Amendment 169

Victims and Prisoners Bill - Committee (7th Day) (Continued) – in the House of Lords am 10:00 pm ar 12 Mawrth 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Lord Thomas of Cwmgiedd:

Moved by Lord Thomas of Cwmgiedd

169: Clause 53, page 54, leave out lines 35 and 36Member’s explanatory statementThis amendment seeks to ensure that the decision as to the composition of the Board is an independent judicial decision made by the Parole Board.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee), Chair, Arbitration Bill [HL] Special Public Bill Committee, Chair, Arbitration Bill [HL] Special Public Bill Committee

This is the first of three very short amendments to deal with the independence of the Parole Board. I 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.

Photo of Lord Garnier Lord Garnier Ceidwadwyr

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.

Photo of Lord Bach Lord Bach Llafur

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.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I agree with all three of the amendments in this group, and I do so for the reasons that have been powerfully explained by the other speakers. It seems that the issue here is very simple indeed. These clauses are designed to reduce the independence and authority of the Parole Board. New sub-paragraph (2C), in Clause 54(5), refers to the necessity of maintaining public confidence in the Parole Board. In my view, public confidence in the criminal justice system depends vitally on the independence and the authority of the Parole Board. I much regret that the Government should apparently think otherwise.

Photo of Baroness Prashar Baroness Prashar Crossbench

My Lords, I too support the amendments in this group, in particular the points made by the noble and learned Lord, Lord Thomas. As a former chairman of the Parole Board, albeit some years ago, I will underline a couple of practical issues, because I think this is a point of principle about its independence. The job of the chairman of the Parole Board is a very sensitive one, and they need protection, not a kind of sword hanging over their head that they can be dismissed. That is one point.

The second point is that it will be disastrous and have a very detrimental impact on the work of the Parole Board if its chair is not allowed to be involved in cases. As the noble and learned Lord, Lord Thomas, said, involvement means you begin to understand how it is done because the core work of the Parole Board is risk assessment. I know how engaged I was in dealing with the cases, talking to prisoners and getting involved. To me, that was very important when it came to risk assessment. The practical impact of these provisions will be negative, apart from looking at the independence of the Parole Board.

Photo of Lord German Lord German Democratiaid Rhyddfrydol 10:15, 12 Mawrth 2024

My Lords, I too echo the words that have been spoken. Rather than repeating all this or speaking to this in the next group, I will talk about those issues in this group because they are very relevant to these amendments.

I have a series of practical questions. For example, stating which Parole Board members should be involved in a particular case is definitely an interference in the independence of the board. If the reply to that is, “Well we need to make sure that the right people are hearing the right cases”, surely all you have to do is to make sure you appoint to the panels more people who have those experiences available to them. The Government, of course, have gone on the issue of those with enforcement experience. You simply recruit more enforcement-experienced people to the panels.

I agree with what has just been said. These parts of the clauses are analogous to the Government deciding who will be the judge in a particular case. Whether the chair should be involved in individual cases is a matter for the board; it should not be the subject of statutory prescription, as is before us now.

There is concern about the broad powers given to the Secretary of State to remove the chair on the grounds of public confidence. The outgoing chair of the Parole Board, Caroline Corby, said in her evidence to the Justice Committee that the power to remove the chair could see them dismissed if the board made an “unpopular decision”. Unpopular with whom? With the Secretary of State, perhaps. As the noble Baroness, Lady Prashar, just said, she argued that

“the chair of the Parole Board needs more protection than pretty much any other chair of any arm’s length body”.

There is already a termination clause which means that the chair of the Parole Board, or any other member, can be removed. It is therefore not clear why a statutory power is needed. Perhaps the Minister can explain to us why he needs a statutory power rather than relying on the contractual power he already has.

Who is going to judge that public confidence has been breached and when? What is the need for this confidence test? Does the existing contract not provide for appropriate removal? What is going to be the threshold for the new test of breached public confidence? Will it be an opinion poll? Will it be an assessment of the latest newspaper cuttings? What will be the criteria? How will that threshold be applied? As many of us suspect, will it rest merely with the subjective view of the Secretary of State, which is the reason why it appears in the Bill at this point?

Public opinion should not form the basis for ministerial interference in an independent body making quasi-judicial decisions. I say “quasi-judicial” because that is what the Government say they are called. Most people would just call them “judicial”. Last year the High Court noted that:

“It is … well established that, when exercising powers in relation to the Board, the Secretary of State must not to do anything that undermines or would be perceived as undermining the independence of the Board or that encroaches upon or interferes with the exercise by the Board of its judicial responsibilities”.

There is no explanation anywhere why engagement in individual applications is needed. Currently, the chair holds these quasi-judicial judgments in his or her hands. Paragraph 14B of the board’s current rules, which were put before this House in 2022, states that:

“The Board chair may determine an appeal by—(a) upholding the decision made by the panel chair or duty member … or (b) substituting their own decision, which may contain any direction that the panel chair or duty member could have made under paragraph (5)” of the rules.

Pages 67 and 68 of the root and branch review made no such recommendation to neuter the chair. Instead, the review supported a strategic oversight group and a rules committee to recommend procedural changes to the Secretary of State. The impact assessment for this Bill states that the chair will be appointed for a three-year term, renewable. However, the job pack, a copy of which I have with me, issued by the Ministry of Justice with a closure date of just last month, states that the appointment is to be made for five years. So applications closed in February and people have applied for a job where the tenure of the job—whether it is three or five years—is not known. I hope that the Minister can tell us how that circle is to be squared.

Can the Minister confirm the delegated authority that the Secretary of State has given to Ministers for appointment of the role of board chair? Does it remain as it was when Liz Truss was the Secretary of State, because, on delegation to Ministers, the review said that Ministers

“should be involved at every stage of a competition, including: agreeing the advertising and the advisory assessment panel membership; suggesting potential candidates; being consulted on closing a competition; being invited to give views on candidates; being provided with a choice of appointable … candidates; and having the opportunity to meet candidates”.

If that is still the case, Ministers have an incredible influence over the person to be appointed, and one might reasonably wonder why they might want to sack them.

So those are a lot of practical questions, some of which are contained within the Bill and within the job pack for the new person taking over the role, which need to be clarified. I hope that the Minister in replying will be able to answer them.

Photo of Baroness Hamwee Baroness Hamwee Democratiaid Rhyddfrydol

My Lords, I apologise to the Committee for missing the opening part of this debate. I was with representatives of the Bar Council discussing these very issues.

Having chaired a committee that questioned Dominic Raab about his ambitions for the Executive to take over functions which I do not think that any of us regarded as appropriate for takeover, this seems to me to be Members of the House of Lords doing what we do so well. We are trying to help find a way through and answer the questions. We should just be rubbing the whole thing out because of that Executive takeover, which is anathema to probably everybody who is sitting in the Chamber at the moment.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, this group is actually more limited than the debate that we have had. It was very succinctly set out by the noble and learned Lord, Lord Thomas, when he gave his three short points in introducing his amendments. Very amusingly, the noble and learned Lord, Lord Garnier, said that the shadow of Dominic Raab should not remain across this Bill. A good way of removing the shadow is with these three amendments here.

The debate has strayed into the next group, but I will not address any comments on that group. As far as the specific proposals in the amendments tabled by the noble and learned Lord, Lord Thomas, of course we agree with them on this side of the Chamber. I noted the point that the noble and learned Lord made about the reason why the chair of the Parole Board would not have a judicial function. It would mean that he or she could be sacked.

I also noted the point made by the noble and learned Lord, Lord Garnier, and other noble Lords, that it is absolutely normal and to be expected that in any number of judicial and quasi-judicial roles, the heads of those particular functions also sit as judges. That is standard practice and it adds confidence to the various institutions that the people who head them are also practising and sitting tribunal chairs or judges.

I look forward to the Minister’s response, but there is a very strong array of speakers against the Government’s proposals, including the noble Baroness, Lady Prashar, who is a former chair of the Parole Board. We have two former Lord Chief Justices, a former Solicitor-General and my noble friend, a former shadow Attorney-General. It sounds like a pretty convincing line-up against the Minister.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

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.

Photo of Lord Garnier Lord Garnier Ceidwadwyr

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?

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

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.

Photo of Baroness Prashar Baroness Prashar Crossbench

My Lords, I think that the explanation means that there is no confidence in the judgment of the chairman of the Parole Board to constitute the panels that they think are needed. Why is there a need for direction from the Secretary of State? That is what I fail to understand.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords 10:30, 12 Mawrth 2024

My Lords, I have heard the arguments. I hope that the noble Baroness will allow that I have already given an undertaking to take those arguments back with me, and I will do so.

Turning, if I may, to Amendments 170 and 171, the first of these seeks to remove the power currently in the Bill which would allow the Secretary of State to dismiss the Parole Board chair on public confidence grounds and would remove the prohibition on the chair’s involvement in individual parole cases. Amendment 171 seeks to ensure that the chair would continue to be permitted to attend and participate in individual parole cases alongside the more strategic role defined by other amendments to the chair’s functions.

Let me begin by confirming that Clause 54(10) means that any changes in respect of the chair of the Parole Board do not impact on the appointment or functions of the current chair, Caroline Corby. Caroline has led the board well since her initial appointment in 2018, and the Government are very grateful to her for her leadership. However, there might be an exceptional occasion in the future when requiring a change of chair before the end of their appointment period is the best or only option. For that reason, new sub-paragraph (2C) within Clause 54(5) gives the Secretary of State the power to remove a chair from office if it becomes necessary on the grounds of public confidence.

Photo of Lord German Lord German Democratiaid Rhyddfrydol

What is the term of office? There is a difference between the impact assessment, which says three years, and the pack against which people have applied, which says five years. Which is true? I am happy if the Minister wants to reply in writing.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

I will reply in writing, if the noble Lord will let me.

Photo of Lord Garnier Lord Garnier Ceidwadwyr

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.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

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.

Photo of Lord Garnier Lord Garnier Ceidwadwyr

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.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

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.

Photo of Lord German Lord German Democratiaid Rhyddfrydol

To add to that point, I read out the list of delegations to Ministers about the appointment of the Parole Board chair. I am sure that Members of the House will have realised that it is a pretty extensive power over who gets a job. I wonder whether those delegations have altered. Once again, if the Minister does not know, perhaps he could write to me before we get to Report.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

I should be happy to do so.

Alongside this new power, we are setting out for the first time in statute the functions of the Parole Board’s chair. The 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. The package of measures here, I am advised, ensures that the provisions that we are putting in place are consistent with the European convention.

The noble Lord, Lord Bach, asked me why the Justice Secretary will send only some cases to the Upper Tribunal, and whether he will delegate the power to officials. In line with other significant powers that the Secretary of State operates, such as the power to detain under Section 244ZB of the Criminal Justice Act 2003, which allows the SSJ to override a prisoner’s automatic release date and refer the case to the board, the operation of the power will be restricted to cases where it is considered necessary to take the not insignificant step of referral of a case via an operational policy.

It will be up to the Secretary of State to decide which of those cases they would like to refer to an independent court for a second check. We will develop criteria to ensure that this power is used only in those few cases where it is in the interests of protecting the public and maintaining public confidence. It will also be up to the Secretary of State, if he or she wishes, to delegate the power to senior officials, but we will ensure that there is a robust process in place.

I am of the view that retaining this clause—having a safeguard in case removal is ever necessary and being clear about what the role of the chair is—is vital. However, as I said at the start, I have listened carefully to what the noble and learned Lord and other noble Lords have said. I understand the concerns expressed. Without commitment at this stage, I undertake to consider the issues very carefully, in conjunction with my noble and learned friend, between now and Report.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee), Chair, Arbitration Bill [HL] Special Public Bill Committee, Chair, Arbitration Bill [HL] Special Public Bill Committee

I thank the noble Earl for agreeing to take all these points to the Minister. There are two points I really want to make. First, it is suggested that these decisions are somehow quasi-judicial. I had assumed that two of our most basic rights are not to be locked up and not to have our freedoms curtailed by restrictions. Deciding on those points is judicial; there is nothing “quasi” about it. Therefore, how “quasi” has got into this is, to my mind, a complete misapprehension. I hope it can be corrected, because the protection of your liberty and your freedom to do what you do as an ordinary person is essentially something that a judge must decide and no one else.

Secondly, I hope the Minister—not the noble Earl—will think back to his own experience when he sat as chairman of various judicial bodies. I do not know who the Government have in mind, but it is utterly absurd to think that they could maybe appoint someone who has run a large department store—there may be one of those becoming vacant in a moment—someone who has been head of a particular branch of the Civil Service, a retired physician, or a person who has run a hospital trust. These are the kind of people who know absolutely nothing about the difficulties of making a decision. The chairman of the Parole Board has to do the business, and if that person does not do the business, no one—not the public and certainly not the members of the Parole Board—will have any confidence in them.

I have put the message quite strongly; I think it has been understood. I am sorry to have gone on a little bit longer on these points at this late hour. I must particularly thank the noble Earl for the very courteous and clear way that he dealt with this. I look forward to seeing him be a much better advocate than me in persuading the Minister to make a decision that removes all three of these clauses. I beg leave to withdraw the amendment.

Amendment 169 withdrawn.

House resumed.

House adjourned at 10.41 pm.