Sweeping changes to the parole process in the Victims and Prisoners Bill are an affront to judicial independence and seek to solve problems that do not exist.
The bill, which reaches committee stage next week (20 June), proposes to make extensive changes to the parole process and remove decisions about prisoners’ release from key provisions of the Human Rights Act.
If passed in its current form, it will give the secretary of state the power to usurp the Parole Board and retake a parole decision for prisoners involved in serious offences, including murder, terrorism and serious sexual offences. The secretary of state will be able to quash a release decision and retake the decision.
This is an extraordinary power to ask parliament to confer on the secretary of state who is a party to parole proceedings. As Lord Hope famously said in the Pinochet case, relying on the very lengthy history of common law which makes being a judge in your own cause objectionable, ‘public confidence in the integrity of the administration of justice is just as important, perhaps even more so, in criminal cases’.
If passed into law, this power will erode this key common law principle. It risks undermining the integrity of the administration of justice and judicial independence in parole cases, which are all about the liberty of the subject.
In its present form, the bill makes no provision for a right to legal representation, legal aid or even a specific process to follow. A secretary of state may interview a prisoner, but there is no obligation to do so or provision for a hearing of any kind.
There is also limited scope for an appeal. A prisoner would be able to appeal to the Upper Tribunal on judicial review grounds or on the basis that the release test has been met. No other grounds are allowed. As liberty is at stake, this is an extremely limited safeguard. As Sir Robert Neill (pictured), chair of the justice committee, pointed out at the second reading on 15 May, the Upper Tribunal ‘is essentially there to deal with points of law; it is not a fact-finding body’.
The bill also includes a provision for the Parole Board to refer a case to the secretary of state because it is unable to make a decision. It seems difficult to imagine a situation where the Parole Board feels it does not have the expertise to make a decision, but the secretary of state does.
A fundamental principle of our legal system is that decisions about the liberty of citizens are made independently by the judiciary. The exception to this is where parliament expressly provides to the contrary, a decision that must involve intense scrutiny. To ask parliament to bring these changes into statute is to ask it to undermine a founding block of our common law.
The bill will also implement a new release test for the Parole Board when making decisions about whether to release an offender. Currently, the board must be satisfied that it is no longer necessary for the protection of the public that the prisoner should remain detained. It is a simple, but clear, 20-word test.
The new test outlined is long and complex. It runs over many clauses and includes an express requirement that there must be no more than a minimal risk that a prisoner would commit serious harm if released. The new test would also require the Parole Board to consider the risk of a list of specific offences being committed if a prisoner is released. Finally, the bill sets out a list of factors decision-makers should take into account when making a public protection decision about a prisoner. These include elements such as the nature of their offence, the conduct of the prisoner while serving a sentence and the risk of not complying with any licence conditions.
The reality is that the board already takes many of these elements into account when making decisions. Adding these elements into legislation may make the process more complex and drawn out, while having little practical impact. A more drawn-out process will likely have a negative impact on victims and prisoners alike, as they are forced to wait for decisions to be made.
The rationale for this change is to make the Parole Board more precautionary. Yet, as Neill observed at the second reading, the Parole Board test already includes primacy of the protection of the public test, and as such ‘there is an element in this part of the bill of trying to solve a problem that does not exist and therefore a risk of over-engineering the system, which we might not need’.
Finally, although the British Bill of Rights has been jettisoned, this bill, which unfathomably contains a statement on its face staying it is compatible with the Human Rights Act, will disapply section 3 of the act to decisions about releasing prisoners. This will prevent the civil courts from reading primary legislation and subordinate legislation, so far as it is possible to do so, in a way which is compatible with convention rights. As Neill observed in the second reading, this too, is ‘trying to solve a problem that does not exist’.
Surely, we ought to want to be proud of a system governing the release of prisoners that is robust but human rights-compliant.
Dr Laura Janes is a member of the Law Society’s Criminal Law Committee
No comments yet