Victims and Prisoners Bill (Thirteenth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 11th July 2023
(1 year, 4 months ago)
Public Bill CommitteesVictims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 11 July 2023 - (11 Jul 2023)
Ellie Reeves
That is absolutely right. Not only do the measures give a false hope, but they will cause a huge amount of delay in the system before those primary decisions are ever arrived at. That is incredibly detrimental to victims.
The Ministry of Justice’s impact assessment supports the view of the London Victims’ Commissioner. Its estimates suggest that 75 cases a year will, after a lengthy process, result in the Secretary of State’s decision being overturned and the prisoner released. That does not suggest that clauses 35 and 36 will give victims more confidence in the justice system. In fact, the opposite is likely. As the solicitor Andrew Sperling outlined in his evidence to the Justice Committee, that is because the reforms would create a three-tier system of Parole Board, Secretary of State and upper tribunal. He said:
“What you have here is a system being set up that says that there needs to be a three-tier system, and that the Parole Board should not be capable of making decisions in the most serious cases.”
As the Law Society outlined in its written evidence, delays could have the result that
“fewer prisoners serving fixed sentences will be released on licence, instead being released automatically when their sentences end”.
That would create a public safety concern, as prisoners would return to the community without probation supervision, which would be concerning for victims and at odds with what the Bill is supposed to be about, as well as putting the public at risk. New clauses 22 and 23 would prevent those issues from arising, as they would create a more truncated route to a final release decision. Under our proposals, the Court of Appeal would make the final decision, rather than the Secretary of State, with the prisoner then having the right to appeal.
It is worth noting that in 2019 a reconsideration mechanism was introduced that allows parties to a Parole Board case to challenge a release decision. As Martin Jones, the Parole Board chief executive, outlined in an evidence session of the Justice Committee on the Bill, since the mechanism was introduced the Secretary of State has made 50 applications of reconsideration. Mr Jones said that
“in the last four years, the Secretary of State has been concerned about 50 of our decisions, of which, following reconsideration by a judge of the Parole Board, 12 have subsequently been set aside and then reheard.”
He went on to tell the Select Committee that, under the new proposals,
“20% of top-tier decisions may subsequently be set aside by the Secretary of State. That is in stark contrast to the fact that over the last four years, they have sought reconsideration for only 50 decisions. I am not sure how you jump from doing 12 a year to seeking to set aside hundreds of our decisions each year.”
I am aware that the Justice Secretary recently used the mechanism to request a reconsideration of the decision to release Colin Pitchfork, which I welcome, but new clauses 35 and 36 will seemingly make the mechanism irrelevant. New clauses 22 and 23 would complement the mechanism and provide another important check on Parole Board decisions by the Court of Appeal.
Finally, the Prison Reform Trust and a number of other stakeholders outlined in their written evidence that clauses 35 and 36 could lead to poorer, less transparent decision-making. We do not know what criteria the Justice Secretary will follow in exercising the new power. We do not know whether it will be exercised directly by the Secretary of State or under authority delegated to an official. If a prisoner released without the Secretary of State exercising their veto goes on to commit a serious further offence, we do not know whether the Secretary of State or their officials will be subject to the serious further offence review process or held accountable for any errors.
That brings us back to the point made by nearly every stakeholder providing evidence on part 3: why is the Secretary of State better placed to make a release decision than the Parole Board, which has heard the evidence and whose job it is to do this professionally? The reforms will risk poorer decision-making. At the moment the buck stops with the Parole Board, but, if it knew that the final decision rested with the Secretary of State, that could drive down parole decisions, conversely leaving the public less safe. As Caroline Corby, the chair of the Parole Board, stated when she gave evidence to the Justice Committee, the clauses
“could have an unintended consequence of making it more difficult for us to recruit judicial members,”
as the role could be seen as downgraded. That could risk the board losing such valuable expertise. Our new clauses would ameliorate those issues.
For all those reasons, I strongly urge the Government to look at their proposals again. They have attracted widespread concern and will undermine the separation of powers, risk the politicisation of police decisions and cost vast sums to implement. They could cause victims more harm and leave the public less safe. New clauses 22 and 23 would give the Secretary of State the power to appeal against a Parole Board decision in cases where they think that the decision is wrong, ensuring that another check is in place. Victims would also be empowered to ask the Secretary of State to appeal to the Court of Appeal. The amendments and new clauses would expand the top tier of cases, increasing victims’ rights and ensuring that some of the worst crimes are treated with the seriousness that they deserve. I hope that the Government will consider that carefully, and look again at their proposals.
The Minister of State, Ministry of Justice (Edward Argar)
It is a pleasure to serve under your chairmanship on a Bill Committee once again, Mrs Murray. I am grateful to the shadow Minister for her amendments, which would add sexual offences against a child, sexual offences against those with mental disorders and manslaughter to the list of offences to which the ministerial decision-making power would apply.
To remind the Committee, the ministerial decision power in clauses 35 and 36 imposes a new safeguard—a check and balance—on the release of the most serious offenders in the top tier. It will allow the Secretary of State to intervene on behalf of the public and take a second look at the release decision. I recognise, as I am sure Members on both sides do, that all crimes are serious, especially to their victims, and the top tier in the Bill is not an exhaustive list of serious crimes. Sexual offences committed against children and those with mental disorders cause long-lasting harm to their victims. Those who commit manslaughter have caused immeasurable grief to their victims’ families. The impact of these offences cannot be understated, and the entire parole system needs to be robust in protecting the public from those who commit such grave offences.
The Parole Board does its difficult job well and has a very good track record of assessing risk. Over 99% of offenders directed for release do not go on to commit a serious further offence. It is clear that in the overwhelming majority of cases the Parole Board gets it right. However, the root and branch review of the parole system, published in March 2022, found that a small number of cases have demonstrated the need for an additional safeguard. Some offenders present a heightened risk to the public due to the nature of their crimes, and their release should be approached with even greater caution. They are murderers, rapists, the most serious terrorists and those who have caused or allowed the death of a child.
The top tier cohort has been carefully chosen to capture these offences, and we do not think it is proportionate to widen the cohort of offenders to which the power applies beyond these four offence types. These are the cases that the root and branch review deemed to carry the greatest risk to the public, and they are the cases that most greatly affect public confidence in the justice system.
New clauses 22 and 23 would seek to replace the ministerial decision-making power with a new power to allow the Secretary of State to instead refer a case directly to the Court of Appeal for review, which would determine whether the prisoner was safe to release. The new clause introduces a statutory right for victims in the referral process, expands the offences included in the top tier, and removes the power for the Parole Board to be able to refer cases directly without making a decision. I will come on to these changes in turn, but let me first say that the principle behind the new powers in the Bill is that the most serious offenders should be subject to additional scrutiny before they are released, in order to reinforce our focus on public protection and bolster public confidence. While I recognise our differences in approach, I believe there is a degree of agreement across both sides on that underlying principle.
I turn to the principal difference in the new clause. Let me begin by explaining the different approaches. Clauses 35 and 36 would allow the Secretary of State to call in a top tier case to retake a release decision, with an onward route of appeal to the upper tribunal. We will come on to this route of appeal and its destination in later clauses. The new clause would instead provide a new power for the Secretary of State to refer a top tier case directly to the Court of Appeal, instead of making a decision themselves.
On the principle of whether it is right that Ministers themselves should directly take decisions, I believe that the public rightly expect a role for Ministers when it comes to the release of the most serious offenders. Keeping the public safe is the Government’s first duty, and it is not unreasonable for Ministers to act as an additional safeguard—as a check and balance in the system. That is why the approach in the Bill is for Ministers to apply the additional safeguard themselves, with an onward route of appeal.
The new clause would introduce a new statutory role for victims in the referral process, by creating a power for them to apply to the Secretary of State to request that the prisoner’s case is referred to the Court of Appeal. Within 30 days, the Secretary of State would be required to either refer the case to the Court of Appeal or provide a written statement explaining to the victim why they have decided not to exercise that power. I understand the concern that victims often feel about the potential release of an offender, and as we implement the reforms in the Bill we will ensure that they are able to make their voices heard as part of the process.
Let me give an example of how we already do this in our existing processes. Under the pre-existing reconsideration mechanism, victims are able to submit a request to the Secretary of State asking them to apply to the Parole Board for a decision to be reconsidered. HM Prison and Probation Service will respond on behalf of the Secretary of State to each victim to confirm whether an application for reconsideration has or has not been made, with an explanation of why. This is an operational process, rather than one set out in primary legislation. I am grateful to the shadow Minister for highlighting the need to ensure that we build the right processes and support for victims into whatever new ministerial or other decision-making model is in place, but I do not consider it necessary to set that out in primary legislation.
Jess Phillips (Birmingham, Yardley) (Lab)
I wonder whether, potentially before Report, the breakdown of the number of killings of women in their homes deemed to be manslaughter, rather than murder, could be provided to the Committee. Is there an impact assessment that we could see on the disproportionate use of manslaughter charges in cases such as domestic homicide?
I am afraid to say there are lots of problems with the way that we tier crimes. For example, if a person murders someone in their own home, the starting tariff is 15 years; if a person murders somebody with a knife they have taken out of the house, the starting tariff in our country is 25 years. At the moment, 70% of women who are killed are killed in their homes. With this Bill, we should not be creating another two-tier system in which the killing of women simply is not as important.
Edward Argar
I am grateful to the hon. Lady, but I do not think anyone is suggesting what she suggested in her final sentence. She is right to highlight the tariff difference, which is reflective of something that Parliament decided it wished to do, recognising that it would create a disparity in the tariffs, in the light of the Kinsella murder. Parliament was cognisant of that. Whether that should be looked at is a perfectly reasonable point. In that context, I pay tribute—as I know the hon. Lady would—to the Goulds and Deveys for the campaign they are undertaking on the issue, and to the Killed Women campaign more broadly. Wherever this lands, they are provoking an important public debate on this very important issue and the disparity between whether a knife is taken to the scene of a crime in a public place or is already there.
I will be cautious on the hon. Lady’s specific question about the statistics, because I do not know whether that level of granularity is available, but I will take that away and look. If the data is recorded in a way that answers her question and is publicly available, I will be happy to share it with her.
Finally, the new clause would remove the discretionary referral power, which would allow the Parole Board to send a case directly to the Secretary of State without taking a first-instance decision or, in this instance, directly to the Court of Appeal. The intention behind this route of referral is to allow the Parole Board to refer a case where, for whatever reason, it is unable adequately to make an assessment of risk and so cannot make a robust decision. I recognise that the Justice Committee, as referred to by the hon. Member for Lewisham West and Penge, has also raised concerns about this route of referral, and we are carefully considering the issues raised and the broader point of the Justice Committee in its very swift—for which we are grateful, and I know the Lord Chancellor is grateful—one-off inquiry into part 3 of the Bill.
In subsequent debates, I will outline what we believe is the most appropriate route of referral and why we do not believe that the Court of Appeal is the right route. We believe that that remains the upper tribunal, but that is addressed specifically in subsequent amendments and clauses. I am grateful to the shadow Minister for her amendments and new clauses, but I am afraid that at this stage we must resist them.
Ellie Reeves
I am particularly disappointed that the Minister does not seem amenable to expanding the top tier, particularly to include those serving sentences for manslaughter. My hon. Friend the Member for Birmingham, Yardley set out very clearly why that is so important. As I said in my speech, so many men who kill their partners or ex-partners are in prison for manslaughter rather than murder, and it sends completely the wrong signal.
I am disappointed that the Government are not minded to accept our amendments. I will not push them or the new clauses to a vote, but I hope that the Minister and the Justice Secretary will reflect on the points we have made as the Bill progresses. I beg to ask leave the withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chair
Edward Argar
Clause 35 reflects the views of the root-and-branch review by amending the Crime (Sentences) Act 1997 to create a top tier cohort of indeterminate-sentenced offenders who have committed some of the most serious crimes and whose release from prison will be subject to additional safeguards. In the same way, clause 36 amends the Criminal Justice Act 2003 to create a top tier cohort of fixed-term offenders. As the clause applies to offenders serving determinate sentences, murder is not included in the list of offences for referral, as life sentences are mandatory in all murder cases in any event. The top tier therefore consists of offenders serving sentences for murder, rape, certain terrorism offences, or causing or allowing the death of a child—again, as I have alluded to, this reflects the root-and-branch review’s approach.
The clauses contain a new power for the Secretary of State for Justice to intervene in the release of the most serious offenders, providing for a second check by taking or retaking release decisions. Once a prisoner has been referred to the Parole Board to decide whether they are safe to be released, there are two routes by which such decisions may come before the Secretary of State. First, the clauses contain a provision that will allow the members of the Parole Board to refer a top tier release decision to the Secretary of State, instead of making a decision themselves. They can do so for any reason that they consider appropriate, including if, for whatever reason, they are unable to adequately assess risk in a particular case. The Secretary of State would then make a decision about release for that offender. We expect that this power will be used in very rare cases only.
Jess Phillips
I welcome the fact that the Minister thinks the power will be used only in very rare cases. When assessing the risk, what will the Secretary of State have that the Parole Board does not have? Is the Secretary of State imbibed with some great risk-assessment power that the Parole Board and all the people on it are not?
Edward Argar
The Secretary of State will have information from the Parole Board and the Parole Board’s view but, ultimately, we believe it is right that the Secretary of State is accountable to the public in such cases. We therefore believe that that is the appropriate route by which someone who is accountable, and to whom I suspect the public would look in the most serious cases, can ensure public protection where the Parole Board feels that it is unable to do so.
Jess Phillips
I will not trouble the Committee too much longer. I am not sure that a public mandate allows me, as somebody elected by the people, to be somebody with expertise in risk management. I am, but that is nothing to do with the mandate that I got from the good people of Birmingham, Yardley. What I am trying to get at is that few people in this place have done more than the Secretary of State for Justice to remind people about the separation of powers between the judiciary and Parliament. Few people are greater advocates of that than our current Lord Chancellor, and I wonder why we are now leaning on a public mandate to assess risk, rather than on what we have always done before.
Edward Argar
The shadow Minister says “what we have always done before”, but the powers and the approach—the so-called separation of powers—are relatively new, and I believe came in under the last Labour Government. If I recall correctly, the Home Secretary under previous Conservative Governments in the ’80s and ’90s had a number of the relevant powers. I take her point, but it is not how this has always been done; it is a relatively new innovation—that is not to say it is a bad one, but I would exercise a degree of caution about whether it is from time immemorial. We have the principle of a separation of powers, of course, but in this space, historically, there has always been a lack of clear delineation—for want of a better expression—in such matters.
Clauses 35 and 36 also allow the Secretary of State to call in a top tier case if the Parole Board has directed release. Around 1,900 top tier cases come before the Parole Board each year and, on average, the board directs release for about 650 of those offenders. In any top tier cases in which release has been directed, the Secretary of State may decide to call in the case and, by doing so, quash the decision of the Parole Board. The Secretary of State will then retake the decision as to whether that offender should be released. If a case is not called in, the decision of the Parole Board stands and the Secretary of State is required to give effect to that release decision as soon as reasonably practicable in the circumstances.
For either of the two routes, the Secretary of State will make a decision about whether the offender is safe to be released by applying the full release test, as set out in clauses 32 and 33, based on all the evidence and advice before them. If the Secretary of State decides that the offender should remain in prison, they must notify the prisoner of the reasoning behind their decision and of the prisoner’s right to appeal. We will turn to that right of appeal in the debates on later clauses.
The new power provides an additional safeguard to the release of the most serious offenders, an issue that particularly affects public confidence in the parole process. Victims are often anxious about whether a prisoner who caused them harm is released, out of concern not only for themselves and their families but for the wider public. Allowing the Secretary of State to apply an additional check and balance to such decisions will help to ensure that those who present the highest risk to the public remain in prison.
The board will continue to risk assess offenders in the same way that it does now, independently of the Government, and will continue to make the final decision about release for most parole-eligible offenders. The board does that difficult job well in the vast majority of cases. However, in the few cases where it is necessary, clauses 35 and 36 will allow the Secretary of State to intervene to provide additional scrutiny to release decisions and to further bolster public confidence in the system.
Ellie Reeves
When discussing new clauses 22 and 23, I spoke at length about why I do not think that clauses 35 and 36 are the right approach. I will not repeat those concerns; they are on the record already. I will simply add to them by quoting from the speech of the former Conservative Prime Minister Sir John Major to the Prison Reform Trust:
“In the thousands of decisions to be made each year, there is no way that Ministers could possibly match the experience and knowledge of the 350 Parole Board members.”
I listened to what the Minister had to say but I am not reassured. He talked about the Secretary of State providing a check. Under our proposals for an appeal to the Court of Appeal, there would be referrals, so there would still be a role for the Secretary of State, but the referral would be to the Court of Appeal, which we think is a far more sensible and proportionate response. I hope that the Minister has listened to the concerns expressed right across the political spectrum and that he will reflect on them as the Bill makes progress.
Edward Argar
I am grateful, as ever, to the shadow Minister for her tone and approach. I do not want her to feel left out as we have already debated parts 1 and 2—I am always happy to work with her, too, over the course of the summer. She is very welcome, along with the hon. Member for Rotherham, the hon. Member for Garston and Halewood and other shadow Ministers, to meet me over the summer, along with the Minister of State, Ministry of Justice, my right hon. Friend the Member for East Hampshire (Damian Hinds), who is the policy Minister for this part of the Bill. I commend clauses 35 and 36 to the Committee.
Question put and agreed to.
Clause 35 accordingly ordered to stand part of the Bill.
Clause 36 ordered to stand part of the Bill.
Clause 37
Procedure on referral of release decisions
Question proposed, That the clause stand part of the Bill.
Edward Argar
Before I start, I should make a correction: I think I just inadvertently took away membership of the Privy Council from the right hon. Member for Garston and Halewood. I restore it swiftly, with an apology.
Clause 37 will insert a new section into the Criminal Justice Act 2003, setting out what the Secretary of State must consider as part of their decision making on referral of a case from the Parole Board to them, and allowing the Secretary of State to take any evidence necessary for decision making.
Section 239 of the Criminal Justice Act 2003 sets out the requirements of the board in considering an offender’s case, including that it must consider all documents put before it by the Secretary of State, as well as any other evidence obtained, and that, if it deems it necessary to make the decision, it can interview the prisoner. Clause 37 would ensure that the same procedural requirements are replicated for the Secretary of State, including that he or she must consider all the evidence that was before the Parole Board in reaching a decision. The Secretary of State may also make their own findings of fact as appropriate.
The clause also provides for the Secretary of State to make rules on the procedure to be followed by the Secretary of State when making release decisions, akin to the Parole Board rules, which are made in secondary legislation and govern the proceedings of the Parole Board. That means that, post the commencement of the legislation, there will be a robust and clear legislative procedure in place for the exercise of the Secretary of State’s power to provide an additional check on the release decisions of the most serious offenders.
Ellie Reeves
Clause 37 will allow the Secretary of State to make their own findings of fact, without being bound by previous findings of the Parole Board. The clause also sets out what evidence the Secretary of State must consider in reaching their decision. I have already set out at some length, when speaking on proposed new clauses 22 and 23, why I consider the Secretary of State to be the wrong person to make parole decisions. I will not repeat those concerns, as they are already on the record.
It is clear that under clause 37 the Justice Secretary, unlike the Parole Board, will not have had the benefit of interviewing the prisoner before making a decision about their parole. They could authorise someone to conduct an interview on their behalf, but are not compelled to do so. It is difficult to see how, when the Parole Board has interviewed the prisoner, often for many hours, the Secretary of State, who has not interviewed them, would be in a better position to make an assessment of risk, as the Chair of the Justice Committee made clear on Second Reading:
“I do not think the Secretary of State would normally feel happy acting on hearsay in such circumstances, because at the end of the day it is second-hand evidence and he would have to substitute his judgment for that of those who had heard first-hand evidence.”—[Official Report, 15 May 2023; Vol. 732, c. 603.]
That further brings into question whether the Secretary of State is the right person to make parole decisions. I hope the Minister will reflect on that as the Bill progresses.
Edward Argar
I always reflect very carefully on all points made to me by the shadow Minister.
Question put and agreed to.
Clause 37 accordingly ordered to stand part of the Bill.
Clause 38
Appeal to Upper Tribunal of decisions on referral: life prisoners
Ellie Reeves
I beg to move amendment 99, in clause 38, page 37, line 18, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Edward Argar
I am grateful to the hon. Lady for her amendment, which would change the appellate chamber for appeals of any Secretary of State decision to refuse release to the Court of Appeal, rather than the upper tribunal. I know that the Justice Committee has also heard evidence that suggests that the Court of Appeal might be the appropriate venue for referral appeals. The hon. Lady and I may disagree on the underlying point about the role of the Secretary of State, but in looking specifically at which is the most appropriate appellate route, the Government feel, for specific procedural and legal reasons, that the Court of Appeal is the wrong route. It may help the Committee if I set out the Government’s position on that point.
The appeals in question will be where the Secretary of State has called in a Parole Board decision to release a top tier offender, or the board has referred a case to the Secretary of State for an initial release decision. I appreciate that other amendments tabled by the hon. Member for Lewisham West and Penge propose the direct referral of a decision by the Parole Board, but the principle is the same in either case: a judicial body with the correct powers and expertise, whether that is the upper tribunal or the Court of Appeal, would ultimately be required to assess the decision. Top tier offenders, as we have already debated, are those who have committed the most serious crimes, such as murder and rape, so it is only right that there is a second check on any decision to release them.
The Government’s view is that the public will be further reassured if that check is made by the Secretary of State or another Minister acting on their behalf. Although I say “check”, it will, of course, be much a more thorough review than that term might imply. The procedure set out in part 3 for verifying whether an offender is suitable for release will require the Secretary of State to apply the public protection test in full and to reach a decision as to whether the offender, if released, would pose
“no more than a minimal risk”
of committing an offence that would cause “serious harm.” That test is the very same release test that will be applied by the Parole Board, which is set out in clauses 32 and 33, which we considered on Thursday.
Even though the Secretary of State and the Parole Board will have applied the same test, there may be occasions when the Secretary of State reaches a different conclusion from the Parole Board and judges, such that a top tier offender has not satisfied the threshold for release and should therefore remain in prison. In such cases, part 3 enables the offender to appeal against the Secretary of State’s decision not to release them. It is right that an appeal should be possible. The ability to challenge a decision is a crucial mechanism and safeguard in our justice system, and it provides a route for ensuring that decisions have been taken correctly and fairly.
The grounds on which an appeal may be brought forward are laid out in clauses 38 and 39. They are straightforward and comprehensive. An appeal may be made either on the grounds that the Secretary of State’s decision is flawed in some way—for example, it is irrational or there has been an error of fact—or it may be made on a merits ground, that is, on the grounds that the prisoner believes they meet the minimal risk threshold for release. The
“no more than a minimal risk”
ground will require the appellate court, whether that be the upper tribunal or the Court of Appeal, to apply the public protection test to determine whether the prisoner is safe to release. That may involve a fresh hearing of the case, if the upper tribunal considers it necessary, and may require the taking of oral evidence.
The amendments require us to consider which appellate court is best placed to fulfil these functions and hear appeals. The Court of Appeal is a statutory body that has its powers set out in the Criminal Appeal Act 1968. It primarily considers appeals from the Crown court against conviction or sentence. Section 2 of the 1968 Act explains that the court may allow an appeal against conviction if it thinks the conviction is unsafe; otherwise it has to dismiss the appeal. It also has powers under section 3 of the 1968 Act to substitute a conviction for another offence.
In determining these issues, and other matters under the 1968 Act, the Court of Appeal does not need to give any consideration to whether a prisoner is safe to release, nor does it conduct re-hearings on the facts. If the Court of Appeal were to be the venue to hear appeals from a decision of the Secretary of State not to release, substantive amendments would have to be made to the 1968 Act and training would have to be given to the Lords Justices of Appeal. Taking on this additional work could have a detrimental effect on the timescale in which the court can hear appeals from those who consider that they have been wrongly convicted and who are serving prison sentences as a result.
On the other hand, the upper tribunal has wide-ranging powers already extant under section 25 of the Tribunal, Courts and Enforcement Act 2007, facilitated by the Tribunal Procedure (Upper Tribunal) Rules 2008, which gives it the same powers as the High Court in terms of attendance, examination of witnesses, production and inspection of documents, and broad scope to conduct and administer hearings. The tribunal has experience in hearing oral evidence and in making decisions in the light of such evidence. For example, it takes oral evidence in appeals against decisions of the Disclosure and Barring Service, and occasionally may also do so to remake a decision after setting aside a decision of the first tier tribunal.
We therefore conclude that, on balance, the upper tribunal is best placed, in terms of the existing legislative powers, to hear appeals against the new ministerial decision-making power, and the Court of Appeal does not appear to be as suitable a venue in this context. I appreciate that the shadow Minister may form a different view, but I think this is a balanced judgment and I would urge her not to press her amendments.
Ellie Reeves
I am grateful to the Minister for setting out why he considers the upper tribunal to be the correct forum. Although I have heard what he has said, we do still have concerns about the appropriateness of the upper tribunal to hear these cases, particularly because most of the appeals are likely to be on substantive grounds. However, we do not propose to press the amendments to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Edward Argar
We have already discussed clauses 35 and 36, which create a new power for the Secretary of State to intervene in release decisions for the most serious offenders. It is only right that if the Secretary of State refuses release, there is recourse to an independent review. Clauses 38 and 39 therefore set out that a prisoner whose release is refused by the Secretary of State under the new provisions can appeal the decision to the upper tribunal. Clause 38 covers life prisoners and clause 39 is for fixed-term prisoners.
There are two routes of appeal available. First, appeals can be made on the grounds that the decision was flawed because it was illegal, irrational, procedurally improper or the Secretary of State made an error of fact that was fundamental to the decision they reached. Subsection (4) clarifies that a decision should not be found to be irrational by the upper tribunal unless it deems that no reasonable Secretary of State could have made that decision. In such cases, permission must be sought from the upper tribunal for the appeal to proceed. If the appeal is upheld, the matter is referred back to the Secretary of State for another decision, in line with other public law decision-making processes; otherwise, the Secretary of State’s decision is upheld and the prisoner remains confined.
Secondly, an appeal is also available on full-merits grounds—that is, whether it is necessary for the protection of the public that the prisoner remain confined. That would allow the tribunal to examine the evidence and re-take the release decision from first principles by applying the same release test, without referring the case back to the Secretary of State. There is no permission stage for this route of appeal. Ongoing post-tariff detention requires determination of lawfulness by a court, in accordance with article 5(4) of the European convention on human rights. The appeal process will ensure that the referral process is robust and there is a proper check and balance on the use of the Secretary of State’s power.
I urge that clauses 38 and 39 stand part of the Bill.
Ellie Reeves
I have set out at length why I do not think that the Secretary of State’s veto is the right approach, but if the Government press ahead with this aspect of the Bill, it is of course absolutely right that there is an appeal mechanism. It is also right that it should be possible to appeal on judicial review grounds or on the substantive merits. As I have said, I anticipate that most appeals will be on the merits, as that will not require a permission stage.
Edward Argar
As I have said, I am always happy to take into account and reflect on—as I know the Lord Chancellor will—the points raised by the shadow Minister. I know that, as well as my rereading the transcripts of our many hours spent in this room, the Lord Chancellor will want to read them carefully to see the points raised by the shadow Minister, so that he may reflect on those points as he considers next steps as the Bill continues its progress.
Question put and agreed to.
Clause 38 accordingly ordered to stand part of the Bill.
Clause 39 ordered to stand part of the Bill.
Clause 40
Licence conditions of life prisoners released following referral
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clause 40 amends section 31 of the Crime (Sentences) Act 1997 to make provision for the decision maker to decide on the required licence conditions for a top tier indeterminate prisoner. Clause 41 amends section 250 of the Criminal Justice Act 2003 for the same purpose for top tier fixed-term prisoners.
Offenders who are released after a parole decision are managed in the community on licence. That can include conditions such as curfews or exclusion zones, which enable the probation service to continually manage and monitor risk. Licence conditions are set for each offender after a comprehensive assessment of risk. Victims can also request licence conditions, such as an exclusion zone, as part of their victim personal statement.
Setting licence conditions is a key factor in determining whether an offender can safely be managed in the community, and therefore whether the public protection test has been met. The decision maker therefore has the power to set licence conditions. Where the Parole Board makes a release decision, it is responsible for setting licence conditions, on the basis of the recommendations and evidence set before it, including representations from victims. For a top tier case, if a Secretary of State is taking a decision about whether an offender is safe to be released under the provisions in clauses 35 and 36, this clause gives the Secretary of State the necessary power to set the licence conditions in the same way as the Parole Board would, based on the recommendations and evidence before them.
Likewise, if that decision is appealed, these clauses give the upper tribunal this power, so that it can effectively make a public protection decision. Licence conditions may be varied after an offender leaves prison to reflect changing circumstances and risk, and these clauses also facilitate the proper authority having responsibility for this. These clauses ensure that decision makers can protect the public by setting appropriate licence conditions, so that offenders are released only when they can be safely managed in the community. I urge that clauses 40 and 41 stand part of the Bill.
Ellie Reeves
I have already set out why we do not think that the Secretary of State referral is the right approach. These clauses kick in if the Secretary of State orders a release following a referral, or if the upper tribunal orders a release following a refusal by the Secretary of State. I am concerned as to the appropriateness of either the Secretary of State or the upper tribunal setting licence conditions, given the lack of experience that either one has in doing so. Setting licence conditions is a key part of the Parole Board’s responsibilities; licence conditions are crucial to public safety and confidence. It is a matter that, aided by recommendations from the probation service, the board devotes a great deal of time and thought to. It is difficult to see how the Secretary of State will be able to give individual cases the same level of scrutiny as experienced Parole Board panels. Equally, the upper tribunal has no experience of undertaking this kind of work, nor is it clear whether it has the resources to do so effectively.
That also raises the question of how the Secretary of State will be resourced to perform this role, as making informed decisions about what licence conditions are needed is a complex and highly important task. For example, some licence conditions are standard, but others are made at the discretion of the Parole Board. These discretionary conditions will often be closely related to the board’s assessment of the prisoner’s relationship with his probation officer. In practice, they set requirements for the probation officer as well as the prisoner. The risk is that this process will make it impossible for the Secretary of State to give individual cases the same scrutiny as the Parole Board panel. In reality, therefore, they will be heavily dependent on the probation service’s advice on licence conditions. The danger is that an overstretched probation officer may wish to avoid requirements that are too onerous in themselves or, where they have a good relationship with the prisoner, may recommend licence conditions that are insufficiently cautious.
My concern with these clauses is that important licence terms could be missed, which could lead to the public’s being made less safe. I am also concerned by the written evidence from the Prison Reform Trust about the Bill, in which it outlines that, currently,
“victims can make representations to the Parole Board on the content of licence conditions which the board must have regard to.”
There appears to be no mechanism for that to happen under these clauses, which is a regressive step for a Bill that is meant to be about victims.
I hope that as the Bill progresses the Minister will look at these concerns and outline how the Secretary of State will be resourced to do a task that is normally a matter for experienced Parole Board members, how they will ensure that this does not weaken victims’ current rights, and how the public will be kept safe.
Edward Argar
I am happy to reassure the shadow Minister that as the Bill continues its passage we will continue to review how each of those duties would work in practice, and if any of the points that she raises give us further cause for reflection, we will of course consider them carefully.
Question put and agreed to.
Clause 40 accordingly ordered to stand part of the Bill.
Clause 41 ordered to stand part of the Bill.
Clause 42
Section 3 of the Human Rights Act 1998: life prisoners
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clauses 42 to 44 will disapply section 3 of the Human Rights Act 1998 from prisoner release legislation. Specifically, clause 42 disapplies section 3 from chapter 2 of part 2 of the Crime (Sentences) Act 1997, which governs life sentences; clause 43 disapplies it from chapter 6 of part 12 of the Criminal Justice Act 2003, which covers fixed-term sentences; and clause 44 disapplies it from section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which contains a power to amend release for certain cohorts of offenders by secondary legislation.
Let me begin by saying that I and the Government acknowledge that these clauses may have caused some concern and a degree of debate. I entirely understand that and will listen carefully to any points raised by right hon. and hon. Members in our debate and will subsequently, with the Lord Chancellor, reflect on them very carefully. It may, however, be helpful if I first explain the purpose of section 3 of the Human Rights Act and its potential impact on prisoner release legislation.
Section 3 requires primary and subordinate legislation to be read and given effect in a way that is compatible with the European convention on human rights, in so far as it is possible to do so. When a court considers section 3, it is required to go further than usual when interpreting legislation that is otherwise incompatible with the convention rights. At times, this has required courts to depart from the unambiguous meaning of legislation. It has required courts to adopt interpretations of legislation that depart from the intention of Parliament when it passed that legislation.
The requirement in section 3 is not only for courts; anyone, including public authorities, applying legislation has a duty under section 3 to interpret it in a compatible way. It is therefore possible that, at some future point, a court interprets release legislation in a way that is contrary to that which Parliament intended. To prevent any such unintended consequences, we are removing the duty in respect of prisoner release legislation. That will ensure that, should the courts find the provisions incompatible, they will apply the section as it was intended to be applied, and not through the prism of section 3 to alter the interpretation. That is part of our approach to ensure that public protection is always at the core of the system. In such cases, declarations of incompatibility under section 4 of the Human Rights Act will be available.
Clause 45 sets out the approach a court should take if a challenge has been raised on human rights grounds regarding the release of a prisoner. That situation could arise, for example, due to a judicial review, and in that situation the court is required to consider the convention rights of a person in relation to a release decision. The relevant release legislation is the same as for clauses 42 and 43, in chapter 2 of part 2 of the Crime (Sentences) Act 1997 or chapter 6 of part 12 of the Criminal Justice Act 2003, and subordinate legislation made under both of those chapters.
Clause 45 sets out that, when considering a challenge of that kind, the court must give the greatest possible weight to the importance of reducing risk to the public from the offender. That requirement does not apply to the non-derogable rights set out in article 2, on the right to life; article 3, on the prohibition of torture; article 4(1), on the prohibition of slavery; and article 7, on no punishment without law.
Of course, courts already consider risk to the public. However, the Bill ensures it is given greatest possible weight in the circumstances under consideration, further reinforcing the focus on public protection. I reiterate what I said at the outset, which is that the Secretary of State and I will continue to carefully reflect on points made in Committee and will more broadly review the impact that this section, and others, will have in the context of the legislative framework.
Ellie Reeves
It is worth mentioning that the Government’s Bill of Rights, which sought to rip up our Human Rights Act, has thankfully been dropped. A vast amount of parliamentary time and, I am sure, Government bandwidth was taken wrestling with that Bill, until the decision to scrap it was rightly made. My concern is that the clauses may be another way for the former Justice Secretary, the right hon. Member for Esher and Walton (Dominic Raab), to dilute our human rights framework through the backdoor.
Section 3 of the Human Rights Act requires courts to interpret legislation compatibly with rights under the European convention on human rights as far as is possible. The clauses would disapply section 3 to prisoners as a group when it comes to legislation about their release. A number of groups have rightly raised concerns about that. The Prison Reform Trust said:
“The introduction of specific carve-outs from human rights for people given custodial sentences contradicts one of the fundamental principles underlying human rights—their universality and application to each and every person on the simple basis of their being human. Moreover, it is precisely in custodial institutions like prisons that human rights protections are most vital, because individuals are under the control of the state.”
In its written evidence to the Committee, the Bar Council stated:
“There is no evidence of any systemic impairment due to the HRA of the Parole Board’s ability to make high-quality, safe, decisions about prisoners—no statistical analysis of recidivism/public safety concerns from prisoners released due to interpretation of legislation in line with Convention principles.”
In his speech on Second Reading, the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill) said:
“Whatever one’s view of the Human Rights Act, there is no evidence that this is a problem in such cases. In fact, the evidence we heard from practitioners, from both sides, is that it can be helpful to have to have regard to section 3 in these hearings. These clauses seem to be trying to solve a problem that does not exist, and I wonder whether we really need them. It is perfectly possible to have a robust system that still complies with section 3. This is a needless distraction that sends the wrong signal about a certain desire to pick unnecessary fights, which I know is not the current Secretary of State’s approach.”—[Official Report, 15 May 2023; Vol. 732, c. 604.]
I think that sums it up really well.
Clause 45 directs courts to give the greatest possible weight to the importance of reducing risk to the public when a question arises as to whether a person’s rights under the ECHR have been breached in relation to a release decision. The Law Society’s written evidence states:
“It is not clear what the ‘greatest possible weight’ will mean in practice and will require interpretation by judges. We are concerned that this will lead to an increase in litigation challenging this new standard.”
Edward Argar
I am grateful to the shadow Minister for her words and for the approach she is taking. She knows that my right hon. and learned Friend the Lord Chancellor is, quite rightly, fiercely attached to and a strong defender of the rule of law. My right hon. and learned Friend always seeks to adopt a measured tone, and I am grateful to the hon. Lady for adopting a measured tone in return.
Question put and agreed to.
Clause 42 accordingly ordered to stand part of the Bill.
Clauses 43 to 45 ordered to stand part of the Bill.
Clause 46
Parole Board rules
Question proposed, That the clause stand part of the Bill.
Edward Argar
The clause is the first of two covering the Parole Board, and it will enable two changes to be made to the Parole Board rules, which are in secondary legislation. Let me begin with subsection (2), which is concerned with amending the power in section 239(5) of the Criminal Justice Act 2003. The power allows the Secretary of State to make rules via secondary legislation about the Parole Board’s proceedings. At the moment, the provision permits rules to be made about how many members deal with particular cases, or that specified cases be dealt with at specified times. The Government want to specify that the rules may also cover which types of Parole Board member must sit on cases.
In “Root and Branch Review of the Parole System”, the Government committed themselves to increasing the number of Parole Board members from a law enforcement background. We will shortly consider clause 47, which will enable that to happen. The review also committed the Government to ensuring that every parole panel considering a case involving a top tier offender would have a law enforcement member.
The Government recognise that each and every type of Parole Board member brings different experience and skills. That range and diversity contribute to generally effective risk assessments and sound decision making. However, members with law enforcement experience, such as former police officers, have particular first-hand knowledge of the impact and seriousness of offending. In addition, they have the ability to interpret and analyse broad ranges of evidence, and many have direct experience of the probation system, including, for example, licence conditions and the likelihood of an offender’s compliance with such conditions.
Law enforcement members are, therefore, uniquely well-placed to inform and enrich the Parole Board’s assessment of risk in top tier cases. To fulfil the commitment made in the root and branch review to have law enforcement members on the parole panels for top tier prisoners, subsection (2) will enable the Secretary of State to make the secondary legislation needed to achieve that goal.
Let me turn to subsection (3), which will enable the Secretary of State to make rules relating to the new power in clauses 35 and 36 that will allow the Parole Board to refer top tier parole cases to the Secretary of State to determine, instead of taking the decision itself.
As I set out when we considered clauses 35 and 36, we anticipate that the Parole Board will refer cases to the Secretary of State only on very rare occasions. However, the power to make referrals is unfettered, so subsection (3) addresses that by giving the Secretary of State the power to make rules in secondary legislation that set out the parameters for the board making a referral. That could include, for example, a requirement that a certain stage in the proceedings must have been reached before a referral could be made. Setting that out in secondary legislation, rather than in primary legislation, allows for greater flexibility should the need arise at some future point to amend, remove or add to the steps needing to be taken before referring a case. I commend the clause to the Committee.
Ellie Reeves
It is important to note from the outset that police officers already serve on the Parole Board, alongside other members with expertise, including judges, psychologists, psychiatrists and others. They are an incredibly important part of the board’s membership. I would be interested to know from the Minister what evidence there is for this change and what he hopes to achieve by mandating that at least one member with law enforcement experience sits on top tier cases.
In the Justice Committee’s evidence session on part 3 of the Bill, solicitor Andrew Sperling said:
“I am not sure what the evidence of need is here. Is it being suggested that there is a deficiency in Parole Board decision making that will be corrected by importing more police officers?”
The mandating seems to be a backward step. The Ministry of Justice’s 2019 review of the Parole Board rules states:
“Restrictions on which panel members can hear particular types of case have gradually been lifted over…to allow greater flexibility and timeliness in listing the right cases for the right panel members and we do not wish to undo the improvements this has achieved.”
That point was echoed by Martin Jones, the Parole Board chief executive, in this Committee’s oral evidence sessions, when he said that
“the Parole Board is a court in law. In reality, it is best for the court to decide who are the appropriate people on cases, depending on the complexity”.––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 54, Q106.]
The risk of undoing current practice was also outlined by Caroline Corby, the chair of the Parole Board, at the Justice Committee’s evidence session. She said that
“we deal with 2,000 top-tier cases a year. If we had to put a person with a law enforcement background on every single case, I think that could build delays into the system.”
The Prison Reform Trust also said it shared that view in its written evidence to this Committee.
In addition to delays, the other issue is experience. I know that the Minister agrees that complex parole cases demand particular care, and require the skills and experience of individual board members. If this clause is used to appoint new members with law enforcement backgrounds, we could have a situation where top tier cases are heard by newer members who, by definition, are inexperienced in making parole decisions. Ms Corby made that point in her evidence:
“It is not the way we currently do things—to put our newest members on our most serious cases. People tend to work their way into the cases”.
With all that in mind, I hope the Minister recognises the risk. I am interested to hear his response and how those unintended consequences will be mitigated.
Edward Argar
The hon. Lady alluded to the fact that people with law enforcement experience already sit as Parole Board members, so, on her last point, there is already a pool, which can be augmented and built up over time. That will allow those who are already experienced in Parole Board decision making to sit on some of the most serious cases. That therefore mitigates her concerns.
We are seeking to ensure that the views of those experienced in law enforcement are considered, and we will strengthen that further. That is not a factor that will determine the outcome, but we want to ensure that those voices are heard more consistently and that the process is more formalised than at present. We believe the clause strikes the appropriate balance in ensuring that the board has that perspective at its disposal in any particular case, as well as other relevant perspectives, to aid it in reaching the decision it chooses to reach.
Question put and agreed to.
Clause 46 accordingly ordered to stand part of the Bill.
Clause 47
Parole Board membership
Janet Daby (Lewisham East) (Lab)
I beg to move amendment 120, in clause 47, page 43, line 6, leave out from “office” to end of line 9 and insert
“only on grounds of proven misconduct or incapacity”.
This amendment would allow the Secretary of State to remove the Chair of the Parole Board only on the grounds of misconduct or incapacity.
I want to begin by providing some context about the justification for removing the Parole Board chair from office. The Parole Board is rightly independent from the Executive. That independence is well established in several court rulings and is crucial to how the board functions. There are elements of the Bill that would undermine that independence. The Minister will know that I am not alone in voicing those concerns, given that Members of his own party also did so on Second Reading.
The Minister has been open to hearing and taking on board the concerns of Members throughout our time in Committee, and I know that that has been much appreciated. Therefore, I hope that he will reflect on the concerns raised on protecting the independence of the Parole Board. A balance needs to be struck. Although Members on both sides of the Committee will recognise the need for the Secretary of State to have the power to remove the chair, what matters is how that is done. I do not wish to recount too much the circumstances of the removal of Nick Hardwick as chair of the Parole Board—Members will likely already be familiar with those—but it is important to recognise the challenge that placed on the independence of the Parole Board. The powers of the Executive must be appropriate. I consider the termination protocol devised after Nick Hardwick’s time as chair to have the better level of that appropriateness.
The current grounds on which the chair may be removed are set out in a clear way, and the criteria that must be satisfied are reasonable and measurable. There is a procedural fairness in how a recommendation for removal can be made. That is not to say that it is a perfect mechanism. It does not, for example, consider misconduct as a criterion for the chair’s removal, nor does it fully address the concerns raised by the High Court regarding recourse and appeal in the removal of the chair. Furthermore, it does not recognise the potential impact of removing the chair on the independence of the Parole Board. All these merit further consideration in determining how a removal mechanism should operate.
As it stands, I do not believe that the power being given to the Secretary of State to remove the chair addresses those points adequately. Its current wording is narrowly focused and too broadly interpreted. Maintaining the public’s confidence in the parole process is a perfectly reasonable aim, but it should not be the sole consideration in whether the chair is fit to perform the functions of the role.
If the clause ends up on the statute book, how will the Secretary of State measure public confidence? Will it be on the basis of a decision made on an individual case? Clause 47 goes on to say that the chair must not “play any part” or “influence the recommendations” in relation to an individual case. That would clearly make it unfair to dismiss the chair because of a decision taken on a single case.
The Parole Board’s job is to take decisions on complex and occasionally controversial cases. In a small number of examples, that may result in a certain level of unease, but unfettered ministerial power to remove the chair on fairly broadly interpreted grounds is not the proper way to resolve that unease.
Edward Argar
I am grateful to the hon. Member for Lewisham East for her kind words, for the approach she has adopted throughout the passage of the Bill and for her amendment, which gives us an opportunity to debate this issue alongside clause 47. The Bill creates a new power for the Secretary of State to dismiss the Parole Board chair on the grounds of public confidence, and the amendment would change the grounds of that dismissal power to misconduct or incapacity.
There is already a process for terminating the appointment to the chair due to misconduct or incapacity. The agreed protocol allows an independent panel to make a recommendation to the Secretary of State on whether the chair should be dismissed on the grounds of absence, if they have been convicted of an offence or are an undischarged bankrupt, or if they are unfit or unsuitable to continue in their role. The protocol extends to all board members, not just the chair, and is an essential recourse, where necessary, for maintaining the high standards required of board members. The amendment would effectively replace an existing process, albeit only for the chair and without requiring the involvement of the panel.
The purpose of clause 47 is not to replace that important process but to create a new route for dismissal on grounds that are not already incorporated in the agreed protocol—namely, public confidence. The Parole Board is a high-profile public body that makes important decisions on public protection every day. I do not underestimate in any way the difficulty of its job, and in general—as we have alluded to in debates on previous groups—the board do it very well. However, it is right that the Secretary of State for Justice should have the levers to change the leadership of the board if a situation arose whereby public confidence in the overall work of the board had been irreversibly damaged, because public confidence goes beyond individual decisions.
The chair is responsible for ensuring that the board takes proper account of guidance provided by the responsible Minister or the Department, for ensuring that the board is well run and is delivering high standards of regularity and propriety, and for promoting public awareness of the work of the board. As there already exists a process for the chair of the Parole Board to be dismissed on the grounds of misconduct or incapacity, I am grateful to the hon. Member for Lewisham East for saying that she does not intend to press the amendment to a Division, but I understand the context in which she tabled it. Notwithstanding what I may say in a moment on clause 47, I am happy to have a further conversation with her outwith the Committee, if she thinks that would be helpful.
Janet Daby
Again, I thank the Minister for his very mature approach. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clause 47 amends schedule 19 to the Criminal Justice Act 2003, which governs the membership and operation of the Parole Board. The clause makes important changes to the Parole Board’s membership and leadership. Let me begin by confirming that subsection (10) means that any changes in respect of the chair of the Parole Board do not impact on the appointment or functions of the current chair, Caroline Corby. She has led the board well since her initial appointment in 2018, and the Ministry is grateful to her for her effective leadership in this high-profile and, at many times, challenging role. She will step down as chair in October next year, and it is at that point that the functions of the chair as set out in the clause will come into force.
I now turn to the specific provisions of the clause. Subsection (3) increases the statutory minimum number of Parole Board members from five to seven. In practice, the board, of course, has many more members than that, and its current membership stands at about 300. I take this opportunity to thank the board’s members more broadly for the difficult, but crucial work they do in keeping the public safe from harm.
The Government are increasing the minimum membership of the board for two reasons. First, to make the position of vice chair a statutory role, which is necessary because of the changes the clause makes to the chair’s functions. Secondly, as we touched on when considering clause 46, to require the board to include a law-enforcement member in its core membership. The requirement for a law-enforcement member is in clause 47(4), with a definition of the role in the proposed new section (2A) to be inserted into the Criminal Justice Act 2003 by clause 47(5).
The overall effect will be for the Parole Board to be made up of a minimum of seven members: a chair, a vice chair, a law-enforcement member and four other statutory members, one of whom must have judicial experience, one must have knowledge of probation, one must be an expert in prisoner rehabilitation and one must be a psychiatrist. Requiring the board to have access to that range of expertise as a minimum will ensure that risk is assessed as effectively as possible and that offenders are released only when it is safe to do so. The board will remain free to recruit members from other fields and to appoint independent members, as it deems appropriate.
Jess Phillips
With regard to risk and its assessment, I cannot help but notice, from my many years in the field, that one of the greatest risks on prisoner release is that to women and children, usually those related to the prisoner and/or those they resettle with. I wonder why there is no expertise specifically on understanding that sort of risk—specialist expertise in domestic or sexual violence.
Edward Argar
I set out key—for want of a better phrase—broad categories of skillsets in terms of judicial experience, probation and psychiatry, but I did say that the board remains free to recruit members from other fields and to appoint independent members it deems appropriate. In the context that the hon. Lady sets out, the board might well deem it entirely appropriate to appoint someone with that sort of expertise to sit on particular cases.
Sir Oliver Heald (North East Hertfordshire) (Con)
I just want to remark—I do not know if the Minister would want to—that the vice-chair of the Parole Board, Peter Rook, wrote a leading text on sentencing in sexual offences. He also did an inquiry into the prosecution of them, so he is very knowledgeable in that area.
Edward Argar
I am grateful to my right hon. and learned Friend for his intervention and, as ever, his knowledge. I am grateful that he offers it in his capacity as a Member of this House, rather than being on the clock as a very senior King’s counsel.
The clause also inserts proposed new sub-paragraphs (2B) to (2E) into schedule 19 to the Criminal Justice Act. Those provisions concern the chair and vice chair of the Parole Board. Proposed new sub-paragraph (2B) puts in statute for the first time the period of appointment for the leadership roles, and it aligns the period so that both appointments are for five years, with the possibility of reappointment for a further five years. Currently, the practice is that the chair’s appointment is for three years, and may be extended for the same period, whereas the vice chair’s appointment is for five years, with a five-year extension. The longer period for the vice chair reflects their additional role as an active panel chair and aligns with the usual tenure of appointment for other board members.
We want to align the chair’s period of appointment with that of other members, thereby offering additional protection to the post holder as well as reducing any risk to the smooth running of the board that might arise if its leader were to change relatively frequently. That said, there might be a rare occasion when requiring a change of chair before the end of their appointment period is the best or only option. For that reason, proposed new sub-paragraph (2C) gives the Secretary of State a power to remove the chair from office if it becomes necessary to do so for reasons of public confidence.
A mechanism already exists for the Secretary of State to ask an independent panel to consider dismissing the chair if there are concerns about the post holder’s performance or their ability to do the job effectively. That route remains our preferred approach in the unlikely event that a dismissal is required. This measure in the clause, which enables the Secretary of State to act independently and without referral to a panel, is a last-resort measure to be applied only in the event of a need for Government to act swiftly and decisively. It is not a power that any Secretary of State would ever use lightly, and ideally there will never be cause to use it at all.
Proposed new sub-paragraphs (2D) and (2E) of schedule 19 to the 2003 Act confirm that the chair and vice chair may not return to those posts once their period of appointment has ended except when they are re-appointed immediately after their initial tenure has ended. However, either postholder may be appointed to another role in the Parole Board.
Finally, I turn to clause 47(7), which sets out the functions of the Parole Board’s chair in statute for the first time. The overall intention is both to define the chair’s role as a strategic leadership role and to make it clear that the postholder does not play any part in the board’s decision making when it comes to considering individual parole cases. Proposed new sub-paragraphs (2A)(1)(a) to (g) of schedule 19 provide a non-exhaustive list of functions to be carried out by the chair. Proposed new sub-paragraphs (2A)(2) and (3) prevent the chair from involvement in individual cases. Although it is for the board to decide who will take on any functions currently carried out by the chair that are related to individual cases, we anticipate they will pass to the vice chair or another member of the board.
Ellie Reeves
I associate myself with the Minister’s comments about Caroline Corby and her dedicated leadership of the Parole Board, and I thank her and all the other members of the Parole Board for their important work.
Most of what the Minister has set out is broadly sensible. I have already set out my concerns when speaking to amendment 120, but I want to briefly add that clause 47 also prohibits the chair of the Parole Board from being involved in individual parole cases. That seems to unnecessarily hinder the chair in their role. In evidence to the Justice Committee, Professor Shute said:
“it is…hard to lead the board unless you have experience of sitting on panels…I think it is helpful, if you are going to lead the board, to have first-hand experience of sitting on panels, but this provision is going to prohibit a chair from doing so.”
It its letter to the Justice Secretary, the Justice Committee concluded that
“prohibiting the Chair from sitting on cases would potentially undermine their leadership of the Board, and make the role less attractive to suitable candidates in the future.”Clause 47 seems broadly sensible, but I urge the Minister to consider and reflect on those points.
Edward Argar
I am grateful to the hon. Lady, to whom I listened carefully. I will always reflect.
Question put and agreed to.
Clause 47 accordingly ordered to stand part of the Bill.
Clause 48
Whole life prisoners prohibited from forming a marriage
Question proposed, That the clause stand part of the Bill.
Edward Argar
The clauses will prohibit prisoners who are subject to whole life orders from being able to marry or enter a civil partnership while in prison. Whole life orders are the most severe punishment in the criminal law of England and Wales and are reserved for offenders who have committed the most heinous crimes. Those offenders are the most dangerous and cruel criminals in our prisons—often serial or child murderers who have robbed others of their chance at happiness and a family life and can expect to spend the rest of their life behind bars. As the law stands, prison governors cannot reject a prisoner’s application to marry, however horrific the prisoner’s crime, unless it creates a security risk for the prison. Allowing the most dangerous criminals to marry in custody rubs salt into the wounds of victims and their families and damages public confidence in our justice system.
Clause 48 will prohibit prisoners in England and Wales who are subject to a whole life order from marrying while in prison or another place of detention. The Secretary of State may grant an exemption in truly exceptional circumstances. We believe that that is a common-sense move that will help to restore faith in the justice system by ensuring that we can deal appropriately with the most serious offenders in our prisons.
Clause 49 will prohibit prisoners in England and Wales who are subject to a whole life order from forming a civil partnership while in prison or another place of detention. As with Clause 48, which makes provision for an equivalent prohibition for marriage, the Secretary of State may grant an exemption in truly exceptional circumstances.
Clause 50 is a technical clause, which will allow the Secretary of State to make any further minor and consequential legislative changes needed to implement the prisoner marriage and civil partnership clauses. We have made extensive efforts to identify where such changes are needed, but marriage law is complex and historical references in the statute book may only become apparent at a future time. Use of this power will be limited to what is necessary to implement clauses 48 and 49.
Sarah Champion
My hon. Friend makes a strong argument that I agree with on many levels. It also confirms my suspicion that the provisions could be around an individual, and responding to the horror of that individual. Therefore, I want the Minister to explain to me all the consideration of unintended consequences on this. There are two subsections that allow a prisoner to get married if they have written permission from the Secretary of State. There are also conditions as to why the Secretary of State may be unable to give that permission. Can the Minister tell us again what the exceptions for giving permission, or being unable to give permission, are? Those are not clear in the Bill or in what he has said in Committee.
The Prison Reform Trust was deeply concerned in its written evidence, stating:
“The introduction of specific carve-outs from human rights for people given custodial sentences contradicts one of the fundamental principles underlying human rights—their universality and application to each and every person on the simple basis of their being human.”
Despite the actions of certain offenders, we should not prevent people from having their human rights.
The Prisoners’ Advice Service also stated in its written evidence that the practice will have very little impact:
“A whole life tariffed prisoner will die in prison, and the nature of their crimes renders them unlikely to ‘progress’ to open conditions or to access resettlement facilities such as unescorted release on temporary licence from prison into the community. Thus any marriages or civil partnerships contracted by such prisoners, before or after their conviction leading to the whole life tariff, will in practice have little or no impact on the conditions of imprisonment—and would have no significant impact on victims or their families. It is a point of principle only, ostensibly to show the public that the Executive is not ‘soft’ on those who commit the worst crimes. Behind this flashy headline, is another attempt by the Executive to remove a basic human right from a group of people who are unpopular with sections of the population and the press, for political advantage.”
Given the arguments that those organisations have put forward, I do not think the Minister has made a clear enough argument for why the provisions need to be in the Bill. I ask the Minister to explain the logic, the exceptions and whether the provisions apply retrospectively to people already married. Fundamentally, people have a right to practice their religion, and marriage is part of their religion. I am very concerned that the Minister is looking to take that right away.
Edward Argar
I am grateful to the shadow Minister and the hon. Member for Rotherham for their comments.
On chasing flashy headlines, I have to confess that in my eight and a half years in this place, five of them as a Minister, I have sought to do everything I possibly can to avoid them—I was not overjoyed, then, that I found myself appointed as a Health Minister three months before a pandemic—but the hon. Member for Rotherham raises important points. I do not think anyone could ever question or call into doubt the decency, sincerity and integrity with which she makes points in this Committee and more broadly throughout the House in championing the causes that she does.
On the question of whether the measures make law based on an individual case, I do not think that is the case. On occasion, an individual case may shine a light on something, which then reflects a broader concern or issue. We in this House should always seek to legislate for the general, rather than for the specific individual, and I think we are doing that in this case. It just so happens that an individual case has thrown a light on the matter.
I do not always disagree with the hon. Lady—I possibly agree with her rather more often than not—but I do disagree with her on this issue. I find it challenging to accept that those whose actions have robbed others of any opportunity of happiness believe that they should be able to pursue it irrespective of what they have done in the past. To address a point that the hon. Lady raised, my understanding is that the change is not retrospective. I take her point that tough cases can make bad law, if we look at them individually, which is why we are looking at the matter more broadly.
The shadow Home Office Minister, the hon. Member for Birmingham, Yardley, spoke about individual cases and alluded to something that I want to develop a little more. Although I take at face value what the hon. Member for Rotherham said about redemption and people wishing to reform, I do not underestimate the cynicism of some of these offenders, their manipulative and exploitative behaviour or the potential that, in pursuing marriage, they seek to exploit an opportunity that, in effect, could create another victim further down the line. I believe that the Bill strikes a proportionate balance.
The hon. Member for Rotherham asked about possible exemptions—I think I saw the shadow Minister mouthing it and she was absolutely right—and those would be, for example, deathbed marriages if someone has a long-term partner but they are not married, in the case of a terminal illness or similar, at the end of life. It would, though, be exceptionally rare in those circumstances.
Sarah Champion
Why is it all right for someone who is dying but not for someone who is not? I do not understand that distinction, and I am a woman who used to run a hospice.
Edward Argar
The point is that the only circumstance in which I could envisage the provision being used is where the long-term partner is also a whole-life prisoner and both are in prison at the end of life. Even then, I am not necessarily anticipating that the Secretary of State would give permission, but the hon. Lady asked for a hypothetical example of how it might work, given the concerns expressed by the shadow Home Office Minister, by myself and by others. That is an illustrative example for her. She knows that I have huge respect for her and her integrity and sincerity, but we approach this issue from slightly different perspectives. I am afraid that on this occasion I must resist her entreaties to either withdraw or change the clause, but I am grateful to her for airing her views.
Question put and agreed to.
Clause 48 accordingly ordered to stand part of the Bill.
Clauses 49 and 50 ordered to stand part of the Bill.
Clause 51
Financial provision
Question proposed, That the clause stand part of the Bill.
Edward Argar
The clauses are in part 4, which contains the Bill’s general provisions, and set out the regulations that may be made under the legislation, the territorial extent of its measures, and its commencement and short title.
Clause 51 creates a money resolution for the Bill to allow for new public expenditure incurred by the measures in it. We have published impact assessments that set out the financial implications of each part of the Bill. For part 1, on victims of crime, the additional costs incurred are attributable to the new and expanded functions placed on public authorities—such as code compliance functions for police and crime commissioners—and on local authorities, integrated care boards and PCCs in England to carry out their responsibilities under the duty to collaborate. Further costs may be incurred for criminal justice inspectorates to allow them to carry out joint thematic needs assessments.