Less than a year ago, a popular newspaper described the country’s most senior judges as enemies of the people. The Lord Chancellor, Liz Truss, failed miserably to defend those judges, ignoring her constitutional role in deference to her political allegiances.
Her successor, David Lidington kicked off his first major speech at the Conservative Party Conference last week with a different tone:
The rule of law and the independence of the judiciary underpin our democracy and lie at the heart of our way of life. They are the very cornerstone of our freedoms.
No individual, no organization, no government is above the law.
So far so good. But then…
That is why the refusal by the leadership of today’s Labour Party to rule out supporting illegal strikes is a shameful abdication of responsibility from a party seeking to govern.
Is a flagship speech by the Lord Chancellor about the rule of law the best place for facile political point-scoring?
What Does ‘The Rule of Law’ mean?
Every Lord Chancellor should be given a copy of Tom Bingham’s The Rule of Law when they take office.
The rule of law is not simply blind adherence to whatever laws happen to be passed by the government.
The Nazis’ Nuremberg laws and apartheid in South Africa were implemented by a constitutional and legal process.
Bingham explains that the rule of law needs a democratic mandate but must also include a minimum standard of fundamental or human rights.
It is “not an arid legal doctrine but the foundation of a fair and just society”. It “offers the best means yet devised for securing peace and cooperation”.
A proper application of the rule of law would not allow the continuation of the IPP sentence.
The abolition of the sentence in 2012 was a legislative recognition that it was both unworkable and unfair.
Nearly six years later there are still over 3,300 prisoners serving IPP sentences without a release date.
Lidington’s speech failed to make a single mention of this. This is inexcusable.
Drugs in Prisons
Last year, the Prisons Ombudsman said that the arrival of new synthetic drugs into our prisons was a game-changer. These drugs, smuggled in from the outside, were – he said – increasing violence, debt, poor health, and instability.
Synthetic drugs are a serious problem in prisons.
However, they are not only smuggled in from the outside. Many come from the inside.
In the last three years, prison officers from Lewes, Full Sutton, Birmingham, Isis, Wandsworth, Peterborough, Featherstone, Wormwood Scrubs and Winchester have been convicted of smuggling drugs into prisons.
This is unlikely to be the full extent of this problem.
Are Ministers taking time to analyse why officers are bringing drugs into prisons?
This is the only time Lidington refers to the Prisons Ombudsman in his speech.
Here are some other things the Prisons Ombudsman spoke about last year which the Lord Chancellor decided not to mention in his speech:
1) The Lack of Strategy and Planning for an Ageing Prison Population
“The challenge to HM Prison and Probation Service is clear: prisons designed for fit, young men must adjust to the largely unplanned roles of care home and even hospice. Increasingly, prison staff are having to manage not just ageing prisoners and their age-related conditions, but also the end of prisoners’ lives and death itself – usually with limited resources and inadequate training.
“There has been little strategic grip of this sharp demographic change. Prisons and their healthcare partners have been left to respond in a piecemeal fashion. The inevitable result, illustrated in my review, is variable end of life care for prisoners and a continued inability of many prisons to adjust their security arrangements appropriately to the needs of the seriously ill. I still find too many cases of prisons shackling the terminally ill – even to the point of death.
"… I remain astonished that there is still no properly resourced older prisoner strategy. This is something I have called for repeatedly and without which I fear my office will simply continue to expose unacceptable examples of poor care.”
“Our investigations into deaths of prisoners held in segregation units showed that often, some of the most challenging prisoners are also the most vulnerable. This is hugely difficult for staff to manage, but it is essential that prisons recognise that the restrictive and isolating regimes in segregation units can accelerate deteriorations in a prisoner’s mental and physical health, their risk to self and behaviour.
"There are a number of rules about segregating prisoners properly and humanely, which prison staff are required to follow. Unfortunately, our investigations of deaths in segregation units often found that staff did not always follow, or even know about national instructions, including that prisoners at risk of suicide should only be segregated in exceptional circumstances, once all other possibilities have been discounted."
“Many of the complaints reaching my office should have been resolved at source by an effective local complaints process. When prisons fail to manage complaints effectively, it leads to frustration for prisoners, places additional burdens on staff and uses up my scarce resources, which could be better deployed on more serious or complex cases. The prison reform agenda needs to include a requirement on each prison to have a fully functioning complaints process."
Lidington’s speech did not mention any of these themes.
These are all ‘rule of law’ issues.
A fair and just society does not shackle terminally ill people who do not pose a risk to anyone; does not ignore rules about segregation and the risks of segregating the suicidal; nor does it fail to deal adequately with legitimate complaints.
The availability of a complaints system was relied upon to justify savage cuts to legal aid for prisoners in 2013.
The Ministry of Justice had numerous warnings about the inadequacy of the complaints process.
The Court of Appeal has found the cuts to legal aid for prisoners to be unlawful but they have still not been restored over six months later.
Prisoners continue to rely upon (and rail against) a dysfunctional complaints system.
The Numbers Game
...We have ramped up our efforts to deploy more and better trained staff. Today we have 868 more prison officers on duty than at the start of the year, meaning we are on course to hire two and half thousand extra frontline officers by the end of 2018.
This is a classic case of truth economy. These are not ‘extra’ officers. They are replacing officers who were laid off while Chris Grayling was Lord Chancellor or others who have left the Prison Service.
Between 2010 and 2017 there was a reduction in staff of 9,763 (around 22%). During this period the prison population has steadily increased. 2500 less 9763 is minus 7263.
And we are keeping them safer too - training staff to use body-worn cameras to deter assaults and capture evidence whenever they occur.
Many prisoners and their lawyers welcome the use of body-worn cameras. Evidence is not a one-way street. Footage captured by body-worn cameras would be invaluable in many adjudications (prison disciplinary hearings) and when prisoners claim to have been assaulted by officers.
We have been instructed in several cases when we have requested footage from body-worn cameras but have been told that they were not turned on or that the footage no longer exists.
The R Word
David Lidington is not the first Lord Chancellor to talk about rehabilitation. Liz Truss, Michael Gove and even Chris Grayling gave speeches about the importance of rehabilitation in prison.
People are generally judged by actions and not just words.
Grayling’s commitment to rehabilitation was undermined by his pernicious and short-sighted policies, many of which were abandoned by his successor.
Lidington is at least able to join the dots:
Safety and security are important in their own right, but they’ve got a broader purpose too. The real prize of a calm and ordered prison environment is to make it possible to transform them into places of genuine reform and rehabilitation.
All bar a tiny handful of prisoners will one day be released. And we cannot be satisfied with a situation in which nearly half of prisoners re-offend within a year of release. That failure matters.
Prison is a very expensive failure if rates of re-offending are taken as a measure of success. The Ministry of Justice has reams of research at its disposal about the backgrounds of prisoners and what helps to reduce re-offending. Lidington has clearly been briefed about some of this literature:
A quarter of prisoners have spent time in care. Many come from homes that were at best chaotic, at worst violent and abusive. And the cycle perpetuates: nearly two thirds of prisoners’ sons go on to commit crime. Most prisoners assessed on arrival have the reading skills of an 11-year-old, and half have no qualifications at all.
When these prisoners return to society I want to see them able to get a job and to keep it. I want them willing and able to take responsibility for themselves and their families, keeping on the straight and narrow rather than falling back into their old ways.
...The evidence shows that a former prisoner who has got both the responsibility and opportunity that comes with work is far less likely to re-offend. Getting prisoners into employment works.
His focus on meaningful work opportunities for prisoners is welcome but it needs to be part of a wider strategy.
Employment and financial self-sufficiency help to reduce re-offending.
There are other policies which frustrate this goal.
Five years ago one of our team brought a challenge to the Prisoners Earnings Act.
This provides for a compulsory levy on the earnings of prisoners who are in open conditions and preparing for their release into the community.
These earnings could help those prisoners to resettle in the community. They could provide a deposit for accommodation, buy clothes for work, pay for travel to interviews and to maintain family ties.
There has been no assessment of the impact of this legislation. This is long overdue.
Restrictions on release on temporary licence (ROTL) also get in the way of prisoners getting and keeping jobs.
Many prisoners approaching their release dates are either prevented from ROTL altogether or have to negotiate a lengthy, bureaucratic process to get it.
Prisoners who already have good jobs to go to are in a better position than those who need to start from scratch when they are released.
Home is Where the Heart Is
Another serious omission from Lidington’s speech is any reference to accommodation and family ties.
Having a stable home and people who care about you has a significant impact on desistance (preventing re-offending).
The lack of suitable release accommodation for prisoners is a major problem.
The system currently requires many prisoners to go to ‘approved premises’ (probation hostels) when they are first released from custody.
There are nowhere near enough places in approved premises.
We have several clients whose release has been directed by the Parole Board but remain in custody for several weeks because there are no spaces in approved premises.
The system needs to adjust to this by encouraging and allowing release to other forms of suitable accommodation (with families or friends).
Alternatively, the huge sums of money spent on keeping people in custody or building new prisoners could be diverted to community accommodation instead.
The time and effort spent on drug treatment in prison is largely wasted without good accommodation solutions on release.
This is the clear conclusion of recently published research by the University of York.
It describes the predicament of many prisoners in recovery as facing a ‘cliff-edge’ on release.
The failure to resource and coordinate support services in the community leads to the depressing sight of hopelessly revolving doors.
The Lord Chancellor has to do much more to make sure that prisoners can have better family ties.
The prison system is still very much geared towards allocating prisoners according to operational needs.
Prisoners are often located where there are courses they are told are essential for them to do – even if they are hundreds of miles from their families.
Or they are subjected to transfers to prisons because there are no spaces left in prisons anywhere near their homes.
Prison phones are phenomenally expensive, lack privacy and have limited availability. In-cell phones are still a rarity. Some prisoners use mobile phones because they want to stay in touch with their families.
We would like to hear more talk of another R word – Resettlement.
This is a more meaningful concept than rehabilitation because it acknowledges that what we are trying to do is to resettle people in their communities.
Resettlement entails a reciprocal arrangement between individuals and their communities. If it is to work, the whole system needs to work to that end and needs to be designed accordingly.
The Elephant In The Room
The prison population continues to grow. Lidington did not mention the elephant in the room during his conference speech but he has spoken about it before.
The President of the Prison Governors Association is the latest prominent figure to call for steps to reduce the prison population.
We cannot continue to lock people up without acknowledging the financial and social cost.
The rule of law works best when there are enough resources to protect people’s fundamental rights and to shine a light on abuses.
Injustice thrives in the dark.
Click here for the full transcript of David Lidington’s Conservative conference speech.
Blog written by Andrew Sperling and Kushal Sood