Legal aid, social policy, and the architecture of criminal justice: The supplier induced inflation thesis and legal aid policy

Journal of Law and Society

Volumn 23, Issue 4, 1996, Pages 549-569

  Wall, David S ^a  

^a UNIVERSITY OF LEEDS   (United Kingdom)

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[No Author keywords available]

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EID: 0040519041     PISSN: 0263323X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1410480     Document Type: Article

References (131)

1. D. Osborne and T. Gaebler, Reinventing government: How the entrepreneurial spirit is transforming the public sector (1992); G. Stewart and K. Walsh, 'Change in the management of public services' (1992) 70 Public Administration 499.
2. D. Osborne and T. Gaebler, Reinventing government: How the entrepreneurial spirit is transforming the public sector (1992); G. Stewart and K. Walsh, 'Change in the management of public services' (1992) 70 Public Administration 499.
3. Speech to the 'Future of Legal Aid' conference, Legal Action Group, 23 May 1995, Regent's College, London.
4. H. Sommerlad, 'Managerialism and the legal profession: a new professional paradigm' (1995) 2 International J. of the Legal Profession 159; H. Sommerlad, 'Criminal Legal Aid Reforms and the Restructuring of Legal Professionalism' in Access to Criminal Justice: legal aid, lawyers and the defence of liberty, eds. R. Young and D.S. Wall (1996) 292.
5. H. Sommerlad, 'Managerialism and the legal profession: a new professional paradigm' (1995) 2 International J. of the Legal Profession 159; H. Sommerlad, 'Criminal Legal Aid Reforms and the Restructuring of Legal Professionalism' in Access to Criminal Justice: legal aid, lawyers and the defence of liberty, eds. R. Young and D.S. Wall (1996) 292.
6. Sometimes referred to as 'demand creation' or 'supplier induced demand' (see later discussion).
7. Legal Aid Board, Franchising Specifications, (1993).
8. Lord Chancellor's Dept., Striking the Balance: the future of legal aid in England and Wales (1996; Cm. 3305) 19; see, also, Lord Chancellor's Dept., Legal Aid - Targeting Needs: The future of publicly funded help in solving legal problems and disputes in England and Wales (1995; Cm. 2854) para. 10.3.
9. Lord Chancellor's Dept., Striking the Balance: the future of legal aid in England and Wales (1996; Cm. 3305) 19; see, also, Lord Chancellor's Dept., Legal Aid - Targeting Needs: The future of publicly funded help in solving legal problems and disputes in England and Wales (1995; Cm. 2854) para. 10.3.
10. Legal Aid Act 1988 ss. 3-7.
11. At the time of writing legal aid is granted without financial contribution to those with disposable incomes of £49 a week or less; those with a greater disposable income are required to make a contribution.
12. Legal Aid Act 1988 s. 22(2).
13. Labour Party, Access to Justice: A consultation paper on Labour's proposals for improving the justice system (1995) 2.
14. These figures are net of recoveries, the gross figures are £697m. and £1,383m.
15. S.T. Easton et al., Legal Aid: Efficiency, Cost and Competitiveness (1994).
16. J. Rowan, 'Legal Aid in New Zealand' (1993) New Zealand Law J. 396.
17. Legal Aid Board, Annual Report 1994-5 HC (1995) 526, 4.
18. id.
19. Based on a crude calculation that the population of Canada is 29 million and expenditure on criminal legal aid is approximately $250 million ($9) and the population of the United Kingdom is 54 million and total legal aid expenditure is approximately £432 million (£8) (Legal Aid Board, op. cit., n. 14, p. 4).
20. Not to be confused with assisted persons as some are assisted more than once.
21. Legal Aid Board, op. cit., n. 14, p. 5. (These figures exclude assistance under the duty solicitor schemes.)
22. Duty Solicitor Arrangements 1994 s. 53.
23. Legal Aid Act 1988 s. 8.
24. Green form expenditure rose from £11.4m. in 1990/1 to £24m. in 1994/5 and the duty solicitor scheme from £44.1m. to £80.5m.
25. Calculated from figures given in Legal Aid Board, Annual Report 1991-2, HC (1992) 50, 2, and also at Table 1, Legal Aid Board, op. cit., n. 14, p. 4, para. 1.3.
26. Calculated from figures given in Legal Aid Board, Annual Report 1991-2, HC (1992) 50, 2, and also at Table 1, Legal Aid Board, op. cit., n. 14, p. 4, para. 1.3.
27. R. Abel, 'The Politics of the Market for Legal Services' in Law in the Balance, ed. P.A. Thomas (1982) 6. Also, see R. Abel, 'Lawyers' in Law and the Social Sciences, ed. L. Lipson and S. Wheeler (1986) 369, at 406.
28. R. Abel, 'The Politics of the Market for Legal Services' in Law in the Balance, ed. P.A. Thomas (1982) 6. Also, see R. Abel, 'Lawyers' in Law and the Social Sciences, ed. L. Lipson and S. Wheeler (1986) 369, at 406.
29. M. Larson, The Rise of Professionalism (1977).
30. A. Paterson and D. Nelken, 'The Evolution of Legal Services in Britain: Pragmatic Welfarism or Demand Creation?' (1984) 4 Windsor Yearbook of Access to Justice 99.
31. G. Bevan et al., Organising Cost Effective Justice (1994, Social Market Foundation memorandum no. 7); see, also, E. Samuel, 'Criminal legal aid expenditure in Scotland: supplier driven or system driven?' in Young and Wall, op. cit., n. 3, p. 217, and A. Gray et al., Professional Autonomy and the Cost of Legal Aid (1996).
32. G. Bevan et al., Organising Cost Effective Justice (1994, Social Market Foundation memorandum no. 7); see, also, E. Samuel, 'Criminal legal aid expenditure in Scotland: supplier driven or system driven?' in Young and Wall, op. cit., n. 3, p. 217, and A. Gray et al., Professional Autonomy and the Cost of Legal Aid (1996).
33. G. Bevan et al., Organising Cost Effective Justice (1994, Social Market Foundation memorandum no. 7); see, also, E. Samuel, 'Criminal legal aid expenditure in Scotland: supplier driven or system driven?' in Young and Wall, op. cit., n. 3, p. 217, and A. Gray et al., Professional Autonomy and the Cost of Legal Aid (1996).
34. Bevan, id.
35. T.D. Agg, Review of legal aid services in British Columbia, Prepared for the government of British Columbia (1992); Easton et al., op. cit., n. 12; National Council of Welfare, Legal Aid and the Poor: A report by the National Council of Welfare (1995).
36. T.D. Agg, Review of legal aid services in British Columbia, Prepared for the government of British Columbia (1992); Easton et al., op. cit., n. 12; National Council of Welfare, Legal Aid and the Poor: A report by the National Council of Welfare (1995).
37. T.D. Agg, Review of legal aid services in British Columbia, Prepared for the government of British Columbia (1992); Easton et al., op. cit., n. 12; National Council of Welfare, Legal Aid and the Poor: A report by the National Council of Welfare (1995).
38. Easton, id.
39. The term 'supplier induced inflation' is used from hereon instead of 'supplier induced demand' because of its broader explanatory value.
40. R. Abel, The Legal Profession in England and Wales (1988).
41. D.S. Wall, 'The Legal Aid Trade' (1993) 143 New Law J. 1098.
42. L. Bridges, 'The Reform of Criminal Legal Aid' in Young and Wall, op. cit., n. 3, p. 276, at p. 281.
43. L. Bridges and J. Hodgson, 'Improving custodial legal advice' (1995) Criminal Law Rev.
44. M. McConville et al., Standing Accused: The Organization and Practices of Criminal Defence Lawyers in Britain (1994).
45. Agg, op. cit., n. 29; Bevan et al., op. cit., n. 27.
46. Agg, op. cit., n. 29; Bevan et al., op. cit., n. 27.
47. The Crown Prosecution Service is a staff model, and so is the concept of in-house lawyers, but neither group allows the desired comparisons to be made.
48. The cost sharing agreement is renewed every two to three years in order to take into account changes in the province's population and net shareable expenditure, see M. Bond. and A. Currie, 'A review and synthesis of criminal legal aid cost-sharing formulas 1973-74 to 1989-90' (1989, unpublished) 2.
49. Based upon a recalculation of statistics given in Statistics Canada, Legal Aid in Canada: Resource and Caseload Statistics 1994-95 (1995) tables 5 and 10.
50. Staff schemes based on provincial legal aid plans whose staff to private lawyer ratio is at least 4:1. Included here are Prince Edward Island, Nova Scotia, Saskatchewan, Newfoundland (Statistics Canada, id.).
51. Judicare schemes based on provincial legal aid plans whose staff to private lawyer ratio is at least 1:4. Includes New Brunswick, British Columbia, Yukon, Alberta, Ontario, North West Territories (id.).
52. Combined schemes based on provincial legal aid plans whose staff to private lawyer ratio is at least 1:1. Includes Quebec and Manitoba (id.).
53. Calculations based upon statistics given in id., tables 5, 10, 11. Note that the split between criminal and civil cases for Newfoundland was estimated and 1991/2 statistics were used to provide a statistic for the North West Territories. Both provinces have very small populations.
54. Lord Chancellor's Department, op. cit. (1996), n. 6, p. 19.
55. A. Sherr et al., Transaction Criteria (1992); S. Orchard, 'The Board's agenda: Franchising; Legal aid; Tenders' in Legal Action, June 1993. These quality controls are not discussed here; for further discussion, see A. Paterson and A. Sherr, 'Quality, clients and legal aid' (1992) 142 New Law J. 783. For further discussion of the quality criteria, see R. Smith, 'Transaction criteria: the face of the future' in Legal Action, February 1993, 9 and the response by A. Sherr, 'Transaction criteria: back to the future' in Legal Action, April 1993, 7. See, also, issue 2:2 of International J. of the Legal Profession, which was dedicated to the issues of competence and quality within the legal profession.
56. A. Sherr et al., Transaction Criteria (1992); S. Orchard, 'The Board's agenda: Franchising; Legal aid; Tenders' in Legal Action, June 1993. These quality controls are not discussed here; for further discussion, see A. Paterson and A. Sherr, 'Quality, clients and legal aid' (1992) 142 New Law J. 783. For further discussion of the quality criteria, see R. Smith, 'Transaction criteria: the face of the future' in Legal Action, February 1993, 9 and the response by A. Sherr, 'Transaction criteria: back to the future' in Legal Action, April 1993, 7. See, also, issue 2:2 of International J. of the Legal Profession, which was dedicated to the issues of competence and quality within the legal profession.
57. A. Sherr et al., Transaction Criteria (1992); S. Orchard, 'The Board's agenda: Franchising; Legal aid; Tenders' in Legal Action, June 1993. These quality controls are not discussed here; for further discussion, see A. Paterson and A. Sherr, 'Quality, clients and legal aid' (1992) 142 New Law J. 783. For further discussion of the quality criteria, see R. Smith, 'Transaction criteria: the face of the future' in Legal Action, February 1993, 9 and the response by A. Sherr, 'Transaction criteria: back to the future' in Legal Action, April 1993, 7. See, also, issue 2:2 of International J. of the Legal Profession, which was dedicated to the issues of competence and quality within the legal profession.
58. A. Sherr et al., Transaction Criteria (1992); S. Orchard, 'The Board's agenda: Franchising; Legal aid; Tenders' in Legal Action, June 1993. These quality controls are not discussed here; for further discussion, see A. Paterson and A. Sherr, 'Quality, clients and legal aid' (1992) 142 New Law J. 783. For further discussion of the quality criteria, see R. Smith, 'Transaction criteria: the face of the future' in Legal Action, February 1993, 9 and the response by A. Sherr, 'Transaction criteria: back to the future' in Legal Action, April 1993, 7. See, also, issue 2:2 of International J. of the Legal Profession, which was dedicated to the issues of competence and quality within the legal profession.
59. A. Sherr et al., Transaction Criteria (1992); S. Orchard, 'The Board's agenda: Franchising; Legal aid; Tenders' in Legal Action, June 1993. These quality controls are not discussed here; for further discussion, see A. Paterson and A. Sherr, 'Quality, clients and legal aid' (1992) 142 New Law J. 783. For further discussion of the quality criteria, see R. Smith, 'Transaction criteria: the face of the future' in Legal Action, February 1993, 9 and the response by A. Sherr, 'Transaction criteria: back to the future' in Legal Action, April 1993, 7. See, also, issue 2:2 of International J. of the Legal Profession, which was dedicated to the issues of competence and quality within the legal profession.
60. A. Sherr et al., Transaction Criteria (1992); S. Orchard, 'The Board's agenda: Franchising; Legal aid; Tenders' in Legal Action, June 1993. These quality controls are not discussed here; for further discussion, see A. Paterson and A. Sherr, 'Quality, clients and legal aid' (1992) 142 New Law J. 783. For further discussion of the quality criteria, see R. Smith, 'Transaction criteria: the face of the future' in Legal Action, February 1993, 9 and the response by A. Sherr, 'Transaction criteria: back to the future' in Legal Action, April 1993, 7. See, also, issue 2:2 of International J. of the Legal Profession, which was dedicated to the issues of competence and quality within the legal profession.
61. This model is a further development from an observation made by A. Sherr et al., 'Assessing the Quality of Legal Work: Measuring Process' (1994) 1 International J. of the Legal Profession 135.
62. Lord Chancellor's Department, op. cit. (1996), n. 6, p. 19.
63. id. p. 41, para. 5.16. and Lord Chancellor's Department, op. cit. (1995), n. 6, para. 10.12.
64. Often referred to in Canada as 'contracting out'.
65. Information kindly supplied by Dr Ab Currie, Department of Justice, Ottawa, Canada.
66. Firstly, through the Green Paper on Legal Aid (1995) and more recently in the White Paper (1996) (Lord Chancellor's Department, op. cit., n. 6), though in a less overtly stated form.
67. Agg, op. cit., n. 29.
68. Abel, op. cit. (1982), n. 24, p. 13.
69. Paterson and Nelken, op. cit., n. 26, p. 99, and A. Paterson, 'Professionalism and the legal services market' (1996) 3 International J. of the Legal Profession 137, at 139.
70. C. Glasser, 'The legal profession in the 1990s - images of change' (1990) 10 Legal Studies 1.
71. id., p. 9.
72. A. Gray, 'The reform of legal aid' (1994) 10 Oxford Rev. of Economic Policy 62.
73. id.
74. id.
75. Lord Chancellor's Department, op. cit. (1995), n. 6, p. 30.
76. Working Group Report on Pre-Trial Issues 6 November 1991, see D.S. Wall, and A. Wood, 'Buying time for the debate over criminal legal aid' (1993) 143 New Law J. 324.
77. Wall and Wood, id.
78. Changes in page dimensions and size of font were taken into account in this calculation.
79. Hansard Society, Making the Law: The Report of the Hansard Society Commission on the Legislative Process (1992).
80. Criminal Justice Act 1991, Criminal Justice Act 1993 and the Criminal Justice and Public Order Act 1994.
81. M. Galanter, 'Law Abounding: Legalisation Around the North Atlantic' (1992) 55 Modern Law Rev. 1. Much of Galanter's analysis is based upon United States material, but he does argue that his observations are applicable to the United Kingdom. See, also, J. Flood, 'Megalaw in the UK' (1989) 64 Indiana Law J. 569.
82. M. Galanter, 'Law Abounding: Legalisation Around the North Atlantic' (1992) 55 Modern Law Rev. 1. Much of Galanter's analysis is based upon United States material, but he does argue that his observations are applicable to the United Kingdom. See, also, J. Flood, 'Megalaw in the UK' (1989) 64 Indiana Law J. 569.
83. P. Barton, 'Beyond the legal explosion' (1975) 27 Standford Law Rev. 57.
84. I.R. Macneil, 'Bureaucracy, Liberalism and Community - American Style' (1985) 79 N. Western Law Rev. 900.
85. G. Teubner (ed.), Juridification of Social Spheres (1987).
86. Teubner citing Habermas, id., p. 4.
87. Police and Criminal Evidence Act 1984 (PACE) s. 59.
88. PACE, part c.
89. Before standard fees it was quite common for solicitors to deal with minor cases also attached to a case but for which the applicant would not receive legal aid. These minor offences would be included on the application form along with the more serious offences but they were not covered by the certificate (D.S. Wall and A. Wood, The Administration of Criminal Legal Aid in the Magistrates' Courts of England and Wales: Final Report to the E.S.R.C. 1994). In effect, the solicitor dealt with them for little or no return.
90. For further discussion of the role of standard fees in controlling lawyers costs, see A. Gray et al., 'Controlling lawyer's costs through standard fees - an economic analysis' in Young and Wall, op. cit., n. 3, p. 192.
91. H. Wiseman, 'Education negligence cases predicted to soar' (1996) 10 The Lawyer 40
92. B. Loveday, paper given to the 'Futures of Policing' conference, University of Durham, 21/22 March 1996.
93. Wall and Wood, op. cit., n. 75, para. 3.1.1.
94. P. Barclay, Joseph Rowntree Foundation inquiry into Income and Wealth, Volume 1 (1995); J. Hills, Joseph Rowntree Foundation inquiry into Income and Wealth, Volume 2 (1995); R. Smith, 'Legal Aid and Justice' in Law Reform for All, ed. D. Bean (1996) 43, at 53.
95. P. Barclay, Joseph Rowntree Foundation inquiry into Income and Wealth, Volume 1 (1995); J. Hills, Joseph Rowntree Foundation inquiry into Income and Wealth, Volume 2 (1995); R. Smith, 'Legal Aid and Justice' in Law Reform for All, ed. D. Bean (1996) 43, at 53.
96. P. Barclay, Joseph Rowntree Foundation inquiry into Income and Wealth, Volume 1 (1995); J. Hills, Joseph Rowntree Foundation inquiry into Income and Wealth, Volume 2 (1995); R. Smith, 'Legal Aid and Justice' in Law Reform for All, ed. D. Bean (1996) 43, at 53.
97. Smith, id.
98. id.
99. id., p. 52.
100. Adapted from Smith's table (id., p. 53).
101. E. Skordaki, 'Glass Slippers and Glass Ceilings: Women in the Legal Profession' (1996) 3 International J. of the Legal Profession 7.
102. Abel, op. cit. (1982), n. 24, and Abel, op. cit., n. 32; also Patterson and Nelken, op. cit., n. 26.
103. Abel, op. cit. (1982), n. 24, and Abel, op. cit., n. 32; also Patterson and Nelken, op. cit., n. 26.
104. Abel, op. cit. (1982), n. 24, and Abel, op. cit., n. 32; also Patterson and Nelken, op. cit., n. 26.
105. Sommerlad, op. cit. (1996), n. 3, p. 292.
106. D.S. Wall, 'Keyholders to Criminal Justice?: solicitors and applications for legal aid' in Young and Wall, op. cit., n. 3, p. 130.
107. McConville, et al., op. cit., n. 36, pp. 164-5.
108. Wall, op. cit., n. 88, p. 130; R. Young, 'Will Widgery Do?: Court Clerks, Discretion and the Determination of Legal Aid Applications' in Young and Wall, op. cit., n. 3, p. 148.
109. Wall, op. cit., n. 88, p. 130; R. Young, 'Will Widgery Do?: Court Clerks, Discretion and the Determination of Legal Aid Applications' in Young and Wall, op. cit., n. 3, p. 148.
110. Gray, op. cit., n. 27.
111. Para-legals tend to be employed by law firms as a cheaper alternative to the professional lawyer. There has been little debate over whether para-legals could represent clients in court, say at a trial.
112. Pro-bono delivery of legal assistance and alternative dispute resolution are omitted from this discussion.
113. Easton, op. cit., n. 12; Agg, op. cit., n. 29; DPA Group Inc., Evaluation of Saskatchewan Legal Aid (1988); Sloan Rick and Social Planning Council of Winnipeg, Legal aid in Manitoba: an evaluation report (1987).
114. Easton, op. cit., n. 12; Agg, op. cit., n. 29; DPA Group Inc., Evaluation of Saskatchewan Legal Aid (1988); Sloan Rick and Social Planning Council of Winnipeg, Legal aid in Manitoba: an evaluation report (1987).
115. National Council of Welfare, op. cit., n. 29.
116. C. Menkel-Meadow and R.G. Meadow, 'Resource Allocation in Legal Services: Individual Attorney Decisions in Work Priorities' (1983) 5 Law and Policy Q. 237.
117. Galanter, op. cit., n. 68, p. 1.
118. Sommerlad, op. cit. (1996), n. 3, p. 294. For a commentary on the development of existing concepts of legal professionalism, see discussion in Paterson, op. cit., n. 56.
119. Sommerlad, op. cit. (1996), n. 3, p. 294. For a commentary on the development of existing concepts of legal professionalism, see discussion in Paterson, op. cit., n. 56.
120. National Council of Welfare, op. cit., n. 29, p.58.
121. id.
122. McConville, op. cit., n. 36.
123. National Council of Welfare, op. cit., n. 29.
124. Some of the Canadian legal services organizations, for example, in Ontario are run by the provincial law society. Most, however, are independent of both government and also the legal profession.
125. M. Cousins, 'At the Heart of the Legal: The Role of Legal Aid in Legitimating Criminal Justice' in Young and Wall, op. cit., n. 3, p. 98.
126. R. Young and D.S. Wall, 'Criminal Justice, Legal Aid and the Defence of Liberty' in id., p.1.
127. M. Mears, 'Advantages from Adversity' (1994) 91 Law Society Gazette 16.
128. id.
129. Young and Wall, op. cit., n. 3, p. 25.
130. M. Zander, 'Twelve Reasons for Rejecting the Legal Aid Green Paper' (1995) 145 New Law J. 1098.
131. Lord Chancellor's Department, op. cit. (1996), n. 6, p. 43.