Victims and Prisoners Bill (Fourteenth sitting)

Debate between Ellie Reeves and Edward Argar

Committee stage
Tuesday 11th July 2023 Public Bill Committees

[Edward Argar]

In the latest progress update, we also recognised that there is more to do. I want to be very clear on the record that I am not unsupportive of what the hon. Member for Lewisham West and Penge seeks to achieve with her amendment. Indeed, to better understand whether independent legal advice and representation is required, and how it could work in practice alongside our wider reforms and in broader interactions with the system, we have asked the Law Commission to explore the merits of independent legal advice and representation, and how that would work in practice, recognising among other things the specific challenges in cases of rape and serious sexual offences, in terms of third-party material and similar. We also hope that the Law Commission will consider in the round why one particular set of cases should attract it while others would not, and whether that would be an equitable approach. There are very specific reasons in the case of RASSO cases, but we have asked the Law Commission to look at it carefully.

The Law Commission’s consultation on the use of evidence in sexual prosecutions was published on 23 May and will run until the end of September. I suspect that it will cover this matter and a wide range of other matters that we have discussed. I look forward to closely reviewing the Law Commission’s findings and, through gathering that additional evidence, arriving at a well-informed position on this important issue, and how it might be practical to deliver on such a commitment, subject to what the Law Commission says, and to decisions by the Lord Chancellor. To continue our improvements to third-party material requests through the Bill, we are also introducing duties on policing, which we debated when considering new clause 4. In addition, the victims code will introduce an entitlement for adult victims of rape and serious sexual offences to be offered a meeting with the prosecution team once they have been notified that the case is proceeding to trial. That will give victims the opportunity to discuss what happens next and to ask any questions that they have about the process.

On supporting victims to access the right to review process, the CPS notifies victims by letter of decisions not to charge or to stop a case, and offers eligible victims the right to request a review and gives details on how to do that. I will suggest to my right hon. and learned Friend the Attorney General that she and the Director of Public Prosecutions undertake an exercise akin to the one that the hon. Member for Rotherham and I did to look at how—often standard—letters are worded and framed, to ensure that they are sensitive and communicate clearly. That would be a matter for the Attorney General’s office.

In our view, it is slightly premature at this stage to propose a specific approach to free legal advice without taking into account the findings, and the expert advice, of the Law Commission’s important work on these issues. In the light of that work, we will probably return to these questions when it reports.

[Ellie Reeves]

I thank the Minister for his comments. I take some comfort from him saying that he is unable to support the new clause “at this stage” and that it is premature rather than something that is not being looked at. It is an incredibly important issue. I note that the Law Commission is looking at it. I would not want to see the issue kicked into the long grass.

[Edward Argar]

May I offer to meet the hon. Lady to discuss this in advance of the Law Commission work, so that the two of us can discuss it further, as Minister and shadow Minister?

[Ellie Reeves]

I would very much welcome that, and I am grateful for the offer. I will not press the new clause to a vote in the light of what the Minister has said. He acknowledges on the rape review that came out yesterday that there is more to do. I gently suggest that this is one of the key things that could be done so that we start to see some real progress. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 20

Data-sharing for immigration purposes: exemption for victims

“(1) The Secretary of State must make arrangements to ensure that personal data of a victim, as defined by section 1 of this Act, that is processed for the purpose of that person requesting or receiving support or assistance under the Victims Code is not used for the maintenance of immigration control.

(2) Paragraph 4 of Schedule 2 to the Data Protection Act 2018 shall not apply to the personal data to which subsection (1) applies.

(3) For the purposes of this section, the Secretary of State must issue guidance to—

(a) persons providing relevant victim support services, as defined by section 12 of this Act;

(b) persons exercising any function of the Secretary of State in relation to immigration, asylum or nationality; and

(c) persons exercising any function conferred by or by virtue of the Immigration Acts on an immigration officer.

(4) In this section “immigration control” means United Kingdom immigration control and includes any United Kingdom immigration control operated in a prescribed control zone outside the United Kingdom.”—(Sarah Champion.)

Brought up, and read the First time.

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[Ellie Reeves]

But they are not heard urgently; it takes years, as in the case of Jade Ward and other survivors and families I have spoken to.

In relation to the second point, I will go on to speak about how those people are specifically protected. Under the new clause, those convicted of manslaughter with a defence of loss of control or diminished responsibility and who at the time of the offence were subjected to coercive or controlling behaviour by the person they killed would not be caught, as there is specific carve-out. I will talk a little more about that as I go on, but I want to end what I was saying about Jade Ward by paying tribute to her family in highlighting the situation and trying to stop other families from facing the suffering they have faced.

I now want to talk about Mumtahina Jannat, known as Ruma, as her case also outlines the injustice that is occurring. Ruma was murdered by her violent ex-husband. On hearing the news, Ruma’s niece, the renowned children’s author Onjali Raúf, went straight to the house to find the children, but they had already been taken straight from school into foster care. She was not allowed to know where the children were or to make contact with them, while from his jail cell the killer was given the phone number of the foster parent and allowed to make contact with them, sending them letters. That is despite the fact that Ruma turned to Onjali and her mother for help when she fled with her children to a refuge five years earlier. Onjali said:

“We saw those kids every other day…Our home was a refuge for them. We would watch films with them and take them on holiday. They were part of our family…We didn’t see the children for over a year. After we were finally reunited with them, they asked us questions that gave us hints about the lies they were being told in those letters. Lies that tried to justify his murder of their mother…That youthful confidence was sucked out of them. And of course they had trouble trusting us again—why would they?”

Commenting on the current situation, Onjali said:

“Until it happens to you, you don’t know how broken the system is…You don’t know it’s geared towards this violent person, who has all the protections and all the rights…There’s no justice. ‘Justice’ isn’t the right name for this system.”

For Onjali’s family, new clause 21, which would change the law on parental responsibility, would be a step towards justice.

There is a school of thought that says that children always benefit from contact with their parent, but that is contrary to the available evidence. I met with Diane Clarke, whose mother was killed in 1978 when Diane was just 10 years old. Her father was charged with murder, which he denied, although he admitted manslaughter. He was sentenced at Birmingham Crown court to just three years in prison.

When her father was released, Diane was sent to live with him. She told me that at the time she felt that that was what she wanted, yearning for a normal family set-up, but as a child she did not recognise the domestic abuse she had witnessed for what it was or that she had been groomed by her dad to disrespect her mum. Only now, as an adult, does she realise the further harm inflicted on her by this living arrangement. She says that she realised she lived in fear that she would anger him and he would kill her too. Let us be clear: this was not an irrational fear, given that he had already killed someone he claimed to love.

New clause 21 would deliver protections for cases such as Diane’s, as it contains provisions for those convicted of voluntary manslaughter to have their parental responsibility suspended. That is necessary, as so many cases of domestic homicide result in a manslaughter rather than a murder conviction. This is often despite long histories of domestic abuse featuring in these cases.

Take, for example, the case of Joanna Simpson. She was killed by her estranged husband, Robert Brown, in 2010. The attack began when Brown was returning their two children, aged nine and 10, after a half term visit. Brown used a hammer he had packed in the children’s bag and bludgeoned Joanna repeatedly. He then put her body in the car with the children in it and took her to the site of a pre-dug grave, where he buried her. Joanna’s friends and family all describe the killing as taking place in the context of long-term abuse, but Brown was convicted of manslaughter rather than murder. It is vital that killers such as Robert Brown are prevented from causing more harm to their children, regardless of what the conviction for killing ends up being. New clause 21 would ensure that.

All the cases I have referred to involve men who have killed women. However, it is right to acknowledge that there are some women in prison for manslaughter having killed their partner after suffering years of domestic abuse—a point made by the right hon. and learned Member for North East Hertfordshire. We recognise the very specific nature of those crimes and that, in such circumstances, the risk to the children presented by the killer is not the same. Therefore, in new clause 21 we have included an exemption where a manslaughter conviction is made on the grounds of loss of control or diminished responsibility and the prisoner had, on the balance of probabilities, been a victim of coercive and controlling behaviour by the person killed at or near the time of the killing. In these rare cases, I do not consider that the mother should automatically lose their parental responsibility. That is why new clause 21 contains the exemption.

I turn to the current system. I appreciate that new guardians can already seek a special guardianship order over the children, meaning that their parental responsibility would trump the perpetrator’s, although they would still need to consult him on some things and would not be able to do certain important things without his consent. However, that still places an extra burden on the family in terms of legal proceedings. Given the abysmal court delays, that is another hurdle for a family that has already been through legal proceedings in the criminal court.

I also understand that the family can seek an adoption order, but that can feel uncomfortable for families as it legally alters the relationship between the children if they are with the family. For example, if they are adopted by their grandmother, she legally becomes their mother and their birth mother legally becomes their deceased sister. But that is beside the point. As Onjali says,

“Why do we even think murderers should have parental responsibility? They forfeited that ‘responsibility’ when they killed their children’s mother. It’s beyond logic.”

New clause 21 would remove the burden of lengthy, stressful proceedings in the family court and give children the security they so desperately need: that their new guardians have responsibility for them and that they are safe.

To conclude, the research is clear that adverse childhood experiences have a huge impact on how children grow and develop. New clause 21 is about doing what is best for the children left behind: safeguarding their rights, protecting them from abusers and trying to give them the best possible means to thrive. It is about valuing the rights of children over those of abusers.

One year on from the petition for Jade’s law, it is indefensible that men who kill their partners, often after long periods of abuse, are still able to exercise control over the surviving children and their guardians from their prison cell. I note the Justice Minister’s comments today outlining his support after months of campaigning from Labour. I also note his comment that he is looking to find a quicker way to cut off parental rights for killers. Today is that opportunity with new clause 21. By voting for it, we can end an indefensible situation and truly make this a Bill for victims. Failing to do so is a vote for more delay, leaving vulnerable children unprotected and victims’ families having to fight through the backlogged courts. I hope that Government Members will vote to support Jade’s law today.

[Edward Argar]

I thank the hon. Member for Lewisham West and Penge for her new clause, which seeks the automatic suspension of parental responsibility in the tragic circumstances where one parent of a child has been convicted of murdering or committing voluntary manslaughter of the other for the term of their imprisonment for such an offence. I do of course have the deepest sympathy for families dealing with such a tragic event—including the family of Jade Ward, who have campaigned bravely and tenaciously for the change to be made.

The hon. Lady and I debated the issue in November last year in Westminster Hall, following which the right hon. Member for Alyn and Deeside introduced me to Jade’s parents, who were there to listen to that debate. I suspect that this view will be shared by the shadow Minister: I think everyone in that room was struck by their quiet dignity in the face of everything they have had to put up with and endure while campaigning.

Strengthening measures to ensure the safety of children and vulnerable parents continues to be a top priority for the Government and something we remain deeply committed to. I agree that in such tragic circumstances family members who are stepping in to care for the child or children should be better supported, and that, fundamentally, an abusive parent who has committed such a terrible offence should not be able to use family court proceedings as a further way of exerting control or tormenting a tragically bereaved family. As the Lord Chancellor stated in The Sun today,

“It should be presumed that when one parent murders another, denying their child of a loving parent, they should not have the right to make decisions on that child’s life.”

I agree with the Lord Chancellor. He was clearly setting out the view of His Majesty’s Government. It is now a matter of how that intent is achieved.

As the Lord Chancellor has stated, there will of course be exceptions, as the hon. Lady’s amendment recognises, such as victims of domestic violence and domestic abuse who lash out after years of abuse, for whom automatic restriction would not be appropriate. But restricting the right should be the norm. It is right that time is taken to properly look at the options, however, to ensure that exceptions are captured—I will come on to the legal reasons in the light of a recent case in a minute—and we are looking for the quickest way and most appropriate vehicle. The shadow Minister would say we have one in front of us as we sit in this room today, and that might prove to be the case. However, we do not believe this new clause is the right route to remedy this situation.

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[Edward Argar]

I am grateful to the shadow Minister, but I will go on to explain why I believe the drafting is not necessarily appropriate. I assure her that there are no plans to prorogue or dissolve Parliament in the immediate future that I am aware of.

I would also like to make clear that the courts do have the power to seriously restrict the exercise of parental responsibility when it is in the child’s best interests. I heard the points made by the shadow Minister in respect of that process. I draw hon. Members’ attention to the recent Court of Appeal judgment in the case of Re A, regarding parental responsibility. In that judgment, the President of the Family Division confirmed that Parliament has already given the court the power to empty a father’s parental responsibility of all content and prevent them from making any future applications to the court, regardless of the marital status of the parent or how parental responsibility was acquired. Courts can and do make use of that power when it is appropriate to do so, but crucially, they are able to do so considering all the unique circumstances of the individual case, with the child’s best interests at the heart of their decision. The new clause potentially would remove that ability. However, I take the shadow Minister’s underlying point about how retraumatising and traumatic going through the family court in that context can be.

As I said earlier, I have huge sympathy for the aims of the amendment, particularly in respect of the processes and procedures that bereaved families have to go through in order to achieve the result they desire. We are committed to taking action to address this issue, as the Lord Chancellor has unequivocally set out. In response to the Ward family’s calls for reform, we have asked the Family Procedure Rule Committee in the interim to make the court process less time-consuming and more straightforward for families applying for special guardianship orders and other orders to restrict the exercise of parental responsibility in these or similar circumstances. The committee is actively considering what changes can be made to deliver that. Also, as of 1 May, the Government have extended the scope of legal aid for making special guardianship orders. That means that in private family proceedings where an individual wishes to become a special guardian, they can receive legally aided advice and representation to help them do that, subject to a means test.

I agree that there is more that can and should be done. That is why we are actively working on what changes could be made to the law on parental to rectify the position that the Ward family have highlighted through their campaign, while avoiding unintended or perverse consequences from those changes. We need to fully consider the recent Court of Appeal judgment in the Re A case as part of that.

I am very concerned about the risk that an automatic suspension of parental responsibility could be deemed to breach the child’s rights under articles 6 and 8 of the European convention on human rights, potentially leading to legal action or undermining what we are all trying to resolve here with minimal legal challenge. It is better that we take the intervening months to carefully consider what is the right approach in the light of that judgment, and return—hopefully swiftly—with a fully drafted and carefully considered proposal that guarantees the core principle of the Children Act that the family court should always have the best interests of the child at heart, but that also seeks to address the underlying point, the underlying intention, of the new clause tabled by the hon. Member for Lewisham West and Penge.

This new clause has, as I hope everyone can agree, an entirely noble and uncontroversial aim. We all have huge sympathy for families in these circumstances and want to do as much as possible to support them. I am happy to work with the hon. Lady on this if she so wishes. I will repeat the words of the Lord Chancellor, which set out the Government’s position:

“It should be presumed that when one parent murders another, denying their child…a loving parent, they should not have the right to make decisions on that child’s life.”

I have to say in response to the final point made by the hon. Member for Lewisham West and Penge, with whom I tend to agree—not all the time, but a lot of the time—that on this, I disagree with her. Voting against the new clause is not a vote for doing nothing or a vote to reject a solution that works. It will be a vote for taking the time to get it right.

[Ellie Reeves]

I have listened to what the Minister has had to say, but the Government have had ample time to bring forward proposals on this matter. A new clause could have been presented by the Government in relation to this Bill. As my hon. Friend the Member for Birmingham, Yardley said, the issue has been being raised since as far back as 2016. We had the debate last November. Therefore the Government have had more than enough time to bring forward proposals. There is a proposal on the table today to end this situation once and for all. That is why I will press new clause 21 to a vote.

Question put, That the clause be read a Second time.

Victims and Prisoners Bill (Thirteenth sitting)

Debate between Ellie Reeves and Edward Argar

Committee stage
Tuesday 11th July 2023 Public Bill Committees

[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.

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[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.

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[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.

--- Later in debate ---

[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”.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.”

--- Later in debate ---

[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

--- Later in debate ---

[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.

Victims and Prisoners Bill (Twelfth sitting)

Debate between Ellie Reeves and Edward Argar

Committee stage
Thursday 6th July 2023 Public Bill Committees

[Edward Argar]

I am grateful to my hon. Friend. Given his personal experience and connection, this will not have been easy for him, and I am grateful for not only his words, but his service on the Committee.

Question put and agreed to.

Clause 31 accordingly ordered to stand part of the Bill.

Clause 32

Public protection decisions: life prisoners

[Ellie Reeves (Lewisham West and Penge) (Lab)]

I beg to move amendment 96, in clause 32, page 24, line 25, at end insert—

“(fa) the nature and seriousness of any conduct by the prisoner which—

(i) is alleged,

(ii) is as yet unproven,

(iii) has not resulted in a conviction,

which may have implications for the risk posed by the prisoner.”

[Ellie Reeves]

This victims Bill is long-awaited. Although it is good to finally be on my feet, I should say that part 3 is a distraction to debating the real and serious issue of victims. Many of us share the view that it should never have made its way into the Bill.

Amendment 96 seeks to broaden the list of things that the Parole Board must take into account when making a release decision. I want to set the context by saying a few words about the new release test. No one wants to see dangerous criminals released from prison, and the release of John Worboys, Colin Pitchfork and Tracey Connelly rightly led to public outrage. Setting the test out in legislation and introducing a new threshold may help to give greater transparency and consistency. However, it is not clear whether it will make a difference to how the Parole Board already operates. In evidence to this Committee, the Parole Board chief executive stated that it currently assesses risk

“as to whether the prisoner’s continued detention remains necessary for the protection of the public. That means that public protection is always paramount in our decision making.”

He went on to say that

“what is on the face of the Bill, in reality, gives effect to what the Parole Board already says in its guidance that we should take into account. We think that the legislation should make no significant changes to our practice.”—[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 51, Q100.]

My concern is that setting out in legislation the list of factors that the Parole Board has to take into account could lead to the process becoming a tick-box exercise. Clauses 32 and 33 set out matters—such as the nature and seriousness of the offence and the risk of the prisoner failing to comply with their licence conditions on release or committing further offences—that the Parole Board rightly takes into account when making a public protection decision. Although the list is non-exhaustive, there is a risk that factors that are not on the list but that may be important in a particular case do not get the consideration that they deserve. That could lead to poorer decision making, leaving the public less safe, and that leads me to my amendment.

I am deeply concerned that the draft list of criteria does not include alleged but unproven offences. Let us take Worboys, for example. His release on parole in 2018 rightly caused outrage. He was originally charged with attacking 14 women and faced 23 charges, including rape, sexual assault and administering a substance with intent. He was convicted of 19 offences in 2009. In December 2019, he was handed two additional life sentences for attacks on four more women, as it was revealed that he had confessed to targeting 90 victims. The failings of the police in this case are widely acknowledged, but on his release in 2018, the dossier from the Ministry of Justice did not emphasise the other allegations against him. Therefore the panel did not consider the alleged offences that he had not been charged with but, on the balance of probabilities, he had committed. In 2019, the Parole Board guidance was changed so that alleged but unproven allegations could be taken into account.

Litigation on this point followed, in the case of Pearce. Mr Pearce was sentenced after three offences of sexual assault. After serving his minimum sentence, the Parole Board refused to direct his release and instead directed his transfer to open conditions. In accordance with the new guidance on allegations, the board, when assessing his risk, took into account multiple unproven allegations about other alleged sexual assaults carried out by Mr Pearce against women and girls. Although the Court of Appeal found that the decision in respect of Mr Pearce was lawful, it held that parts of the board’s guidance were unlawful, as in its view only proven allegations could fairly be taken into account in the risk assessment.

The Parole Board appealed to the Supreme Court, which concluded in April this year that the Parole Board’s guidance on the unproven allegations against a prisoner is lawful. Therefore, alleged but unproven offences may be taken into account in release decisions where the Parole Board decides that they are relevant to the question of a prisoner’s risk to the public.

Although that is a step forward for victims and public safety, the Government’s failure to include alleged but unproven allegations on the statutory list is a huge step backwards. That was the key lesson from the Worboys case, so the omission is startling. It risks not only diluting the list’s importance, but the exclusion by panels of such allegations from their decision making. If that happens, decision making will be of a worse quality, and that will put the public at greater risk. That is why these amendments are so important, and I urge the Government to support them.

[Edward Argar]

I welcome the hon. Member for Lewisham West and Penge not only to her seat but to her feet, to take on part 3 of the Bill. In answer to her opening comments, the reason that part 3 is included is that when we talk to victims, there are two key points at which they raise concerns and anxieties. The first is the initial stage, from the arrest to the charge, the court process and—hopefully—the conviction and sentencing of the perpetrator. The second, which has been raised with me, the Lord Chancellor and others, is when a perpetrator is coming up for release or parole. That is the thread that links part 1 and part 3 of the Bill.

I am grateful to the hon. Lady for her amendment, which would explicitly add unproven allegations to the list of matters that the Parole Board must take into account when deciding whether it is safe for a prisoner to be released. I appreciate the point that she made about specific cases; I am a Leicestershire MP, and the impact and trauma of Colin Pitchfork’s deeds are still very much there among communities, not just in the immediate area where it took place but across my constituency, because people remember them with horror. In this context, “unproven allegations” refers to allegations that the prisoner has committed offences in addition to those of which they were convicted. Those could be, for example, complaints recorded by the police or misconduct in prison.

I agree with the hon. Lady that unproven allegations are an important factor in risk assessment. I reassure her that they are already given the consideration they require by parole panels and that the Parole Board has specific guidance for its members on the matter. Members of the Committee may be aware that the Supreme Court recently handed down its judgment in the case of Pearce, to which the hon. Lady referred. The case considered the board’s guidance on unproven allegations, and the Court held that the Parole Board can have regard, where appropriate, to any unproven allegations regarding a prisoner and is free to give them due consideration as part of that release decision even where that material has not been established as a fact. The Parole Board has since updated its guidance in the light of the judgment and continues to consider unproven allegations in its decisions.

Given the potential importance of unproven allegations, we considered adding them to the list of mandatory criteria. However, this is a technical area of law and we fear that the amendment would potentially go further than the Pearce judgment, which would risk including baseless allegations that lack credibility and going beyond the parameters set by the Supreme Court judgment. In our view, the position agreed by the Supreme Court is clear and has been carefully considered. We are content that the developed jurisprudence gives sufficient clarity for the board to fairly consider allegations of this kind as it makes decisions.

Clauses 32 and 33 both contain a list of factors that the Parole Board must take into account when making a public protection decision about a prisoner. The list is explicitly not exhaustive. The list includes the conduct of the prisoner while serving their sentence as well as the risk that the prisoner would commit a further offence if no longer confined. In our view, unproven allegations already fall within the scope of these mandatory considerations. Members of the Parole Board are experts in the field and will consider all relevant and available information in line with the guidance regardless. On the basis that unproven allegations already fall within the wording and scope of both these mandatory considerations, that unproven allegations are therefore already an important part of the decision-making process, and that clear guidelines have been handed down by the Supreme Court, we consider the amendment unnecessary.

[Ellie Reeves]

I thank the Minister for those comments. I note his point about the drafting of the amendment perhaps going further than the judgment in Pearce. Given the importance of getting this right, might we look at a way that alleged but unproven allegations could be incorporated into the list between now and Report?

[Edward Argar]

In the nicest way, I would not wish to leave the hon. Lady out of the multiple conversations that I am likely to have over the summer with her right hon. and hon. Friends about different aspects of the Bill. I hope that it has come across in Committee that I am always happy to work constructively with the Opposition on this. We may not always reach the same conclusion or end up in the same place, but I am always happy to have those conversations with the hon. Lady.

[Ellie Reeves]

I am grateful for those assurances about working together on this. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Edward Argar]

I am grateful to the hon. Lady for the point she makes, and I understand that she is getting at how widely one draws out what is relevant and useful information pertinent to decision making. I appreciate the point she makes about some factors not currently being explicitly taken into consideration under the provision. On that specific point of law, I hope she will allow me either to write to her or revert to her before the Committee concludes.

With subsection (5)(c), the requirement is then to consider the prisoner’s behaviour, even in prison or on licence, while serving the sentence. The decision maker must review the available evidence—for example, from probation officers—as to whether the prisoner has complied with all the demands made of them. There is a link to subsection (5)(f), which considers the impact of any rehabilitative interventions, such as therapeutic treatment or engagement in education, and their effectiveness in reducing the prisoner’s risk to the public.

I have already mentioned subsection (5)(d). Subsection (5)(e) covers the assessment the decision maker must make in respect of what licence conditions might be imposed if the prisoner is suitable for release, and what the likelihood of the prisoner complying with them is. Subsection (5)(g) requires the decision maker to take account of any submission made on behalf of the prisoner as to their suitability for release. An account must also be taken of any submission from the Secretary of State, which may include their view on the risks posed by the prisoner.

As we have discussed at length, it is vital that we put victims at the heart of the criminal justice system. For that crucial reason, subsection (6) says that when assessing the level of risk that the prisoner may pose to the public in general

“the decision-maker must in particular have regard to the protection of any victim of the prisoner.”

In that context, my interpretation of the requirement on the board to take all relevant evidence into account—as I said, I will write to the hon. Member for Birmingham, Yardley if I have misinterpreted this—is that if relevant material is held by another authority, it can still be obtained on behalf of the Secretary of State and considered. I hope that she will allow me to confirm that to her in writing.

The criteria set out in subsections (5) and (6) are comprehensive and undoubtedly assist the decision maker in assessing risk; however, it is not an exhaustive list of criteria. That is confirmed by subsection (9), which clarifies that the decision maker is not limited in the matters to be taken into account when assessing a prisoner’s risk. The Government consider it necessary to be transparent and clear when it comes to making very important public protection decisions that have significant consequences for the public, victims and prisoners. The high threshold for release and the criteria by which risk is assessed must therefore be there for everyone to see and understand. We are satisfied that the clause codifies the release test used by the Parole Board, and the board advises that it could be a welcome clarification for it of the factors that its members already take into consideration.

[Ellie Reeves]

I thank the Minister for setting out the clauses comprehensively. They are broadly welcome, in that they introduce a new public threshold in legislation. Although putting the release test in legislation and introducing the new threshold may help to give greater transparency and consistency, there remains a question mark about whether it is necessary. The Chair of the Justice Committee observed on Second Reading that

“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…There is nothing wrong with changing it, and perhaps nothing wrong with expanding it, but are we sure that we are getting this right?”—[Official Report, 15 May 2023; Vol. 732, c. 602-603.]

Although it was helpful to hear from the Minister today some of the thinking behind the clauses, I notes that the Justice Committee wrote to the Lord Chancellor stating that the changes could have a positive effect on consistency and transparency of Parole Board decision making, but also outlined that the changes are not strictly necessary. Again, there is a question mark about whether parliamentary time could be better spent focusing on victims rather than some of these changes.

Let me return to the concerns I raised previously about the non-exhaustive list of factors for the Parole Board to take into account. There is a risk that the Parole Board may end up giving more weight to those things that are on the list rather than to other factors that may be relevant. I have already spoken about alleged but unproven allegations. My hon. Friend the Member for Birmingham, Yardley gave the example of findings that might be made in the family court, particularly in relation to rape and domestic abuse. My worry is that an unintended consequence of specifying a list of things that have to be taken into account might be a failure to take into account issues that are also extremely relevant to risk. Although we broadly we support the clauses, we think those points need a little further reflection.

[Edward Argar]

I am always conscious that the hon. Lady is an extremely able lawyer, so I listen carefully to everything she says and will reflect carefully on her points. I am also conscious that both Lewisham East and Lewisham West are represented on this Committee; Lewisham is well represented. With that, I commend the clauses to the Committee.

Question put and agreed to.

Clause 32 accordingly ordered to stand part of the Bill.

Clause 33 ordered to stand part of the Bill.

Schedule agreed to.

Clause 34

Amendment of power to change test for release on licence of certain prisoners

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

The clause is an amendment to an existing power in section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The power allows the Secretary of State to be responsive to the risk posed by certain cohorts of offenders by allowing changes to the release test applied by the Parole Board by secondary legislation. For example, if the release test was found to no longer be suitable for assessing the risk posed by a particular cohort, the power would allow the Secretary of State to swiftly rectify that by amending the release test to safeguard protection.

The clause simply amends the pre-existing power to ensure it remains operable with the introduction of the Bill. First, it brings the new release test in clauses 32 and 33, which we have just discussed, into this power, so that the Secretary of State can amend it if necessary. Secondly, it ensures that the power also works with the new ministerial second check introduced in the Bill, which we will debate in due course. In the event that the Secretary of State decides to call in a case to remake a decision, he or she will apply the same release test as the Parole Board. Likewise, if a prisoner decides to appeal a decision made by the Secretary of State to the upper tribunal, they will also apply the same release test.

The power is used to change the release test applied by the Parole Board. The release tests applied subsequently by the Secretary of State and the upper tribunal must also be changed, which this clause facilitates. The clause is not new policy, but simply ensures that the pre-existing legislation continues to operate consistently and effectively. I commend it to the Committee.

[Ellie Reeves]

We welcome clause 34, which will allow future changes in the release test to be made by affirmative statutory instrument. The Worboys case demonstrated inadequacies with Parole Board processes, and changes were needed that until then had not been anticipated. It strikes me that in future we may find that changes are needed in ways that we cannot foresee today, but there must be scrutiny of any changes, so I am pleased that the Government have recognised this is a matter for which an affirmative as opposed to a negative statutory instrument is required. We welcome this measured approach.

[Edward Argar]

I am grateful to the shadow Minister for her support and for her words. I hope clause 34 can stand part of the Bill.

Question put and agreed to.

Clause 34 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Fay Jones.)

Oral Answers to Questions

Debate between Ellie Reeves and Edward Argar

Tuesday 21st February 2023 Commons Chamber

[Ellie Reeves (Lewisham West and Penge) (Lab)]

Two years on from the Government’s end-to-end rape review, rape allegations leading to a charge or summons stand at 1.6%, rape victims are waiting 1,113 days for their case to get to court, and only 2,500 rape prosecutions were completed last year—half the level of 2016. Is this not a Government who are letting rapists off and letting victims down?

[Edward Argar]

I debate these matters regularly with the hon. Lady, but I have to say to her, as I have said to other hon. Members, that while there is still more to do, there has been considerable progress under this Government. The number of people convicted of an adult rape offence went up by 65% over the past year; compared to pre-pandemic levels, convictions are up by 41%. That is significant progress, but of course there is more to do. That is why the Government are supporting the roll-out of Operation Soteria, quadrupling funding for victim and witness support services, and increasing the number of independent sexual and domestic abuse advisers by 300, to over 1,000. Those are just some examples of the measures the Government are taking. There is no complacency here—just a strong track record of work and delivery.

Oral Answers to Questions

Debate between Ellie Reeves and Edward Argar

Tuesday 12th January 2021 Commons Chamber

[Edward Argar]

I can reassure the hon. Lady that beds and increased capacity, where we put them in place, are allocated on the basis of where they are needed. She is right to highlight the pressure that her local hospital trust, London North West University Healthcare NHS Trust, is under. The team there, as across the NHS, are doing an amazing job, but the critical care bed occupancy rate in her trust was 98.7% on the latest figures I have. That is extremely significant pressure, but I can give her the reassurance that we look to ensure that all areas receive the resources they need.

[Ellie Reeves [V]]

London has declared a state of emergency and the stark reality is that at this rate we will run out of beds for patients in the next couple of weeks. At least two NHS hospitals in the capital have already postponed urgent cancer surgery and figures show that treatment levels are failing to keep pace with demand. Will the Minister therefore commit to fully opening the London Nightingale hospital, secure the use of London’s private hospitals for cancer treatment, and invest in the number of beds in our NHS for the long term?

[Edward Argar]

The hon. Lady is absolutely right to highlight the pressure that the NHS and critical care are under in London and, indeed, more broadly. I pay tribute again to all those who are working in the NHS, including my shadow, who I suspect has been on the frontline in recent days—I pay tribute to her, too. The best way we can thank them is by following the advice to stay at home and to follow the rules. In respect of her specific point, yes, we are involving independent sector capacity, Nightingale capacity and increasing NHS capacity—all those, alongside other measures—to ensure our NHS continues to be able to treat those who need this care at this time.