Grayling’s ‘ideological’ defeat over prisoners’ legal aid

Martin Rowson, for Justice Alliance

Following a landmark Court of Appeal ruling in April this year that a number of government cuts to legal aid for prisoners were inherently or systemically unfair, the Ministry of Justice last week withdrew an application to appeal the judgment. The decision marks the last in a lengthy list of reforms by former Lord Chancellor, Chris Grayling to be ditched by the government. Malvika Jaganmohan reports

The Government’s surprise decision also marks the culmination of four years of campaigning efforts to reverse unpopular reforms to legal aid for prisoners introduced by the former justice secretary.

Deborah Russo, joint managing solicitor of the Prisoners’ Advice Service, said: ‘After a long wait and years of battling through the courts we at PAS very much welcome the Secretary of State’s decision to finally accept the Court of Appeal’s ruling of inherent unfairness of the legal aid cuts imposed on prisoners back in December 2013. We believe that urgent action is now required to reinstate legal aid for some of the most vulnerable members of our society.’

Prisoners’ legal aid: an ideological battleground
Back in 2013 Chris Grayling, the then Lord Chancellor, described his plans to cut legal aid for prisoners as ‘ideological’ in a session before the House of Commons’ justice committee – you can read Matt Evans writing for the Justice Gap on Grayling’s appearance here . ‘I do not think prisoners should be able to go to court to debate which prison they sent to,’ the justice secretary told MPs.

In response to Jeremy Corbyn, now leader of the Labour party, raising concerns about prisoners claiming ill-treatment or suffering neglect as a result of medical conditions, Grayling dismissed them as ‘matters for an ombudsman’.

‘It is as though it is not enough to go to prison and lose your liberty, and experience the deprivations that we know imprisonment means, so we are looking for other ways to punish,’ Baroness Helena Kennedy said in a debate in the House of Lords on the regulations. In the same debate, Lord Pannick QC said that Grayling’s cuts threatened to ‘reverse 35 years of progress’ (as reported on LegalVoice here).

The MoJ’s recent climbdown represents the latest in a long list of reforms made by Grayling only to be ditched by subsequent justice ministers, including his notorious book ban for prisoners, plans for a new secure college for young offenders, court charge on convicted criminals, criminal legal aid reforms as well as a £5.9million contract to supply training programmes for prisons in Saudi Arabia.

The growing crisis in prisons
The Howard League and the Prisoners’ Advice Service saw calls by prisoners to their advice lines rise by almost 50 per cent since the cuts came into effect in 2013.

This came alongside a growing crisis in prisons characterised by an alarming increase in suicides and incidents of self-harm, and escalating violence. Prison reform campaigners hoped that the Prisons and Courts Bill would mark the start of long overdue prison reform, however this was dropped by the government following the announcement of the snap general election on June 8.

Between the launch of the legal challenge in 2013 and the case being heard in the Court of Appeal, the Government conceded ground on a number of areas where legal aid had been cut. They accepted that legal aid should be available in the form of exceptional funding for cases involving mother and baby units, resettlement, licence conditions and segregation.

The court, therefore, directed its attention to five areas where legal aid had been removed, finding that there was inherent or systemic unfairness in three of these: pre-tariff reviews by the Parole Board where the Board does not have the power to direct release; categorisation reviews of category A prisoners, and decisions about placement in close supervision centres.

The Court drew upon the wider context of crisis in prisons, stating that “at a time when the evidence about prison staffing levels, the current state of prisons, and the workload of the Parole Board suggests that the system is under considerable pressure, the system has at present not got the capacity to sufficiently fill the gap in the run of cases in those three areas.”

In arriving at its judgment, the Court gave particular consideration to the consequences for vulnerable prisoners, such as those with learning difficulties and mental health issues.

The judgment by the Court of Appeal was not without its critics. Tory MP, Andrew Rosindell, responding to the ruling said: ‘There is absolutely no support in the country for this kind of decision,’ he said. ‘Clearly the Government must take action to appeal to ensure taxpayer’s money is not helping the most dangerous people in society. The British people will not be happy that they are funding cases that could see some of the most dangerous people in society back on the streets.’

Alongside this most recent victory for legal aid campaigners, the government has finally announced a timetable for the long-awaited review of the Legal Aid, Sentencing and Punishment of Offenders 2012 (LASPO). It aims to publish its findings by summer 2018.


This article was published on November 13, 2017

Profile photo of Malvika Jaganmohan About Malvika Jaganmohan
Malvika recently completed the Bar Professional Training Course and expects to begin pupillage in October 2018. She is a Justice Gap reporter

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