This has been written in response to the recent cuts to criminal legal aid in prison law matters, a summary of which can be read here. This post seeks to explain why public funding for certain civil actions, specifically Judicial Review, is a safeguard for individual freedoms.
Earlier this year, the Government announced, in keeping with its continued massacre of the publicly funded legal system, that it will now be more difficult for individuals to make applications for a decision made by a public body to be judicially reviewed. The Government has additionally drastically reduced the amount of legal aid available to prisoners pursuing such claims against the prison service and associated bodies.
In relation to these proposals, the Secretary of State for Justice, Chris Grayling has said that "The vast majority of these types of complaint can and should be dealt with by the prison service's complaints system". Unfortunately the reality is that sometimes the prison service fails to address legitimate complaints and sometimes makes arbitrary and often unfair decisions. Equally, decisions that are made in good faith may be wrong in law. For these reasons, an avenue of legal challenge available to all is necessary to ensure that such bodies are held to account for their decisions, and that unlawful decisions are questioned. Public funding for prison law matters is therefore not only necessary to preserve individual rights and liberties, but also to ensure that the State is not acting unlawfully.
One of the ways prisoners can legally challenge unfair, unlawful or arbitrary decisions made by the prison service is through Judicial Review. Judicial Review is a process which enables government and public bodies such as the Parole Board and Probation Service to be scrutinised by an independent eye, and rightly so. The potential of external scrutiny means that authorities are more likely to make fair and lawful decisions in any event, but equally, it means that mistakes in the process of decision making can be rightfully corrected. The cuts to prison law legal aid will mean that individuals who may have a legitimate claim for Judicial Reviewwill not be able to pursue this unless they can afford the services of lawyers, or have the necessary knowledge of public law and drafting skills to make an application as a self-representing claimant.
Often, complaints made by prisoners raise issues relating to equality and discrimination. Legislation such as the Equality Act 2010 applies to prisoners as it applies to other citizens. The law in this jurisdiction provides that the deprivation of one's liberty is punishment for criminal offences. Prisoners retain the right to be treated fairly and in accordance with prison rules and policy. Punishment does not encompass general infringement on basic rights, access to justice or discrimination at the hands of the prison system. Nor does punishment mean that prisoners may be treated unlawfully. These are all issues which many prisoners' complaints entail. Public funding for prisoners without adequate financial means for this purpose is therefore imperative. Whilst there may be some limited funding for certain exceptional claims which raise human rights issues, the current proposals are draconian and the potential ramifications have not been thought through.
Throughout history, lessons have apparently been learned in relation to prohibiting the ability of individuals to challenge government decisions. The proposed limitations to Judicial Review will have a similar impact in that society’s outcasts will not be able to challenge decisions which may not only be unreasonable, but illegal. To limit the mechanism of Judicial Review on multiple fronts, including both eligibility of applications andfunding for legal representation on such applications, will prove to be a very dangerous move indeed.
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