the d ata prese nted here even though we are not necessarily dealing with
contracts that are enforceable (or, indeed, ever likely tobe the subjectof enforce-
ment action by the parties
10
).
Our context is a case studyof social housing, which exempli¢es these broader shifts
in thesocial.
11
Social housing provides an excellent example because of the recognition
and development of the mixed economy of provision during the 1980s.
12
Since then,
the map of social housing tenure has been transformed.
13
No longer are local autho-
rities the domi nant suppliers, although they remain sig ni¢cant players
14
and, crucially
4 See P.Vincent-Jones,‘TheRegulation of Contractualisation in Quasi-Markets forPublic Services’
[1999] PublicLaw 304.
5 H. Collins, Regulating Contracts (Oxford: OUP,1999)315.
6 Macneil lists 10such norms: role integrity; reciprocity; implementationof planni ng;e¡ectuation
of consent; £exibility; contractual solidarity; restitution, reliance and expectation interests; the
power norm;propriety of means; and harmonisation with the social matrix (I. Macneil,‘Values
in Contract: Internal and External’ (1983)78 Northwestern University Law Review 340, 347) For dis-
cussion, see Vincent-Jones, n 2 above, and D. Campbell (ed), The RelationalTheory of Contract:
SelectedWorksof Ian Macneil(Lo ndon:Sweet & Maxwell, 2001).
7 I. Macneil,‘Relational ContractTheory: Challenges and Queries’ (2000) 94 NorthwesternUniversity
Law Review877, 880.
8 As Macneil has put it, ‘The word‘‘solidarity’’ (or ‘‘trust’’)is not inappropriate to describe this web
of interdependence, externally reinforced as well as self-supporting, and expected future co-
operation’: I. Macneil,‘Economic Analysis of Contractual Relations: Its Shortfalls and the Need
for a‘‘Rich Classi¢catoryApparatus’’’(1981) 75 NorthwesternUniversity Law Review 1018, 10 34.
9 C. Lane,‘Introduction:Theories and Issues in the Study of Trust’in C. Lane and R. Bachmann
(eds),Trust Within and Between Organizations: Conceptual Issues and Empirical Applications (Oxford:
OUP,1998) 3; see also P. Blau, Exchange and Powerin Social Life (NewYork:Wiley,1964).
10 For similar consideration in a beyond contract law situation, see J.Wightman,‘Intimate Relation-
ships: Relational Contract Theory and the Reach of Contract’ (2000) 8 Feminist Legal Studies93;
and, more generally, P.Vincent-Jones,n 2 above, esp ch 11.
11 For discussion, see D. Cowan and M. McDermont, Regulating Social Housing: Governing Decline
(London: Routledge-Glasshouse, 20 06); D. Mullins and A. Murie, Housing Policy in the UK
(Basingstoke: Palgrave,20 06) ch 7.
12 See especially DoE, Housing:The Government’sProposals, Cm 214(London: HMSO,1987)e spch 5.
13 For discussion, see D. Cowanand A. Marsh,‘New Labour,Same OldTory Housing Policy’(2001)
64 MLR 260; A. Murie and P. Nevin,‘New LabourTransfers’in D. Cowan and A. Marsh (eds),
Two StepsForward(Bristol: Policy Press, 2001); H. Pawson,‘Restructuring England’s Social Hous-
ing Sector Si nce1989: Undermining or Underpinni ng the Fundamentals of Public Housi ng?
(2006) 21 HousingStudies 767.
14 They directly providearound 40% of social housing stock; 15%i s managedon their behalf by an
arms-length management organisation (ALMO); 45% is provided by RSLs (see Pawson, ibid,
780).
Trust,Distrust and Betrayal
158 r2009 The Authors. Journal Compilation r2009 The Modern Law Review Limited.
(2009) 72(2) 157^181

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