I beg to move Amendment 99, in Clause 38, page 37, line 18, leave out “Upper Tribunal” and insert “criminal Division of the Court of Appeal”.

With this it will be convenient to discuss the following:

Amendment 100, in Clause 38, page 37, line 31, leave out “Upper Tribunal” and insert “criminal Division of the Court of Appeal”.

Amendment 101, in clause 38, page 37, line 36, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 102, in clause 38, page 37, line 37, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 103, in clause 38, page 38, line 4, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 104, in clause 38, page 38, line 8, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 105, in clause 38, page 38, line 14, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 106, in clause 39, page 38, line 26, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 107, in clause 39, page 38, line 39, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 108, in clause 39, page 39, line 4, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 109, in clause 39, page 39, line 5, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 110, in clause 39, page 39, line 10, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 111, in clause 39, page 39, line 14, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 112, in clause 39, page 39, line 20, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 113, in clause 40, page 39, line 36, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 114, in clause 40, page 39, line 39, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 115, in clause 41, page 40, line 8, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 116, in clause 41, page 40, line 9, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

Amendment 117, in clause 41, page 40, line 12, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.

I have already explained at length why clauses 35 and 36 do not set out the right approach. The Government may be determined to push forward with them, but I am concerned that the upper tribunal may not be the correct forum to hear an appeal against the Secretary of State’s decision to deny parole. The amendments seek to change the approach, so that any appeal would be to the criminal Division of the Court of Appeal.

Unlike criminal courts or the Parole Board, the upper tribunal has no experience of assessing the risk of harm to the public. It is not a fact-finding body; rather, it is there to deal with points of law. Therefore it is unclear why the Government believe that the upper tribunal would be best placed to make such assessments. A more appropriate mechanism for dealing with appeals against decisions by the Secretary of State would be via the Court of Appeal. That view is shared by many.

In evidence to the Justice Committee, his honour Peter Rook KC, a former Old Bailey judge and current vice chair of the Parole Board, outlined that, given the likely need for the calling of evidence from witnesses, any appeal should go to the Court of Appeal criminal division. That is because, unlike the upper tribunal, the Court of Appeal criminal division has experience of such matters.

The Chair of the Justice Committee, Sir Robert Neill, made a powerful contribution on Second Reading. He made the point that an appeal can be made on judicial review grounds, which requires a permission stage, or on the merits, which does not require permission. As a result, it is likely that any prisoner who appeals the Secretary of State’s decision will do so on the merits. That will then effectively require a rehearing, which the upper tribunal would be ill equipped to deal with.

A letter from the Justice Committee to the Lord Chancellor stated:

“While there is no doubt that it is right that the final decision on release should lie with an independent court or tribunal, the proposed appeal mechanism in the Bill is flawed. We can see that there could be a case for a merits-based appeal mechanism from the Parole Board, but in our view that should be to the Court of Appeal criminal division rather than to the Upper Tribunal.”

The letter goes on:

“It was pointed out to us that the appeal, particularly on merits, will logically have to be by way of a re-hearing and may frequently involve taking oral evidence. The Upper Tribunal has no experience in or procedures for dealing with this, whereas the Court of Appeal criminal division does.”

I hope that the Government will reflect on that, and reconsider whether the upper tribunal is the appropriate forum for any appeal, or whether the criminal division of the Court of Appeal would be better suited.

I am grateful to the hon. Lady for her Amendment, which would change the appellate chamber for appeals of any Secretary of State decision to refuse release to the Court of Appeal, rather than the upper tribunal. I know that the Justice Committee has also heard evidence that suggests that the Court of Appeal might be the appropriate venue for referral appeals. The hon. Lady and I may disagree on the underlying point about the role of the Secretary of State, but in looking specifically at which is the most appropriate appellate route, the Government feel, for specific procedural and legal reasons, that the Court of Appeal is the wrong route. It may help the Committee if I set out the Government’s position on that point.

The appeals in question will be where the Secretary of State has called in a Parole Board decision to release a top tier offender, or the board has referred a case to the Secretary of State for an initial release decision. I appreciate that other amendments tabled by the hon. Member for Lewisham West and Penge propose the direct referral of a decision by the Parole Board, but the principle is the same in either case: a judicial body with the correct powers and expertise, whether that is the upper tribunal or the Court of Appeal, would ultimately be required to assess the decision. Top tier offenders, as we have already debated, are those who have committed the most serious crimes, such as murder and rape, so it is only right that there is a second check on any decision to release them.

The Government’s view is that the public will be further reassured if that check is made by the Secretary of State or another Minister acting on their behalf. Although I say “check”, it will, of course, be much a more thorough review than that term might imply. The procedure set out in part 3 for verifying whether an offender is suitable for release will require the Secretary of State to apply the public protection test in full and to reach a decision as to whether the offender, if released, would pose

“no more than a minimal risk” of committing an offence that would cause “serious harm.” That test is the very same release test that will be applied by the Parole Board, which is set out in clauses 32 and 33, which we considered on Thursday.

Even though the Secretary of State and the Parole Board will have applied the same test, there may be occasions when the Secretary of State reaches a different conclusion from the Parole Board and judges, such that a top tier offender has not satisfied the threshold for release and should therefore remain in prison. In such cases, part 3 enables the offender to appeal against the Secretary of State’s decision not to release them. It is right that an appeal should be possible. The ability to challenge a decision is a crucial mechanism and safeguard in our justice system, and it provides a route for ensuring that decisions have been taken correctly and fairly.

The grounds on which an appeal may be brought forward are laid out in clauses 38 and 39. They are straightforward and comprehensive. An appeal may be made either on the grounds that the Secretary of State’s decision is flawed in some way—for example, it is irrational or there has been an error of fact—or it may be made on a merits ground, that is, on the grounds that the prisoner believes they meet the minimal risk threshold for release. The

“no more than a minimal risk” ground will require the appellate court, whether that be the upper tribunal or the Court of Appeal, to apply the public protection test to determine whether the prisoner is safe to release. That may involve a fresh hearing of the case, if the upper tribunal considers it necessary, and may require the taking of oral evidence.

The amendments require us to consider which appellate court is best placed to fulfil these functions and hear appeals. The Court of Appeal is a statutory body that has its powers set out in the Criminal Appeal Act 1968. It primarily considers appeals from the Crown court against conviction or sentence. Section 2 of the 1968 Act explains that the court may allow an appeal against conviction if it thinks the conviction is unsafe; otherwise it has to dismiss the appeal. It also has powers under section 3 of the 1968 Act to substitute a conviction for another offence.

In determining these issues, and other matters under the 1968 Act, the Court of Appeal does not need to give any consideration to whether a prisoner is safe to release, nor does it conduct re-hearings on the facts. If the Court of Appeal were to be the venue to hear appeals from a decision of the Secretary of State not to release, substantive amendments would have to be made to the 1968 Act and training would have to be given to the Lords Justices of Appeal. Taking on this additional work could have a detrimental effect on the timescale in which the court can hear appeals from those who consider that they have been wrongly convicted and who are serving prison sentences as a result.

On the other hand, the upper tribunal has wide-ranging powers already extant under section 25 of the Tribunal, Courts and Enforcement Act 2007, facilitated by the Tribunal Procedure (Upper Tribunal) Rules 2008, which gives it the same powers as the High Court in terms of attendance, examination of witnesses, production and inspection of documents, and broad scope to conduct and administer hearings. The tribunal has experience in hearing oral evidence and in making decisions in the light of such evidence. For example, it takes oral evidence in appeals against decisions of the Disclosure and Barring Service, and occasionally may also do so to remake a decision after setting aside a decision of the first tier tribunal.

We therefore conclude that, on balance, the upper tribunal is best placed, in terms of the existing legislative powers, to hear appeals against the new ministerial decision-making power, and the Court of Appeal does not appear to be as suitable a venue in this context. I appreciate that the Shadow Minister may form a different view, but I think this is a balanced judgment and I would urge her not to press her amendments.

I am grateful to the Minister for setting out why he considers the upper tribunal to be the correct forum. Although I have heard what he has said, we do still have concerns about the appropriateness of the upper tribunal to hear these cases, particularly because most of the appeals are likely to be on substantive grounds. However, we do not propose to press the amendments to a vote. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

With this it will be convenient to debate Clause 39 stand part.

We have already discussed clauses 35 and 36, which create a new power for the Secretary of State to intervene in release decisions for the most serious offenders. It is only right that if the Secretary of State refuses release, there is recourse to an independent review. Clauses 38 and 39 therefore set out that a prisoner whose release is refused by the Secretary of State under the new provisions can appeal the decision to the upper tribunal. Clause 38 covers life prisoners and clause 39 is for fixed-term prisoners.

There are two routes of appeal available. First, appeals can be made on the grounds that the decision was flawed because it was illegal, irrational, procedurally improper or the Secretary of State made an error of fact that was fundamental to the decision they reached. Subsection (4) clarifies that a decision should not be found to be irrational by the upper tribunal unless it deems that no reasonable Secretary of State could have made that decision. In such cases, permission must be sought from the upper tribunal for the appeal to proceed. If the appeal is upheld, the matter is referred back to the Secretary of State for another decision, in line with other public law decision-making processes; otherwise, the Secretary of State’s decision is upheld and the prisoner remains confined.

Secondly, an appeal is also available on full-merits grounds—that is, whether it is necessary for the protection of the public that the prisoner remain confined. That would allow the tribunal to examine the evidence and re-take the release decision from first principles by applying the same release test, without referring the case back to the Secretary of State. There is no permission stage for this route of appeal. Ongoing post-tariff detention requires determination of lawfulness by a court, in accordance with article 5(4) of the European convention on human rights. The appeal process will ensure that the referral process is robust and there is a proper check and balance on the use of the Secretary of State’s power.

I urge that clauses 38 and 39 stand part of the Bill.

I have set out at length why I do not think that the Secretary of State’s veto is the right approach, but if the Government press ahead with this aspect of the Bill, it is of course absolutely right that there is an appeal mechanism. It is also right that it should be possible to appeal on judicial review grounds or on the substantive merits. As I have said, I anticipate that most appeals will be on the merits, as that will not require a permission stage.

It also seems likely that all decisions by the Secretary of State will be appealed as a matter of routine. Has the Minister made an assessment of how the upper tribunal will deal with the increase in cases, and of whether there are sufficient judicial members to hear them? What consideration has there been for victims at the appeal stage? In particular, has there been any consideration of how the appeal stage steps will be communicated to victims?

I have also set out in relation to my amendments why we do not consider at this stage that the upper tribunal is the right forum for an appeal. Therefore, although we agree that there must be an appeal mechanism when the Secretary of State exercises their veto, we hope that the Minister will take into account these points as the Bill progresses.

As I have said, I am always happy to take into account and reflect on—as I know the Lord Chancellor will—the points raised by the Shadow Minister. I know that, as well as my rereading the transcripts of our many hours spent in this room, the Lord Chancellor will want to read them carefully to see the points raised by the shadow Minister, so that he may reflect on those points as he considers next steps as the Bill continues its progress.

Question put and agreed to.

Clause 38 accordingly ordered to stand part of the Bill.

Clause 39 ordered to stand part of the Bill.