We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns, the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.”
Members of the House of Commons Public Accounts Committee (PAC) were reminded of Rumsfeld’s distillation of quite a complex matter when they heard evidence last month from officials from the Ministry of Justice (MoJ) and Legal Aid Agency as part of their inquiry into reducing the cost of civil legal aid.
The committee sought to identify the full costs of the “Transforming Legal Aid” programme. Amongst other things, they wanted to explore why the MoJ had not done more to understand the wider costs of the reforms to civil legal aid before implementing changes. The committee was also seeking to understand the MoJ’s management of the legal aid market, including the quality of the services it pays for.
It was an uncomfortable experience for the Permanent Secretary, Dame Ursula Brennan, and her colleagues. The committee was taken on a painful journey through territory that could easily have been labelled known unknowns as well as unknown unknowns.
It will be recalled that the MoJ had set out its proposals for “reforming” legal aid in 2010. It had reduced fees paid to civil legal aid providers by 10% between October 2011 and February 2012. In 2011 it introduced the Legal Aid, Sentencing and Punishment of Off enders (LASPO) Bill to Parliament, following intensive consultations which generated thousands of overwhelmingly critical responses. The Bill reduced the scope of civil legal aid and changed the financial eligibility criteria for receiving legal aid. It suffered 11 defeats in the House of Lords, most of which were reversed in the Commons. The Bill was enacted in 2012 and came into effect on 1 April 2013.
Armed with the National Audit Office (NAO) Report, Implementing Civil Legal Aid Reforms (2014), and the results of the Bar Council’s research into the effects of LASPO on civil legal aid one year on, the PAC was understandably surprised to hear that the MoJ had only decided to embark on research in 2014 in order to assess the effects of LASPO, with the results not expected to be published until 2015. As the Member for Grimsby (Austin Mitchell) said, “It was all a bit of a mess.”
Officials had to concede, for example, that they did not know whether there was a developing shortfall in the coverage of legal aid post-implementation of LASPO. The MoJ’s original impact assessments about the potential effects of the proposed policy changes had not shed any light on this. Nor was there much current, reliable data to illuminate the MoJ’s assessment in an informed way. The MoJ was also unable to assess the wider effects the reforms might have had in areas across government, beyond their responsibility for the administration of justice, for example the impact of the changes on the cost of healthcare and the responsibilities of the Department of Health. It could not account for the low number of applications for legal aid payments in cases of exceptional circumstances or the extremely low number of applications that had actually been granted.
The PAC registered that legal aid rates had been declining steadily since 1998-99 and was understandably concerned by the NAO findings about the impact on the quality of legal services. A third of those firms which had been targeted for inspection (and a quarter of those randomly selected) had failed to meet the relevant quality standards, prompting Margaret Hodge MP (the committee chair) to observe: “The poorest people are getting the poorest representation.”
At the end of the session it was clear to the PAC that the MoJ was simply unable to say whether or not the planned savings of £300m had been exceeded by the costs of implementation of the “reforms”.
The PAC session showed Parliament holding the Executive to account rather well. This was in stark contrast to the Commons consideration of Lords amendments to safeguard judicial review in the Criminal Justice and Courts Bill.
The House of Lords amendments were voted down by the Commons on four whipped votes, the Liberal Democrats choosing to vote with Conservatives, notwithstanding the “chilling effect” of this measure which had provoked such widespread concern in the other place about the Bill’s effect on weakening the effectiveness of judicial review to hold public bodies to account.
In his politically dominated Sixth Autumn Statement on 3 December 2014, five months before the General Election, the Chancellor of the Exchequer was forced to admit that, once again, he had missed his deficit reduction target and that he would have to borrow £15bn more than planned in 2014-15. As the country reaches the halfway mark in a decade of planned austerity, Ministry of Justice evidence to the Public Affairs Committee reminiscient of former US Secretary of Defence Donald Rumsfeld’s statement of knowns and unknowns there is no way that cuts in public expenditure will become lighter after 2015, whichever party wins the next general election. The Office of Budget Responsibility says that spending on public services as a share of GDP is set to fall by considerably more over the next five years than it did over the past five years. Spending for departments outside the protected areas of health, schools and overseas aid will fall from £147bn in 2014-15 to £86bn in 2019-20. George Osborne will therefore have to consider deeper cuts in defence, the police and the courts if he is to meet his austerity targets.
No doubt all these things will be pondered by the Shadow Justice team and Labour’s new Shadow Law Officers as they contemplate the new year. Lord Bach has taken over as Shadow Attorney General following Emily Thornberry MP’s resignation in the wake of her social media error. Karl Turner MP has been promoted from assistant whip to Shadow Solicitor General.
At least the date of the General Election, on 7 May 2015, is a known known.