Parole Board (Amendment) Rules 2022

Lord Garnier Excerpts

Tuesday 18th October 2022 Lords Chamber

[Lord Garnier (Con)]

My Lords, I support the noble Baroness, Lady Prashar. Because she set out the arguments so well and so fully, there is very little more that I need to say—save that, in standing, I want to demonstrate that this is not a party-political issue; this is a matter of constitutional propriety, and I think it is a matter of justice.

I suppose this is a smallish point, but I think that the negative procedure is the wrong way to deal with a statutory instrument of this nature. According to the notes attached to the statutory instrument, this regulation has been in law since the summer, and this is the first time that your Lordships’ House has had an opportunity to discuss it. As we have learned from the noble Baroness’s remarks, this statutory instrument carries with it matters of huge importance which should not just be lightly passed into law.

The second point I draw from her remarks is that, long ago, we got rid of political decision-making in the tariff-setting of life sentences for prisoners, and yet we are now introducing political input into questions which should be dealt with by the Parole Board by a “single view” of the Secretary of State. I suppose there was a time when the Secretary of State for Justice might be expected to know something about the law, but that is no longer the case. Therefore, it seems to me all the more extraordinary that a political Minister should have the power, passed by this little-discussed measure, to have a single view which trumps all others—indeed, shuts out all others.

In essence, I entirely support what the noble Baroness had to say, and I am reasonably certain that most other speakers will as well.

[Lord Dholakia (LD)]

My Lords, I am pleased to support the Motion in the name of the noble Baroness, Lady Prashar, and to reinforce her concerns about recent changes to the parole process.

When it considers a prisoner’s case, the Parole Board has two decisions to make: first, whether to direct the prisoner’s release; and, secondly, whether to recommend that the prisoner should be transferred from a closed prison to an open establishment. The board carries out these functions to an extremely high standard. Its members include current and former judges, police officers, Crown prosecutors, probation officers, psychiatrists, psychologists, lawyers and members of other professions.

All Parole Board members receive thorough training on risk assessment, which is regularly reinforced by risk-focused in-service training. In every case which goes to an oral hearing, the board assesses whether a specialist member—such as a psychiatrist, a psychologist or a member with particular training in terrorism issues—should be on the panel. As a result of this strong focus on effective risk assessment, the proportion of prisoners released on parole who commit a further serious offence is less than 0.5%, which is a remarkable record of the success of the Parole Board in its work. It is difficult to see how any system based on human judgment could produce a significantly better result.

An essential part of the parole process is the provision to the board of reports from specialists working for His Majesty’s Prison and Probation Service—including prison staff, probation officers and psychologists—as well as other specialist reports commissioned by the service. These reports contain a detailed assessment of the prisoner’s risk. They include information about the prisoner’s progress in custody, their sentence plan, their risk of reoffending, their risk of serious harm and the arrangements and licence conditions which would be in place if they were released.

In the past, these reports also contained recommendations for or against release on parole and for or against a transfer to open conditions. The Parole Board was not bound to accept these recommendations, as it has a duty to make its own independent assessment of the prisoner’s suitability for release or open conditions. However, it was obviously helpful for the board to receive recommendations from professionals who had particular knowledge of the prisoner because they had worked with him or her on a regular basis during the prisoner’s sentence.

These recommendations have now been prohibited. This decision is totally illogical, since professionals who are commissioned by the prisoner’s legal representatives will not be prohibited from making recommendations. If a prison psychologist assesses the prisoner and believes that he or she is not safe to release, they are prohibited from saying so. However, if an independent psychologist is commissioned by the legal representative to assess the same prisoner and concludes that they are safe to release, they can make a recommendation for release to the Parole Board. In this case, the board would receive only one recommendation from a psychologist, a recommendation in favour of release, as even though the prison psychologist considers that the prisoner remains too dangerous to be released on licence, they are prohibited from saying so to the Parole Board.

This approach is patently nonsensical. It is difficult to see what it has to do with protecting the public or promoting sound decisions. The decision to prohibit these professionals from making recommendations seems to have arisen from the desire of the previous Secretary of State, Dominic Raab, to reject recommendations for open conditions in certain cases, specifically cases where he argued that a move to an open prison would

“undermine public confidence in the criminal justice system”.

This phrase seems to be shorthand for refusing recommendations in high-profile cases because of a fear of adverse media publicity, even when there is strong evidence of the prisoner’s suitability for open conditions.

The former Secretary of State may well have feared that it would look embarrassing if he refused a recommendation for open conditions when his own professional employees in the Prison and Probation Service recommended this. This does not seem to be a very grown-up way of making decisions. ln any organisation, senior leaders are entitled to overrule the recommendations of subordinates if they consider that there is a good reason for doing so. But no sensible leader would prohibit their staff from making recommendations in the first place in areas where the subordinate has particular knowledge and expertise.

The Secretary of State has always been able to reject recommendations for open conditions made by the Parole Board. But it makes no sense for him or his officials and the Parole Board itself to make their decisions in the absence of recommendations from those who have close knowledge of the prisoner. The new Secretary of State should review this change in the parole procedure and reverse it. This would be by far the least of the U-turns which the Government have undertaken in the last few weeks. None of us would be inclined to crow over a sensible reversal of policy of this kind. On the contrary, we would welcome a readiness to change direction after considering reasoned arguments from those with knowledge and experience of the parole system.

I believe strongly that future parole decisions should continue to be based on the accumulated experience and expertise of the Parole Board, informed by reports and recommendations from professionals with close knowledge.

[Lord Garnier (Con)]

I apologise for intervening. I forgot to refer to my interests in the register. I am a trustee of the Prison Reform Trust and am connected to a number of other prison welfare bodies.

[Lord Carlile of Berriew (CB)]

My Lords, I speak in support of my noble friend’s regret Motion, which she moved with such clarity. She speaks with great experience and authority, as she told us at the beginning of her speech.

These regulations, already in force, feel like an attack on the Parole Board. I have been knocking around the legal system for decades, and I know many people who have been, and some who are, judicial members of the Parole Board. I think I reflect their feeling of the Parole Board being under attack from the Government, so I want to start by praising the Parole Board: for its fastidious care over the evidence in cases for which it is responsible; for its determined and proper independence, which is key; and, indeed, for its accepting the increased judicialisation that has made its processes more transparent and public. The Parole Board has moved with the times, and it perfectly understands its responsibilities.

Like others, I want to focus on paragraph (22), which provides that:

“Where considered appropriate, the Secretary of State will present a single view on the prisoner’s suitability for release.”


Even by statutory instrument standards, those are words of breathtaking vagueness. I suggest that this provision is a very unwise and unwelcome change for the following reasons. First, it is nothing less than an unwarranted interference by Ministers with what is clearly, now at least, a judicial process. Nobody can deny that the Parole Board is a judicial process; the issue goes, therefore, to the heart of the separation of powers. The previous Lord Chancellor knew perfectly well that he was attacking the separation of powers. I have, sneakingly, more confidence in his successor, who in my view has operated with some skill in bringing to an end quickly the justified strike by criminal barristers.

As I said a moment ago, the provision is vague. What are the terms of reference that would make it appropriate for a ministerial single view to be given? What does a “single view” mean in this context? Who is actually going to make these decisions? Who is going to prepare the papers to be put in the Minister’s red box? This is such an unclear procedure as to be wholly unacceptable.

Why on earth are report writers such as psychologists, an example already given, those with real knowledge of the prisoner concerned and, by definition, experts themselves to be banned from expressing a written opinion, which, of course, is not more than that—an opinion, not a decision, on the outcome of the case? This seems to me to presage a political reaction to media stories in an attempt to influence the Parole Board. That can have no legitimacy.

Furthermore, these ministerial decisions or recommendations are apparently not binding. What do they really mean? Well, they obviously mean that the Minister does not trust the tribunal, or at least he does not trust the media’s reaction to a decision that may be made by the Parole Board as a tribunal. But it certainly puts unacceptable pressure on the Parole Board.

With those comments in mind, please will the Minister tell us whether the Parole Board was consulted and, if so, whether the Parole Board welcomed these proposals and in what terms? Indeed, I think that we are entitled to know who else was consulted. What did they say? Did anyone support these proposals? If so, who were they and what reasons did they give?

Also, please will the Minister tell us how many cases this is expected to apply to? Is he, as a very experienced and eminent lawyer, comfortable with these changes? Do they accord with the ethical principles that separate Ministers from the courts and tribunals? He should be clear, when he answers, that most responsible commentators and respected NGOs see this as a slippery-slope provision to be deprecated.

--- Later in debate ---

[Lord Bellamy (Con)]

In a sense, this is an inter partes procedure, with the Secretary of State on one hand and the prisoner on the other. The Secretary of State, like a party, is putting his view to the board. That is the single view that, in my submission, he is entitled to put.

While I am on the single view, this is likely to refer simply to the very top tier of cases, probably 150 to 200 cases a year out of the many thousands that the Parole Board deals with. It refers to very dangerous, highly sensitive cases of prisoners involving murder, serious violence and so forth. In those cases, it is thought right that the Secretary of State, through his representative before the Parole Board, should be able to present a single overarching view. That is a sensible approach which avoids confusion and uncertainty.

Nothing in any of these reforms prevents or limits the ability of the Parole Board to make the right decision or the ability of the relevant members of staff, whether psychologists, probation officers or whatever, to make the risk assessments or to put in whatever observations they wish within the assessment that they are required to make, except to make the relevant recommendation.

It is not a change that should in any way undermine the system. HMPPS staff will continue to provide reports to the Parole Board. Their reports will still contain the same detailed evidence and assessment of risk as before. The only omission will be a recommendation on what decision the report writer thinks the Parole Board should make. Far from undermining the Parole Board, the intention of these reforms is to draw a sharp distinction between the roles of those who provide evidence and those whose duty it is to assess the evidence and reach a decision. That is the essential background.

[Lord Garnier (Con)]

Does my noble and learned friend think it appropriate that a political Minister should be the conveyor of a single view—the only view—on a matter for quasi-judicial discussion?

[Lord Bellamy (Con)]

The Secretary of State has an overriding duty to protect the public. In that context, as the guardian of the safety of the public, he is entitled to present his view to the Parole Board, which then decides.

On the second point made by the noble Baroness in relation to the implications for the progression of offenders, the Government’s position is that there is no change. The rules by which prisoners progress through the system and their opportunity for release will continue to be assessed by the Parole Board, as they are at the moment.

On this occasion, I will not go into the open prison/closed prison issue, because that is not the subject of what we are discussing today. On the point we are discussing, this change in the rules about the recommendations, it is a very limited change and is fully in accordance with general principle. HMPPS will continue to provide comprehensive evidence to the Parole Board and factual evidence for the assessment of risk, as before.