My Lords, it is always a pleasure to follow the noble Lord, Lord Ponsonby, who brings a rich vein of evidence from his experience as a lay magistrate to your Lordships’ deliberations.
I declare the interests of having been a barrister practising criminal law for 45 years and having spent 28 years, until I retired from these roles at the end of last year, as a part-time judge at various levels and, particularly for this debate, as a former president of the Howard League for Penal Reform.
In a few moments, I shall talk about prison law specifically, but I wanted to address some issues about the generality of this debate, if I may. I agree with the broad thrust of what has been said about the effect of the regulations. However, I want to commend the Lord Chancellor for his willingness to engage with the legal profession, both the Bar and the solicitors, during recent weeks and months. This has been appreciated. Other things could be done than cutting criminal legal aid in the way which has been described.
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There are still cost savings to be made which could be addressed and I can give some examples. Lord Justice Leveson’s report and the target of one case, one hearing or, at worst, one case, two hearings, which just does not take place at the moment, could save a great deal of money. Announcements have been made about the closure of court buildings but that could go much further and would not result in removing court proceedings from localities. There is absolutely no reason why most magistrates’ court hearings and, indeed, county court hearings in the civil jurisdiction, should not take place in town halls, village halls or school halls—buildings where the public would be less intimidated. Layers of administration could be removed. For example, every Crown Court centre has a resident judge. More or less by definition, they are all fairly intelligent men and women who could be trained to manage their court buildings and to be in charge of the whole staff in the courts. There should not be two separate administrations: the court judiciary and the court administration. I know from talking to resident judges that some might resign if presented with the obligation to manage the courts, but there are plenty of others who would seize the opportunity to be trained to do so.
There is an unacceptable level of regulatory duplication in the legal profession: the Solicitors Regulation Authority, which struggles with all the cases placed before it because it does not have adequate resources; the Bar Standards Board; the Legal Services Board; and the Legal Ombudsman. There is a level of duplication here which is—or should be—counterintuitive to any Conservative Government. The statutory bodies regulating the Bar could certainly be reduced by at least one, and possibly two, leaving the Bar Standards Board in place and saving public money. I respectfully suggest that another thing that is counterintuitive to a Conservative Government is the Criminal Defence Service. The nationalisation of part of criminal defences, when there is a perfectly good set of private sector organisations to deal with these things, is an admission of failure to negotiate, not an empirical and objective decision. I urge that the future of the Criminal Defence Service should be reviewed seriously. It is not, unfortunately, making the impact that was intended. Indeed, it is barely making any positive impact at all.
I turn to prison law and to cuts to legal aid for prisoners. One of the roles of lawyers—including the Minister, who is a very experienced and much admired Queen’s Counsel—is to speak out sometimes for the unspeakable; to do really difficult things in an articulate way and to represent those many believe should not have rights but who are human beings who do have rights. Prisoners fall into that category. Since December 2013, legal aid for prisoners has been severely curtailed both in scope and through fee cuts. However, this has coincided with an unprecedented deterioration of safety standards in English and Welsh prisons; a rise in suicides; an increase in mental illness among prisoners; and a reduction in the effectiveness of treatment for this. All that is compounded by staff shortages. Access to justice is vital for prisoners who are, as members of a closed community, as the noble and learned Lord, Lord Brown, said,
“uniquely subject to the exercise of highly coercive powers”.—[Official Report, 29/1/14; col. 1279.]
Previous regulations removed almost all issues that prisoners face from the scope of legal aid and outside it now are advice—never mind litigation—about access to mother and baby units, prolonged segregation and access to safe accommodation and support for vulnerable prisoners, including children, on release from prison. That means that if a perfectly reasonable judicial review has to be mounted—for example, on the basis that prolonged segregation was severely damaging a prisoner’s health—it has to be done pro bono, if at all. If the provision of support for vulnerable prisoners, including children leaving custody, is to be challenged, that too has to be done pro bono. One contrasts that with the support that is available, at least in exceptional cases, for children with educational challenges and their parents.
The only forms of prison law work that remain in scope of legal aid at the moment are some parole and disciplinary hearings and a limited number of sentence calculation cases. As the Minister will know, the Court of Appeal granted the Howard League and the Prisoners’ Advice Service permission to challenge those cuts at a hearing in July 2015, so that challenge remains pending. The Government have the opportunity to respond without going through the public expense of a court challenge by looking once again at the way in which prison law has been cut.
The Howard League, which I use as an example because I know it well, provides a free telephone legal advice line, through its very expert legal team, for children and young people in prison. It is the only dedicated legal service in the country for such people. The team has expertise and has a contract to carry out legal aid work but it is now carrying out almost a majority of that work for nothing. So here we have the private sector picking up serious cases, many of which succeed when challenges are mounted, but having to do it for nothing for one of the most vulnerable groups in the community. This is not an acceptable position because of the financial challenge it presents. The Howard League and other charities do not resile from their ambition to do as much pro bono work as possible and to be the leaders of opinion and the formation of new law in relation to prisoners, but they must be allowed to do reasonable work for reasonable
fees and that is just not happening. The work that remains in scope is all subject to a standard fixed-fee regime. This means that each case is paid for according to the case category. Lawyers get paid for the actual work they do only if they can prove that they have reasonably done more than three times the work allowed for by the fixed fee. That is self-evidently unfair to those carrying out the work and their clients.
For example, written representations for a person who has served his or her sentence, but is recalled to prison, attract a standard fee. However, the work can involve the consideration of hundreds of pages of documentation which may be extremely difficult to extract from the public service, particularly the prisons and the Home Office. Throughout that time, while the challenge is being mounted, the prisoner is deprived of their liberty, even though they have served the punishment part of their sentence and the state, of course, is paying the cost of imprisoning them—an imprisonment that may be the subject of successful challenge.
I suggest that the fee regime does not recognise the nuances or complexities of a case. A young person with learning difficulties recalled on an indeterminate sentence for public protection—an IPP—attracts exactly the same for his or her case as an adult on a much simpler fixed-term sentence. The new rates mean that practitioners who specialise in complex cases and who have the expertise are invariably operating at a loss.
I am informed that the result is that firms that have been skilled and experienced in prison law are pulling out of it and that lawyers are being laid off or moving to do other work. I suggest that that is unacceptable. Many may think that prison law is unattractive work, but it is important work. It concerns a prisoner’s ability to change and to be released into the community, which is in everyone’s interests.
I hope that the Lord Chancellor, who is plainly very interested in prison reform and has already made a significant contribution to change in prisons, will regard the sort of aspects of prison law that I have been talking about as part of the same picture and worthy of the modest investment that is involved in restoring legal aid to the sort of cases that I have been describing.