Victims and Prisoners Bill

Lord Burnett of Maldon Excerpts

Committee stage
Monday 26th February 2024 Lords Chamber

Moved by

[Lord Burnett of Maldon]

137: Clause 41, page 39, line 26, leave out from second “the” to end of line 27 and insert “Divisional Court of the King’s Bench Division”

[Lord Burnett of Maldon (CB)]

My Lords, in the absence of the noble and learned Lord, Lord Thomas of Cwmgiedd, who is abroad at the moment, I move this amendment and will speak to the others in this group, save for Amendments 146A, 174 and 175 which stand in the name of the noble Baroness, Lady Hamwee.

Clause 44 enables the Secretary of State to refer a decision of the Parole Board to release what is known as a top-tier prisoner for a judicial decision either to affirm or to quash a decision of the Parole Board. Top-tier prisoners are those who have committed the most serious offences. The Bill identifies the Upper Tribunal as the court to which referrals will be made, save in cases where there is sensitive material, in which case the court is the High Court.

The principal amendment in this group, which would amend Clause 44, is to propose that all referrals go to the High Court; in particular, a

“Divisional Court of the King’s Bench Division”.

The other amendments that we propose make necessary changes elsewhere. The reason for proposing these amendments is to ensure that the judicial decision is made by a court whose members are well equipped by experience to make the necessary assessment of risk.

The background is that the cases will necessarily involve serious offending and be referred by the Secretary of State because of at least an unease about the decision of the Parole Board. That Parole Board will be made up of individuals with considerable experience in evaluating risk in the context of criminal offending. Any review or reconsideration should be conducted by a court that comprises judges with similar such experience. None of the chambers of the Upper Tribunal currently has members with that necessary experience, but the High Court does.

A Divisional Court of the King’s Bench Division deals with criminal cases in the High Court. It is almost always composed of judges who sit in the Criminal Division of the Court of Appeal; that is, a Lord or Lady Justice and a High Court judge. Those judges have extensive criminal experience; in particular, when dealing with sentencing, either at first instance as trial judges or on appeal. They are used to making decisions which require them to evaluate risk and, in particular, whether an offender is a dangerous offender, which leads to a suite of different sentencing options. In those circumstances, they are well suited to the task which the Bill will empower the Secretary of State to require a court to undertake.

The Bill itself envisages that the High Court will perform this role in some cases. This amendment suggests that it would be more effective, and deliver the outcome that the Bill seeks, were the High Court always to be the destination for these referrals. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I agree with every word uttered by the noble and learned Lord, Lord Burnett of Maldon. I am sure that the same words, or words to similar effect, would have fallen from the lips of the noble and learned Lord, Lord Thomas of Cwmgiedd. They echo the sentiments of a number of those who have briefed noble Lords on these issues relating to the Parole Board.

I will be brief. There is one overriding principle, which is that the Parole Board should be, in effect, an independent, quasi-judicial body. A number of concerns have been expressed about the prospect of the Secretary of State having the power to refer decisions of the Parole Board to another body. One reason for the amendments in the name of my noble friend Lady Hamwee, to which I will turn shortly, is that concern.

The idea that this jurisdiction to consider referrals by the Secretary of State should be a matter for the Upper Tribunal, which is not a body involved with the prison system at all—it has, as the noble and learned Lord pointed out, no relevant chamber—and is not concerned with the sentencing, treatment or release of offenders, is an odd one. That decision should plainly be, we would suggest, the decision of a court used to dealing with criminal justice and with the sentencing and imprisonment of offenders. Loosely stipulating that it should be the High Court, without the division named, or the Upper Tribunal is wrong.

--- Later in debate ---

[Lord Burnett of Maldon (CB)]

I thank the Minister for his response. It is a delight to see him back in his place. I also thank those who spoke in support of the amendment put down by the noble and learned Lord, Lord Thomas of Cwmgiedd, with my support.

I was intrigued by the Minister’s reference to consultation with the Judicial Office last June. I was, of course, in post as Lord Chief Justice then. For administrative purposes, the Judicial Office is the alter ego, as it were, of the Lord Chief Justice. It may well be—I put it no more pointedly than this—that Homer may have nodded in June, because I had thought that the proposal of the noble and learned Lord, Lord Thomas, which is supported by me and elsewhere, was not controversial. If there has been a mix-up in communication historically on that, I apologise, wearing my previous hat. I am grateful to the Minister for indicating that the Government will be prepared to consider this matter further. I am of course entirely at the Minister’s disposal to discuss any proposals that may commend themselves to the Government to be brought forward on Report. I beg leave to withdraw the amendment.

Amendment 137 withdrawn.