Clause 18
Criminal Justice and Immigration Bill
4:30 pm

Recall of life prisoners: abolition of requirement for recommendation by Parole Board

Photo of Edward Garnier

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I beg to move amendment No. 86, in clause 18, page 13, line 30, after ‘may,’, insert

‘with the approval of the Lord Chief Justice or a judge designated by him,’.

The amendment would mean that the provision in subsection (2) would state that the Secretary of State may, with the approval of the Lord Chief Justice or a judge designated by him, in the case of any life prisoner who has been released on licence, revoke his licence and recall him to prison.

The heading of clause 18—“Recall of life prisoners: abolition of requirement for recommendation by Parole Board”—seems to stand in contradistinction to clause 17, through which the Secretary of State appears to be bending over backwards to refer matters to the Parole Board. He seems to be going the other way with clause 18 and taking away from the Parole Board any power to intervene in these matters. I am not going to detain the Committee long on this amendment because my argument broadly mirrors those that I made about the constitutional propriety of allowing the Secretary of State to do things within the sentencing system that should more properly be done by independent judges or the Parole Board.

I understand the Minister’s point about the work of the Parole Board. We all know that it has had its budget slashed so that it has had to cut back on face-to-face interviews in prisons with offenders wishing to apply for release following consideration of their cases by the board. We all know that the number of cases that it has to deal with on paper only is growing. Although, to some extent, the Government have reversed the mistake that they made in taking away the resources that allowed the Parole Board to have more face-to-face interviews, the position is still pretty parlous. However, all of those inefficiencies and mistakes do not permit the Government to take unto their own hands the power that they wish to have under clause 18.

As I said, I draw a comparison between clauses 17 and 18 because the influences seem to be going in different directions. Under clause 16, the Secretary of State wants not only to decide for himself what goes on, but to have the power to change the number of days of the automatic recall. I think that the arguments have been adequately described both now and on another occasion. I hope that the Minister can satisfy me that this clause, if it is not amended, is a good one.

Photo of David Heath

David Heath (Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice; Somerton and Frome, Liberal Democrat)

I rise briefly to agree entirely with the arguments made by the hon. and learned Gentleman. The Minister said earlier that he wanted the Parole Board to concentrate on the most serious cases. Well, this is the most serious case in terms of a restriction in liberty. This is the revocation of a licence given to a person under an indeterminate sentence. It should have at least a degree of judicial oversight. I believe that a judge should take the decision, but I am prepared to accept a decision taken by the Lord Chancellor in conjunction with a judge. I find it difficult to accept purely a decision of the Executive effectively to deprive a person of his liberty, sine die, on grounds given by an elected Minister, rather than through a judicial process. I thus support the view expressed by the hon. and learned Gentleman.

Photo of David Hanson

David Hanson (Minister of State, Ministry of Justice; Delyn, Labour)

Again, I hope that there is an element of commonality between both Front Benches in the sense that I, too, want to ensure that the decisions taken are correct and proper, and that a potential offender who will lose their liberty has the right to have their case reviewed later. Under the clause, all recalled offenders are entitled to be notified of the reasons for their recall and to see material on which that recall decision is based. Their case will also be referred to the independent Parole Board so that the recall can be reviewed, and the Parole Board has the power to direct that such prisoners are immediately re-released.

The question arising from the amendment is whether a Lord Chief Justice, or a judge appointed by him, should authorise the recall of life-sentence prisoners before that process occurs. In my opinion—I accept that it is only my judgment—the possibility for that judicial oversight before the recall occurs would cause delay and, perhaps, some great difficulties in managing the system. It could also put the public at risk.

Photo of Edward Garnier

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I would not prevent a potential offender from being arrested and held in custody while the matter was considered, but something more than simply the Secretary of State’s signature is needed. We should bear in mind that the relevant person will not actually be the Secretary of State. As in the old Home Office days, a designated Minister in the Department will have responsibility for this aspect of implementation. He or she will be advised by a host of lawyers and civil servants, so the decision will be made deep in the recesses of bureaucracy. The Minister will have to stand up and defend this in Parliament if things go wrong, but this will be very much a bureaucratic and administrative decision. We are moving the criminal justice system further and further away from judicial oversight or involvement.

Photo of David Hanson

David Hanson (Minister of State, Ministry of Justice; Delyn, Labour)

This might not be the hon. and learned Gentleman’s intention, but I should be very interested to know the basis on which a prisoner could be recalled and held in custody while waiting for a judge to authorise that recall in the scenario that he describes. We need to look at those issues, but he says that the recall could be authorised, and an individual could be taken off the streets, because they were a risk or had broken the terms of their licence, and that they could be put in a police cell to await the sitting of a High Court judge or the Lord Chief Justice to authorise that recall to prison.

Under our current proposals, that recall can occur. It is immediate. It removes the offender from whatever place of safety they may be in, for the good of either the public or themselves, and may relate to any offences that they might have committed. It allows Parole Board oversight of the decision subsequently.

The hon. and learned Gentleman’s amendment would include a provision, which may be helpful or not, for the judiciary to examine the relevant issues. However, such a procedure would be bureaucratic, slow and may involve the judiciary having to sit at evenings, weekends or different times of the week to have oversight to ensure that those recalls occur—and recalls are often undertaken speedily. For those reasons, I am happy to reflect on judicial involvement, because we can always have discussions about such matters, but I am satisfied that there is sufficient public safeguard for the public and the judicial system in having the decision about the potentially recalled offender overseen by the Parole Board, post recall occurring.

4:45 pm
Photo of David Heath

David Heath (Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice; Somerton and Frome, Liberal Democrat)

Perhaps the Minister will remind the Committee what the situation is now and whether the slowness or the bureaucratic nature of the process has been regularly brought to his attention or to that of the House. I am not aware that that has been a problem.

Photo of David Hanson

David Hanson (Minister of State, Ministry of Justice; Delyn, Labour)

My point is that, under amendment No. 86, tabled by the hon. and learned Member for Harborough, the Lord Chief Justice or a judge appointed by the Secretary of State, would be required to authorise the recall of life sentence prisoners.

Photo of David Heath

David Heath (Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice; Somerton and Frome, Liberal Democrat)

At the moment, it is a Parole Board recommendation: first the person is arrested, then there is a recommendation from the Parole Board to the Secretary of State, who makes a decision. It is hard to see that there would be an extended process beyond what currently happens.

Photo of David Hanson

David Hanson (Minister of State, Ministry of Justice; Delyn, Labour)

Most recalls are already undertaken using emergency powers. My assessment—again, this a matter of judgment—is that the proposal for the Lord Chief Justice or a judge appointed to authorise the recall of life sentence prisoners would inevitably mean delay and additional work for the courts and, potentially, no swift return of dangerous, violent prisoners to complete their sentences if their behaviour caused concern. I am making that judgment and simply saying to the Committee that safeguards are in place. On that basis, I ask the hon. and learned Gentleman to ask leave to withdraw his amendment.

Photo of Edward Garnier

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I shall put the Minister out of his misery: I will ask the Committee’s leave to withdraw my amendment, but I want to ask him a question. First, he reckons that we are talking about some 4,500 likely offenders a year being recalled for breaching their licences, which is fewer than the number who apply to the Parole Board for early release from prison on licence.

Secondly, judges like to get a good night’s sleep, just like anybody else, but I assure the Minister that judges are available 24 hours a day, in the criminal and civil jurisdictions, to deal with cases that need to be dealt with immediately as a matter of urgency. They can be  got out of bed, contacted via the telephone and got off the golf course, if necessary, to reach a decision that they have to take, so we need not worry too much about their being disturbed in that sense. However, we do need to worry about Ministers encroaching on the powers of the criminal justice system beyond their constitutional rights as elected Ministers. Although we do not have a formal constitution—our constitution is not written in one document, but in lots of different places and in various conventions, and so forth—we understand the separation of powers.

I accept that, very often, for reasons of convenience, be it administrative, executive or otherwise, the boundaries between the Executive and the judiciary and the legislature are blurred. However, every now and then we ought to recognise that those separations exist for a purpose: to protect us, to enhance the rule of law and to control the Government, otherwise we are wasting our time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.

Clauses 19 and 20 ordered to stand part of the Bill.

Photo of Edward Garnier

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

On a point of order, Mr. Cook. I want to make a suggestion now so that you have a while to consider it before reaching a decision. Government new clause 29 appears on the amendment paper for consideration under clause 26. However, new clause 28, which deals with the powers of the Court of Appeal criminal division, is not grouped with amendments under clause 26. Presumably, it will be dealt with separately after clause 129 as one of the new clauses listed on page 3 of the amendment paper. It is entirely a matter for you, Mr. Cook, but you might find it more convenient to have the new clause 28 debate, which fits in with clause 26, when we discuss that clause rather than at the end. I simply make that suggestion and invite your opinion on it in due course.

Photo of Frank Cook

Frank Cook (Stockton North, Labour)

That is a fair point. Thank you for that guidance. Bearing in mind the progress that we have not made today, that might be a question for another Chairman at our next sitting. The much more realistic point is that we could do what the hon. and learned Gentleman requests if the Committee were of a mind to agree to it, but at the moment it is questionable whether the Minister has papers prepared that far forward. We do not need to come to that proposal yet, just to be aware that it may transpire.