Victims and Prisoners Bill

Lord Garnier Excerpts

Tuesday 12th March 2024 Lords Chamber

[Lord Bellamy (Con)]

I thank the noble and learned Lord, Lord Hope of Craighead, for that point. It is certainly something I will take away when we come to consider the Government’s position.

[Lord Garnier (Con)]

I apologise, because I know my noble and learned friend wants to complete his speech, but I ask this question simply because I failed to hear. The action plan has been spoken of a lot during the course of this evening. Is that an existing document, and is it published?

[Lord Bellamy (Con)]

Yes, and yes.

On the basis that I accept, on behalf of the Government, the importance of this topic, I invite the noble Baroness to withdraw her amendment.

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[Lord Thomas of Cwmgiedd (CB)]

This is the first of three very short amendments to deal with the independence of the Parole Board. I do not think—and I hope—it is not disputed that the Parole Board is a judicial body and independent. If that is contested, we shall we be here for much longer today—so I hope it is not. I assume it is not going to be.

The second issue is that, if a body is judicial and independent, that independence must be recognised. There are three ways in which Clauses 53, 54 and 55 breach the independence position. First, in Amendment 169, the intention is to remove the power of the Secretary of State to predetermine the membership of the board. We have been very successful with judicial bodies in this country in allowing the judicial body itself, or its president, to determine who sits on panels. I can think of no good reason to change that—unless, of course, the previous Lord Chancellor had other plans for the kind of body he wanted.

The second is the business of sacking the chair. I use the word “sack” as I think it is a good, earthy word for what the previous Lord Chancellor wanted to do. We are the nation that established the idea that Kings could not sack judges, at the end of the Stuart period. We led the way forward, and virtually every proper democracy has that principle. It would be absolutely astonishing if we regressed from that, away from the rule of law. This is a pointer to it: it is quite wrong and should be removed.

The third aspect is quite disingenuous: the desire to remove the provision in the Bill that the chairman of the board should not deal with individual parole cases. It is absolutely unintelligible. Why would you want to make the chairman of a judicial body incapable of dealing with cases? The reason for this was that it could then be claimed that, if the chair of the board was not dealing with cases, the chair did not have a judicial function, and that could therefore justify the sacking. This is both disingenuous and very bad in principle. The chair is turned, effectively, into a pay, rations and hiring functionary rather than a leader.

Secondly, if you are chairing a board dealing with parole, you want to lead it, to know what is going on in the cases, and you want views. You have to sit and do the cases. From my own experience, it is quite clear that, if you have a judicial leader who does not actually understand the business of the courts, the fellow members of the judiciary—in this case, the Parole Board—will have no respect whatever for them.

These are three short points; there is no more I can really say about them. They are all bad points in the Bill. This seeks simply to remove them.

[Lord Garnier (Con)]

My Lords, I am grateful to my former neighbour, the noble Lord, Lord Bach, for permitting me to jump the queue. I want to make some equally brief points to the points made by the noble and learned Lord just now. I will start with Amendment 171. This makes as much sense as requiring the Lord Chief Justice, as head of the judiciary, not to be able to sit in individual cases, either at first instance or at appeal; to deny the Master of the Rolls, who I believe is the head of the civil appellate system, the ability to sit on cases; to deny the chancellor of the Chancery Division the ability to sit on cases; and to deny the president of the Family Division the ability to sit on cases.

These are judicial functions which may have an administrative function as well. If we were really to go down a road whereby the shadow of Dominic Raab is to spring forward into the enlightened era of Alex Chalk, I think we would be making a mistake. That is enough about that.

None of the judicial officers to which I have just referred is removable on the say-so of the Secretary of State. Equally, the constitution should not suffer the embarrassment of having the head of the Parole Board, who is a judicial officer, being removed on the say-so of the Secretary of State. I have a suspicion that if Alex Chalk had written this Bill it would not have contained these clauses.

Amendment 169

“seeks to ensure that the decision as to the composition of the Board is an independent judicial decision made by the Parole Board”.

Again, to go back to my references to the senior judiciary, it is the Lord Chief Justice who deploys the judges within the court system, it is the Master of the Rolls who decides which judges in the appellate court should sit on which particular case, it is the Chancellor of the Chancery Division who decides which of the Chancery Division judges should do what, and it is the President of the Family Division who does the same in relation to Family Division cases. It strikes me as being a perfectly normal and respectable constitutional arrangement. It would be a pity for Mr Raab, who has now moved on, to be able to continue to control the system. He is gone; these should go as well.

[Lord Bach (Lab)]

My Lords, it is a pleasure to support all three of these amendments. They were tabled by the penultimate Lord Chief Justice, and are supported by the most recent Lord Chief Justice and a distinguished recent Solicitor-General, who spoke just now. I am afraid I can only claim to have been shadow Attorney-General in what was, to use a cliché, a bad year, for a shortish time to make up the numbers. I cannot add to the arguments that have been so persuasively put.

It is wonderful to see the noble Earl the Minister in his place; I did not expect him to take this particular group. I invite him to talk to his noble friend from the Ministry of Justice, who I suspect—I hope the noble Earl does as well—privately has a lot of sympathy for these amendments, because they are commonsensical. I ask the noble Earl to ask the noble and learned Lord, Lord Bellamy, to speak to the Justice Secretary patiently and persuasively about these matters.

I start from the position that the Executive should interfere in individual sentencing as little as possible—preferably not at all. Under our constitutional arrangements, it is not the Executive’s responsibility, nor part of their functions. That is why the independence of the Parole Board is so important, as the noble and learned Lord just said. It is hard not to believe, I am afraid, that these proposals would actually have the effect of reducing that independence.

I have down on the amendment paper that I will oppose Clauses 53 and 54 standing part of the Bill. I will not press that at all tonight, but in this short speech I will talk about why I gave that notice; it may save a bit of time later on. It is really because I have two questions for the noble Earl. I asked the noble and learned Lord, Lord Bellamy, at Second Reading, but quite understandably he was so overwhelmed with the matters that he had to reply to in the minutes that he was allowed that he was unable to answer them at the time. I absolutely appreciate that.

The first question is to ask why, under the Bill, the Justice Secretary will send some cases where he has found the Parole Board has got it wrong to whichever body it is that he eventually sends them to, but not others. It was argued in this House in Committee, I think last week or the week before, that that should be not the Upper Tribunal but another body altogether. If he sends some cases where he thinks the Parole Board has got it wrong but not others, that will not make any sense at all. Surely he must send all of the case that he finds to be wrong to this judicial body or none of them. If he sends some then surely the position is not satisfactory. There may one day be a Lord Chancellor—certainly not the current one—who is less generous and would not send any that he felt was wrong to a court. If that position may develop, why on earth is this part of the Bill being proposed?

My second question is this, and the Committee deserves an answer to it: will the Justice Secretary himself make these decisions, or will they be passed down to junior Ministers or to senior civil servants? I have no objection at all to senior civil servants taking important decisions but it is not appropriate that they—or, in fact, junior Ministers in the department—should take these decisions. What is the answer: will they or will they not? If they will, the problems associated with the Executive interfering in sentencing become much more acute. Does the Minister agree? I would be grateful for an answer to both those questions.

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[Earl Howe (Con)]

My Lords, I am very grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, for speaking to his amendments with his customary clarity. I hope I can be helpful to him and the Committee in my response.

I have heard unmistakeably the reservations expressed across the Committee about these proposals. Before saying anything else, I undertake to represent to my noble and learned friend the Minister the strength of those reservations. I do so without commitment at this stage but in good faith. It may be helpful to the Committee if I explain where the Government are currently coming from in making these proposals so that noble Lords can understand the issues as we perceive them.

Amendment 169 seeks to remove lines 35 and 36 of Clause 53, which would have the same effect as removing the clause in its entirety. Clause 53 amends Section 239(5) of the Criminal Justice Act 2003, which allows the Secretary of State to make rules with respect to the proceedings of the Parole Board. 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. This clause adds that the Secretary of State may also require cases to be dealt with by

“members of a prescribed description”.

Amendment 169 seeks to remove that addition.

I will explain briefly why we want to ensure that the Secretary of State can make rules about who sits on parole cases. In the Root and Branch Review of the Parole System, the Government committed to increasing

“the number of Parole Board members from a law enforcement background”

and ensuring that every parole panel considering a case involving the most serious offenders has a law enforcement member on it. We are talking here about murder, rape, terrorist offences and the like.

The Government of course recognise that each and every type of Parole Board member brings with them different experience and skills. That range and diversity contributes 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. Many will also have direct experience of the probation system, including, for example, licence conditions and the likelihood of an offender’s compliance with such conditions.

Clause 53 enables the Secretary of State to make the secondary legislation needed to prescribe that certain Parole Board panels include members with a law enforcement background. We will, naturally, continue to consider operational readiness before we lay any secondary legislation. I hope that explanation is of help.

[Lord Garnier (Con)]

Am I to draw the inference from what my noble friend has just said that, under the current arrangements, inappropriate members of the board have been inappropriately appointed to particular cases?

[Earl Howe (Con)]

No, not at all, but we think that certain Parole Boards can be strengthened usefully by having additional members with the experience that I have described. I have not implied or, I hope, made any criticisms of Parole Boards that have sat in the past or their decisions.

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[Lord Garnier (Con)]

I am sorry that it is very late and I am being tiresome. My noble friend the Minister said that there may come a time or there may be circumstances in which it would be necessary to remove the chairman or chairwoman of the Parole Board. I wonder whether my noble friend could perhaps give me one or two examples of the sets of circumstances in which that might apply.

[Earl Howe (Con)]

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 postholder’s performance or ability to do the job effectively. That route remains our preferred approach in the unlikely event that a dismissal is required. However, as the board is a high-profile public body, making important decisions on public protection every day, it is right, in the Government’s submission, that the Justice Secretary should have the levers to change the leadership if a situation arose where it was necessary to do so in order to maintain public confidence in the work of the board. It is not a power that any Secretary of State would ever use lightly, and ideally there will never be a cause to use it at all. We are talking here about situations where, for example, there might be conflicts of interest, security issues or confidentiality issues. At the moment, my understanding is that there is no mechanism to dismiss a chair should any issue of that kind arise. The grounds at the moment are quite restrictive.

[Lord Garnier (Con)]

Just to be clear, the Government are proposing that they will need to sack somebody who could be responsible for a breach of confidence, a breach of security, or some other grievous breach; but they will already have appointed this person to that job. Surely the vetting procedure leading up to the appointment would weed out the sort of eccentric people who would leak, or breach confidence, or misconduct themselves.

[Earl Howe (Con)]

That is exactly why I said that it is not a power that it is likely any Secretary of State would use often, if at all.