Crime of the century

The proposition that prisoners, however grievously they may have violated the rights of others, retain inalienable human rights and are owed a special duty of care by those who lock them up is, I accept, not one necessarily recognised by many sections of Britain.

This was the certainly the populist tone that Ken Clarke's predecessor Jack Straw embraced. He presided over record highs in the prison population and the number of prisoners serving indeterminate sentences in England and Wales now outstrips the combined lifer population of the rest of Europe. Mr Straw seemed to view prisoners' rights as of lesser value than for those at liberty, evidenced by his highly misleading assault on the provision of public funding for prisoners in 2009.

It is hoped that Ken Clarke's recent pronouncements on the huge social and economic costs of an ever increasing penal establishment will lead to an informed and reasoned debate of the real contribution of criminal punishment to reducing crime and improving public security.

Public money spent on criminal justice has a knock on effect for resources available in areas such as health and education. There are reasons beyond purely the economic for being concerned about the 30 per cent increase in the proportion of GDP spent on 'public order and safety' between 1987 and 2005. It seems unmediated penal populism is something which perhaps few, even among the relatively advantaged, would rationally vote for.

Ever present danger

I would hope to persuade the Ministry of Justice's newest tenants to depart from the adversarial political system which has led to a continuous law and order bidding war over the last three decades and also to resist the quiet assassination of legal aid as an eas and largely unopposed cost saving measure. There are alternatives - alternatives which would allow access to justice for all.

Prisoners' vulnerability is acknowledged in the raft of inspection and oversight mechanisms to which prisons are properly subject. The problems of mental ill health, childhood abuse, literacy levels and exclusion from education and society via time spent in care is well documented. But do prisoners' really need lawyers?

Even as a lawyer I can acknowledge that recourse to the law is not always the best or most effective way of resolving problems. However, the law, whether at a United Nations, European or national level, does act as an important check to the ever present danger of neglect and abuse by the state.

Such abuse is not solely perpetrated in far off places such as Abu Ghraib, but has occurred much closer to home, from Wormwood Scrubs to Portland Young Offenders Institute and most recently in Yarl's Wood immigration removal centre. Good legal representation can stop that - or at least highlight it.

Access in austerity

A prisoner often needs a lawyer to sit there and say that they have the right, for example as a disabled person, for the prison to consider reasonable adjustments to their accommodation, or that prison service policy based on a fixed expectation that a child be taken from their imprisoned mother at 18 months should be subject to some degree of flexibility.

So if Ken Clarke accepts that vulnerable detainees need lawyers, how does he think they are going to get access to them? What of legal aid funding and the 'fat cat' lawyers so despised by Mr Straw?

A new age of austerity has, as anticipated, led the government to announce its review of legal aid and as I understand Ken Clarke's written ministerial statement to Parliament on 23 June, the government is currently studying the previous reviews of legal aid prior to releasing a consultation paper in the autumn, which will outline some options for reforming the system. The secretary of state made it clear in his statement, however, that the priority for the government is to reduce the financial deficit.

Some savings might be found by closing under utilised courts and reducing prisoner numbers as Ken Clarke has suggested, but to reach the 25 per cent target, significant cut backs would also have to be made elsewhere. Legal aid seems, as ever, an easy and likely target.

Ministers preparing swingeing cuts for legal aid, as we have seen, are ready to let leading providers such as Refugee and Migrant Justice (RMJ) go to the wall, leaving 10,000 vulnerable asylum seekers including some 900 children without legal advice.

The options for cutbacks are limited. Revisiting the levels of fees paid to lawyers in legal aid cases is not likely to meet with much protest from the public, but there will be increasing complaints if people cannot find help as firms are forced to withdraw from legal aid. Eligibility has already dropped from 50 per cent to 29 per cent under Labour.

A breathtaking risk

The closure of RMJ plight illustrates a wider problem about the precarious nature of the legally aided not-for-profit sector. A 2008 survey by the Law Centre Federation said almost one in five of the then 54 law centres lived with the threat of closure and almost half were in serious debt. RMJ has just published its own report, Justice at Risk, into the impact of the move from hourly rates to fixed fees on 10 firms and charities. That new regime was introduced following a 2007 review in which Lord Carter made the case for a "market-driven economy" in legal aid.

There is nothing wrong with fixed fees in principle, (and indeed lawyers involved in prisoners' rights are now subject to this fee regime from 14 July 2010) but only, as Jon Robins and Steve Hynes argued in The Justice Gap, if the levels are realistic and the escape provisions reasonable. These are two fairly hefty "ifs" '“ and that is why a committee of MPs, led by Alan Beith, memorably damned the Carter proposals as "a breathtaking risk".

Other options include cutting what legal aid will pay for but this can often be ill thought out like the recent MoJ's 2009 consultation. Under this measure,prisoners and lawyers will find themselves jumping through hoops to get 'treatment' issues publicly funded, despite such matters having been raised as concerns by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) since its first visit to the UK in 1990.

The CPT has consistently criticised prisons in the UK during their dozen or so visits on issues such as personal bodily privacy being invaded, sanitation, pregnant women handcuffed, healthcare confidentiality and so on. All of these would be classed under the LSC/ MoJ proposal as 'treatment issues'.

The reports of the chief inspector of prisons in England and Wales has also frequently made reference to the need for institutional and individual respect for prisoners and documented the frequent failings of the prison service to uphold these principles.

More recently, the report 'Women with particular vulnerabilities in the criminal justice system' by Labour peer Baroness Jean Corston in March 2007 made 43 recommendations including improvements to sanitation and hygiene in existing prisons and a reduction in strip-searching.

Squaring the magic circle

But what responsibility does the profession have? And isn't it time to have that debate in terms of securing access to justice and ensuring that pro bono work does come to act as a substitute for a properly-funded legal aid system? There is arguably an ethical case for every solicitor to support legal aid by reference to the original welfare state proposals of 1949.

In a profession where some City partners make £1m plus, there is force in an argument for a lawyers' levy as a way of staving off huge cuts in scope or eligibility for legal aid. A £100 contribution from every lawyer would raise £15 million a year and a structured levy on firms averaging £5,000 each could raise £60m.

The Tories already expect the profession to do its bit and I understand are looking at reviving old ideas to create alternative income streams. Perhaps a contingent legal aid fund could be considered, or co-opting the interest on client accounts similar to a French style Cassis des Regiments Pecuniares des Avocats scheme, where solicitors' client money is pooled in interest-generating accounts underwritten by the government.

Finding cash from other sources to off-set the cuts could be a solution. The consultation in the autumn should provide the forum to explore these, as some original thinking will be needed if access to justice is tobe maintained.