Criminal Legal Aid (General) (Amendment) Regulations 2013

Lord Hope of Craighead Excerpts

Wednesday 29th January 2014 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, like the noble Baroness, Lady Kennedy of The Shaws, I am a member of the Joint Committee on Human Rights, and both of us took part in the evidence session with the right honourable Lord Chancellor and Secretary of State for Justice. That was just at the moment when the noble Lord, Lord Faulks, who has the misfortune to have to reply to this debate, was no longer able to be with us because he had been told that he was about to become a Minister. Therefore tonight we will have an excellent example of the poacher who has now turned gamekeeper, as it were, for Her Majesty’s Government. I will make one point that I put to Mr Grayling, which I do not think he answered in a very satisfactory way.

If the Government stick to their regulations, as they will, the consequence will be that more cases will go to Strasbourg for want of effective domestic remedies in this country. That is not something we should want; it is much better that effective remedies are provided in this country. Why do I say that? I have the cases of Sidney Golder and Reuben Silver in mind. Sidney Golder, many years ago, was a prisoner who thought that he had been defamed by a member of the Prison Service, and he wanted to go to a solicitor to see whether he could sue for libel. The Home Office said, “Sorry—you can’t go to a solicitor while you’re a prisoner”, so Mr Golder had to go to Strasbourg. The Strasbourg court said, years and years ago, “There must be an effective domestic remedy. Access to justice is a fundamental right, and prisoners are entitled to that right”. Therefore Golder led to reform of the prison rules, or was meant to do so. I was working in the Home Office with Roy Jenkins on the subject, and I am sorry to say that Home Office officials did not do as they were instructed, so that led to the case of Mr Silver.

Reuben Silver was an Orthodox Jew, and he wanted to know whether the food he was receiving in prison was kosher. He wrote a letter to the editor of the Jewish Chronicle marked “not for publication”. It was stopped on the ground that you must not write to the press. He also wrote to the Chief Rabbi, but was prevented from sending that letter on the ground that he had not known the Chief Rabbi before he became a prisoner, under the rule that said that you had to know the person beforehand. Therefore Mr Silver was one of my seven prisoner clients who went to the Strasbourg court complaining of the absence of a domestic remedy. The Strasbourg court had no difficulty in finding that the prison ombudsman could not provide and had not provided an effective remedy, and the same would be true today.

Those cases are not just routine internal disciplinary matters. I lost another case called Boyle and Rice in which they complained about being moved from one place to another and not having artwork, and so on. That is the kind of case which Mr Grayling is perfectly right to say should be dealt with by the ombudsman system. However, there are other, grosser, cases where that is not so. When I put this to Mr Grayling in evidence his reply was, “Well, I’m sure that in that sort of case you can find barristers who do no-win, no-fee cases”. That is no answer; for a prisoner to have to find such a barrister and to negotiate with the clerk and all the rest of it is patently absurd. One overwhelming reason to regret what has happened is that it will lead inevitably to more cases going to Strasbourg, which is not in the interests of anybody.

[Lord Hope of Craighead (CB)]

My Lords, I suppose that one should be grateful for small mercies and welcome what is provided for in Regulation 4(2) and (3): advice and assistance for issues relating to the release by the Secretary of State or for consideration for release by the Parole Board, and for proceedings that involve the determination of a criminal charge. However, they are very small mercies: these provisions were, of course, unavoidable. They are essential to protect against the risk of challenge by prisoners whose basic rights under Articles 5 and 6 of the convention were being infringed.

The point is this: there are very real grounds for concern as to what is being left out, a list of which is set out in paragraph 7.6 of the Explanatory Memorandum. For reasons of time, I will not go over the details, but one is bound to ask how robust the system of complaints is on which there is so much emphasis and to draw attention—as the noble Lord, Lord Pannick, has done—to the effect of the absence of legal advice, which always focuses the issue more directly and saves money by directing attention to where the problem really lies.

The other major gap is that to which the noble Baroness, Lady Kennedy, has drawn attention; namely, the position of the vulnerable, of whom there are so many, both male and female, in prisons and in young offender institutions too—for example, those with language or learning difficulties. I am struck by one of the provisions in paragraph 9.2 of the Explanatory Memorandum, which tells us that a note has been issued for distribution to prisoners to explain the changes to the system—but what provision is being made for those who cannot read or who do not speak English? Can we really be confident that steps are being taken to deal with their needs and give them the advice they need?

At the heart of this is something else, which, I suggest, is profoundly worrying: the increasing tendency to treat prisoners as some kind of an underclass. They are to be regarded as having surrendered their right, when they go into custody, to be treated like everyone else, except to the extent necessary to serve their sentence. We are all familiar with the debate about prisoner voting; but the effect of denying them the vote is really quite trivial when compared with what these changes will mean for many who are in a position that puts them at such an obvious disadvantage when compared with everyone else, having been locked up by the state.

Paragraph 7.4 of the memorandum states that the amendments aim to target limited public resources at the cases that really justify it. So far so good; but then there are the words,

“to ensure that the public can have confidence in the scheme”.

Those really are weasel words. What is the basis for that claim? Who are the public? What do they know about the effect of all these provisions on prison law? What about the prisoners, their wives, parents or children? What about the many organisations and individuals who really do care about the mistreatment of prisoners or their rehabilitation?

Some years ago Justice Breyer of the US Supreme Court observed in a lecture in London that it is not the job of judges to be popular. That is why we have judges who are not elected. If you want to be popular, you have to win votes: you must appeal to the majority. Of course, one way of doing that is to devalue the rights of the minority. When it comes to the use of resources, there is a temptation: they can be diminished or left to one side because the majority can be relied upon not to care about them and not to object. That is all about winning the confidence of the majority, which is what this sentence really refers to. It is not difficult to imagine what, in the wrong hands, this may eventually lead to. The line of thinking, therefore—the political philosophy that seems to underlie these proposals—is perhaps even more worrying than all the details which, in themselves, are so troubling. I join others in expressing my thanks to the noble Lord, Lord Pannick, for bringing this Motion before the House.

[Baroness Butler-Sloss (CB)]

My Lords, I, too, regret very much these legal aid regulations in relation to prisons. The amount concerned is apparently about £4 million. The cost of each lawyer to give advice or representation is a fixed fee of £220. As the noble Lord, Lord Pannick—who, in my view, has done the House a great favour by bringing this issue before noble Lords—has already said, that is achieved very often by a letter that resolves the problem.

I received a very interesting and useful e-mail from a committee member of the Young Legal Aid Lawyers, which is a group of students, lawyers and barristers committed to practising areas of law traditionally funded by legal aid, which includes prison law. They raised three points that I want to make to the House, which identify three vulnerable groups. They have been referred to already, so I hope that the House will forgive me for referring to them again.

One group of young people—they are children—have advocates from Barnardo’s, which is a step forward. As far as I know, however, they are not lawyers and do not provide that specialised help which, for instance, is needed in the resettlement of young people who come out of secure accommodation or youth prison. Those young lawyers are of course experts in dealing with these problems.

The second group is mothers and babies. The issue of mothers and babies has been raised already, but let me take a different point. As a former family judge, it is the baby that I worry about. There is no one to speak for the baby; he or she is removed from the mother, with all the emotional harm that is done to a baby in those circumstances, even if that mother and baby are reunited at a later stage. In that instance, a lawyer can help to organise it so that the mother and baby remain together.

The third group that has already been referred to is that of vulnerable adults. I will make two points. First, in our prisons there is a very high percentage of people with mental health problems. Some have single mental health problems; many have multiple problems. There is also no shortage of people without education and with learning disabilities. How on earth are they to cope with putting forward whatever is the issue that needs to be put forward if they do not have someone to help them? I doubt very much whether the internal arrangements or even the ombudsman will meet the specialised help which, for a very minor cost to the public, these lawyers can give. If, as the noble Lord, Lord Pannick, suggests, it is ideological, the money does not matter; but I suspect that for the rest of the Government money matters very much. It is not very much money and it saves a great deal. Therefore I urge not just the Lord Chancellor and the Secretary of State for Justice, but the Government generally, to rethink the balance of saving money and the damage caused by taking away this facility and the lack of appropriate legal advice and representation that to me, as a former judge, is a denial of access to justice.