On 5th September, a few weeks after signalling his ‘ideological’ opposition to prisoners receiving legal aid, Chris Grayling cut legal aid for all prisoner ‘complaints’
relating to their treatment or the conditions of their confinement. The government says it will introduce these proposals at the end of the year by way of statutory instrument, thus obviating the need for legislature or parliamentary scrutiny.
From the end of this year only a tiny rump of prison law matters will remain eligible for legal advice and assistance under legal aid –
- Parole proceedings where release can be directed;
- Disciplinary cases before the Independent Adjudicator (where there is a possibility of added days being given to a prisoners’ sentence) or in front of prison governors where the governors have themselves authorised legal representation;
- Some sentence calculation matters but only where all internal remedies have been exhausted;
Everything else relating to prisoner rights is now to be excluded, ranging from;
- Category A reviews and categorisation appeals;
- Parole reviews where only a recommendation (which can ultimately be rejected by the Secretary of State anyway) can be made for open conditions by the Parole Board rather than release;
- Removal from open conditions;
- All internal disciplinary measures including governor’s adjudications and segregation;
- The separation of mothers and babies in the specialist mother and baby units;
- Rehabilitation issues relating to resettlement and licence conditions.
There are to be no exemptions for children or vulnerable prisoners, such as those with learning disabilities or mental health issues.
PAS believes that the Ministry of Justice’s (MOJ) continued expression of complete confidence in the internal prison complaints system to deal adequately with all prisoner matters is entirely disingenuous.
Aside from the poor literacy levels and high levels of mental health concerns, some 20-30% 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 whilst they may be independent, the Prison and Probation Ombudsman already suffers from chronic delays in dealing with cases, and 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 now be no prospect of external legal scrutiny. The MOJ response also ignores the striking distinction between those detained in custody of the state and those at liberty. Those in custody 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 remain wholly dependent upon the prison authorities to facilitate their access to written materials and the outside world, they cannot access the internet, and have often limited access to paper libraries and are unable to attend CABs 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 had managed to establish the rule of law within prisons. However these gains, which are not just for prisoners but wider society, will be lost when these proposals come into force. The idea that the Ministry of Justice, NOMS 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 but also the smooth running of prisons themselves.
Legal advice, assistance and representation from private Solicitors in all but a few areas of prison law will effectively disappear overnight. PAS however remains committed to continue to provide legal advice and information to prisoners on any matters they require assistance and representation on irrespective of Grayling’s proposals, and as it has done over the last 20 years. We do this through our national advice line, by responding to the thousands of letters we receive each year from prisoners and their families, and through the legal advice outreach sessions we undertake across England and Wales in both the male and female prison estate. Your continued support for this work is appreciated and needed now more than ever.