Last week, an important High Court judgment was handed down.
It concerned the decision of Dominic Raab to try to control the conduct of parole proceedings and to prescribe how his officials provide evidence to the Parole Board.
Dominic Raab is Lord Chancellor and Secretary of State for Justice. He is under investigation for several bullying complaints during different ministerial posts. Coverage of this is more prevalent than coverage of his performance in his current role. This is about the latter.
Raab has decided to make ‘reform’ of the parole system one of his priorities. This might be regarded as an odd choice given that his remit includes the whole criminal justice and penal systems. There is very little evidence that the Parole Board is performing badly.
The Parole Board is tasked with a difficult role. It must make decisions about whether certain prisoners meet a test for release on licence. This test is set by Parliament and has been interpreted by the courts.
The Parole Board is a non-departmental public body. It is supposed to be independent of government. It performs a judicial role and is described by the courts as a court-like body. The separation of judiciary and government is a fundamental feature of a democracy.
A ‘root and branch’ review of the Parole Board was ordered by a former Lord Chancellor, Robert Buckland. This included strong recommendations for it to become a fully independent court or tribunal. Buckland had been replaced before decisions had been made about the Board’s future
Dominic Raab did not agree that the Board should become a properly constituted tribunal. Instead, he has sought to make changes to the Parole Board which take it in a completely different direction.
Raab’s ultimate plan – which will soon be considered by Parliament – is to take control of a significant proportion of the Parole Board’s judicial decisions. This is very likely to be unlawful and he will probably have been given advice to that effect.
Last week’s High Court judgment concerned his decision to stop professional witnesses (probation officers, psychologists and prison officers) from providing recommendations to the Parole Board. He did not want them to provide recommendations which might conflict with his own.
Professional witnesses employed by the prison and probation service have been providing recommendations to the Parole Board for many years. The Board does not have to follow them. They will investigate them and challenge them. They usually find them helpful.
Raab and his officials issued rules prohibiting witnesses from giving recommendations. They issued guidance telling them how they should respond if Parole Board members ask them to do so. This has made many parole hearings farcical (“I am not permitted to answer that question”).
Last week’s judgment decided Raab’s rule change and guidance were unlawful. The judges concluded that it “may well have resulted in prisoners being released who would not otherwise have been released and in prisoners not being released who would otherwise have been released”.
This fiasco has cast a shadow over thousands of hearings conducted over several months. It has thrown hearings conducted this week and beyond into confusion. It is a huge embarrassment. This story is not receiving the coverage it should.
This is not the first – nor will it be the last – example of unlawful action by the current Justice Secretary. Unlawful does not mean criminal. But in this case it indicates a basic misunderstanding of the law and a serious attempt to interfere with a judicial process.
A government committed to “integrity, professionalism and accountability at every level” might wonder if it is right to continue to keep Dominic Raab in this important post.
If you want to know more about how the parole system works you could do worse than watch the BBC’s Parole series. It is not perfect but does at least give a flavour of what actually happens at a parole hearing.
As far as I know, Dominic Raab has never actually observed a parole hearing. I know he has been invited to do so.
Andrew Sperling is a Solicitor-Advocate and Director of SL5 Legal, specialising in public law, Parole Board advocacy and human rights.
This article is based on a Twitter thread he posted last week.
Article originally posted on Centre for Crime and Justice Studies website:
Link to Andrew's Twitter thread on Threadreader: https://threadreaderapp.com/thread/1636274222426095616.html
Link to full judgment and press statement: