Our system of justice and punishment has been gravely damaged by underfunding, right-wing dogma and failure to carry through long-overdue reforms. The prison population has doubled, basic principles of justice have been undermined, and the replacement of legal aid by fee-based funding has denied many poorer people proper legal representation. Resources will be needed to address these problems together with a clear determination to stand up robustly to prejudice and build a system which is both effective and humane.
Social justice and justice in the sense of the content and enforcement of the law are inextricably linked and inevitably reflect the model of society endorsed by those with political power. With the rise of neo-conservative thinking first on the Right and, thereafter, in the leadership of the Labour Party, previously liberal attitudes were increasingly replaced by broad-based support in Parliament for measures formerly only associated with the right wing of the Conservative Party, such as prison privatisation, longer sentences and extension of the maximum period that certain suspects could be detained without charge.
Though popular with a large section of the press, there has been very little evidence that these measures have achieved anything in terms of improving law and order, with crime figures experiencing the same twenty-year decline followed by a modest rise as has been experienced across most advanced economy countries. In an increasingly divided society, this move to a more punitive approach to law and order has particularly affected sections of the population which are already most disadvantaged in term of employment, income and access to good quality public services.
Radical Reform Proposes:
- Accessible Justice for All
- A Representative Judiciary
- New Priorities for Policing
- Fair and Effective Punishment
- Drug Abuse and the Law
- Family and Abortion Law Reform
Accessible Justice for All
As part of the 34% cut in the budget of the Justice Department imposed by the then Coalition Government and through the Legal Aid, Sentencing and Punishment of Offenders Act of 2012, eligibility requirements for legal aid were tightened and funding cut by £950 million. The means-tested threshold was lowered, automatic entitlement for those on means-tested benefits was removed and legal aid ceased to be available for housing, family disputes, welfare and debt. At the same time, half of all crown, county and magistrates courts have been closed, with most of the buildings being sold off, obliging defendants and witnesses to make round trip journeys of up to six hours to attend hearings.
These changes denied large numbers of vulnerable people access to justice and have put the future viability of the whole system in doubt. Claims for legal aid submitted per year fell between 2012 and 2018 by over a million. The number of legal aid providers offering paid civil law legal aid fell by over 1,000 and the number of, often stressed and inarticulate, individuals representing themselves in court rose by over 500%. According to Law Society findings reported by the BBC, large parts of the country are becoming “legal aid deserts”, with over a million people living in areas where no legal aid at all is available for housing cases.
We support the call by the Bach Commission for an enforceable right to justice to be enshrined in a Right to Justice Act, giving individuals a right to receive legal assistance without costs they cannot afford. Such rights would then be enforced by a new Justice Commission, which would guarantee access to legal aid for benefit recipients. Cases involving children would once again become eligible, as would those involving some areas of family and immigration law.
A Representative Judiciary
At present, the Judicial Appointments Committee appoints judges and is supposed to ensure that they reflect the society they serve, but selection exclusively from among senior barristers and solicitors virtually guarantees that this is not the case. According to the Sutton Trust, 74% of senior judges were educated at private schools, compared with 7% of the population and only 28% of judges in England and Wales and 21% in Scotland are women. A 2016 study by the Council of Europe showed that this compares with an average of 51% in the 47 Council of Europe members states and is one of the lowest shares of any European country.
The current selection system also results in the average age of judges, at around 60, being much higher than the average in other professions. We believe that an alternative professional path for judges starting from law school should be created (as exists in a number of European countries), opening the way to a judiciary which is more representative of the population in terms of gender, age and ethnicity.
Innocent until found guilty
The principle of innocent until found guilty, which has been undermined in some drug and sex cases, should be respected. Suspects who have not been charged should have the right to anonymity, as recommended by the Home Office Select Committee. The practice, which has grown up in imitation of US procedures, of releasing details of individuals accused of sex crimes can have a devastating effect on families and on the lives of people who may turn out to be completely innocent. It has also led to ex-offenders going to ground out of fear of vigilantes, cutting them off from professional support which could help them to avoid further offending. Consideration should also be given to changing the law to make it possible for individuals who feel an urge to commit offences to seek professional advice without automatically being reported to the police.
New Priorities for Policing
The police play the central role in ensuring public safety and make an important contribution to well-being and the quality of life. However, the service is now under intense strain as a result of cuts in funding, which have led to a 21,000 reduction in police numbers over the last eight years – despite a growing population and a rising incidence of some serious crimes. The cuts have also deprived the community of forms of support, which vulnerable people in particular value and should be entitled to expect. Funding for the service should be increased to restore police numbers to the level that applied before the Conservative/Liberal Democratic Party Coalition came to power in 2010.
While the incidence of many categories of recorded crime has declined over the last 30 years, organised crime appears to have increased sharply, with the National Crime Agency reporting knowledge of 4,629 gangs, employing some 34,000 professional criminals, in 2018. Much of this increase is accounted for by new forms of internet-based fraud, which demand a coordinated and well-funded approach that the current policing system is ill-adapted to provide.
Three factors are central to the current crisis. The first of these is inadequate resources for key staff and the IT systems needed for challenging sophisticated organised crime. The second is continuing failure to carry through a long overdue reorganisation of the structure of policing in England and Wales, which is still based on a division between 43 county forces of no relevance to modern patterns of crime. And the third is opposition from politicians to an evidence-based deployment of resources, with support for neighbourhood policing focusing cuts on the limited funding available for the national fight against organised crime.
When the National Crime Agency was created through the merger of previously separate agencies in 2013, it was presented as a means to strengthen national policing, but in practice the change involved a sharp reduction in funding for the activities it inherited. As a result, funding for the agency accounted for less than 4.0% of the total police budget in 2019, with further cuts planned at a time when uncertainties over Brexit pose a threat to the increasingly urgent task of collaborating to combat international organised crime.
Funding for the police should be increased to channel more resources into the national and international fight against organised crime without cutting community policing. It considers that, within the context of a strengthened national effort, the existing county-based structures in England and Wales should be merged into a new structure of region-wide police forces.
Fair and Effective Punishment
Between 1993 and 2014, the prison population in England and Wales rose by 40,000 (91%), with the fastest rate of growth occurring under Labour in the 1990s. As a result, Britain now imprisons a higher proportion of the population than any other advanced democracy apart from the US. The imprisonment rate in England and Wales is 149 per 100,000, compared to 78 per 100,000 in Germany. This is combined with shockingly high levels of repeat offending and appalling levels of drug abuse, violence and self-harm in many prisons.
We support the call by the Prison Reform Trust and the Howard League for the prison population be reduced to half its present level. This would restore it to the level that applied when Mrs Thatcher came to power and would bring it into line (in relation to population) with countries such as Germany, Japan and Norway, where the level of offending is no higher than in the UK.
According to the National Audit Office, there is no consistent correlation between the number of people in prison and the level of crime. Imprisonment is also a very expensive form of punishment, both in terms of the direct cost to the taxpayer (which, according to the Prison Reform Trust stood at £36,259 a year per inmate in 2016), and in terms of lost tax and the cost of supporting dependants.
To address this problem, the sentencing guidelines given to judges should be revised and alternative forms of punishment developed drawing on best practice from other countries, with the use of prison sentences of under twelve months being ended. The resources saved by reducing the prison population should then be used to fund forms of punishment which keep people in work and reduce the impact on families. For example, it should be possible for some prisoners to serve their sentences on the weekend, while continuing to work and live with their families during the week. Regulations should be introduced so that whenever someone is sent to prison, a plan is agreed with the prisoner spelling out how he or she will reintegrate with society on release, and what support, resources and sanctions may be needed to carry this through.
Greater use should be made of financial penalties for crimes which do not involve a physical threat to the public and of fines related to the ability to pay, so that better off offenders pay a similar proportion of income as poorer people (as already applies in England and Wales for some offences). This would justify greater use of non-custodial sentences, while respecting basic principles of justice.
We believe that the UK should remain fully committed to the European Court of Human Rights and that prisoners should be given the right to vote (in their home constituencies) as the Court has resolved.
The privatisation of parts of the Prison Service should be ended and the management of prisons restored to the public sector. Labour fought the election of 1997 with a commitment to oppose prison privatisation but within a few weeks announced that all new prisons would be privately run, creating a powerful lobby in favour of incarceration. With 18% of the prison population in England and Wales now in private prisons, the proportion of prisoners in for-profit prisons is double the rate in the United States and higher than in any other country in Europe.
The revelation by the Prison Inspectorate in August 2018 of the appalling conditions in the privately-run Birmingham prison revealed that companies managing private prisons are not required to publish information on key factors such as staffing levels. Staffing relates directly to the deep-rooted and growing issues of drug abuse, violence, self-harm and suicide among prisoners, which repeated reports by the Prisons Inspectorate have revealed to be endemic in some prisons. We call for immediate steps to guarantee prisoners personal safety and proper care, to reduce over-crowding and to ensure that in future all prisons are required to meet the same high standards of transparency and public accountability.
The Probation Service
A professional and properly resourced probation service must play a central part in the reform of Britain’s disastrous correctional and rehabilitation system. The privatisation of more than half of the Probation Service in 2014, which transferred work with low and medium risk offenders to enterprises run by private contractors, reinforced a shift from a welfare-based to a profit-oriented management philosophy and has proved an unmitigated disaster.
It created an artificial barrier between different types of offences, disrupted the flow of information between professionals who often need to work together, and replaced a coherent and professional service by a plethora of private contractors which, overall, have failed to reduce re-offending. In particular, cost-cutting by private providers has led to many offenders being returned to prison after failing to carry out community service orders, or being unable to perform the tasks assigned to them because of skimping on materials. In January 2019, the Audit Commission reported that the move to payment by results (a system it described as “inappropriate”), was on course to cost the taxpayer £500 million pounds by the end of 2020, with at least £171 being spent on closing down contracts early.
The history of failures in the delivery of probation services obliged the Government in July 2018 to announce that some privatised services would be brought back into the public sector. Outsourcing the supervision of low and medium risk offenders to private contractors will end entirely in Wales in 2020 but, in a face-saving move, in England a new round of contracts is to be awarded to private “community rehabilitation” companies. We believe that all probation work should be carried out by dedicated public service professionals and that the probation should be moved from being an adjunct of the Prison Service back into the framework of social services.
Punishment and Social Justice
Wherever possible, forms of punishment should be adopted which focus on reintegration into the community, preserving family relationships and reducing re-offending. Currently, 48% of all ex-prisoners offend again within 12 months of leaving prison. Despite this, the use of community sentences, which are cheaper than short prison sentences and more effective in reducing re-offending, has almost halved since 2006.
According to the Ministry of Justice, some 200,000 children in England and Wales had a parent in prison during 2009. Research also shows that in 2008, children with a parent in prison were three times more likely than their peers to engage in antisocial or delinquent behaviour. To help ensure that the wider consequences of imprisonment are fully reflected in sentencing, we believe that judges should be required to consider representations on behalf of the families of individuals facing possible prison sentences.
Ministry of Justice figures show that black men, who make up 2.8% of the male population, account for 10% of prisoners. Indeed, according to the Equality and Human Rights Commission, the disproportion between black people in prison and in the population as a whole is now greater in the UK than in the United States. Urgent steps must be taken to understand the causes of the ethnic imbalance in Britain’s prisons and to ensure that young black men are treated equally in the judicial and correctional system.
Recently, a number of countries, together with some US states, have relaxed controls on the use of certain drugs. No country, however, has taken the step of decriminalising the supply of addictive and dangerous substances, such as heroin, because of evidence that doing so would lead to a steep drop in prices on the street and an increase in consumption, which would be impossible to reverse.
Drawing on this experience, the Royal Society of Public Health (RSPH) and the Faculty of Public Health (FPH) published a report in 2016, which argued that the UK should follow the example of Portugal and treat the use (but not the supply) of drugs such as cannabis, cocaine and heroin as a medical and not as a criminal matter – while at the same time increasing investment in prevention and treatment. More recently, in 2018, the Royal College of Physicians (RCP) endorsed this recommendation, arguing that the proposed change would help ensure that drug users had access to: “timely and appropriate prevention and care services”.
We believe that policy on drug abuse should be based on the best available evidence. It supports the recommendation by the RSPH, the FPH and RCP that, while the supply of illegal drugs should continue to be a matter for the police, their use should in future be treated as a medical matter and that there should be a move away from the use of imprisonment for less serious drug-related offences.
Family and Abortion Law Reform
The current legal situation with regard to abortion in the UK is contradictory, undermines what should be fundamental rights, poses a threat to women and health workers, and should be reformed. During the 19th century, laws were introduced which imposed increasingly harsh punishments on people who carried out abortions. These culminated in the 1861 Offences Against the Person Act, which introduced a maximum sentence of life imprisonment for anyone carrying out an abortion or attempting to self-abort.
As awareness grew of the appalling suffering and loss of life caused by back-street abortions, pressure grew for reform. This led to the 1967 Abortion Act, which legalised abortion but only in certain defined circumstances and with the concurrence of two medical practitioners. The new Act qualified the Act of 1861 but did not replace it and, moreover, only applied in England, Scotland and Wales and not in Northern Ireland or the Isle of Man. Despite the fact that the Act of 1967 was in its time very progressive, changing attitudes and circumstances mean that it should now be replaced as a matter of urgency. For example, because the 1861 Act remains in place, a woman who takes the morning after pill (which can be obtained over the counter) without the consent of two doctors could, theoretically, still be condemned to life imprisonment.
The 1861 Offences Against the Person Act should be repealed and the requirement for the consent of two medical practitioners removed. The conditions under which an abortion can be approved under the Act of 1967 should also be repealed so that abortion before the legal limit of 24 weeks is treated as a medical matter and not a matter for the criminal law. At the same time, means should be found to ensure that women in Northern Ireland and the Isle of Man are granted the same rights with regard to abortion as apply in the rest of the United Kingdom.
Marriage and Divorce
The treatment of divorce has evolved substantially in recent years as a result of decisions taken in the courts. The changes concerned have corrected previous injustices toward non-working partners, but have also led to a situation where England and Wales are significantly out of line with practice in other countries and, in some cases, with a common sense understanding of fairness.
The law should be modernised and put clearly back under the control of Parliament. It welcomes the Government’s announcement in September 2018 that no-fault divorce will be introduced and a commission set up to review the priorities for reform. It supports the trend towards divorce providing for a clean break where issues of income and property are concerned.
While progress has been made in achieving fairness between the parties, it remains the case that many wives, in particular, still fail to obtain what they should be entitled to. While there may be many possible reasons for this, the cost of legal advice and representation is often a significant factor, especially where the individual concerned was economically dependent on his or her former partner. Thought needs to be given as to how appropriate material support can be given to individuals who find themselves in this situation at this particularly vulnerable stage in their lives.
SUMMARY OF PROPOSALS
Accessible Justice for All
- establish a Right to Justice Act, giving all individuals a right to receive legal assistance without costs they cannot afford;
- establish an alternative professional path for judges to encourage a judiciary more representative in terms of gender, age and ethnicity;
- restore the principle of innocent until found guilty in all cases and give suspects who have not been charged the right to anonymity;
- give suspects in sex cases who have not been charged the right to anonymity.
Modernise Police Priorities
- restore police funding and numbers to the pre-2010 election level;
- replace county-based police forces in England and Wales by regional police authorities;
- increase funding for the National Crime Agency to tackle organised crime;
- strengthen European and international collaboration to fight cross border criminal gangs.
Prison and Probation
- revise the sentencing guidelines and end the use of sentences of under twelve months to reduce the prison population to half its current level;
- promote forms of punishment which keep people in work and reduce the impact on families;
- extend the practice of linking fines to income and wealth;
- take immediate steps to guarantee prisoners’ personal safety and proper care, to restore staffing levels and to reduce over-crowding;
- restore prison management to the public sector and require all prisons to meet the same high standards of transparency;
- move probation from being an adjunct of the Prison Service back into the framework of social services;
- introduce a requirement that a properly resourced post-release re-integration plan is agreed with prisoners at the start of any prison sentence.
Social Justice and Punishment
- require judges to consider representations on behalf of the families of individuals facing prison;
- take effective steps to ensure that young black men are treated equally in the judicial and correctional system;
- ensure the UK remains fully committed to the European Court of Human Rights and give prisoners the right to vote in their home constituencies.
Drug abuse and the Law
- treat the use of illegal drugs (but not their sale) as a medical issue, not as a matter for the criminal law;
- end the use of incarceration for less serious offences involving drugs;
- review the law relating to drug abuse in other countries and explore how lessons can be applied.
Family and Abortion Law Reform
- repeal the Offences Against the Person Act of 1861 and treat abortion before the legal limit of 24 weeks as a medical, not a criminal, matter;
- ensure that women in Northern Ireland and the Isle of Man have the same rights with regard to abortion as in rest of the country;
- put divorce law back under the control of Parliament, bring it into line with best practice in comparable democracies and introduce the principle of no-fault divorce.