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 the state. Prisoners’
fundamental rights cannot be safeguarded without an accessible legal system. We
are therefore extremely concerned about the government’s judicial review proposals.
If enacted, they will make it more difficult and more expensive to take a judicial
review. It will be almost impossible to hold the government decisions 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 rights but we have particular concerns 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 concerned about the cumulative impact of these proposals on
people living in under resourced and pressurised 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 ill and 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 can assist 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 afraid to 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 people who have almost total 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) Sometimes third 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 damage vulnerable individuals. These proposals fetter
judges’ 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. A proportion 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 prisoners litigating in
person) because they have not been able to prepare adequately. Solicitors fulfil 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 many charities and community groups
would not be able to access the court. This would weight the justice system in favour
of those with assets and finances. In the majority of cases, charities would not be
able to bring a claim with a protective costs order. Costs for third party interveners
make intervening a risky prospect.
Public sector equality duty
11) It is currently against the law for the prison to treat a prisoner less favorably
because of their race, gender, disability sexual 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 despite
current protections in law, the outcomes for many groups with protected
characteristics are less favourable. We are extremely concerned abut the different
government proposals 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 learning disability or mental health difficulty. Numerous reports and research
identify that the Prison Service, despite some positive practice and sometimes
considerable efforts, is failing to meet sufficient outcomes for many disadvantaged
groups including, older people with mobility or care needs, and people who are
physically disabled 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
decision to detain 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, particularly discretionary release under parole or home detention curfew.
Without legal aid to cover risk assessments, access to offending behaviour 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 extremely concerned that people will not be able to access legal aid if
they cannot fulfil the residence test. It can be extremely difficult for people in 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.