Austerity, riots, spiralling prison numbers and terrorist threats have led to major responses from the UK Government. The Legal Aid, Sentencing and Punishing of Offenders Bill was heavily criticised in the House of Lords, while the Justice and Security green paper prompted hostility from leading lawyers and NGOs. The IBA met with Justice Secretary Ken Clarke and put their concerns to him.
Currently standing at £2.1bn, the UK’s legal aid bill dwarfs most others. The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) addresses the UK Coalition Government’s commitment to cut costs fast, seeking to save £350m, and reducing the availability of legal aid. ‘If I manage to get all my changes through the House of Lords, we will still have by far the most expensive legal system of legal aid in the world’, Clarke emphasises, adding that ‘no other Western democracy would make taxpayers’ money so widely available for so much litigation and legal advice… what we mustn’t do is just leave untouched a system that has grown astonishingly, making the poor extremely litigious’.
Critics have attacked the bill for removing legal funding from vulnerable and poor claimants. Indeed, the Ministry of Justice’s own Civil Justice Council (CJC) found that the cuts would ‘have a disproportionately adverse effect on the most vulnerable in our society’.
Clarke was quick to point out that his reforms intend no such thing and was sanguine about the findings of the CJC: ‘It doesn’t speak on my behalf, it’s there to give me opinions, but I don’t have to agree with it’, he explains. ‘The whole point of reducing public spending on a scale, which no democratic government has attempted in modern times in most Western countries, certainly not in Britain, is to do so in such a way so that you don’t damage the vulnerable’, Clarke says. And he later adds: ‘I want to identify vulnerable litigants, not vulnerable law practices. That’s the line I’m trying to draw’.
However, worries persist that restrictions to legal aid in family and welfare cases would directly affect claimants in dire need of help. Shadow Justice Secretary Andy Slaughter MP cited the proposals’ impact on domestic violence cases as an example: ‘The Liverpool Law Society gave me the example of one of their firms, which said they looked at the government’s revised definition [of domestic violence], and against 278 current cases they are pursuing which have legal aid, they reckon only five would qualify under the revised definition.’ Which begs the question: what would the other 273 claimants do?
‘What we mustn’t do is just leave untouched a system that has grown astonishingly, making the poor extremely litigious.’'
A major concern is that legal aid savings have not been properly costed, actually representing a false economy as costs will simply be passed around to different state departments. A party to a housing dispute without recourse to legal redress, for example, may find themselves under such stress that they are forced to turn to the NHS, or end up placing greater pressure on the benefits system, through housing benefit claims, or similar. Andy Slaughter explains: ‘If you take someone’s welfare benefits away wrongly, they still have to live, then they may get into debt, rent arrears, facing eviction, or mortgage arrears. If people who are already on low incomes seek debt or welfare benefit advice, and don’t get it, and as a consequence the problem gets worse, sooner or later the state will have to pick up that bill’. If a housing claim appeal is no longer entitled to legal aid, for instance, it may ultimately end up in an eviction, which on average costs the state around £50,000.
Clarke dismisses the idea that costs would be simply shifted around the system as ‘campaigning nonsense’, suggesting that many objections are fuelled by ‘an army of lawyers advancing behind a line of women and children’. The latest research from King’s College London suggests otherwise. Dr Graham Cookson’s report, Unintended Consequences: the Cost of the Government’s Legal Aid Reforms, identified knock-on costs to the public purse of some £139m per annum, wiping off more than half of the MoJ’s purported savings.
Leading human rights lawyer Sir Geoffrey Bindman responds to Clarke’s dismissal of costing concerns (which were also raised vehemently by peers during the bill’s passage through the House of Lords). ‘Ken Clarke made no attempt to dispute the obvious consequence of legal aid cuts: that many people will be denied justice because they will be denied necessary advice and representation. Nor does he respond to the claim made by judges, lawyers and others directly engaged in the legal system that the cuts will cause additional cost to the public purse in lengthier hearings, and even more in the cost to health and social services of unresolved disputes, and the anguish and ill-health produced by them. Nor does he recognise that simplifying and streamlining processes is a better way to save costs than inflicting savings on the most vulnerable people in our society. He has received specific proposals for doing this which he has ignored or rejected.’
Riots and a rush of prosecutions
Riots in cities throughout England last summer presented a formidable challenge to the justice system. An outraged public demanded that justice be swift, strong and unforgiving. Politicians condemned the rioters in the strongest terms, with David Cameron warning that anyone involved in rioting should expect to go to prison. ‘What happened on our streets was absolutely appalling behaviour, and to send a very clear message that it’s wrong and won’t be tolerated is what the criminal justice system should be doing’, said the Prime Minister. Theresa May described the rioting as ‘sheer criminality’, and told the House of Commons that ‘the perpetrators of this violence must pay for their actions, and the courts should hand down custodial sentences for any violent crimes’. The political pressure moved justice minister Lord McNally to warn that ‘it’s dangerous when politicians try to do the sentencing’.
Clarke defended the impartiality of the judiciary. ‘I don’t think that political pressure played any improper part… the tabloid press are always going to be saying, “hang them all from the lampposts” and this kind of thing’, he says, but adds, ‘no directions were given to the courts in any way’. Instead Clarke highlighted the agility of the judicial system in achieving a through-the-night response to the sudden rush of prosecutions. ‘There were good public interest reasons for having the all-night courts we had, because it did quieten the turmoil that it was dealt with so quickly and promptly. It was dealt with justly as well, I think’.
In sentencing rioters and looters, judges were influenced by the comments of Manchester recorder His Hon Judge Gilbart QC, who suggested guidelines to the wider judiciary. Chairman of the sentencing council, Lord Justice Leveson, lamented that Gilbart ‘started to give sentence ranges… for offences with which he was not concerned. That’s not even something [the Court of Appeal] does’.
‘‘Ken Clarke made no attempt to dispute the obvious consequence of legal aid cuts: that many people will be denied justice,’'
Sir Geoffrey Bindman
Ultimately the Lord Chief Justice, Lord Judge, sitting in the Court of Appeal, supported the view that the widespread and aggravated nature of the rioting and looting merited harsh sentences. Clarke agreed. ‘By and large’, he explains, ‘I think it was legitimate for the courts to take into account the background of public disorder when imposing the sentences. The circumstances did, I think, justify taking a pretty severe view’.
The spike in custodial sentences following the summer’s civil unrest will unavoidably lead to a rise in the UK’s already troubling prison population figures. The current number of inmates hovers around 87,750, approaching what is said to be a system capacity of 89,000. Clarke called the figures ‘extraordinary’, adding, ‘I think the prison population has exploded for no very serious reason and it hasn’t actually satisfied anyone that we now lock up double the numbers we did when I was last doing this job’. He emphasises the value of ‘tackling drug abuse, doing some rehabilitative work in the prisons, making them more successful at reforming prisoners, to use the old-fashioned word. That’s the downward pressure that I want to apply’. His proposals – currently on hold – include sentencing discounts for early pleas and changes to judicial discretion in imposing indeterminate sentences for public protection. In addition he plans to increase private-sector involvement in prisons, with the first private prison now open in Birmingham and tenders out for nine more.
‘My personal belief is that facing up to competition – actually trying to outperform other people, with fresh ideas, about how you manage prisons – is of as much benefit to the public sector-managed ones as it is to the private sector ones’, Clarke explains. Concerns have arisen regarding a lack of research into the private sector approach, with Cambridge Professor Alison Liebling, author of a 30-month study of five private and two public prisons, telling the Guardian that ‘experimenting with private sector operators is quite high risk. They do sometimes bring innovation and some establishments are doing really interesting things. But when they go wrong, it’s in fairly major and predictable ways’.
‘‘What we’re trying to do is get the balance right between seeing justice done on the one hand and not compromising genuine national security interests on the other’'
For his part, Clarke is seeking to instil ‘a much more competitive environment on both quality and price whereby I think you not only save money, you stimulate innovation’. Critics point out that private companies managing prisons seem to have a financial interest in reoffending, which keeps prison populations high; Clarke wants to avoid this approach by negotiating contracts with providers in a more constructive manner. ‘Part of the contract has to be based on demonstrating you can reduce the reoffending level for this cohort of prisoners’, he insisted. He also wants to explore and expand the ability of inmates to undertake paid work, with a percentage of any proceeds going to a Victim’s Fund.