Kushal Sood on The Prisons and Courts Bill
It is with trepidation that I write this blog – my profession has been marked out, by the no doubt objectively minded Member of Parliament for Shipley, as being ill-equipped in our ability to reflect public opinion. I derive confidence from the response given by the Chair of the Justice Select Committee, at whom the derogatory comment was aimed. He suggested that in his 30 years as a criminal lawyer, he will have seen a broader cross-section of society than the Member for Shipley had down the bookies, a place where I can only assume the latter spends a great deal of his time.
The Prisons & Courts Bill
This testy exchange was a rarity during the broadly consensual 2nd reading of the Prisons and Courts Bill, which passed through the Commons without the need for a vote, and which will now move on to the Committee stage. The Bill itself deals with prison reforms in Part 1. Whilst Court reform is – necessarily – addressed in a separate part of the Bill, it would be remiss of me to ignore the correlation between the two issues. The need to explore this correlation is particularly urgent as it has been overlooked by Committees looking at the important topics of prison reform and mental health in prisons, in the months preceding this second reading.
I, like a lot of my fellow prison lawyers, have spent more time talking to prisoners than most Politicians will in their entire careers. I can say without hesitation that I have no desire to ensure I have a job visiting prisons for life. It can sometimes be disconcerting to come across professionals who see prisons as places where specialism should be encouraged. The reality is that they are a symptom of failure elsewhere. My own motivation is to try and alleviate my clients’ suffering and, in so doing, equip them to move away from the brutality of criminal justice. Lawyers are uniquely placed to do this in a way which isn’t paternalistic or judgmental, acting as expert fiduciaries to their clients.
As lawyers are thrust further into the political arena, our specialism – in law – can be lost as we participate more and more in debates about specific social problems. One role of judicial review, the remedy of last resort for prisoners, is to make advances in how public bodies behave. Research undertaken by the Public Law Project has demonstrated that it has been largely successful in this aim. Such are the problems I have encountered in prisons over the years, particularly in the last few, that I cannot envisage a time when prisoners will not need access to justice. Rosters of prison lawyers, to help reduce overcrowding, are encouraged by the United Nations Office on Drugs and Crime.
Access to Justice
The Bill, as various Members had pointed out, was welcome in its apparent tone. The 2nd reading, however, served to reiterate that there was no provision for access to justice. It was discussed, but in the context of personal injury and employment tribunal claims. Prisoners are instead supposed to take encouragement from the clauses within the Bill which serve to strengthen the powers of the Inspectorate and place the PPO on a statutory footing. Prisoners commonly observe that prisons seem to scrub up well, even for unannounced inspections, and that the PPO is, aside from being a blunt instrument, replete with other problems. The Solicitor General put paid to any idea that Inspectorate powers would be meaningfully enforceable, as he stated that whilst judicial review would not be impossible, it would only be envisaged in those cases where a prison had totally ignored the Inspectorate recommendations. That will be of no comfort to the huge numbers of prisoners I hear from every day with very real problems.
There was welcome cross party support for strengthening family ties, and some members urged the Government to bring mental health provision within the ambit of the Bill. I have seen several examples over the years of prison Governors misusing safeguarding policies to restrict contact between prisoners and their children. It has also been common, both before and since cuts to prison services, to see a restrictive approach to family funeral attendance. These are just two examples. As for mental health, statutory provisions to compel support already exist, but are slow to be adhered to, particularly, at the risk of repetition, as there is no legal aid to challenge failures. Some of the reference to drug testing, as reflected in clause 22 in the Bill, overlooked the uselessness of adjudications for drug use in prisons. In order to reflect on demand for drugs, we need to confront, as the Mandela Rules do, the inherent suffering of imprisonment.
Nobody is claiming that access to justice is a silver bullet, and issues to address population-wide problems on the prison estate, such as understaffing, were discussed at length. A somewhat muted, but profoundly important contribution, was made in passing by Chris Bryant at the outset of the reading. He pointed out that many prisoners have suffered major brain traumas, which are better cared for in society. If the tone of future debates on prisons can adopt a more compassionate tone, there is cause for hope. As Edward Garnier said, the public are already liberal; Politicians, in Shipley and elsewhere, need to catch up.
Kushal Sood – Specialist Prison Law Solicitor
Written by Kushal Sood. Kushal is a prison law solicitor acting primarily for vulnerable prisoners and detainees across England and Wales. He has been Committee Secretary of the Association of Prison Lawyers since 2013, and lectures, writes and campaigns about his work both here and abroad.