Earlier this month, the Ministry of Justice made great play of the ‘compromise deal’ it had thrashed out with the Law Society on criminal legal aid.
The ‘lowest bidder’ tendering model for criminal law services has been abandoned.
This is, of course, welcome news but hidden behind the fanfare was terrible news for prisoners and ordinary people who want to protect their legal rights to hold public bodies to account in the future.
The government has confirmed that it is planning to plough ahead with savage legal aid cuts for prisoners.
They intend to remove access to legal aid for everything other than parole release cases, disciplinary hearings before a Judge and ‘pure’ sentence calculation cases.
The practical effect of this is you will not get legal aid if:
You are stuck in a category A prison and want to instruct a lawyer to help you with representations to progress to a lower category prison.
You want help from a lawyer to progress to an open prison. This includes being represented at an oral hearing for ‘pre-tariff expiry’ hearings (as the Parole Board cannot direct release at those hearings).
You are in an open prison and are unfairly returned to a closed prison and want the help of a lawyer to challenge that decision.
You are unfairly segregated or confined in a CSC or DSPD unit and want to challenge that decision.
You are serving an indeterminate sentence and have been told that you must do a programme to reduce your risk but there are no places available .
You are a mother of a baby and have been unfairly denied access to a mother and baby unit.
You have a serious disability or healthcare problem and are not receiving the care and treatment you need.
You are approaching your release and have particular needs which mean that you need help with your resettlement plans.
You have an adjudication before a Governor and want advice about the law or how to prepare your case.
At the moment, prison lawyers provide assistance to prisoners in all these areas of need under the legal aid ‘advice and assistance’ scheme. There is a separate part of the criminal legal aid contract for prison law work. If a case is serious enough and involves a legal issue and you have no money, you are entitled to legal aid.
The government says that there is a public law ‘Legal Help’ scheme and access to judicial review which prisoners will be able to use if they have problems like these in the future.
There are fundamental problems with the Legal Help option:
The Legal Help scheme does not cover all these areas of need.
The Legal Help scheme is rationed. A very limited number of ‘matter starts’ are allowed to each firm with a public law contract. When the ration runs out, the firm will have to turn you away.
Only firms with a public law contract will be able to provide help to prisoners. There are nowhere enough of those firms to meet the demand and some have no experience of and expertise in prison work.
Judicial review is a ‘blunt remedy’ of last resort. It is expensive, takes a long time and limited in what it can achieve.
Some problems can be resolved by letters, phone calls and written representations.
What is the logic in forcing prisoners and their lawyers to abandon cost-effective, less confrontational methods of assistance and to resort to litigation instead?
There is another ‘catch’ too.
Alongside the cuts to prison law work is a wholesale assault by government on judicial review.
They are trying to push all the financial risk of pursuing judicial review claims on firms with very limited resources.
It is already the job of the Legal Aid Agency to root out weak judicial review claims without merits of success.
The government says that if permission for a judicial review claim is refused, the lawyer should not get paid no matter how much work they have done preparing and presenting a case.
It is hard to predict whether a case will win or not.
Lawyers and Judges will have different opinions and interpretations of the law.
The government know what the impact of this will be. Lawyers will not be able to take worthy cases. People who are not wealthy will not have access to the Courts to put right legal wrongs.
If you do not have independent means, you will have to represent yourself. It doesn’t matter how disabled you are, how well-educated you are, how ill you are, how complicated your case is, how much evidence you might need to gather. You will have to pursue any concerns through the complaints system.
Does the complaints system work for problems like these?
Is it quick, efficient, able to stand up to the might of the Prison Service?
Is the prison system working well at the moment?
Are the numbers of prisoners going down?
Are the resources to enable prisoners to rehabilitate going up?
Do lawyers achieve anything for their clients?
Does having a lawyer help to resolve problems for prisoners?
Why do people instruct lawyers?
And finally there is the small matter of the cuts to legal aid rates.
Legal aid rates for prison law work have not risen at all, for over a decade. They were not high in the first place.
They are now to be cut by 17.5%. In what other sector of society would a paycut of nearly a fifth of earnings be acceptable?
So, even though you might qualify legal aid for your parole hearing, what kind of lawyers will be left to represent you?
The government has chosen to ignore the very serious concerns raised about the impact of their proposals by experts who work within the prison system and the Courts including senior Judges, the Parole Board and Her Majesty’s Inspectorate.
The government knows that prisoners are an easy target and it is unlikely that the public will get behind a campaign to save legal aid for prisoners.
The cuts to legal aid will not save any money at all for the taxpayer. All they will do is to shift the costs on to another part of the Justice budget. The cuts will make it far easier for abuses within the system to take place because the opportunities for scrutiny and accountability will be significantly less.
As a country we imprison more people than any other country in Western Europe. We do not provide sufficient resources for rehabilitation and resettlement for these thousands of prisoners, very many of whom are learning disabled, mentally ill and children.
Whilst Ministers may not like their decisions being challenged, access to lawyers and to the Courts enables that they cannot trample over people’s rights with impunity.
There is a marked difference between the response to the criminal legal aid and civil legal aid proposals.
In the former, the government says it is committed to work with experts to review the criminal justice system as a whole. Prisons and the penal system are part of the criminal justice system and there are huge inefficiencies which could be tackled to save money without compromising public safety, rehabilitation or fundamental rights of people whose liberty has been removed.
It is not too late for the government to listen to experts who work in prisons and the penal system and to have respect for Parliament’s all-party expert human rights group who are currently examining the potential impact of the legal aid cuts.
It is not too late for MPs with a little courage and a vestige of social conscience to put pressure on the government to abandon the cuts to legal aid. Try writing to them and telling them why this matters. Remind them that you will be writing them a lot more regularly when you can’t ask a lawyer for help any more.