Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Public and Commercial Services union (PCS) (LA 14)

Introduction

1. The Public and Commercial Services union (PCS) Public and Commercial Service union (PCS) is the largest trade union in the civil service with over 290,000 members. This includes representing staff in the HM Court Service (HMCS) and wider Ministry of Justice (MoJ).

2. PCS represents over 15,000 members working in the Ministry of Justice (MoJ) as well as over 5,000 in the National Offender Management Service (NOMS) and 2,800 in the Crown Prosecution Service (CPS). Our members undertake a wide variety of jobs in courts, prison establishments, police stations and in headquarters. These range from legal advisers, instructional officers, associate prosecutors, prison governors, managerial, administrative and secretarial jobs to support tasks such as cleaners and office management.

3. We welcome the opportunity to submit written evidence to the Bill Committee and would be happy to supplement this with oral evidence or further written evidence.

Legal aid

4. PCS members include those who process legal aid applications and deal with queries from parties or their representatives.

5. PCS believe that access to reasonable legal advice is a cornerstone of the rights of the public and that the Bill is in danger of confining access to justice only to those that can afford it.

6. We are concerned that the removal of £350m from the £914m annual civil and family legal aid budget by 2014 will have an devastating impact as it will affect one in four of those seeking civil legal aid. The reality of hoping that parties can fend for themselves is not the mark of a caring society and neither will it provide a more efficient court service.

7. PCS is concerned that the future policy of legal aid is being led by cost rather than by fairness and justice. We believe that the specifications under Clause 10 (3) of the Bill illustrate this point.

8. The Bill provides minimal access to justice merely to comply with the European Convention of Human Rights as in Clause 9 (3) . Just meeting statutory or international obligations especially overlooks the human rights of those that are poor and vulnerable.

9. The Bill aims to reduce the types of case currently in scope for legal aid funding. We are concerned that legal aid for the following has been taken out of scope:

· Clinical negligence

· Consumer and general contract

· Help for issues in relation to the Criminal Injuries Compensation Board

· Debt matters where the applicant’s home is not at immediate risk

· Education other than special educational needs

· Employment

· Housing other then issues in relation to loss of home/homelessness and risk to health or safety in rented accommodation

· Welfare benefits

· Private family law matters without domestic violence

10. However small the number of some of these may be there will still be those who are vulnerable and unable to cope without legal advice, assistance and representation.

11. One of our greatest concerns has been regarding legal aid in private law proceedings in particular where domestic violence is an issue. PCS believe that victims of domestic abuse will be more at risk because of this legislation. The definitions in the Bill and in the explanatory notes of those that have "been abused" or "at risk of being abused" are not satisfactorily defined. This is something that should determined by parliamentarians rather than elsewhere. It is not clear whether there will be the need for proceedings to have been taken before a court to show abuse, whether there has been some report to the police and how the risk of abuse will be measured.

12. A key role of legal aid in family proceedings is to protect vulnerable individuals in the court process. While the state can prevent an individual taking a case to court it cannot prevent them being dragged to court by another wealthier, more controlling family member. The Bill seriously puts at risk vulnerable family members being at the mercy of those with wealth and control who will be given an unfair advantage.

13. We are concerned that cuts to legal aid will ultimately lead to an increase in unrepresented defendants which will be disruptive and cause delays to court proceedings.

Prisoners’ pay and employment

14. PCS had broadly welcomed moves to decrease the prisoner population as we believe that current numbers are unsustainable. We therefore would have welcomed proposals that genuinely supported rehabilitation work, alternatives to custody and improvements to how we deal with those with mental health problems, drug and alcohol issues. We view this Bill in its current form as a missed opportunity to deal with these points.

15. Clause 103 deals with introducing paid employment into prisons and allow deductions from prisoners’ earnings for reparations to victims.

16. We support the idea that prisoners should make reparation to victims. However, any deductions from prisoners’ wages must be supported by a process to ensure it is fairly adjudicated, taking into account the impact on the prisoner and any financial dependents.

17. PCS believes that work in prisons which has a vocational element and which equips prisoners with transferable skills has an important part to play in tackling re-offending. Having a job, both in prison and on release, can help the rehabilitation of an offender.

18. Prison industries however need to be run in conjunction with other rehabilitation measures rather than separate than and must properly integrated into the prison system. We recognise that there are practical difficulties within prisons such as expanding work spaces within individual prisons both because of the costs involved and the physical space and facilities. Regimes would need to be adjusted to accommodate work patterns of up to 40 hours and there would be significant operational pressures due to ‘churn’ of prisoners (where inmates are frequently moved from prison to prison) and problems with overcrowding.

19. We believe that these difficulties can only be successfully addressed within establishments by utilising the experience of our Instructional Officer (IO) members who are uniquely placed as the key individuals within prisons who offer work experience in a custodial setting as a form of rehabilitation. They are central to achieving these aims, and could assist in delivering effective work in prisons, by investing, rewarding, motivating and recognising the skills, experience and expertise of IOs.

20. PCS are therefore concerned that the Bill will allow for more scope for private sector involvement in the employment of prisoners. Private companies could run businesses within the prison system and could be paid by results.

21. The experience of the private sector in prison workshops has been very poor to date. The majority of contract service workshops offer low skill labour which acts as a disincentive to steady future employment upon release. Little of this work can be classed as vocational or assisting the prisoner in acquiring practical skills for future employment after release.

22. We hold that any private profit derived from prisoners is morally wrong and indefensible. We know that criminal justice is complex and it is too simplistic to believe that the market can be used as a universal panacea to cure issues which are a reflection of wider problems in society such as lack of access to health, education, housing and employment, particularly as deep divisions have arisen and are exacerbated by the market itself.

23. PCS are concerned about what future job security our IOs would have if there was more private sector involvement. Companies are likely to employ their own staff and we could see a driving down of terms and conditions for staff employed in assisting prison rehabilitation.

Cautions and penalty notice

24. PCS are concerned that there is too broad a provision included in the Bill such as Clause 106 and Schedule 14 to enable offences to be dealt with by fixed penalties. There is a new power for a court enforcing a fixed penalty to order the penalty to be set aside and the offender tried for the offence. We believe that if more offences are to be dealt with by fixed penalty rather than in the court, as this clearly suggests will be the case, that this will avoid the publicity and shame that comes from conviction and will therefore act as less of a deterrent.

25. It also raises concerns that these new powers for on-the-spot punishment could possibly undermine the judicial process.

Conclusions

26. PCS has always maintained that to have a world class criminal justice system requires proper resourcing including proper recognition, motivation and remuneration of the dedicated, skilled workers who deliver this public service. We are therefore unable to see how this can be reconciled with the comprehensive spending review (CSR) announcements of a 23% cut to the MoJ budget, not including money set aside for new prison capacity, and over the lifetime of CSR approximately £2bn of cuts from the MoJ budget; £1bn of which is to come from NOMS, coupled with a projected 15,000 job cuts and a three year public sector pay freeze.

27. We fear that too much of what is set out in the Legal Aid, Sentencing and Punishment of Offenders Bill, cannot be removed from the government’s ideological drive to cut costs and introduce more scope for profit organisations involvement in our justice system. We are concerned that what the Bill effectively aims to do is deliver justice on the cheap.

July 2011

Prepared 14th July 2011