Sunday 16 March 2014

Judicial Review

For those present at last years Napo AGM in Llandudno, it will be recalled that General Secretary Ian Lawrence received a loud cheer when he announcement that he'd just signed the letter authorising work on preparing a Judicial Review of the decision by the government to use the 2007 Act. Like many members, we've been wondering what the hell happened? Well Ian gave the matter a cursory and unimpressive mention at the recent SGM in Birmingham. This is what he said, according to the abridged speech on his blog:-
"Let's firstly clarify the position on Judicial Review otherwise known as the 'search for Spock' and let me firstly make it clear that this still remains a live option but one that is just as tricky a path to tread as when we first started out, and I hope from what I have to say you will understand why. 
As you know, we and Leading Counsel have explored the potential for challenging the procedures adopted under the Offender Management Act 2007. 
We have, through a circular to Napo Branches, encouraged Branches to prompt their respective Probation Trusts to undertake further risk assessments in respect of the rehabilitation process and secure a copy of the same, with a view to identifying whether there may be scope to challenge the timetabling by the Secretary of State as high risk. 
This can only be explored further on the basis of up-to-date information from each Probation Trust (or as many as practicable)." 
Well, if that's clarification, I was born in Holland. From this clear-as-mud reference it would be reasonable to assume that the membership have no idea what is meant and whether anything is happening on JR or not. As numerous comments on this blog and elsewhere will testify, many members are extremely unhappy about lack of progress and want to know what the position is.

In the absence of a clear answer from the top, this is what I understand to be the situation, and I think it's good news. It will come as no great surprise to us in Probation that legal opinion differs. It's true that Napo have been advised of a cautious view that there is limited scope for winning, and with a consequent risk of a substantial bill for costs. On the other hand there is a view from several senior Members of the House of Lords that there is a strong case and this view is equally shared by a recent unsolicited approach from a sympathetic Member of the Bar. 

I understand that this Counsel is in the process of obtaining instruction from the Napo leadership for a second opinion. In essence I have to say that history will not look favourably upon any of us if we did not test the legality of using the Labour Government's 2007 Act for purposes that were never intended. It strikes me that the membership would over-whelmingly feel that it would be an entirely appropriate use of their money in trying to save an entire profession. Lets hope instruction can be given as soon as possible, or an explanation given to the membership why it hasn't.    

46 comments:

  1. I could not agree more. It may well be potentially costly if it is lost but Napo members will rally behind a Judicial Review in preference to the somewhat patchy seemingly uncoordinated and unpopular personally costly efforts currently being made on their behalf.

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  2. This could be a game changer why wouldn't you test the whole omnishambles in law; surely the Labour Government didn't envisage this? Can be ask them? I spent yesterday afternoon laughing at the disgraceful display of Spurr and co in front of the Public accounts Committee; I'd love to wipe the smirk off their faces by going for a Judicial Review and stopping this madness in it's tracks or even slowing it down a little. :)

    Papa

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    1. It was a disgraceful display by Spurr and co, they need to be drillers as this is very unsave.

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  3. We need to go for Judical Review, if we don't try we will never know.

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    1. Absolutely crucial. Can't Unison help with the funding? This govt truly believes it is above 'the law' and that legal process does not apply. If this isn't challenged it will set a dangerous precedent for corrupt behaviour by future administrations. I thought this is a democratic society but the poor are now viewed as simply a means of reaping profit for the few. It is disgusting and am sickened by the constant dishonesty and manipulation.

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  4. If in the next few weeks NAPO do not withdraw from PI and announce they are pursuing a judicial review then history will document that the current napo leadership colluded with the distruction of this countries probation service specially and also contributed and aided the wider attacks on the CJs. But I'm afraid that neither of these 2 things will happen... I'd love to be proven wrong

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  5. Colonel Mustard16 March 2014 at 10:09

    Ive said it before on this blog and will say it again in the interests of free speech ....are Napo and MOJ working in cahoots to make TR work at the highest level...do we need a whistleblower at Chivalry road ?
    Judicial reviews, PI et ...all convenient distractions from the main thrust against the insidious TR agenda....NAPO, if we've lost let's say so instead of giving false hope and prepare for the guerilla phase.....

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  6. I'd rather donate my 1.5 days pay to a JR legal fund than strike.

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  7. Ian Lawrence did raise expectations about a judicial review at Llandudno and then said nothing more about it until Birmingham over six months later – and then he shifted the onus back to branches by saying he needed more up-to-date information. He plays to the gallery.

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  8. I have been in touch with a barrister who thinks it's definitely worth pursuing and, at any rate, we should be asking for a second opinion as Napo currently have only accessed one legal viewpoint and I get the impression they are a conservative legal firm, with a small 'c'. At the AGM, Ian Lawrence told me he did not think members would appreciate using our money if it's not got much hope of winning but we don't know that yet, with only one example of legal advice. So if members feel that Napo should take the risk with our money then we need to tell HQ. What have we got to lose in this fight to defeat TR? Things seem to be pretty desperate to me.

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  9. I find this blog frustrating. He said more about the judicial review at the SGM and I and many others left knowing the position - it's not easy to pass firth hurdle for judicial review but they are doing their best. This blog constantly criticises Napo as if its responsible for TR. Full of speculation, misinterpretation and misinformation. Its like you authors start from the position that napo are more powerful than the government so unless napo win instantly theyre either conspiring behind closed doors or are incompetent. How about - napo are doing their best and need collective support to beat TR against the govt who are simply more powerful - members and other probation workers need to be realistic about what napo can do and in what time frame. Get on board, or contribute to failure. Not that you'd care about contributing to failure because that at least would help you frame the "I told you so " argument

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    1. If napo are trying their best re JR then report what they have been doing for 6 months. No one says that naporesponsible for TR but they are responsible for the agreements they sign.. Staff transfer between NPS and CRC, which doesn't protect the continuity if service fir CRC staff. Being involved in the setting up of PI. Changing the j ions constitution to facilitate TR agenda,

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    2. Agreed. Much blaming of napo leadership, no mention of napo members who refuse to strike under any circumstances. Napo leadership is not immune from criticism, yet it seems that this is used by some to divert attention from others who let the side down. No-one wants to strike, but these are democratic decisions and should be respected even if you disagree. There are genuine hardship cases, but also many who will give any excuse to avoid action.

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    3. Anon 11.48: 'Speculation' - well, we can all speculate and on this blog as it tends to be evidence-based speculation. As for 'misinterpretation', we live in a pluralist world and we don't have to take the word of Chivalry Road as gospel. As for 'misinformation' - you should provide some evidence.

      It is entirely reasonable to question Napo strategy, to question a massive payoff to JL and the bypassing of disciplinary procedures, the probation institute, the judicial review. If we get to a judicial review it may be argued that Napo's position would be stronger had it not signed up to the framework agreement. The forthcoming strike after the Bill has passed into law is open to question.

      You set up straw arguments and then berate critics of Napo's policy and practice. No one has ever suggested that Napo is all powerful. It needs alliances - pity it could not achieve one with Unison.

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    4. I am a staunch supporter of NAPO, which I think earns me the right to also be a staunch critic if I have to be. I dont agree that the posters to this site are peddling speculation and misinformation. By and large I would suggest WE are the committed people; from my experience those who criticise the Union the most dont even read this blog, let alone any of the TR documents that have been issued. WE blog and comment because we care, and Chivalry Rd need to recognise that, and rather than get all upset give us answers to the points we raise and questions we ask, instead of silencing the criticism. By the way, I like the idea of contributing 1.5 days salary to a fund to pay for legal advice (Anon 10.17) and have said so before - we ought to start a fund for legal fees. A most appropriate use of Union funds, in my view.
      Deb

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    5. Its fair enough having critical points of view but it'd make more sense raising those points via yr Branch to get debated at NEC by yr Rep and direct email to Napo . Members can also comment on Napo webpage on Ian's blog.

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  10. Off topic but cant resist it when Graylings on the ropes!

    http://www.independent.co.uk/news/uk/crime/britains-prison-overcrowding-crisis-surges-close-to-the-brink-9194843.html

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    1. He hasn't thought of space required for all the 12mth and under recalls there will be either.
      It must be time for all working within the justice sector to stand together and make a collective stand against the destruction of every part of our justice system.

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    2. The country is on the verge of its worst prison overcrowding crisis since 2008, leaving the Justice Secretary, Chris Grayling, fighting for his political future.

      Mr Grayling has quietly sanctioned emergency measures, after it emerged that there were only 265 free spaces left out of an 85,800 capacity across the England and Wales prison estate. This is the most crowded that prisons have been since the coalition took power nearly four years ago.

      To avert the crisis, privately run prisons will be paid to cram more inmates into their cells. The managers of these 14 private sector prisons include Serco and G4S, the companies at the centre of a scandal last summer, when the Ministry of Justice was billed for the monitoring of non-existent electronic tags.

      Mr Grayling was accused by prison experts last night of being "irresponsible", amid warnings that crowded prison conditions could lead to riots and hinder rehabilitation. The Labour Party claimed that Mr Grayling's future could be "short-lived": in 14 of the past 22 weeks, including the past seven consecutive weeks, prisons have come within 1 per cent of capacity.

      However, Mr Grayling is refusing to invoke Operation Safeguard, which involves booking spare police and court cells at expensive rates, even though it is the convention to do so when prisons are near breaking point at 99 per cent capacity.

      The Conservatives made political capital out of the last Labour government's need to use police cells and the introduction of an early release scheme in 2007 which only ended just before the last general election. Between November 2007 and September 2008, cells were booked under Safeguard for the equivalent of nearly 23,000 nights at £385 a night.

      Mr Grayling has been accused of trying to protect his own party by avoiding a repeat of the embarrassing use of police and court cells, despite positioning himself as tough on crime. He recently announced that he intended to put a stop to the automatic release of child rapists and those convicted of serious terrorism offences once they had reached the halfway point of their sentences.

      The prison population is also expected to soar by an additional 1,050 inmates when the Ministry of Justice's Criminal Justice and Courts Bill, which is currently going through Parliament, becomes law. At the end of 2012, there were more than 6,500 spare prison places, but Mr Grayling has overseen a prison closure programme that his critics warned would result in the current shortages – and his £250m Titan "super-prison" in North Wales will not be ready until 2017.

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  11. Juat had a thought. Plan is for everyone that serves prison sentences of less than 1 month to be supervised by NPS or CRC. Will that result in sentencers up tariffing, i.e. send to jail rather have give CMO or SSO, as they know that they would be supervised anyway? Or am I being cynical?

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    1. Not at all, it is sure to happen. Why give someone a 12 or even 24 month CO when you can send them down and get 12 months supervision thrown in as well?

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    2. BOGOF. I say you buy one, you get one free,

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    3. I don't know the nature of the information in the 'risk register' but there should have been an estimate of the effects upon prison population of extending supervision to u12 monthers? That might be a useful FoI request, without having to ask for the full register?

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  12. The reported pay off of over 100k to the disgraced general secretary instead of appropriate formal proceedings would have been better spent on the members professional protection. The JR process could have been well underway with that squandered money. JR could be a further complication that the Grayling club will have to spend resources and produce real testable truthful evidence to fend off. The failings of Napo can be measured in the choices they make which are constant qualified agreements. These appear then to be used against our position like the Probation institute and the so called agreed framework which may contain some limited protections but a union who has agreed a document that says COMPLSORY REDUNDANCIES will be ok after a certain date is no indication of a mature union position. This openly is planning our termination and there is no indication that anything but the legal minimum of redundancy payments will be due. We would not be able to post this opinion on the NAPO Forum either as they would remove any post they don't like Shameful ! Posting here has kept issues in wide circulation are there some lessons to be learned here NAPO ? It wont take branches of NAPO much longer to force the Napo leadership to act properly and engage this battle aggressively. A motion calling on all branches to use some of their cash reserves to fund the start costs for a review . Its not about money its about saving Probation can we afford not to ?

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    1. Lets makes it clear that these compulsory redundancies will be cuts in NPS as well as obviously the CRC. As there continues to be a number of (but not all) NPS allocated individuals who think they are completely safe and they are not.

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    2. I agree Anon 13:00. I am NPS assigned and believe many more staff have been allocated here than Grayling originally planned purely to satisfy anxious MPs until he had his way. Once Omnishambles is up and running the biggest cuts will come from NPS unless of course the masterplan fails.......SFOs raining down,,,,then sadly, he might need to keep us....

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  13. Given that we work in the "justice system" we understand more than most that JR is perhaps our last chance; did the 2007 legislation really allow for the destruction of a profession. We know that many in the legal profession think that there is a challenge to be made and possibly to be won. Why at this late stage would we not take on this fight? Why?

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  14. Members of Napo should insist that Chivalry Road call off the strike ASAP.

    What do they hope to gain from losing their faithful members 1.5 days pay and spending members money on leaflets and placards?

    The MoJ know that the work will still be done and without coordinated action there will be no impact.

    Prospective bidders won't be bothered as the level of support for industrial action is probably now lower than it was when the original ballot was held.

    Napo HQ need to be told clearly and unequivocally to concentrate instead on supporting the Judicial Review as the last real hope.

    The alternative is just to snipe at the MoJ when things start gradually falling apart but their gaze will be elsewhere as their real concern will be the prison crisis.

    You know it makes sense

    JR not Strike

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    1. Things already are falling apart. Oversubscribing and undersubscribing in various trusts for both NPS and CRC.

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    2. I fully agree. There is also the possibility that at this stage the turn out for strike action could be so low as to be counter productive.
      I can only assume that many like my self are wondering just what is being hoped to achieve by a strike at this stage.
      I would hate for the strike to go ahead and have such a low turn out, and not attracting enough public focus for the MoJ and grayling to be able to explain it away as a 'dummy' spitting exercise and just sour graps. I think NAPO should think carefully on this one.

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    3. Perhaps they should ballot their members again concerning strike action as they seem to be out of touch with their membership on this one.

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    4. There needs to be clarity about the purpose of a strike. How should the question: 'Why are we striking?' be answered.

      The Lords have had their say, the public accounts committee has sat. Napo has signed a framework agreement. Unison are back to normal service. Is the strike taking place because we don't like TR? Or to reach specific objective? I hate to say it but will the strike action be SMART. A low turnout is going to harm Napo and increase the sense that the leadership is out of step. Spend money on a judicial review instead and get some publicity that way and pull out of the probation institute which in the present circumstances is a vanity project.

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    5. I think Napo HQ are so far removed from the actual work done in teams that they have misread the mood of the members. We are under unprecedented pressure. Having to identify,inform, review and handover clients; pack up and move to new offices; learn a dozen new ways of working; battle n-Delius; cope with the increasing sickness around us and try to just do your job. Of course I will strike (reluctantly). I'm part of the union but I won't be standing on the picket line. I simply can't explain to the public why I'm there.

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  15. Some observations, for what they are worth.........
    1. Our branch has received six resignations since the second strike was announced.Part time staff who tend to work midweek are hit disproportionately. Comments include lack of understanding that the ballot could be used to call repeated strike action without reference to the branches to canvas opinion first.
    2. Regarding Judicial Review, this still appears to be hanging in the ether after being tantalisingly dangled in front of members at AGM and SAGM (and repeatedly discussed in closed session of NEC). It was rumoured that leading counsel had agreed to work on this pro bono ???
    3. The Framework Agreement was the best that could be hoped for. The main issue is that post share sale the CRC's will be owned by many different businesses how could an agreement be reached with them now when some of them don't exist other than in shell form???
    4. The branch reps are working flat out now as the Trusts appear to be determined to resolve staff issues such as sickness absence and disciplinary before they transfer to the new entities.
    5. If you consider resigning from your union or transferring to another please be aware that many of the processes that could raise legal issues for any one of us have started and you may be left without representation. This is the time to join unions not resign.
    Just my thoughts after reading some of the above. I am really disillusioned and trying to hold it all together really as I am worried about my personal future whilst trying to represent members going through difficult times. Who do I blame for all this? THE GOVERNMENT, no-one else.

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    1. Well said.A difficult time representing members whilst also experiencing stress & anxiety.All best to you.

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  16. I'm not a lawyer or barrister or practising solicitor but having briefly read thru the OMA07 I reckon there are three or four areas open to challenge. NAPO, please get a second opinion from a feisty silk. Maybe our disgraced departed leader could make penance and donate some /all of his ill-gotten gains towards the cause? JL, take a leaf out of Profumo's book and do something honourable by way of amends.

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  17. We might prefer to see that money back but it should never have been awarded. It is the major failings of those decisions that have continuity with this current NAPO group. Hardly surprised this government appear to have the constant whip hand. We are still talking about a JR when the Grayling camp have already succeeded and passed this legislation having received both houses endorsement and the royal ascent last week How can a JR stop it now any reasoning ? Any previous precedent ?

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  18. Just saw a new blog entry from Harry Fletcher and it appears that he would like Napo to go for a JR/legal challenge too. He doesn't even mention the strike so we can probably assume he considers it to be irrelevant to fighting TR http://www.hfletcher.co.uk/latest-news-probation/ If it is irrelevant the question has to be asked why is Napo persisting with a strike that is irrelevant and not even worth mentioning by those advising them regarding their campaign strategy?

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    1. "Many opportunities will occur over the coming months to highlight the flaws,contradictions and disasters arising from TR.It is essential that they are given to the Press,Parliament and the public. Many believe that the Coalition are acting without authority in using the 2007 Act. This must be explored fully and if the case is there challenged in the Courts."

      Harry Fletcher

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  19. Memories... (Sorry, not currently in a position to paste the text) -

    http://www.theguardian.com/commentisfree/2007/sep/28/abureaucraticdisaster

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    1. It is not surprising to learn that the review of the Ministry of Justice structures has concluded that the National Offender Management Service (Noms) is surplus to requirements. The project has proved to be expensive, unfocused and bureaucratic, and has added nothing to the front line.

      It was originally set up in the spring of 2004 but there was no consultation with parliament, or anybody else for that matter. No business case was produced and the service was introduced too quickly. The idea of merging prisons and probation was soon lost in favour of contestability, or privatisation by another name.

      Over the next two years numerous blueprints were produced by Noms, all of which were dismissed as unworkable. In 2006 Noms produced its grand plan for the future which did go out to consultation. Out of 750 responses only 10 were in favour of the changes. Nevertheless, Noms continued to expand. A parliamentary bill to establish contestability at a national level was introduced in 2006 and was badly mauled by both houses of parliament. As a result, the government conceded that any commissioning or contracting out had to happen at a local level. It then emerged in April this year that the cost of the Noms national and regional bureaucracy had soared to £899 million - an increase of 555% in a two-year period. Indeed the cost of the Noms bureaucracy exceeded the entire budget for the probation service in England and Wales.

      Throughout the last three-and-a-half years, Noms has struggled to come up with a price mechanism or supply-and-demand model that would allow it to operate a commercial market. Perhaps this is not surprising as offenders are not a commodity, and supply and demand are not particularly predictable. To resolve this conundrum Noms decided to instruct the probation service to hive off 10% of its work, regardless of merits. After parliamentary debates this concept was replaced this year by one of "best value", though details of how this would operate are still very vague.

      In essence, the government took the view that the problem with prisons and probation was one of communication. To improve that they believed reorganisation was needed but they added two unnecessary levels of bureaucracy. As a consequence staff became demoralised and the frontline starved of resources. Maybe some of the £899 million saved from the deconstruction of Noms could be redirected to the overstretched, underfunded, probation and prison services.

      Harry Fletcher 'A bureaucratic disaster' Guardian Comment 2007

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  20. Speaking of judicial review heres one to watch to see how the courts really might of think of some of Graylings plans.

    http://www.theguardian.com/uk-news/2014/mar/17/high-court-rule-legal-aid-cuts-prisoners

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    1. Just a personal observation, but all Graylings plans, and 'gut feelings' appear to be coming to a head all at once, a bit like a boil thats about to explode any day now methinks.

      http://www.suttonguardian.co.uk/NEWS/11079453.Worried_relatives_slam_Government_s_denial_of_High_Down_prison__crisis_/

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    2. The high court will on Monday rule on a challenge by charities working with prisoners to the legality of legal aid cuts introduced by justice secretary Chris Grayling.

      The Howard League for Penal Reform and the Prisoners’ Advice Service (PAS) say vulnerable people in the prison system, including inmates with mental health problems and mothers with young babies, will suffer injustice.

      New regulations, introduced in December by Grayling, who is also the lord chancellor, remove the right to criminal legal aid in many prison law cases.

      The charities accuse the minister of imposing the cuts in England and Wales for “ideological reasons entirely contrary to the rule of law” on inmates who will be “too vulnerable to complain”.

      Their lawyers argued at a hearing in London earlier this month that the “unfair, irrational and inflexible” changes will undermine prisoners’ rights and their chances of rehabilitation, as well as cost the taxpayer additional millions because they will trigger “hidden costs”.

      Justice Rafferty and Justice Cranston, sitting in London, are being asked to rule that the case raises issues that are “arguable” and should go to a full judicial review hearing.

      Phillippa Kaufmann QC, appearing for both charities, said the changes will lead to “huge unfairness” as inmates no longer have access to legally-aided advice and assistance at hearings within the prison system.

      Kaufmann said the cuts stop legal assistance for female prisoners facing reviews over eligibility for mother-and-baby units, and representation and advice for inmates facing segregation and placement in close supervision units.

      Others affected included category A prisoners wanting to progress to lower categories and eventual release, as well as those with issues related to resettlement on leaving prison.

      The QC also contended legal aid has been unlawfully removed from prisoners’ hearings involving the Parole Board where the board does not directly have the power to direct a prisoner’s release.

      Kaufmann said: “People are not going to be able to adequately represent themselves. The cuts will also interfere with the right of access of prisoners to the courts.”

      She added: “The secretary of state has made absolutely clear he doesn’t believe that prisoners should have access to legal aid to go to court about these matters.

      “These are ideological reasons entirely contrary to the rule of law. He has created a system that is inherently unfair.”

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    3. Concerned relatives have slammed the Government for denying that High Down prison is in crisis – insisting that staff shortages are provoking violence as inmates are locked up for all bar 30 minutes a day.

      Anonymous relatives said the inmates are being treated worse than dogs, with prisoners only being let outside for fresh air twice in weeks, and sometimes being served cold food in their cells.

      The Ministry of Justice (MoJ) has denied information passed to the Epsom Guardian by an anonymous source which claimed that the prison, in High Down Lane, on the border between Sutton and Banstead, is keeping prisoners locked in their cells and out of rehabilitative educational courses because there are not enough staff to supervise them.

      The source said that in October last year, more than 50 officers were made redundant and a ‘new regime’ at the prison invoked. But this allegedly failed within a month and a recruitment drive to replenish staff numbers was unsuccessful.

      In a statement, the MoJ said: “HMP High Down aims to ensure that each prisoner is out of their cell for a minimum or four hours a day between 8am and 6pm.

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  21. So much for the JR into legal aid. They have sewn the whole thing up.

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