Legal aid: evidence-lite policy making?

The perils of basing significant reforms on projected savings rather than a robust evidence base have been laid bare in the report from the Public Accounts Committee inquiry, Implementing reforms to civil legal aid, published last week.

As we have highlighted previously, the Legal Aid, Sentencing and Punishment of Offenders Act 2011 drastically reduced civil legal aid, with the expressed intent to save £350 million. This left 36% of all cases previously eligible for legally-aidable housing advice ineligible for legal aid and reduced access to representation in court or at a tribunal by 22%.

From the start, Shelter was concerned that the Government had failed to adequately assess the likely impacts – not only on the people who rely on legal aid to get redress for badly-made decisions – but also the wider costs to the advice sector, to the Courts when both parties have to represent themselves and to the public purse when families do end up homeless.

The direction of travel, and a clue to the Government’s priorities, was set out in 2010 when they stated their objectives were: to make significant savings to the legal aid budget; to discourage litigation at public expense; to target legal aid at those who need it most; and to deliver better overall value for money.

Even assuming that these objectives were the right ones, are they being met? Reporting almost two years after the changes were introduced, the Committee finds that “the Ministry is on track to meet its objective of making a significant reduction to spending on civil legal aid, but it is far from clear whether the Ministry has achieved its other objectives of reducing the number of cases coming to court, targeting civil legal aid to those who need it most or delivering better overall value for money.”

The Chair of the Committee, the Rt. Hon. Margaret Hodge MP, made little attempt to hide her dismay at the “deeply disturbing” finding that the changes to legal aid were based, not on evidence about what would best achieve all four objectives, but on a single objective to cut costs as quickly as possible – the ‘level of spend’ being the critical factor driving the reforms, according to evidence from the Permanent Secretary.

We agree with the Committee’s concern that the Ministry of Justice has “failed to understand what its reforms mean for people, or why people go to court and how and why people access legal aid in the first place, and only commissioned research into these issues in 2014” – a year after the reforms were implemented.

Worse, the Chair criticises the MoJ for neither knowing, nor showing much interest in, the knock-on costs (the ‘better overall value for money’ objective) of its reforms across the wider public sector, caused by people being unable to get advice to resolve legal problems

The problem with reforming a system without measuring the impact is that ordinary people faced with unlawful decisions or practice can fall through the net – only to be picked up elsewhere at even greater cost to the public purse or left with no support at all.

So we agree wholeheartedly with the Committee that the Government must, as a matter of urgency, assess the costs of the reforms to the wider public purse; put in place measures to make sure that people actually get the help that is still available; and monitor how the changes are affecting the availability of advice to prevent ‘advice deserts’, where there is nowhere to turn for legal representation.

This is the third in a series of damning official reports[1] into the way the legal aid reforms have been managed. A fourth, from the Justice Committee’s inquiry into the impact of changes to legal aid, due shortly, is unlikely to make more comfortable reading. The Government must do more to monitor and assess the impact of its reforms. Only when we are able to examine the evidence underpinning all four objectives can we begin to assess how far the Government has met its own intentions.