Prison law funding under threat from Transforming legal aid ‘reforms’
Matt Evans, the managing solicitor at the Prisoners’ Advice Service, writes:
On 4 April, a matter of days after the cuts to civil legal aid were brought into effect, Justice Secretary Chris Grayling signalled the government’s intent to cut legal aid for prisoner ‘complaints’ relating to their treatment or the conditions of their confinement.
Chris Grayling said he was ‘appalled’ that £4m in legal aid was spent annually on 11,000 cases, and that such matters could be adequately dealt with by the internal prison complaints system without any need for legal advice. In fact, ‘treatment’ cases were effectively removed from the scope of legal aid by the last Labour administration in June 2010, by requiring prior authority to be obtained from the Legal Services Commission (LSC) before a case could be commended. Authority was only given for 11 cases in nearly three years. Against this background, it was not entirely clear what further savings could be achieved.
Assault on access to the law
On 9 April, the Ministry of Justice (MoJ) consultation, Transforming legal aid: delivering a more credible and efficient system, was published. The proposed ‘reforms’ contain a root and branch assault on both criminal defence work and public law, competitive tendering, the removal of clients’ freedom to choose their defence lawyer, and attempt to make judicial review even less accessible.
In respect of prisoners’ access to public funding the proposals are positively draconian, containing a dual assault on both the scope of work that will remain eligible for public funding and provision of that service by lawyers. They include a 17.5 per cent cut in fees, this coming in an area where the work is already conducted on the lowest legal aid rates in the system. Also, after years of deciding that prison law was a distinct specialism requiring standalone contracts, prison law and associated Community Legal Service cases would be entirely subsumed into the scope of the new general criminal contracts. This will effectively prevent large swathes of specialist prison law suppliers, including the legal teams at charities such as the Prisoners’ Advice Service and the Howard League for Penal Reform, from being able to continue with publicly funded work.
While the effective removal of specialist legal advice from prisoners is of great concern, the proposals also seek to limit legal aid to a tiny rump of prison law matters, those being issues concerning sentence calculation, parole proceedings and disciplinary cases before the independent adjudicator where there is a possibility of days being added to a prisoner’s sentence, or in front of prison governors where the governors have themselves authorised legal representation. Everything else is now to be excluded. The issues on which prisoners would no longer be able to obtain legal aid range from category A reviews and categorisation appeals, removal from open conditions, sentence planning issues, all internal disciplinary matters including governors’ adjudications and segregation, through to the separation of mothers and babies in the specialist mother and baby units, resettlement and licence conditions. There are no exemptions for children or vulnerable prisoners. The consultation cynically states that legal aid should only be available for matters that directly raise the rights protected by articles 5 and 6 of the European Convention on Human Rights. This would appear to be little more than an attempt to restrict any legal challenges to the scope of the legislation, bearing in mind that many of the matters now excluded have been held as a matter of common law to impact directly on the liberty of the subject.
Prison complaints system not adequate
Chris Grayling’s confidence in the internal prison complaints system to deal adequately with these matters is disingenuous. Aside from the poor literacy levels and high levels of mental health concerns, some 20–30 per cent of the prison population have learning disabilities or severe difficulties that interfere with their ability to cope with the criminal justice system. Governors are clearly not independent of the institutions in which they work and, while it may be independent, the Prisons and Probation Ombudsman already suffers from chronic delays in dealing with cases and, more importantly, can only make recommendations anyway. The prison service can choose to ignore such recommendations, and will feel increasingly relaxed about doing so given that there will be little or no prospect of external legal scrutiny. The proposals also ignore the striking distinction between those detained in custody of the state and those at liberty. The former simply do not have any facilities to access alternative forms of legal advice. The gap that will be created in the provision of legal advice and representation cannot be filled by alternatives. Prisoners are wholly dependent on the prison authorities to facilitate their access to written materials and the outside world. They cannot access the internet, they do not have a great deal of access to paper libraries and they cannot attend Citizens Advice Bureaux or other advice surgeries.
What is striking about prison life some 20 years or so ago was the complete lack of transparency or accountability in official decision-making. It was this lack of accountability that Lord Woolf felt directly contributed to major outbreaks of violence and resistance by prisoners. Over the years a succession of legal challenges has established the rule of law within prisons but these gains, which are not just for prisoners but the wider society, risk being lost if these proposals come into force. The idea that the MoJ, the National Offender Management Service and individual prison officers can now be trusted to understand and implement the law with no effective oversight is not only facetious but dangerous, both for the safety of prisoners and for the smooth running of prisons themselves.
The government is introducing these proposals by way of statutory instrument thus obviating the need for legislative or parliamentary scrutiny. The timescale for a response, by 4 June, is short. We would therefore encourage individuals and groups to lobby individual members of parliament and to respond directly to the consultation.
1Visit: https://consult.justice.gov.uk/digital-communications/transforming-legal-aid.