Fri, 31 Mar 2023
The government has introduced into parliament a Victims and Prisoners Bill. This follows the “Root and Branch Review” of the Parole Board previously launched by the Secretary of State for Justice, and makes a number of provisions in relation to both victims and offenders.
Amongst other things, the Bill introduces: the appointment of “law enforcement” (i.e. police) members of the Parole Board, the power for the Secretary of State to require certain cases to be dealt with by certain types of panel members, the power for the Secretary of State to remove the chair of the Parole Board before the end of their term for reasons relating to “public confidence”, and a prohibition on prisoners subject to a whole life order getting married or entering into a civil partnership (save for in exceptional circumstances).
Section 3 of the Human Rights Act is disapplied in respect of a number of provisions but the Bill contains a statement of compatibility with the European Convention on Human Rights.
The Bill also adds to the existing test for release by stating that the “decision-maker” must consider that there is “no more than a minimal risk that, were the prisoner no longer confined, the prisoner would commit a further offence the commission of which would cause serious harm” in order to be satisfied that their confinement is no longer necessary for the protection of the public. Certain factors which must be taken into account, such as the nature and seriousness of previous offences and the risk of failure to comply with licence conditions, are also set out in the Bill.
Dominic Raab’s statement under section 19(1)(a) of the Human Rights Act 1998 that the Bill is compatible with ECHR rights may cause surprise among those who have reviewed the provisions, particularly in relation to the much greater ministerial oversight of Parole Board decisions afforded to the Secretary of State. Section 35 gives the Secretary of State for Justice a power to quash Parole Board decisions directing release and refer those cases to himself where the prisoner is serving a life sentence imposed in respect of certain specified offences (including murder, rape and some terrorism offences). Similar provisions are set out at section 36 in respect of fixed-term prisoners who have been convicted of various specified offences including rape and some terrorism offences. Section 37 gives the Secretary of State the ability to arrange an interview of the prisoner whose case he is considering, to take into account that interview and any other information obtained by the Secretary of State, and to make further rules in relation to the procedure to be followed when dealing with referred cases. Such provisions seek to confer significant powers of ministerial oversight on the Ministry of Justice in relation to decisions concerning liberty.
As well as disapplying section 3 of the Human Rights Act in relation to numerous provisions, the Bill seeks to prescribe the approach to be taken by the Courts by requiring that a Court “must give the greatest possible weight to the importance of reducing the risk to the public” when determining questions relating to possible breaches of ECHR rights in connection with prisoner release decisions. In doing so, the Bill seems to suggest the emergence of a new trend in legislation more widely, in its methodological similarities to the Home Secretary’s Illegal Migration Bill: seeking to disapply section 3 of the Human Rights Act and limit the ability of the Courts to review ministerial decisions.
Although it remains to be seen how (if at all) the Bill might change as it passes through the various stages required to become an Act of Parliament, the provisions as currently drafted together with the explanatory notes provide a strong indication of the direction of travel in relation to the Government’s approach to the parole system: a continuation of the drive for greater ministerial control, and a focus on public perception. Whilst the Bill’s final form is yet to be determined by Parliament, it will naturally be of concern to those who are subject to the parole system (as well as their families), and should be watched closely for further developments.