December 02 2023

Grayling’s ‘ideological’ legal aid cuts for prisoners ruled ‘unlawful’

Grayling’s ‘ideological’ legal aid cuts for prisoners ruled ‘unlawful’

Martin Rowson, for Justice Alliance

Grayling’s ‘ideological’ legal aid cuts for prisoners ruled ‘unlawful’

‘Chris Grayling’ cartoon by Martin Rowson, for Justice Alliance

The Court of Appeal ruled yesterday that cuts to legal aid for prisoners introduced in 2013 and reckoned to have reversed ’35 years of progress’ were unlawful. The decision is being hailed as a ‘ground-breaking victory’ by the campaign groups the Howard League for Penal Reform and the Prisoners’ Advice Service (PAS) which brought the challenge.

The Howard League reports that since cuts to legal aid for prisoners came into force four years ago, violence and self-injury in prisons has risen to record levels, with almost 300 people losing their lives to suicide in this time. More prisoners than ever before have been contacting the Howard League and PAS to seek help, with calls to the two charities advice hotlines increasing by almost 50 per cent since the cuts.

Granting the appeal, three judges – Lady Justice Gloster, Lord Justice Patten and Lord Justice Beatson- found that the way legal aid restrictions had been operating was unlawful in three separate categories of internal prison hearings, namely, pre-tariff reviews by the Parole Board, category-A reviews, and decisions on placing inmates in close supervision centres.

In their unanimous judgement, they ruled that the government’s decision to remove legal aid from the areas of prison law was made ‘because it considers that there were adequate alternative means in place to ensure prisoners can participate effectively in areas in which support has hitherto been provided by legal advice and legal representation.’

But the court went on to say ‘almost no changes have been introduced to replace the gap left by the removal of legal aid’. ‘We have concluded 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 sufficiently to fill the gap in the run of cases in those three areas,’ it said.
The chief executive of the Howard League for Penal Reform Frances Crook, said that the decision would make the public safer. ‘It vindicates our concerns that cuts imposed by the former Lord Chancellor, Chris Grayling, in 2013 presented a grave risk that prisoners would become stuck in a broken system,’ she said.

‘This sends a clear message that important decisions about prisoners cannot be made efficiently or fairly in the face of these cuts. We look forward to hearing from the Lord Chancellor with her plans to give effect to the judgment.’
Frances Crook, Howard League

Deborah Russo, PAS’s joint managing solicitor, called the judgment ‘an unprecedented and ground-breaking legal victory in which the vulnerability of the prison population is fully recognised as a key factor in its limited ability to access justice’. ‘Common law came to the rescue of a marginalised and often forgotten sector of our society,’ she added.

Even before the challenge came before the courts in January this year, it had already produced major concessions from the Ministry of Justice. They agreed that legal aid should be available through an exceptional funding scheme in cases involving mother and baby units, resettlement issues, licence conditions and segregation.

However, this left five areas where with withdrawal of legal aid remained problematic: pre-tariff reviews by the Parole Board on whether the prisoner is suitable for a move to open conditions; categorisation reviews of category-A high-security prisoners; access to offending behaviour programmes and courses; disciplinary proceedings where no additional days of imprisonment or detention can be awarded; and placement in close supervision centres.

Yesterday’s ruling found that the withdrawal of legal aid was causing inherent or systemic unfairness in three of these five areas, and that prisoners should have access to legal aid to pay for legal representation during pre-tariff reviews by the Parole Board, reviews of category-A high-security status, and decisions on placements within close supervision centres, which deal with the most disruptive and or dangerous prisoners.

A Ministry of Justice spokesman said the department would be considering whether to appeal the decision, but would also be examining alternative ways of ensuring that the system is not unfair, involving means other than restoring legal aid.

Chris Grayling’s ideological cuts

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. ‘I do not think prisoners should be able to go to court to debate which prison they sent to,’ he told MPs. When pressed by Jeremy Corbyn, now leader of the Labour party, about prisoners claiming ill-treatment or suffering neglect as a result of medical conditions, Grayling replied that they were ‘matters for an ombudsman’.

The exchange prompted the following observation from the human rights lawyer barrister Baroness Helena Kennedy: ‘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.’ Lord Pannick QC said that Grayling’s cuts threatened to ‘reverse 35 years of progress’ in the approach adopted by the legal system to the treatment of prisoners which began in 1978 following the Hull prison riots.