Joint Committee on Human Rights
The implications for access to justice of the government’s proposed judicial review reforms
1) The Prison Reform Trust works to create a fair and decent prison system. We do
this by looking at how a prison is working, giving information to prisoners, staff and people outside and by asking the government and officials to make changes. We welcome the work the Parole Board is doing to make the process clearer and fairer and the chance to response to this consultation. Alongside our media, research and policy work, we have an advice and information service that deals with over 5,000 queries from prisoners a year. We do not give legal advice or represent in court and therefore we have not given detailed answers to the consultation questions. However, we answer general queries on the legal process from people in prison, and monitor the impact of any potential changes and we therefore wanted to take the opportunity to raise some concerns.
Background
2) Access to the legal process, including judicial review, is particularly important to prisoners because their lives are almost completely regulated by thestate. Prisoners’fundamental rights cannot be safeguarded without an accessible legal system. We are therefore extremelyconcerned about the government’sjudicial review proposals. If enacted,they willmake it more difficult and more expensive to take a judicial review. It will be almost impossible to hold the governmentdecisions to account, particularly for people from vulnerable groups who already have difficulties accessing justice. It will deter genuine claimants from seeking redress. It will limit access to justice to those who have the means to pay.
3) It is difficult to predict exactly how the proposals will impact on prisoners’ convention rightsbut we haveparticularconcerns about article 8, article 3 and article 14 rights, which we believe are in grave danger of being breached. It is also foreseeable that rights under articles 2, 9, 10 and 12 may be affected.
4) Overall, we are concernedabout the cumulative impact of these proposals on people living in underresourced andpressurised prisons. We are already seeing deterioration in conditions and treatment and have concerns about the needs of minority groups in prison and outcomes for them. This, alongside a lack of access to legal aid and a reduction in access to judicial review, is extremely concerning.
Standing and third party intervention
5) There is already a test for who can bring judicial review cases. All claimants have to show that they have ‘sufficient interest’ in the matter. We do not believe that cases brought by charities, NGOs and interest groups should be classified as having no direct interest. Charities have a right to represent their beneficiaries,particularly when they are vulnerable groups who may not be able to represent themselves. Prisoners are a group of people that find it extremely difficult to access information and the means to take legal action.
6) We are also concerned that particularly vulnerable groups in prison, such as those with a learning disability, the severely mentally illand foreign national prisoners, and children, will be particularly disadvantaged. We are concerned about the implications for these people who are often unable to access justice.
7) At the moment third parties can intervene in cases where they have expertise and the court gives permission. Intervention from groups with expertise in the needs of the groups they are working for canassist in avoiding breaching article 3 and article 14 and help to make better policy.
8) Many people who are directly impacted by prison service policies are unable to make, or intimidated about taking a complaint or a case themselves. Prison is a specifically coercive environment and the loss of autonomy and liberty can create situations where people are afraidto take action. HMIP’s inspection evidence suggests that the prisoner complaints system cannot be consistently relied on. In their surveys last year, 13% of prisoners said it was hard to make a complaint, two thirds of those who did so felt it had not been sorted out fairly and nearly one in five said they had been prevented from making a complaint. People in prison may not take cases forward because of fear of retribution or repercussions from a system or from peoplewhohavealmosttotal control of their lives. In addition, people who have very genuine grievances may not be able to take cases because of a lack of access to advice, solicitors, knowledge of rights, no automatic information about prison life,limited access to phones or writing materials and little time and opportunity to find out about their rights.
9) Sometimesthird party groups take action when the individuals are unable to. This has previously included cases of removal from the UK. This can mean that policies are changed before they damagevulnerableindividuals. These proposals fetterjudges’discretion and are unnecessary. It is also unclear how an organisation might prove they have standing. As we have outlined above, many prisoners will be deterred from taking their case forward. Aproportion of prisoners will not be deterred, however, and will take cases forward themselves and possibly on behalf of groups of other prisoners. Important cases may be lost (by prisonerslitigating in person) because they have not been able to prepare adequately.Solicitorsfulfil a service by advising people when their cases are weak and unlikely to have merit or be granted permission for judicial review. Without this safeguard in the system the courts may find their workload increases and the time taken for cases is longer.
Costs
10) The proposed changes would mean that manycharitiesand community groups would not be able to access the court. Thiswould weight the justice system in favour of those with assets and finances. In the majorityof cases,charitieswould not be able tobring a claim with a protective costs order. Costs for third party interveners
make intervening a riskyprospect.
Public sector equality duty
11) It is currentlyagainst the law for the prison to treat a prisonerless favorably because of their race, gender, disabilitysexual orientation, religion or belief. Everyone in prison should have equal access to facilities, including jobs, education, library services, exercise and accommodation.However, we know that despitecurrentprotections in law, the outcomes for many groups with protected characteristics are less favourable. We are extremely concerned abut the differentgovernmentproposals that seek to erode this duty. We note that black and minority ethnic prisoners, Muslim prisoners and young prisoners consistently report worse experiences of prison and treatment in HMIP reports. We also note that the majority of the 11 treatment cases granted legal aid last year were for conditions for people with a learningdisability or mental health difficulty.Numerous reports and research identify that the Prison Service, despite some positive practice and sometimes considerableefforts, is failing to meetsufficient outcomes for many disadvantaged groups including, older people with mobility or care needs, andpeople who are physicallydisabled or have sensory impairments. We are therefore concerned that article 3 and article 14 rights will be further breached without this protection.
Combined effect of these proposals and legal aid proposals
Eligibility for legal aid
12) The government’s reforms to legal aid will mean that only matters specific to the decisiontodetain will be funded and that other prison matters will not be eligible. Many aspects of a prison sentence have an impact on release and ongoing detention,particularlydiscretionaryrelease under parole or home detention curfew. Without legal aid to cover risk assessments, access to offendingbehaviour courses, recategorisation reviews and pre tariff parole hearings, people are likely to stay in prison in longer. We believe this has implications for article 5.
13) Regarding treatment cases with limited access to judicial review and no access to legal aid the most extreme situations are when survivors of torture, children or people with very serious mental health problems are concerned. This could engage prisoners’ article 3 rights.
Residence Test for legal aid
14) We are extremelyconcerned that people will not be able to access legal aid if they cannot fulfil the residence test. It can be extremely difficult for peoplein prison to access immigration advice and renew their visas or regularise their stay. Many people’s immigration status will change while they are in prison. This could impact on article 3, article 5, article 8 and article 14 rights.
15) These proposals potentially impact disadvantageously on all prisoners. We would ask the committee to have particular regard to the needs of the following groups of people and whose rights may be impacted by the proposals:
trafficked persons who have entered prison because of coercion into criminal activity; people with severe learning disability or mental health difficulties, people with dementia or brain injury living in prisons; Muslim prisoners, children and young people in prisons and indeterminate sentenced prisoners.