Young prisoners at a Secure Training Centre (G4S)

The decision by Justice Secretary Chris Grayling last September to remove virtually all legal aid for prisoners means the law will remain a well-guarded secret, out of reach for children and other vulnerable prisoners — the very people who we want to develop respect for the law.

The impact of the cuts will be felt far and wide.

A child facing destitution on release from prison will no longer get legal aid to challenge the failure of the local authority to find him a safe home to go to.

A pregnant woman sent to prison on remand for shoplifting food for her children will no longer get legal aid to fight the decision to separate her from her baby as soon as it is born.

A prisoner with learning disabilities will rot in jail without any opportunity to do work on why he committed his crime.

These are matters that go to the heart of what the government says it cares about most – rehabilitation and public safety – and it is entirely right that we should stand up for them in court.

On Monday 17 March, the High Court refused the Howard League for Penal Reform, and another charity, the Prisoners’ Advice Service, permission to challenge the government’s legal aid cuts to prisoners in the Courts.

The Court accepted that the cuts might not save money and would have serious adverse consequences for prisoners but declared the issue ‘political’ rather than ‘legal’.

The Court was right that the issues are political.

The Justice Secretary announced his wholesale package of legal aids under the headline of the cuts for prisoners – even though they account for less than 2 per cent of the savings he hopes to make from legal aid cuts. Grayling even defended this decision to the Justice Select Committee by saying he is ‘ideologically opposed’ to prisoners being able to take cases to court.  It is as if Grayling is proud to have jettisoned his duty to uphold the rule of law as Lord Chancellor in favour of his political ambitions.

But the issues in our case are also clearly legal: the system that the Justice Secretary has created is inherently unfair. If the law cannot intervene to correct unfairness, what good is the law?

That is why we are appealing the decision to refuse us permission to argue that the law does not sanction decisions, made without proper parliamentary scrutiny and, in some cases, inadequate consultation, which will result in gross unfairness.

We had brought two distinct claims: one about removing legal aid for certain parole board cases and the other about taking virtually all prison law work out of the reach of legal aid, including cases about making sure children have safe homes to live in when they leave prison and keeping mothers and babies together in prison.

The proposal issued in April 2013 to cut legal aid for parole board work for prisoners who have not yet reached their minimum term was so unclear that even the Parole Board, which is responsible for parole reviews, and so was unable to address the grave consequences of the change. The Parole Board made strong comments about the other proposed cuts that did not directly affect its work.

These cases account for around 3 per cent of parole hearings so the costs, and the savings from cutting them are minimal.  But they are important because these are the cases that decide whether life and indeterminate prisoners will be allowed to progress to an open jail and be allowed out into the community unsupervised in due course.  Without such a move, these prisoners will not be released.

The Justice Secretary maintains that the Parole Board can deal with these cases and legal representation is unnecessary because the process is inquisitorial.  He provides no explanation as to how he will ensure fairness where secret evidence that the prisoner is not allowed to see is provided to the Board: at present, such evidence is carefully dealt with by the prisoner’s lawyers.  Nor does he explain how victims who attend a parole hearing to decide on whether a prisoner can progress to an open jail will be protected from having to read out their statement in front of the very person who caused them harm.  At present, although the prisoner has a right to attend this part of the hearing, it is usually sensitively managed by the lawyer attending in the prisoner’s place to ensure fairness but minimise distress.

The Court acknowledged that the alternative remedies put forward by the Ministry, the complaints system or even the remaining right to bring a judicial review, both have their ‘drawbacks’.  Yet, for prisoners facing a parole hearing alone, it is inconceivable that making a complaint or bringing a judicial review could solve the problems about secret evidence or distress to victims in any practical way. 

Nor will the complaints system or judicial review help provide effective, cost effective or practical help to the children our legal team works for.

Around a third of our work is for children who have made progress in prison but cannot be released because they don’t have a suitable home to go to or they are to be released homeless or back to the chaos they came from, reducing the chances of them overcoming the 70 per cent reoffending rate for children.  The Rehabilitation of Offenders’ Act passed this month does nothing to help these children.  Their local authorities already have a legal duty to help them where they cannot go home.  The problem is that even where professionals in the criminal justice system try to get the local authority to face up to their duties, they often refuse: we all know that looking after children is very expensive.  It is expensive for local authorities – and it is even more expensive for central government which spends up to £215,000 a year on each child detained.

It is only when lawyers write to local authorities reminding them of their legal duties under the Children Act 1989, along with the ultimate possibility of judicial review, that things start to happen.  These are among the cases that have been cut.  At £220 per case, they were good value for money.  They were certainly cheaper than the prison complaints system which costs on average around £1000 per case to go to the Prisons and Probation Ombudsman.  They were also far better value because there is absolutely nothing that the Prison and Probations Ombudsman can do about a local authority failing to comply with its legal duties towards a child.

Contrary to the Lord Chancellor’s assertion that charities such as the Howard League for Penal Reform use judicial review as a campaigning tool at great expense to the tax payer, our lawyers work hard to avoid having to bring judicial review proceedings to get support for a child leaving prison.  Judicial review is a last resort and suing your social worker is not a good basis for a positive relationship that should be critical to a child’s successful rehabilitation.  

Parliament’s expert human rights committee, the Joint Committee on Human Rights, shared our concerns.  The Committee found these cuts create an unacceptable risk of unfairness for vulnerable prisoners, one that cannot be remedied by the complaints system or judicial review. The Court acknowledged the Committee’s views but did not deal with this issue: the Court claimed our concerns were political and not legal. The question as to when the risk of unfairness becomes unacceptable is a legal issue.  The Court of Appeal will consider whether the judge in our case, Mr Justice Cranston, arrived at the right decision on this issue in a different context in a case called Tabbakh.

There is no question in my mind that the blanket removal of legal aid for almost all prison law will create immense unfairness for the children and young people we work with.  Most of these young people have made terrible mistakes but their punishment has been to go to prison – an act that would not even be contemplated for many of our clients in other countries.  Without exception, when I sit down to work on their cases, I see a catalogue of mistakes preceding their own - mistakes by virtually every adult and institution they should be able to respect and trust.

The saddest thing is that the children we work for tend to expect nothing better: their expectations of everyone and everything are as low as can be.  Until December last year, when children managed to reach us, we and other lawyers were able to help these children access the law to make positive changes to their lives.  The law was transformed in their eyes from something that only punished them to something that could also protect them and demand fairness.

Yet the Court brushed aside the serious adverse effects predicted by Peers and experts, accepting that ‘the policy imperatives for limiting criminal legal aid for prison law cases were extremely strong’.  The Lord Chancellor’s lawyers argued that ‘hardworking families’ should not have to pay legal aid for prisoners.  It is now clear that the Government has decided that the priority for such families is cheap bingo and beer.  But that is not sufficient reason to ignore the constitutional right to access to justice for prisoners when it comes to serious issues that the Government claims to cherish, such as rehabilitation.