How a failure to gather evidence meant spending cuts actually hurt the taxpayer
One of the key attributes of the coalition government has been a failure to do proper research before undertaking spending cuts. Despite insisting they were reluctant and non-ideological, ministers took to departmental spending cuts with an enthusiasm which overruled proper research.
In many cases this meant that cuts to services actually ended up creating bigger, more expensive problems down the line. Sometimes those problems hit the government department in question, sometimes it was another department.
Legal aid cuts are a case in point. As the Commons justice committee found today, the Ministry of Justice managed to cut £2 billion from a £9.8 billion budget. But it did no research into the effect these cuts would have, so it ended up creating worse value for the taxpayer. Cases grew increasingly serious because they were not addressed early on, meaning they became eligible for legal aid at the point where they had become punishingly expensive for the taxpayer.
As committee chair Alan Beith found:
"Many of the problems which we have identified could have been avoided with better research, a better evidence base to work from, and better public information about the reforms."
Take house repossession cases. Many of these could have been dealt with cheaply if addressed early on. But with legal aid cut and no efforts made to direct people to help, the problem grows and grows and then one day the house is going to be taken away and the case is suddenly eligible for legal aid. The point at which the taxpayer now gets involved is at the moment when it is most expensive to do so. It goes against all reason, but to predict or react to this scenario you need to conduct proper research, which the MoJ refuses to do.
In other cases, the costs are transferred to another department. Perhaps the cuts to the child maintenance budget hit the welfare budget, or cuts to the welfare budget hit the prison budget. The signs are that this is very common, but because the coalition is so resistant to research we can’t assess it.
The justice committee isn't the only body to come to this conclusion. The National Audit Office (NAO) found a 30% increase in family court cases in which neither party had legal representation since the legal aid cuts began. They estimated this would add £3 million to court costs annually and £400,000 in direct costs to the MoJ budget.
The number of litigants making their case in person means proceedings are often held up for the day over what should have been dealt with in half an hour.
"I have no legal representation…no expert evidence of any kind. I do not even have such basic materials as an orderly bundle of the relevant documents; a chronology; case summaries, and still less, any kind of skeleton argument."
The problem is widespread. As today's report found, "although many tribunals are accustomed to dealing with unrepresented litigants, the courts have to expend more resources in order to assist them". Again, because no research was done to assess this, we weren't prepared for these extra costs.
The MoJ insisted the cuts to family law legal aid would result in increased mediation between couples. In fact, the opposite happened. There were 17,246 fewer mediation assessments in 2013-14, a 56% decrease on the year before.
Expected increases in mediation have failed to materialise
This failure of planning is at its most tragic in the case of domestic violence. Those who could show evidence of domestic abuse were still eligible for legal aid, but the conditions were unnecessarily harsh. Nearly 40% of women who've suffered domestic violence do not satisfy the criteria. In many cases this was because of an unnecessary two-year time limit on the evidence.
As the justice committee concluded:
"The committee… remains concerned that a large proportion of victims do not have any of the types of evidence required, and about the strict requirement that evidence be from no more than two years ago."
One domestic violence victim told Rights of Women:
"The law leaves me in a situation where my ex can come round when he wants to – text me, phone me – and as long as he doesn't swear, make threats or hit me I can't stop him. I and my kids are constantly frightened, living in lock down conditions and there is nothing we can do. It's hard to keep going. I have been and am suicidal. I can't cope. But there is no help."
The MoJ's failure to plan didn't just cost the taxpayer, it cost these women their security.
The cost to justice is hard to measure. As MPs found, there has been a significant underspend in the civil legal aid budget, which strongly suggests that many people who are entitled to legal aid are not getting it or are not even aware it exists to help them. "This has partly been due to a lack of public information," the report found.
The exceptional case fund, which was meant to act as a safety net, "has not worked as parliament intended". The committee "heard about a number of cases where it was surprising that such funding was not granted"
Many of those entitled to legal aid have been unable to access it
Everywhere in the legal system you hear tales of it falling apart altogether. David Cameron's own barrister brother succeeded in getting a fraud case thrown out of court because legal aid cuts prevented the defendants getting a fair trial.
As the NAO found:
"The Ministry of Justice did not think through early enough the impact of the changes on the wider system, and does not know whether people who are eligible for legal aid are able to get it. The ministry did not estimate the scale of the wider costs of the reforms – even those that it would have to bear – because it did not have a good understanding of how people would respond to the changes or what costs may arise."
The effect of this was to create legal deserts, where there is no publicly funded legal help available. The NAO found 14 of these. The justice committee again raised the alarm today, although no-one seriously believes the MoJ is listening.
"Despite a warning from the committee in a previous report that advice deserts might be created, the Ministry of Justice did not carry out research into the geographical provision of legal advice before the reforms or the impact of the changes. The committee recommends that work to rectify this should begin immediately."
You can hear the resignation in the last sentence. After all, the MoJ does not just refuse to find evidence for the things it is doing, it fights tooth and nail to prevent the information it does have getting out. Shadow justice secretary Sadiq Khan's questions about the reforms are frequently not answered. Freedom of Information requests and parliamentary questions are usually swatted away with the claim that they would be too expensive to answer. The precise opposite is the case: it is too expensive to not have this information.
Sadiq Khan struggles to get information from the MoJ
This is government without evidence. In fact, one almost gets the sense of something worse than that, of a government which detests evidence, and those who call for it, as an affront against 'common sense' and the obvious need for cuts.
But cuts without an assessment of knock-on effects on other services – within the same government department's budget or that of another one – do not achieve what they are purported to achieve. They are equivalent to brushing all the rubbish under the carpet and pretending you've cleaned the house. The legal aid cuts satisfied the spreadsheet they were designed to satisfy. But the true costs are far higher, both financially and legally.
An MoJ spoksperson said:
"Legal aid is a vital part of our justice system. That's why we ensured it will remain one of the most generous systems in the world, at around £1.5bn a year, after reform. This government is exceptionally clear that victims of domestic violence should get legal aid wherever they need it to help break free from the abusive relationship. We listened carefully to concerns and expanded the evidence that can be given to access legal aid in response. Since the reforms were introduced thousands of people have successfully applied for legal aid where domestic violence is involved.
"When the National Audit Office specifically looked at our civil legal aid reforms, it was only able to identify small additional costs to the MoJ – approximately 1% of the £300m savings. The NAO also found no clear evidence of wider costs to other parts of government.
"We want to make sure family cases happen in the least divisive way possible, which is why encourage people to use mediation and other out of court options that we know are less stressful and confrontational than going to court – and as a result are often more successful. For this reason we have ensured millions of pounds of legal aid is available for mediation and changed the law so anyone considering a court application must consider mediation. This has already resulted in a 20 per cent increase in the number of people who attend Mediation Information and Assessment Meetings.
"The Exceptional Funding Scheme is working exactly as set out in Laspo — which was debated in and passed by Parliament — providing funding where it is needed to meet legal obligations for legal aid under European Convention on Human Rights and European law."