Here is the response provided by SL5 Legal to the government's legal aid funding consultation.
We feel very strongly that the current proposal that prison law work should be excluded from planned increases in the rates of pay for legal aid work is appalling, malicious and short-sighted.
We hope that this will be reconsidered.
Response to the Consultation on the Government’s response to the criminal legal aid independent review
Responder details
This response is on behalf of SL5 Legal (SL5). The author, Andrew Sperling, is the Director of SL5. Andrew is a Solicitor-Advocate who has specialised in prison and public law for over twenty years. He worked for the Parole Board for England and Wales between 2014 and 2015 on stakeholder and governance projects and has regularly attended Parole Board User Groups during the past two decades. He is a member of the Executive Committee of the Association of Prison Lawyers and has contributed to their response to this consultation.
SL5 was formed in 2017 and includes a team of very experienced prison lawyers and parole advocates. Our team includes a former Parole Board member and Chair and former Probation Service Senior Manager, a former Prison Offender Supervisor, as well as solicitors and advocates based around the country.
General Introduction to the response
1) Several members of our team have previously practiced in criminal defence and the work we do as prison lawyers is such that we have detailed knowledge and experience of the importance of skilled representation for criminal legal aid work. We strongly support the views which have been expressed by The Law Society and other professional associations that the proposed increases in rates of pay for criminal law work are insufficient to fix the problems that the sector as a whole is facing and to ensure the long-term sustainability of criminal defence work.
2) We have focused within this response only on questions 99 to 102 in the consultation due to the specific nature of the day-to-day work that we do as prison lawyers.
3) The rates of pay for legally aided prison law work have not increased for almost a quarter of a century (the whole of the writer’s professional life) and have been reduced during that period.
4) In 2009 a system of fixed fees (with bands of standard, lower, higher and escape fees for payment) was introduced for advocacy work (parole and disciplinary hearings) and advice and assistance work. In 2013 a cut of 17.5% in pay rates and the associated fee bands was imposed. This was reduced to a cut of 8.75% in 2015.
5) During that time, prison law has become more complex and specialist in response to legislative, policy and case-law changes. The landscape of parole work has shifted dramatically following the Worboys case. The Parole Board and other criminal justice agencies are now required to pay more attention to unproven allegations. This has resulted in more in-depth enquiries, more protracted parole reviews and lengthier hearings. Recent changes by the Government include the introduction of public summaries of parole decisions, a new reconsideration mechanism, an increase in complex terrorism cases and proposals to open up hearings to the public. The changes suggested in the publication of the Root and Branch Review of the Parole Board earlier this year will create further layers of complexity. Each of these significant changes has increased (and will continue to increase) the volume and complexity of work, and the need for specialist advice for the majority of parole cases without any change at all to the payment schemes.
6) As a result of the lack of investment, the low fees and the way in which the fee system is structured, there has been a very significant reduction in the number of providers doing this work: during the last decade the number of prison law providers has declined by around 70 per cent. The Westminster Commission on legal aid concluded “even before the pandemic, prison law itself had become impoverished as the range of issues with which prisoners could be assisted shrunk and providers experienced a great deal of change and uncertainty. It is not surprising, then, that the number of providers has plummeted during this period” (paragraph 82). The latest data from the LAA shows that in the last quarter of 2021 there were only 110 offices providing prison law work across the whole of England and Wales (Legal aid statistics England and Wales tables Oct to Dec 2021, 2022, Table 9.1). This compares with 146 operating in 2019/20.
7) The current fee system incentivises practitioners to do the bare minimum for their clients if they are to make even a basic living and forces practitioners to do substantial, additional unpaid work if they are to act competently for their clients and respond to the requirements of the Parole Board and the Secretary of State. It has become commercially unviable to provide the level of service required for a demanding area of work and this explains the serious decline in prison law providers over the last decade.
8) We have created and changed our practice to maximise efficiencies to seek to be able to provide a good service to our clients. We are an agile, technologically efficient practice. There is nothing more we can realistically do to make our practice leaner. There are no more costs cutting measures we can take. We work collaboratively with other stakeholders in this area of work, across the Ministry of Justice and the Parole Board. We would like to ensure that the many years of experience we have acquired in this specialist area of work can continue to be put to good use. We want to be able to recruit, train and retain young lawyers so that we have a sustainable practice and can provide a professional service of sufficient quality in this difficult area of work.
9) We have weathered the pressures created by the pandemic and tried to plan for the future in the face of a costs of living crisis and fast-rising inflation. We have held on in the hope that the criminal legal aid review would demonstrate clearly that investment was required to ensure that a viable and sustainable practice for legal aid work could continue. The independent Bellamy review concluded that at least a 15% increase in the rates of pay was required. We expected that, having commissioned an independent review, the government would act in good faith and confirm that they would swiftly follow this recommendation, particularly as the review has lasted so long. There is no proposal in the government’s response to pay fairly for work done in this area. As the impact statement baldly states at paragraph 11: “We are not proposing to change the fees for prison law work”.
10) The suggestion that no increase at all would be provided for this area of work was a shock and savage disappointment. It is profoundly short-sighted and we hope that, having taken the opportunity to consult, this will be reconsidered and prompt action taken to implement the required increase in rates to ensure that firms like ours can continue to practice and that the provider base does not collapse altogether.
11) A scarcity of competent and well-trained prison lawyers is likely to have a disproportionate impact upon people in prison with disabilities, including longstanding mental health problems. People in prison who are mentally ill, who lack mental capacity and who have learning disabilities are particularly vulnerable and disadvantaged. They are reliant upon access to a cohort of experienced practitioners as their cases are usually more complex and require a higher level of expertise. Their cases are far more likely to be subject to deferrals (which carries costs/resource implications) if they do not have skilled representation.
12) Similar considerations are likely to arise in relation to women in prison and children. The female estate and the children/young persons’ estate differ from the adult male estate in significant ways. A failure to provide a sufficiently resourced legal aid system will inevitably lead to a decrease in specialist expertise and a disincentive to acquire the training and expertise required to provide a targeted service to these groups. It is against this context that the response to these questions must be considered.
Response to Questions
Question 99: Should the Government focus on the early stages of the criminal process and not uplift prison law at this stage? Please explain your reasons.
13) We are devastated by the Government's response rejecting the Independent review’s recommendation to include prison law in the proposed 15 per cent increase. An increase of 15% would still fall well short of restoring pay parity. The failure to provide even that modest increase, despite clear, independent recommendations to do so, sends a very stark message that the Government sees no value to this work and does not care about the consequences of allowing firms like ours and others committed to this work disappearing.
14) The independent review found that the current rates are not sustainable financially for all criminal practitioners. The drivers for the fees uplift apply with at least equal force, if not greater force, to prison law work which is less financially sustainable, and has seen a massive increase in complexity and decline in the number of providers in the last decade; as described in the section above on context and background. There is no way that legal aid lawyers will be able to specialise in this work in the future without an uplift.
15) The decision not to grant prison law the recommended uplift is irrational and cannot be justified simply by stating that the government has other priorities. It is irrational not to apply the recommendations for a modest increase in the rates for all crime, to prison law work. The independent report made it clear that the criminal justice system is under immense pressure. The Government’s response appears to accept the case for increasing fees to reflect the of pressures on the criminal justice system and to ensure that a sustainable profession is preserved. No reason is given for distinguishing the need to ease pressures on the prison and parole systems and ensuring the survival of a sufficient provider base for prison law work.
16) It should be self-evident that the presence of a sufficient cohort of competent prison lawyers is necessary to ensure the efficient operation of the parole system and to ensure that those who can be safely released should be safely released at the earliest opportunity given the human and financial cost of unnecessarily prolonged incarceration.
17) It also makes no sense to leave prison law out of the uplift. As the independent review notes, the total annual spend on prison law is £17 million and a significant portion of this will be the cost of expert reports and other disbursements such as travel costs which are a necessary cost of attending prisons for hearings and meetings where remote consultations are not possible. 15 per cent of the current spend is comparatively very little and therefore the saving made by leaving prison law out of the increase cannot possibly justify the damage to the sector it will cause.
18) We know very well from our own experience that it is already difficult to recruit, train and retain young lawyers into prison law work. A decision to cut prison law out of the uplift will have an enormous impact on the general sustainability of the sector: it will make it impossible to recruit and retrain new lawyers in this field.
19) The proposal to leave prison law out of the uplift is short sighted given that the Government itself has introduced a number of new and complex layers to prison law, including the introduction of summaries and the reconsideration mechanism. For these initiatives to work properly, it is necessary to have specialist lawyers to navigate them. In addition, the Government’s new proposals in the Root and Branch review are likely to require the input of experienced lawyers if they are to work. Many people in prison are already unrepresented before the Parole Board and this causes problems for the Board and can also affect the victims, especially if there are delays.
20) A decision to leave prison law out of the uplift will be discriminatory in terms of its impact on the disabled, Black, Asian and Minority ethnic communities and potentially female prisoners too.
21) The proposal to leave prison law out of the uplift should be reversed. A failure to provider an increase in pay rates will be catastrophic for this area of work and will hasten the collapse of the provider base. An uplift of at least the level advised by the independent review is essential to support the viability of the sector for the future.
Question 100: “What more could be done by the Government to address problems around access to clients in prison?”
22) Investment in prison law fees is a fundamental prerequisite to access to clients in prison: a properly funded legal aid system is essential to enable access to justice. Making the prison law sector sustainable must be the priority.
23) In addition, there are a number of steps that should be taken to improve access to clients in prison.
a) Access to confidential legal advice: Every person in prison ought to be able to access legal advice in a confidential space. At present, some prisons still do not have private spaces to enable confidential legal advice, requiring in person visits to take place in halls where advice can be overheard. Many people in prison cannot access confidential telephone calls, still having to call from phones on the landing or from a shared cell.
b) Speedy access to legal advice: It often takes several weeks, sometimes months, to secure a visit both in person or by video link. Every prison has a different system: some require you to call at a certain time. Others require an email or a form to be filled in and sent. It is often necessary to make multiple calls and send multiple emails to secure one visit. Some prisons provide in person and video link visits. Others say that video links are only available for courts and probation. We can provide countless examples on request. A standard way should be developed to book visits. There should be sufficient slots available for visits in person, on the phone and by video link. This ought to be a priority. It is irrational for the Government to say it wants to clear backlogs and conduct an efficient system but fail to ensure easy access to people in prison who will require legal advice at all stages of the criminal justice process.
c) Legal correspondence: Legal correspondence is subject to a series of convoluted procedures to avoid the use of contraband. Many prisons have different systems which require the use of a code which changes monthly. Some prisons simply confiscate post without advising the lawyer. It often takes weeks for it to be distributed. The email a prisoner service cannot be used to send confidential legal information. Even non confidential information sent by email can take days to distribute to the person in prison after the email is sent as it is printed out and then distributed by hand. Laptops are being rolled out slowly in some prisons and there is no reason why people in prison should not be enabled to engage in confidential legal correspondence with their lawyers electronically to be more time/cost efficient.
Questions 101 and 102 “Do you agree with the proposal to restructure the fee scheme for advice and assistance in prison law cases? And What data would need to be taken to implement this reform?”
24) There is very little information about the possible ways in which the fee-scheme could be changed, and the consultation document makes it clear that it would only be done if it is costs neutral. Prison lawyers need to be better paid to arrest the decline and potential collapse of the provider base. Changing the system creates additional bureaucracy and will make no different to the sustainability of the sector if it is not accompanied by an increase in remuneration.
Conclusions
25) Prison law work is complex and difficult. It is vitally important to ensure that people in prison are released in a timely and safe way. Cuts to fees and scope in the last 15 years have impoverished the sector leading to a dramatic fall in the number of providers.
26) The consultation document does not provide any compelling arguments to justify excluding prison law work from an increase. There is no rational basis for leaving prison law out of the modest proposal. We hope that the government will approach this consultation in good faith, will act rationally and fairly and promptly implement a fair increase in rates in line with the independent review.
7 June 2022