Context

The findings of the survey make for grim reading. Legal aid prison law is already in drastic decline: between 2008 and 2022, there was an 85% decrease in prison law legal aid providers. Three-quarters of respondents to the APL survey considered they would not be doing prison law in 3 years’ time, with 88% of those anticipating leaving this sector citing poor renumeration as the reason. Prison law was excluded from the Government’s 15% increase to criminal law legal aid rates in 2022, contrary to the advice of Lord Bellamy (who holds the Government’s justice brief in the House of Lords), who conducted an independent report for ministers that recognised the economic case for funding it sustainably.

The only reason given for this has been that the Government wanted to prioritise the backlog in criminal matters. However, there is also a significant backlog in parole cases caused in part by significant changes designed to toughen and open up the system. These changes have been at the heart of the Government’s reform agenda and have made parole work more difficult and complex. Although it does appear that the new Justice Secretary, Alex Chalk, is undoing some of his predecessor’s (Dominic Raab) most extreme changes in this area.

Complexity

Almost all respondents (98%) felt that the complexity of parole board work has increased significantly in the last five years. This has involved navigating two new mechanisms which can enable the re-opening of parole decisions: the reconsideration mechanism (introduced 2019) and the set-aside process (introduced 2022). In the words of one respondent

“It has become so much more complex – in terms of the volume of information to consider in the dossier…complex guidance…and complicated procedures.”

Despite these changes, prison law, which falls under criminal legal aid, was expressly excluded from the general uplift in criminal law fees that was implemented in September 2022 and there appear to be no plans to remedy this.

Under-funding

Further complex changes are proposed in the Victims and Prisoners Bill but there is no talk of an increase in fees to deal with them. This contrasts with the Government’s approach to the additional work anticipated from the Illegal Migration Bill, where it has agreed a modest increase of 15% in legal aid fees to deal with the additional burden on providers.

It is now clear that the immense changes to the parole process, which require extensive additional work from prison law legal aid lawyers, will be undermined by lack of adequate funding.

Prison law legal aid lawyers already go above and beyond for their clients, following sweeping cuts to the work legal aid covers in 2020: 100% reported routinely doing additional work that is not funded by legal aid for clients. As one respondent commented

“I am forever chasing the prison or healthcare or mental health…without which [my client] would not be properly able to apply for parole.”

Emotional exhaustion

The work is not only legally complex, but emotionally exhausting: 86% of respondents considered that at least half of their clients are vulnerable and in need of additional support. This explains why so many prison lawyers feel that they cannot simply refuse to do unpaid work. In the words of one respondent,

“our clients often have no one else. If they suddenly have medication stopped and they are calling in desperate need, it is impossible not to care for them.”

Prison law clients are often distressed:

“I have had clients so desperate about being in prison and delays with parole that they have self-harmed or threatened suicide. You can’t deal with distress quickly.”

Unsustainable

The report concludes that the combination of emotionally exhausting, complex and poorly paid work is not sustainable. When fixed fees were introduced for prison law under a previous administration, it was on the business case of “swings and roundabouts”; the idea that in some cases practitioners would do more work than they were paid for and in other cases they would be paid more than the work done.

Yet in this survey, over 90% of respondents estimated that they lose out financially in over half of their cases, and 62% estimated they lose out in three-quarters of them.

Unsurprisingly, lawyers no longer want to work in the prison law field. Over a third of survey respondents described it as “extremely difficult” to recruit and retain new staff. In the words of one respondent,

“it is really hard to retain new lawyers in this field – many young lawyers express an interest in this area but do not stay in it due to the lack of funding”.

Dr Janes, points out that the prison system is in crisis: it is chronically overcrowded and understaffed, and the prison population is set to rise exponentially in the next three years. Investment now is essential to ensure the prison and parole system will function fairly so that people can be released from prison safely at the earliest opportunity from costly incarceration.

The report ends with a call to action:

“Fees need to be increased now or the Prison Lawyer will disappear & it will be too late to rescue the crumbling system that we help remain functioning.”