News Roundup 16

I don't think there could be any better indication of the lack of interest and degree of contempt the government has for a department of state when in yesterday's reshuffle the MoJ had an almost complete clearout of ministers. After barely 7 months we not only find ourselves saddled with getting to know yet another Secretary of State, but two junior ministers as well. I'd call it taking the piss, but lets leave it to Joshua Rozenberg and his rather more measured style to sum things up:-    

A New Ministry of Justice

Despite acquiring its sixth Secretary of State in as many years, the Ministry of Justice seems to have emerged well from the reshuffle.

David Lidington was well liked but failed to persuade the Prime Minister to launch the Courts Bill that Theresa May had promised in the Queen’s Speech more than six months ago. That bill was meant to reinstate provisions in the failed Prisons and Courts Bill that senior judges regarded as “essential” to the success of the current £1bn courts reform programme.

Less than 24 hours into the job, Lidington's successor David Gauke put in a measured and unshowy performance answering questions about the Parole Board’s decision to release John Worboys on licence. Gauke announced a departmental review of the board’s (lack of) transparency, to report by Easter, while reaffirming its independence. This was the right call.

Gauke is a commercial lawyer by training and the first solicitor to hold the post. As Bob Neill MP observed, it’s nice to see it’s still possible for a lawyer to become Lord Chancellor. Let’s hope Gauke's experience at the Treasury will stand him in good stead if there are more funding cuts in the offing.

I’m not sorry to see Dominic Raab leave the Ministry of Justice — in a sideways move to Housing rather than the promotion he must have hoped for. Writing in the October issue of Counsel Magazine, I argued that Raab had not yet acquired the self-confidence and judgment that should come from ministerial experience.

He also ordered HM Courts and Tribunals Service to turn down the request I made last summer for a further briefing on the court reforms programme, about which I shall be delivering a major lecture next month.

Raab's successor, Rory Stewart OBE, is a man used to weighing up risks and he will surely see that the damage caused by Raab’s insistence on a publicity blackout for the reforms since the last general election outweighs any advantage to be gained from keeping the public in the dark.

Finally, Sam Gyimah has been replaced as prisons minister by Lucy Frazer QC. I’ve only visited two or three prisons during the past two or three years and I don’t follow subject closely. But reducing the prison population remains an urgent priority.

Lidington has managed to keep the lid on the looming prisons crisis during the past few months and his junior minister can share some of the credit. But Gyimah has always struck me as something of a lightweight.

Frazer, by contrast, was a commercial barrister, a pupil of the hugely impressive David Anderson QC and a member of South Square Chambers in Gray’s Inn before she became an MP less than three years ago. Lidington chose her as his parliamentary private secretary. A former president of the Cambridge Union, Frazer took silk at the age of 40. She comes from a Jewish family in Leeds and is married with two children.

I have high hopes of these new ministers. I’m sure the Foreign Office and Department for International Development were surprised and sorry to lose Stewart as their Minister of State. But their loss is the MoJ’s gain.

Dr Philip Lee remains a junior minister and, at time of writing, Lord Keen of Elie QC remains the Ministry of Justice spokesman in the House of Lords (when he’s not being HM Advocate General for Scotland).

The Attorney General Jeremy Wright QC and the Solicitor General Robert Buckland QC remain in post, doing rather better at surviving than most of their colleagues at the Ministry of Justice. And Shailesh Vara, a junior minster there from 2013 to 2016 and a solicitor, is back in government at the Northern Ireland Office.

There are huge challenges ahead and those of us who follow these matters will do their best to hold these new ministers to account.

Joshua Rozenberg

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I found this somewhat alarming from a week or so ago on the LegalFutures website:-

Give paralegals rights of audience “so they can do more legal aid work”

Paralegals should be given rights of audience to enable them to do more legal aid work, an academic has argued. Adam Doyle, head of the law and criminology department at the University of East London, said “any future changes to legal aid policy should favour paralegals undertaking a larger amount of the caseload”.

Mr Doyle said the “potential positive impact” of giving paralegals rights of audience in the lower courts, “particularly for access to justice, is undeniable”. In article for The Conversation UK website, a not-for-profit website partly funded by universities, Mr Doyle said that at a time when cuts to legal aid meant many people could no longer afford expensive legal fees, paralegals should take on more work.

He said the traditional view of a paralegal as “the unskilled version of a solicitor or barrister – doing much of the background paperwork but not representing a client by themselves or undertaking court work” was a “misconception” which “does disservice to the valuable work paralegals undertake”.

Mr Doyle said the Institute of Paralegals estimated that there were 60,000 paralegals working in law firms and growing, with the institute suggesting there may be more paralegals than solicitors working in law firms in a decade’s time. He said much of this growth was linked to the restrictions on legal aid introduced in 2013, which in turn has led to more litigants in person slowing down the courts.

Mr Doyle said that if paralegals took on more responsibility, they would need a different type of training and universities should be more involved. “Some universities have already begun to do this – for example, seven universities already run law programmes that enable students to graduate with a diploma from the National Association of Licensed Paralegals.”

Mr Doyle said the introduction of the Solicitors Qualifying Examination (SQE) in 2020 provided an opportunity to embed key areas of paralegal practice “at all levels of an undergraduate degree”, with further development of “scenario-based” learning.

“In particular, this could include developing and assessing verbal skills in a courtroom setting. Such advocacy skills in a paralegal could prove invaluable for clients who can’t afford to hire a lawyer. There are calls for paralegals to get their own professional qualification on top of a law degree, but this will depend on how universities and law schools adapt now to the opportunities to adapt their courses.”

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There never seems enough money to fund worthwhile practice initiatives, but always enough for consultants. This from the Guardian:-

MoJ spending huge sums on consultants to help deliver digital courts

The Ministry of Justice is spending tens of millions of pounds on management consultants to help deliver online and digital court programmes that are designed to save money and improve access to justice. The £30m is being paid to PwC, formerly known as PricewaterhouseCoopers, as part of a £1bn drive to modernise the courts and expand the types of hearings that can be conducted via computer.

Another major contract, whose value has not been disclosed, has been won by the consulting and outsourcing firm Accenture to provide “change management strategy” to help guide the judiciary through until 2022. Additional undisclosed sums have been paid to EY, formerly Ernst and Young. Few details of the scheme, which is being managed by the MoJ’s executive arm, HM Courts and Tribunal Service, have emerged but the tendering contract states that it aims to “transform our technology and to transform our own skills and capabilities”.

The senior judiciary, who will ensure new methods of working are consistent with legal requirements for a fair trial, have become intimately involved in supervising the programme. The large sums are being spent at a time of widespread cuts to legal aid and crumbling infrastructure, with courthouses and prisons in need of repair.

Penelope Gibbs, director of Transform Justice and a former magistrate, questioned whether the scheme would improve access to justice.

“We recently learned that there are puddles of urine in the cells of Liverpool prison and Liam Allan was nearly convicted of rape because police and prosecution lack the resources to do their job,” she said. “Meanwhile the Ministry of Justice has paid over £30m to fund external management consultants to support ‘change management’ in their digital court reform programme. The management consultants are focused on ‘successful delivery’ but we don’t know what they are supposed to be delivering since there is no published plan for the digital court reform programme and the PWC contract isn’t published either. If they are being rewarded for increasing access to justice, that’s great, but can we see how that will be assessed?”

Given the history of failures and delays in major government IT projects, PwC’s financial rewards are being made dependent on successful delivery of the online and digital court programmes. It is understood that a considerable proportion of the firm’s £30m fee is being spent on specialist suppliers and subcontractors. PwC will be expected to build up skills among HMCTS staff so they eventually take over responsibility for running the software.

Asked about the contract, an HMCTS spokesperson said: 

“This is the most ambitious programme of its kind anywhere in the world. We are investing more than £1bn over a six-year period to modernise outdated processes and create a swifter, more accessible and more efficient justice system for the public. Our contract with PwC replaces a number of contracts with external suppliers, and ensures we benefit from specialist skills to deliver our reforms and get best value for money for the taxpayer.”

It is unclear how many cases can be transferred out of the courtroom and on to a laptop screen. Successive MoJ economy drives have led to the closure of about 250 courts across England and Wales since 2011. They have been justified partially on the grounds of falling crime rates and partially on the need to develop more flexible working practices.

Civil cases that have been transferred online include applications for divorce, probate and small claims. Low-level offences such as fare evasion, traffic offences and fishing without a licence are among the first being dealt with online. More than 3,000 members of the public are said to have used pilot digital systems so far.

Asked about the type of cases going online earlier this month, the new lord chief justice said at his annual press conference that a new digital criminal case system had already saved the need to print 33m pages of paper.

“When we reach our goal, it should be possible for a very large number of civil disputes to be resolved using online facilities with appropriate judicial input when it is needed, but rarely requiring the parties to attend court,” said Lord Burnett of Maldon.

Whole categories of hearings such as listing cases, simple bail applications and entering pleas will “in future not require the routine attendance of everybody at court on every occasion”, he said. Telephone hearings had been routine in civil courts for 20 years, he added, what was important was that judges retained control of cases even if no one else was in court.

There have been concerns that online justice forms could make it too easy for unrepresented defendants to plead guilty in order to dispose of a court summons without realising that may result in a criminal record.

There has been some criticism that the judiciary is becoming too closely identified with the court modernisation programme. Andrew Langdon QC, a former chair of the Bar Council, said: “There is a risk that in the future we will evaluate our judges on their ability to be effective managers rather than fearless independent judges who are independent of the executive.”

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Another damning prison inspection report, this time HMP Swansea:-

Introduction 

HMP Swansea is a local category B prison. It is a fairly typical Victorian establishment in an inner-city location and on a fairly compact site. It was overcrowded and at the time of this inspection was holding 458 men in accommodation that was certified, in normal circumstances, to hold 268. It was last inspected in October 2014, and at that time we concluded that ‘Swansea has many positive features but there are obvious areas for improvement… Many of our positive judgements were only marginally so, and the prison needs to be energised, rejuvenated and refocused on delivering better outcomes.’ This latest inspection is a very disappointing one. Standards had slipped in three of the four healthy prison tests by which we judge the treatment and conditions of prisoners. It is clear that the complacency we warned about after the last inspection had been allowed to take hold. 

For instance, there had been four self-inflicted deaths in the period before the 2014 inspection. The Prisons and Probation Ombudsman (PPO) had made a number of recommendations as a result of those deaths. On this occasion we found that since that inspection there had been four more such deaths, but significant and highly relevant PPO recommendations had not been implemented. This was inexcusable, particularly in view of the fact that in the previous six months there had been 134 incidents of self-harm – three times the rate that was recorded at the last inspection. Basic procedures designed to improve safety in our prisons, such as assessment, care in custody and teamwork (ACCT) documentation, were poor. In the context of the high levels of self-harm, suicide and prisoners presenting with mental health problems, this was inexplicable. Much more needed to be done to analyse and understand what sat behind the suicides and self-harm in the prison. 

As with so many prisons, the ready availability of illicit drugs was having a significant impact. Forty per cent of the prisoners we surveyed told us that it was easy or very easy to get hold of drugs. Seventeen per cent said they had acquired a drug habit while being held in the jail, against a figure of 11% seen in similar jails elsewhere. These figures were borne out by mandatory drug testing which, when combined with the figures for those testing positive for synthetic cannabinoids, showed that very nearly a quarter of prisoners were using illicit drugs. The drug strategy was neither comprehensive nor adequately implemented. In a three month period prior to the inspection, more than 200 intelligence-led drug searches had been requested, but less than half had been carried out. 

In terms of living conditions for prisoners in HMP Swansea, far too little attention was being paid to ensuring that prisoners could obtain the very basics for everyday living, such as clothing and bedding. This report details the many areas that need to be improved, including access to telephone calls, monitoring the response to applications and answering cell call bells promptly. 

The area of inspection which we term ‘purposeful activity’ was particularly disappointing, having fallen to the lowest possible assessment of ‘poor’. I would invite the reader to look at this section of the report in detail in order to understand how we and our colleagues from Estyn came to that judgement. Suffice to say that for a prison of this type to have a regime where half the prisoners are locked up during the working day, with unemployed prisoners locked up for around 22 hours each day, was unacceptable. There were not enough activity places available, nor was there sufficient effort being put into encouraging or ensuring that prisoners attended. A clear failure of leadership was that on one wing staff were unwilling to facilitate access to the library for prisoners, yet managers had not successfully addressed this. 

An issue that needs further analysis to understand whether or not it is impinging on the successful resettlement of prisoners on release from HMP Swansea is that of the Welsh Assembly’s policy of not giving priority on housing lists to prisoners on release. This means that half of the prisoners being released from Swansea are not being sent to what is termed ‘sustainable accommodation’. It is beyond the scope of this inspection to ascertain the possible impact of this on the resettlement plans of prisoners and their success or otherwise in following a number of resettlement pathways. If we had been in a position to identify clear negative impacts of this policy, it is most likely that our Introduction 6 HMP Swansea judgement would have been that outcomes for prisoners in the area of resettlement had also sunk to ‘poor’, the lowest possible. 

The response to the 2014 inspection of HMP Swansea was inadequate. At the last inspection we made five main recommendations and 58 other recommendations. On this occasion we found that none of the main recommendations had been achieved, and a mere eight of the remaining 58 had been fully achieved. 36 recommendations had not been achieved at all. 

The current governor had a number of coherent plans for improvement and had made some progress. He was enthusiastic about the future and he has the opportunity to move the prison forward and to once again make it a decent, safe and productive establishment. However, in order to do so he will need the active support of his leadership team and staff at all levels within the prison and in Her Majesty’s Prison and Probation Service (HMPPS). Grudging acceptance of change or passive resistance will not suffice. 

Peter Clarke CVO OBE QPM

HM Chief Inspector of Prisons