Amendment 208

Police, Crime, Sentencing and Courts Bill - Committee (7th Day) (Continued) – in the House of Lords at 6:15 pm on 10th November 2021.

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Lord Carlile of Berriew:

Moved by Lord Carlile of Berriew

208: Clause 109, leave out Clause 109 and insert the following new Clause—“Power to refer high-risk offenders to High Court for consideration of referral to Parole Board in place of automatic release(1) The Criminal Justice Act 2003 is amended in accordance with subsections (2) to (10).(2) In section 243A (release of prisoners serving sentences of less than 12 months), after subsection (2) insert—“(2A) Subsection (2) does not apply if—(a) the prisoner’s case has been referred to the High Court or the Board under section 244ZB, or(b) a notice given to the prisoner under subsection (4) of that section is in force.” (3) In section 244 (general duty to release prisoners), after subsection (1) insert—“(1ZA) Subsection (1) does not apply if—(a) the prisoner’s case has been referred to the High Court or the Board under section 244ZB, or(b) a notice given to the prisoner under subsection (4) of that section is in force.”(4) After section 244 insert—“244ZB Referral of high-risk offenders to High Court in place of automatic release(1) This section applies to a prisoner who—(a) would (but for anything done under this section and ignoring any possibility of release under section 246 or 248) be, or become, entitled to be released on licence under section 243A(2), 244(1) or 244ZA(1), and(b) is (or will be) aged 18 or over on the first day on which the prisoner would be so entitled.(2) For the purposes of this section, the Secretary of State is of the requisite opinion if the Secretary of State believes on reasonable grounds that the prisoner would, if released, pose a significant risk to members of the public of serious harm occasioned by the commission of any of the following offences—(a) murder;(b) specified offences, within the meaning of section 306 of the Sentencing Code.(3) If the Secretary of State is of the requisite opinion, the Secretary of State may refer the prisoner’s case to the High Court.(4) Before referring the prisoner’s case to the High Court, the Secretary of State must notify the prisoner in writing of the Secretary of State’s intention to do so (and the reference may be made only if the notice is in force).(5) A notice given under subsection (4) must take effect before the prisoner becomes entitled as mentioned in subsection (1)(a).(6) A notice given under subsection (4) must explain—(a) the effect of the notice (including its effect under section 243A(2A), 244(1ZA) or 244ZA(3)),(b) why the Secretary of State is of the requisite opinion, and(c) the prisoner’s right to make representations (see subsection (12)).(7) A notice given under subsection (4)—(a) takes effect at whichever is the earlier of—(i) the time when it is received by the prisoner, and(ii) the time when it would ordinarily be received by the prisoner, and(b) remains in force until—(i) the Secretary of State refers the prisoner’s case to the High Court under this section, or(ii) the notice is revoked.(8) The Secretary of State—(a) may revoke a notice given under subsection (4), and(b) must do so if the Secretary of State is no longer of the requisite opinion.(9) If a notice given under subsection (4) is in force and the prisoner would but for the notice have become entitled as mentioned in subsection (1)(a)—(a) the prisoner may apply to the High Court on the ground that the prisoner’s release has been delayed by the notice for longer than is reasonably necessary in order for the Secretary of State to complete the referral of the prisoner’s case to the High Court, and (b) the High Court, if satisfied that that ground is made out, must by order revoke the notice.(10) At any time before the High Court disposes of a reference under this section, the Secretary of State—(a) may rescind the reference, and(b) must do so if the Secretary of State is no longer of the requisite opinion.(11) If the reference is rescinded, the prisoner is no longer to be treated as one whose case has been referred to the High Court under this section (but this does not have the effect of reviving the notice under subsection (4)).(12) The prisoner may make representations to the Secretary of State about the referral, or proposed referral, of the prisoner’s case at any time after being notified under subsection (4) and before the High Court disposes of any ensuing reference under this section.But the Secretary of State is not required to delay the referral of the prisoner’s case in order to give an opportunity for such representations to be made.(13) Upon hearing a reference, the High Court must determine whether the prisoner would, if released, pose a significant risk to members of the public of serious harm occasioned by the commission of an offence under subsection (2) and either—(a) allow the Secretary of State’s reference, or(b) dismiss the Secretary of State’s reference.(14) If the High Court allows the Secretary of State’s reference, the Secretary of State must refer the prisoner’s case to the Parole Board.(15) If the High Court dismisses the Secretary of State’s reference, section 243A(2), 244(1) or 244ZA(1), as applicable, of the Criminal Justice Act 2003 applies to the prisoner.244ZC Proceedings following reference under section 244ZB(1) This section applies to a prisoner whose case has been referred to the Parole Board under section 244ZB.(2) If, in disposing of that reference or any subsequent reference of the prisoner’s case to the Board under this subsection, the Board does not direct the prisoner’s release, it is the duty of the Secretary of State to refer the prisoner’s case to the Board again no later than the first anniversary of the disposal.(3) It is the duty of the Secretary of State to release the prisoner on licence as soon as—(a) the prisoner has served the requisite custodial period, and(b) the Board has directed the release of the prisoner under this section.(4) The Board must not give a direction under subsection (3) in disposing of the reference under section 244ZB unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.(5) The Board must not subsequently give a direction under subsection (3) unless—(a) the Secretary of State has referred the prisoner’s case to the Board under subsection (2), and(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.(6) For the purposes of this section, the “requisite custodial period” means the period ending with the day on which the prisoner would have become entitled as mentioned in section 244ZB(1)(a).”(5) In section 246(4) (exceptions from power to release early subject to curfew), after paragraph (f) insert— “(fa) the prisoner’s case has been referred to the Board under section 244ZB,(fb) a notice given to the prisoner under subsection (4) of that section is in force,”.(6) In section 255A(2) (duty to consider suitability for automatic release following recall of certain prisoners) (as amended by the Counter-Terrorism and Sentencing Act 2021), for “or a serious terrorism prisoner” substitute “, a serious terrorism prisoner or a prisoner whose case was referred to the Board under section 244ZB”.(7) In section 255C(1) (prisoners whose release after recall is not automatic), for the words from “who” to the end substitute “—(a) whose suitability for automatic release does not have to be considered under section 255A(2), or(b) who is not considered suitable for automatic release.”(8) In section 260(5) (powers and duties of Secretary of State that continue to apply to prisoner removed from prison pending deportation), after “244,” insert “244ZB,”.(9) In section 261(5)(b) (application of release provisions to returning deported prisoner), after “244,” insert “244ZC,”.(10) In section 268(1A) (meaning of “requisite custodial period” in Chapter 6 of Part 12), after paragraph (c) insert—“(ca) in relation to a prisoner whose case has been referred to the Parole Board under section 244ZB, the requisite custodial period for the purposes of section 244ZC;”.(11) In Schedule 1 to the Crime (Sentences) Act 1997—(a) in paragraph 8(2)(a) (provisions relating to release continuing to apply to prisoner transferred from England and Wales to Scotland), for “, 244,” substitute “to”;(b) in paragraph 9(2)(a) (provisions relating to release continuing to apply to prisoner transferred from England and Wales to Northern Ireland), for “, 244,” substitute “to”.(12) In section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (power to alter test for release on licence at direction of Parole Board)—(a) in subsection (2), after paragraph (b) insert—“(bza) a prisoner whose case has been referred to the Parole Board under section 244ZB of the Criminal Justice Act 2003 (power to refer to Parole Board in place of automatic release),”;(b) in subsection (3), before paragraph (ab) insert—“(aaa) amend section 244ZC of the Criminal Justice Act 2003 (proceedings following reference under section 244ZB of that Act),”.”

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

My Lords, this amendment stands in my name and the names of other noble Lords. In one way, this amendment is modest, although I regret that it is not modest in length. Indeed, I think it is the longest amendment on the current Marshalled List, winning that dubious honour, by only a short head, over Amendment 259C tabled by the noble Lord, Lord Marks of Henley-on-Thames.

Our amendment leaves intact the legislative intention of Clause 109 to provide a safeguard against the early release of a prisoner serving a determinate sentence who presents a significant risk to members of the public. The amendment’s less modest intention is, quite simply, to preserve the separation of powers—not to give a Secretary of State the power to in effect change and lengthen sentences. It transfers the initiation of the safeguard that is sought from the Executive to the judiciary. It will enable a full hearing of the facts before a prisoner has their case referred to the Parole Board. A Secretary of State who is using this power appropriately has absolutely nothing to fear from this safeguard. It preserves the necessary separation between an elected politician and an individual prisoner who has been sentenced.

I am grateful to the noble and learned Lord, Lord Garnier, the noble Baroness, Lady Prashar, and the noble Lord, Lord German, for co-signing the amendment. The noble and learned Lord, Lord Garnier, was kind enough to get in touch with me this morning to say that he had a professional engagement elsewhere. I checked that he had not picked up a returned brief in the Virgin Islands from a Member of another place, and I am sure that that is not what happened. I am also particularly pleased that the amendment is tabled with the support of the Sentencing Academy, the Prison Reform Trust and Justice—all highly respected and thoughtful organisations.

At the heart of Clause 109 lies an assessment of dangerousness. The clause is aimed at a small number of prisoners who have been underclassified at the point of sentencing. The scenario cited in the White Paper concerns people who are assessed as presenting a terrorist threat, but who are in prison serving a sentence for a non-terrorism-related offence, and offenders who are deemed to present a significant danger to the public for other reasons but whose offending behaviour and assessment of dangerousness at the point of sentencing did not meet the threshold for a finding of dangerousness. One can think of many examples, but familiar to me because of my interest in terrorism offences is people who have been sentenced for quite mundane crimes but who are radicalised in prison and present a high degree of dangerousness at a time when they otherwise might be released.

These are legitimate concerns. I recognise—and I think we should all recognise—that Clause 109 can offer only an imperfect solution, but one predicated on the Government’s duty to protect the public from dangerous people. The practical danger posed by finding a prisoner dangerous post sentencing is that, when a prisoner genuinely does present a significant danger to the public, the Parole Board will be unable to order their release before the end of their full custodial sentence. The result is that, upon release, these potentially dangerous offenders will be subject to no licence conditions, as many prisoners are. They can be released to NFA—no fixed address—and be lost to the system very quickly. Particularly when the perceived risk is around non-terrorism offending, there will be few available options to manage them in the community. If the authorities move quickly, there are measures for potential terrorist offenders, such as TPIMs, which can be used, although they are very small in number as used at the moment.

However, if there are cases in which the public is better protected by the delayed release of a prisoner, my argument, and the argument of those of us who have signed this amendment, is that this should be a judicial decision and not one at the discretion of the Secretary of State. The practical effect of the Secretary of State exercising this power will be a member of the Executive intervening in the sentence of an individual prisoner to ensure that they will spend their full sentence in custody—perhaps many additional years in prison—unless the Parole Board, which is very well trained in these cases, with a training that is second to none, decides that it is no longer necessary for the protection of the public that the person should remain in prison. What we have in the clause as drafted is a de facto finding of dangerousness by the Secretary of State, which places on the prisoner the reverse burden to demonstrate that their continuing detention is no longer necessary for the protection of the public. On making a decision to refer a case to the Parole Board, the default position then is that the prisoner will serve their full sentence in prison—so the operative decision here is the referral to the Parole Board.

Assessments of dangerousness do not lie comfortably with Secretaries of State. In the debates we have had on this Bill—I have done it, and others have done it—we have all cited cases that have been brought to us by members of the public. The Sarah Everard case is an example, which I used earlier. It is a very emotive case. One feels very angry as a citizen about what the man who killed her did. That is so in many other cases. The one that the noble and learned Lord, Lord Falconer of Thoroton, cited an hour or so ago fell into the same category. The danger is with such cases that politicians can not only express the anger and ask the Government to do something about it, but that a Secretary of State feels politically driven to do that thing about it. My argument is that these assessments of dangerousness lie properly with the courts. As the noble and learned Lord, Lord Thomas of Cwmgiedd, said in the Second Reading debate:

“I am sure that no one wants to see us go down the road of terms of imprisonment being extended other than by an independent judicial body … the … hallmarks of our system require independence from political interference and decisions on custody being totally in the hands of independent bodies”.—[Official Report, 14/9/2021; col. 1303.]

As drafted, this clause places an enormous degree of discretion in the hands of the Secretary of State.

While the White Paper refers to prisoners who become of significant public concern, there is no such requirement for new information in Clause 109. There is nothing to prevent the Secretary of State simply disagreeing with the decision of the sentencing judge, who has had all the material evidence and reports before him or her. This gives rise to the risk of political pressure, which the noble and learned Lord, Lord Thomas of Cwmgiedd, also alluded to at Second Reading. Furthermore, the Secretary of State requires only a reasonable belief that there would be a significant risk to the public, a lower bar than the courts are required to use when assessing dangerousness under Section 308 of the Sentencing Code, which necessitates a finding that there is such a risk. In my view that is a proper, fair test.

The current clause offers few procedural safeguards to prisoners who may have to spend several extra years in prison at the instigation of a Secretary of State. There will be no full hearing of the facts before the reference is made. The prisoner is able to make representations to the Secretary of State before the Secretary of State makes a referral to the Parole Board, but that is a very limited opportunity. It is unclear what practical benefit this might provide for the prisoner, especially where the Secretary of State has also made or expressed a view. Even this right is constrained by the Secretary of State not expressly being required to delay a referral to the Parole Board in order to give the prisoner an opportunity to make representations; and prison is a difficult place from which to make representations, whether legal aid is available or not.

It is unclear how and when cases will be brought to the Secretary of State’s attention, by what mechanism and with what level of evidence. Will it be evidence that is transparent and accountable, to give rise to the possibility of judicial review? We have been told nothing about that. Although apparently aimed at a small number of prisoners, the decision to apply this provision to there being a risk of the commission of any specified offence, rather than restricting it to terrorism offences or a shorter list of the most serious offences, means that this provision could be applied to almost any serving prisoner.

I respectfully suggest that there should be little controversy attached to the key purpose of this amendment, which is to transfer to the High Court the final decision as to whether to refer a case to the Parole Board. The Secretary of State will enjoy the additional power to ask the High Court to determine whether automatic release should be halted for any prisoner serving a determinate sentence. The High Court will then carry out an empirical examination on the basis of evidence—lay and expert—just as any sentencing court does, determining whether an offender presents a significant risk of harm to members of the public.

These are difficult decisions and this is a difficult issue, but the public is better protected by these decisions being made in a conventionally open, transparent and independent way: namely, in a courtroom rather than an office in Whitehall. I beg to move.

Photo of Lord German Lord German Liberal Democrat 6:30 pm, 10th November 2021

My Lords, I have added my name to this amendment not because of its length but because of its importance. The noble Lord, Lord Carlile, has explained exactly the constitutional significance of this matter. Clause 109 as it stands will create a new power for the Secretary of State for Justice to be able to vary, after the imposition of sentence, the effect of a standard determinate sentence for individual prisoners. This provision would empower the Secretary of State to halt the automatic early release of a prisoner if they believed that, if released, the prisoner would pose a significant risk of serious harm to members of the public by committing either murder or a specified offence. Instead of automatic release, these prisoners would be referred to the Parole Board and kept in prison to serve their full sentence if the Parole Board does not deem them safe to release.

The main purpose of this amendment is not to change the action of having a referral but to change where that decision is laid. It is to ensure that decisions about sentencing are taken by the judiciary and not by the politician. Many of us here are politicians, and most of us would regard ourselves as politicians. In that role, when we have taken certain actions it has often been described as political interference. Political interference is of course what this amendment is trying to put to one side. It is to ensure that there is a fair and appropriate hearing and to ensure the strength of the independence of our judiciary and that it retains its ability to make judgments of the kind envisaged in this amendment.

As it stands, the operative actions on the rules on a determinate sentence are to be taken by the Secretary of State. The purpose of this amendment is therefore to uphold the judicial process while still giving effect to the outcome sought in the Bill as presently drafted. It will ensure that there is no inadvertent or intentional political bias that could result in a prisoner serving longer in prison than was envisaged by the sentencing judge.

The division between the Executive, Parliament and the judiciary is a fundamental pillar of our society and should be upheld. At public expense, we send many Members of this House and the other place around the world to try to strengthen the judiciaries in many developing countries. One of the tenets of that work is that there is a strong and independent judiciary. I think it is important that we make sure that we uphold that principle here in Parliament so that we do not move from it.

We are not given an understanding of the tests which will be applied for the Secretary of State to make a direction for a Parole Board hearing. I do not want to start a discussion again about the definition of words, but what are the reasonable grounds? There is no suggestion that the Secretary of State would have to publish the grounds which guide their decision to refer to the Parole Board. We simply do not know what those grounds might be beyond some indications we get in ministerial Statements.

There is a strong incentive for Ministers to say: “There is a public matter here. I can sense that the public are concerned about an issue.” They will then refer it to the Parole Board and the Parole Board would see no political advantage in not referring it and would accept the case as it was given. There would be a momentum for the Secretary of State when matters arose to just simply say that they would be automatically referred.

The effect of this provision in practice will depend heavily on any gatekeeping process before cases are brought to the Secretary of State’s attention. I hope that, when the Minister replies, he will tell us who will be the gatekeeper and what the gate will be like.

The second concern, which the noble Lord, Lord Carlile, has mentioned, is that if prisoners were to be directed by the Parole Board to serve their full term, this would eliminate the ability for such prisoners to transition to community life through the use of licences. The licence provision has been a powerful tool in the rehabilitation process, allowing certain freedoms under supervision. Licences play an important part in transitioning to work and integration into society.

Following due process and limiting arbitrary power are hallmarks of a free society. That is what is at the heart of this amendment, and I ask noble Lords to support it.

Photo of Viscount Hailsham Viscount Hailsham Conservative

My Lords, I support the purpose of this proposed new clause. It is highly desirable that there should be a judicial intervention in the process. The arguments of principle have been articulated by the noble Lords, Lord Carlile and Lord German, and so I will not repeat them, but I will make one or two points about the provision in the Bill and the proposed new clause.

First, the noble Lord, Lord Carlile, expressed concern about the circumstances in which the Home Secretary might form the requisite opinion, and set out his reasons; and he was right to. If I may, I will share with the Committee my experience when I was at the Home Office at the back end of the 1980s. I am well aware that the procedure is wholly different, but I have a fear that it will be replicated in this instance.

As the Parliamentary Under-Secretary, I was responsible for setting the initial ruling on the tariffs of the life-sentence offenders, which then went to the Home Secretary. What happened in those days was that one got in one’s box, often very late at night, a submission from the department in which it set out a very brief summary of the offence. Associated with that were the comments of the trial judge, if the trial judge was still around, together with the comments of the Lord Chief Justice, and then followed the recommendation of the department—12 years, or whatever. At that point, the Parliamentary Under-Secretary had to form a view; he or she scribbled “12 years” or “14 years” on top of the paper, and it went to the Home Secretary, who in the generality of the cases would accept the advice.

I know that the circumstances have changed profoundly, but the department might very well copy that process in terms of advising the Secretary of State about whether he or she has the requisite opinion. I think that would be profoundly unfair and I therefore very much welcome the judicial intervention contemplated by the proposed new clause, which is right in principle.

I will make three smaller points. First, in the Bill, the Secretary of State has to set out his or her reasons. I hope very much that there will be a requirement that the reasons are fully deployed. What I fear will happen is that the Secretary of State will simply repeat the language of the Act—simply to say that there is a significant risk, and so on. What the prisoner needs to know is the basis on which that judgment is formed, because otherwise the prisoner cannot really address it. So my point to the Minister is that the reasons must be full.

The second point is rather related. I am deaf, but I am wearing my hearing aids and I think I heard the noble Lord, Lord Carlile, say that the High Court would conduct a full hearing. That was the phrase he used and that is what we need to know: what is the procedure? If the High Court will do only a paper exercise, in my view that is not good enough. It is very important that the procedure before the High Court, before the authority is issued, is a full hearing, or at least has the ability for a full hearing. That means making a submission, a proper argument, and all the rest.

Lastly—I accept that this is a drafting point, but we are in the business of drafting—subsection (13) of the new clause proposed by the noble Lords provides the word “would”: the High Court concludes that there would be a significant risk to the public. I question the word “would”. A word such as “might” would seem to be much better because, if the High Court has asserted that there “would” be a risk, that seems to prejudge the issue as it comes before the Parole Board, which might have some difficulty in concluding that there was no risk. So I acknowledge that it is a drafting point, but I would like the word “might” or something like it to be inserted rather than the word “would”. That said—and I hope I have not been too pedantic—I do think that this is a very important proposal articulated by two of the noble Lords who put their names to it, and I strongly support it.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Spokesperson (Scotland), Shadow Attorney General, Shadow Advocate-General for Scotland 6:45 pm, 10th November 2021

My Lords, this is a very interesting proposal. I think we all agree, across the House, that where somebody is entitled to automatic release at half or two-thirds of their sentence, if there is proper material from which the conclusion can be reached that the defendant poses a significant danger to the public, then the automatic release date should not apply, and presumably the defendant should then be kept in prison until the end of the nominal sentence. As the Bill is currently drafted—putting it shortly—if there are reasonable grounds for the Secretary of State to believe that the defendant might pose such a risk, the Secretary of State can refer it to the Parole Board to decide.

What the noble Lord, Lord Carlile of Berriew, wants is that, if the Secretary of State forms that view, he or she should refer the decision to the High Court. The High Court would then make a determination on the substance of the issue: whether the prisoner constitutes a danger. The noble Viscount, Lord Hailsham, called it a drafting point, but as I understand the drafting here, if the High Court forms the view that the prisoner does constitute such a danger, the High Court does not determine whether or not the prisoner is released but refers the matter to the Parole Board. In his opening speech on the amendment, the noble Lord, Lord Carlile, said he believes that the operative decision should be made by the Parole Board, not the High Court.

Necessarily, that ends up with a situation where what the High Court is deciding, one way or another, is whether there are proper grounds for the Secretary of State’s belief that the prisoner may pose a risk. It would be necessary to amend the amendment to say that, because otherwise the operative decision is plainly being taken by the High Court, not the Parole Board—and the noble Lord, Lord Carlile, wants the decision to be taken by the Parole Board, which I understand. Once you get to that point—namely. whether there are proper grounds for the Secretary of State’s belief—then it is judicial review, so I am not sure what is added by this proposal.

I do not wish to give away any secrets, but I am sure there are Secretaries of State who, under press or political pressure, would refer such a decision to a body with the power to determine whether or not somebody should be released at the automatic release date. Whether the reference is to the Parole Board or to the High Court, honestly, Secretaries of State will still be guided by political considerations. As far as the Secretary of State is concerned in the notional example given, if they want to make a political point they will refer it to whoever the statute says they should, irrespective of their precise state of knowledge, for political reasons. The noble Viscount, Lord Hailsham, and the noble Lord, Lord Carlile of Berriew, are saying that they will be pushed into it by politics. Well, under his amendment, they will be pushed into referring it to the High Court, and under the Minister’s position they will be pushed into referring it to the Parole Board, which is where the noble Lord, Lord Carlile of Berriew, wants it to end up anyway.

I am not sure that this amendment achieves much, as it pushes you back into judicial review, which is where we are already. I am sympathetic to the position adopted, but—I put this advisedly—if the noble Lord, Lord Carlile of Berriew, was willing to put his money where his mouth is, surely the end point should be that the High Court decides. That would provide a much more effective safeguard. This does not quite get there.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

My Lords, we have had a very interesting debate. The last few speeches have highlighted the problems with the approach that I was going to set out. In short, where we end up on this amendment is, in effect, the High Court taking the decision and not the Parole Board. I shall come back to the “would” point made by my noble friend Lord Hailsham, which I was going to make as well and is absolutely right.

The amendment would require the Secretary of State first to refer high-risk offenders to the High Court. They could then be referred to the Parole Board only with the court’s approval. That is the structure that we are dealing with. The structure in our clause is that the Secretary of State refers directly to the Parole Board. If referral to the High Court is put in as an intermediate process, it would mean two things. First, the High Court may reject the referral from the Secretary of State if it did not agree that the offender would pose a risk of serious harm. My concern is secondly that, if the High Court did consider that the offender would pose a risk of serious harm, it would roll the pitch in a very serious way for the Parole Board.

I therefore have concerns about both the necessity and the benefit of involving the High Court in this process, but nothing I am going to say is intended to undermine two points on which I agree with the noble Lord, Lord German; first, on the importance of due process and, secondly, that we should limit arbitrary power. I suggest that the court does set out due process and limits arbitrary power.

The important point to bear in mind is that the new power is not a re-sentencing exercise. It is not the Secretary of State extending the detention of the prisoner. I fully accept the point made by the noble Lord as to the important boundary between Secretary of State and judge, between Executive and judiciary. I also want to have a strong and independent judiciary; I believe we do. That principle is not contravened by this clause, because it is the independent Parole Board that will make the final decision as to whether an offender is safe to be released early. The Secretary of State has the power to make a referral, but he or she must have a sound basis for doing so and must give the prisoner notice, which must include the grounds for making the referral and give the prisoner the opportunity to make representations to the Secretary of State.

As for the criteria in play, we will closely monitor and record how the power is used. We will publish a policy which clearly outlines the threshold that must be met and the principles which will underpin the Secretary of State’s decision-making procedure in determining whether to refer a case to the Parole Board.

Photo of Lord German Lord German Liberal Democrat

That was a good statement of intent. When do the Government expect to be able to produce that? Would it be before we have concluded this Bill, so we will know where we are going with it?

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

I do not want to give an incorrect answer to the noble Lord. I know that there are different codes of practice and different sets of procedures in various parts of the Bill. Can I get back to him in writing on that point, so that the Committee knows where it is before Report?

Photo of Viscount Hailsham Viscount Hailsham Conservative

On a related point—the obligation on the Secretary of State to give reasons—how detailed should those reasons be? Will there be some published code which ensures that the Secretary of State complies?

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

I have said that we will publish the principles which underpin the Secretary of State’s decision. The other point that I make in this regard, which goes to the adequacy of reasons point—it was touched on by the noble and learned Lord, Lord Falconer, with his experience—is that judicial review of the Secretary of State’s decision would be available. My noble friend will be aware from the case law as to the relevance of reasons in a case where the decision can be challenged by way of judicial review.

In light of what I have said, I hope that the Committee will appreciate that this mechanism, which we expect to be used only in rare instances, will prevent the automatic release of offenders whose risk becomes apparent only after they have been sentenced.

Let me make one point. I apprehended at certain points in the discussion that there was perhaps a misapprehension, which I should clear up: that one could detain the prisoner beyond the end of the sentence as handed down by the court. We are not talking about that. To be clear, we are talking about the period between the automatic release point and the end of the sentence.

The Secretary of State’s initial decision to refer such a prisoner would therefore be made because concerns were raised by prison and probation officials who have close contact with the prisoner. Those involved in the management of the particular offender and their case, which in most instances would include both prison and probation staff, would be involved in bringing the matter to the attention of the Secretary of State. Prison and community offender managers are experienced in carrying out detailed assessments of the risk posed by offenders and of what can be put in place to manage that risk, both during the custodial period and following release. All that would be part of the assessment. We would also expect the close involvement of MAPPA, so that there is a cross-agency perspective of the risk the offender poses, and risk-management strategies that could be put in place for the time when the prisoner would otherwise be released.

On that basis, and with all respect to the High Court and its judges, I simply do not see how the considerable expertise and wisdom of the High Court could be best put to use here. This is a process for creating a mechanism to respond swiftly and efficiently to the emergence of possible future risk. The addition of the High Court would turn it into a litigation-heavy process, while adding an unnecessary burden on the High Court itself. I simply do not understand how the involvement of a High Court judge at the initial stage would materially increase the safeguards that would already be in place to ensure that this power operates correctly and fairly.

Over and above that, I respectfully endorse the point made by my noble friend Lord Hailsham about the word “would” in subsection (13) of the proposed new clause. The problem here is that the amendment would likely impede the decision-making power of the Parole Board. The board may still opt to release an offender referred under this power, but in practice the High Court’s opinion would be difficult to ignore. The hypothesis here is that the High Court has determined—“determine” is the word used in the first line of subsection (13)—that the offender

“would, if released, pose a significant risk”.

That would be the backdrop to the Parole Board’s assessment. As I said earlier, the High Court would effectively have rolled the pitch for the Parole Board. That is particularly the case if what is envisaged is not some judicial review-type test but what is called a full hearing. The problem there would be that the High Court has determined the point. We have to remember that the authority—or the operative decision, to use the helpful phrase of the noble and learned Lord, Lord Falconer—is the decision of the Parole Board, not of the Secretary of State.

For those reasons, although I understand the impetus behind the amendment, I suggest that, far from making the mechanism better, it would make it significantly worse. I therefore respectfully invite the noble Lord to withdraw the amendment.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench 7:00 pm, 10th November 2021

My Lords, I am very grateful to those who have intervened in this debate. I pay particular tribute to the noble Lord, Lord German, who has had the courage to climb on to the head of the pin occupied by a number of broad-shouldered and big-elbowed lawyers. He made some very good points in doing so, particularly his straightforward point about the gatekeeping role that we say in this amendment should be carried out by the High Court.

I thank the noble Viscount, Lord Hailsham. I was around in the other place in the heady days when he was a Minister at the Home Office. I suspect that his experience of the Home Office as he described it was as instructive as such experience would be today. What is required in these cases is a clear exercise of judgment before they reach the Parole Board, fully expressed and in a justiciable way. A lot has been said about the adequacy of reasons in relation to this issue. I think we are all agreed—certainly, the noble and learned Lord, Lord Falconer, and the Minister agreed—that we are concerned about the adequacy of reasons.

I am puzzled by what the Minister said about the utility of judicial review in these cases. He knows—all those of us who have been in judicial review cases, and some of us have been judges in them, know—that the test of judicial review is not an ordinary merits test; it is not a test of what is right. The test in judicial review, if you are to win, is: would no reasonable Minister have made this decision? It is quite different from the test on the merits which would be applied by the High Court. I will say a word in a moment in answer to points that have been made about the High Court. I say to those who have suggested that judicial review is an adequate remedy—of course, it is a possible remedy—that it does not fit the bill because it does not mean that there will be a merits test with the adequacy of reasons that has been discussed.

The noble and learned Lord, Lord Falconer, is an absolutely excellent and much-admired advocate, at least by me, but like other great advocates is sometimes wrong, and I venture to suggest that he may have been wrong on this occasion. What this amendment argues for is two quite different stages which are carried out without the intervention of the Executive, save to refer a case. The High Court makes the first assessment. I take what was said by the noble Viscount on drafting as something that needs to be considered, so I will just use the present tense: is there a risk that there is a danger of a particular sort? If so, the case is referred to the Parole Board. That is a decision based on the evidence, on merits, after a proper hearing. It goes to the Parole Board and a quite different assessment is made, which is the one the Parole Board expertly carries out all the time and is about release provisions—whether a person should be released or detained in custody.

It has been an interesting debate and I will reflect on what has been said. I will of course reflect on the comments made by the Minister. I am grateful to him for analysis, which naturally merits further thought, but for the time being I beg leave to withdraw the amendment.

Amendment 208 withdrawn.

Clause 109 agreed.

Clauses 110 to 115 agreed.

House resumed.

House adjourned at 7.08 pm.