Bach Commission: The Right to Justice

Lord Dholakia Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Dholakia (LD)]

My Lords, the rule of law is at the heart of our democracy. We are the envy of the world for the quality of our justice system. The right to justice is fundamental to our process of law. We cannot be at ease with ourselves if the system excludes anyone from this process because of restrictions on the provision of legal aid.

I thank the noble Lord, Lord Bach, for his report. The commission’s report is a cogent and detailed review of the impact of the current restrictions on the funding of legal aid. The report’s central proposals for a statutory right for individuals to receive reasonable legal assistance without unaffordable costs and for this right to be monitored and enforced by a new justice commission deserve support from everyone who believes that no one should be debarred from receiving justice simply because of their means.

I would like to concentrate my remarks on the impact of legal aid restrictions on one particularly vulnerable group—namely, prisoners. The subject is often ignored but it cannot be avoided because of the state of our penal institutions at present. At this stage I declare my interest as president of the National Association for the Care and Resettlement of Offenders.

People who are imprisoned are particularly disadvantaged if they are unable to mount an effective challenge to abuses because they are unable to secure legal assistance and representation. While prisoners are allowed legal aid in cases that directly affect their liberty, in practice they have been unable to secure legal assistance on issues that have a clear relevance to the length of time they will stay in custody. For example, prisoners have been allowed representation at parole hearings where their release is a possibility, but often they have not been allowed legal aid for representation at pre-tariff parole hearings which cannot direct their release but where the Parole Board can recommend that the prisoner moves to an open prison.

If the Parole Board makes no recommendation for open conditions, this will greatly reduce the prisoner’s chances of release when they reach their parole eligibility date. In most cases, the Parole Board is unwilling to direct the release of a life sentence or IPP prisoner unless they have first been tested successfully in open conditions, so the decisions at these pre-tariff hearings are absolutely crucial to the prisoner’s chances of release in the near future. In April, in a case brought by the Howard League for Penal Reform and the Prisoners’ Advice Service, the Court of Appeal ruled that the unavailability of legal aid for pre-tariff hearings was unlawful. It took the same view of the lack of availability of legal aid for reviews of prisoners’ category A status and for decisions on placing prisoners in close supervision centres.

If a prisoner is categorised as category A— in other words, as someone who needs the highest level of security in the prison system—their chances of a timely progression through the system to a lower security level and to eventual release are greatly reduced. If a prisoner is placed in a close supervision centre, their opportunities to access rehabilitation programmes, work experience and other opportunities to demonstrate their suitability for progression towards release are severely limited. Despite the Court of Appeal’s ruling in April, nothing has changed for several months as the Ministry of Justice said that it would appeal to the Supreme Court to reverse the ruling. I am pleased to hear that the Government have very recently decided not to pursue an appeal. I hope that the Minister will now be able to tell us when and how legal aid will be reinstated in these areas.

There are other key areas that are strongly relevant to prisoners’ opportunities for progression towards release where legal aid is also unavailable. One area is disputes over access to courses such as sex offender treatment programmes, courses to address violent offending, domestic violence programmes, thinking skills programmes and other programmes that can reduce an offender’s risks of reoffending. If prisoners are denied access to such courses because they are assessed as unsuitable, or if the waiting times for programmes are so long that prisoners cannot get on to them for many months or even years, they are denied a chance to demonstrate to the Parole Board that they have reduced their risk and are now a good prospect for release on licence.

Legal aid is unavailable for appeals against findings of guilt for disciplinary offences in prison. If a prisoner is unfairly found guilty of a disciplinary offence and cannot access legal aid to appeal against the finding, it can adversely affect the likelihood of their progression to an open prison or being a good prospect for release. I therefore strongly support the commission’s recommendation that legal advice should be available for issues relating to prisoners’ progress, access to resettlement and unlawful treatment in prison.

Legal aid should also be available for representation for the families of prisoners who have died in custody. Frequently at inquests in these cases the Government fund legal representation for state agencies but not for the relatives of the deceased. The chief coroner wrote in his annual report for 2015-16:

“In some cases one or more agencies of the state such as the police, the prison service and ambulance service, may be separately represented. Individual agents of the state such as police officers or prison officers may also be separately represented in the same case. While all of these individuals and agencies may be legally represented with funding from the state, the state may provide no funding for representation for the family”.


Other noble Lords have highlighted—and will highlight—many areas in which the severe limitations on legal aid cause hardship and injustice to many deprived and disadvantaged members of society.

In conclusion, it is important that, in any review of the availability of legal aid, we include the impact on members of one group who are particularly vulnerable to injustice because they are detained behind prison walls.