Criminal Legal Aid (General) (Amendment) Regulations 2013

Baroness Scotland of Asthal Excerpts

Wednesday 29th January 2014 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I, too, congratulate my noble friend Lord Pannick on bringing his regret Motion before this House. I do not dissent in any way from what he said. He has outlined why this House should regret the restrictions being imposed on legal aid, advice and assistance in prison law cases with his usual clarity and skill. I want to focus instead on the Government’s justification for those restrictions, which I believe to be deeply flawed. I have to admit to serious alarm when I saw that the justification was the internal prisons complaints system, about which, when I was Chief Inspector of Prisons, I had frequent cause to complain. I was equally alarmed when I saw that the tough Mr Grayling had said in his evidence to the Joint Committee on Human Rights:

“I struggle personally to believe that it is sensible to have a system where we have prisoners able to access the courts, and access public funds, to argue that they should be detained in a different prison”,

to which the Joint Committee responded:

“What is strikingly strange about the Lord Chancellor’s comments about where legal aid will be allowed is that he has … ignored where common-law standards of fairness apply”.

It also said:

“We have not seen any evidence to suggest that legal aid is being abused to enable prisoners to complain about what prison they are put in”—

in other words, both drawing attention to his ignorance of the facts and suggesting that he was on a collision course with Winston Churchill’s conviction that the way in which it treats its crime and criminals is the true test of the civilisation of any country. Ideology appears to dictate his policy-making, rather than reality.

Mr Justice May, when recommending the reformation of the Inspectorate of Prisons after a break of 102 years, following widespread unease about the efficacy of the self-regulation that had been introduced by the first Prison Commissioner in 1877, recommended that the chief inspector be given statutory responsibility for the inspection of efficiency, propriety and the investigation of grievances. In the event, the investigation of grievances was denied. However, when the first prisons ombudsman was appointed in 1994 following similar unease about the internal prisons complaints system, he was not given statutory responsibility for the investigation of grievances—something for which he and his successors have fought, unsuccessfully, ever since, and a fight which I warmly support.

I was therefore interested to note that in his evidence to the Joint Committee, far from having the confidence in the complaints system held by the Lord Chancellor, my successor as chief inspector, Nick Hardwick, confirmed that,

“prisoner confidence in a complaints system was crucial to the safety of a prison”.

He added that,

“two-thirds of people who have had a complaint dealt with through the existing system do not think it has been dealt with fairly”,

and that,

“about one in 10 say they have been prevented in some way from accessing the complaints system”.

So much for advice and assistance that is equal to that being denied.

Like my noble and learned friends Lord Brown and Lady Butler-Sloss, and the noble Lord, Lord Carlile, if there is one group of prisoners about whom I am particularly concerned in all this, it is young offenders. For a whole variety of reasons, including immaturity and lack of trust, they tend not to use the complaints system. When I was inspecting, what worried me was that prison staff tended to interpret this lack of use of the formal complaint system as meaning that all was well when the opposite was true.

My final word to the Minister is that, in reflecting on all that has been said by noble Lords in regretting the proposed restrictions, he and the Secretary of State should reflect that this is not a stand-alone measure. Their restrictions come on top of a whole host of other cuts and deliberately tough sanctions against prisoners, and are resulting in mounting unrest. Prisoners are deprived of their liberty for a period by the courts following conviction for an offence but, in the civilised society about which Winston Churchill spoke, they are not deprived of justice. My noble and learned friend Lord Woolf observed that justice was a crucial ingredient of safety in a prison, which confirms that there is no place for ideologically imposed injustice in a civilised prison system.

[Baroness Scotland of Asthal (Lab)]

My Lords, I, too, bitterly regret the need for this debate. I say to the noble Lord, Lord Faulks, that I feel enormous sympathy for him and bitterly regret that he will have the arduous burden of responding on behalf of the Government. To turn our minds back only a few years, if we had asked any lawyer worth their salt whether it would be likely that any Government, of whatever political complexion, would bring forward regulations such as these, I think that such a suggestion would have been met with incredulity.

I totally endorse what has been said by every Member of the House who has spoken already, particularly the comments made in relation to children, women and the vulnerable. I emphasise the comments made recently by the noble Lord, Lord Ramsbotham, about the need to remember the backcloth against which these additional cuts must now be seen.

I shall take a moment to concentrate on the plight of women. Noble Lords will know that legal aid in family matters has been removed almost in its entirety, except in cases of domestic violence. Even there we are hearing reports from solicitors all over the country that access to legal aid for those women and individuals who are victims has been severely constrained. Some solicitors say that the drop has been 96% in some areas and 94% in others, and that there has been a real diminution right across the board. We know that women in our prisons are overrepresented in terms of vulnerability. Certainly it was my experience when I was Minister of State with responsibility for the criminal justice system. I was told in 2004 by the governor of Holloway prison—I have no reason to believe that this has changed—that 89% of women in prison had a history of domestic violence or sexual abuse prior to having offended. We have a highly vulnerable group whose rights already are constrained outside the prison estate and are having them further constrained within it. Two-thirds of children in youth offending institutions come from those same domestic violence homes. We all know that those who graduated from the youth justice estate are overrepresented in the male estate. We are dealing with the most vulnerable in our community.

I add my voice to those who have expressed a degree of shock that the Secretary of State for Justice feels able to phrase these issues in terms of ideology. I commend the Damascene-like conversion of the erstwhile Treasury devil for his change of mind and invite the noble Lord, Lord Faulks, to ask the Lord Chancellor to see the noble and learned Lord, Lord Brown, as an exemplar of what can be done when one really wishes to change, and to say that, from the Lord Chancellor and the Secretary of State for Justice, all of us expect more. I cannot but agree with the noble and learned Lord, Lord Brown, when he says that these provisions are mischievous and misguided.

[Lord Bach (Lab)]

My Lords, yet again this House appears united against the Government’s proposals for legal aid. Thanks are owed not just by those of us in the House but those outside, too, to the noble Lord, Lord Pannick, for moving his regret Motion and doing so in so powerful a way. Those who followed him must rank as one of the most impressive lists of dramatis personae of legal luminaries it would be possible to bring together, and we have not heard from my noble friend Lord Beecham yet.

I want to make a couple of fairly short points. At paragraph 161 on page 50 of the JCHR report, there is reference to reforms to the system of prison law that were carried out in July 2010. They were really the work of the previous Government. Indeed, they were from a time when I was privileged to be the Minister with responsibility for legal aid. What we did then was to make comparatively minor changes that we believed were appropriate. We implemented them and, dare I say, they appeared to work fairly satisfactorily. But now, yet again, our successors go much, much too far and take so much out of scope that the balance shifts. Instead of having a system that maintains the essential proposition that prisoners should have reasonable and proportionate access to legal advice and representation, we are now faced with a sort of brave new world where any legal rights prisoners enjoy are granted out of sufferance—the very bare minimum.

The approach is not what is fair and consistent with our legal traditions but rather, “What can we as the Government, the state, get away with?”. There is almost a pride in not taking a balanced view based on judgment and legal reputation. In one of his examples, the noble Lord, Lord Pannick, spoke about categorisation. The Ministry of Justice has decided to remove funding for pre-tariff reviews. He explained much better than I can the value of pre-tariff reviews for prisoners.

Recently, I spoke to a recently retired Parole Board member and a retired High Court judge who told me that not only are these reviews immensely significant in the course of a prisoner’s life but that there are huge advantages for the Parole Board and, thus, presumably for society, in having the best possible information about a prisoner so that the right judgment can be made. Such information is gained by the Parole Board having had the advice and representation before it that has been given to the prisoner. Can anything be more ridiculous than the decision to take pre-tariff reviews out of scope? As the JCHR report so rightly said:

“Categorisation engages common law rights to liberty, as it can affect the likelihood of a prisoner being released. There are also clear cost implications of a prisoner remaining in too high a category, which may mean that the Lord Chancellor’s cost-saving rationale may not be satisfied. We recommend that the Government look again at these proposals, and give full consideration to the potential for increased costs, which may affect the justification for its policy”.

Two newly appointed Ministers in the Ministry of Justice were on that JCHR, at least for a large part of its hearing into this matter, and we hope that both those Ministers will follow that paragraph and talk to their Secretary of State in those terms.