The Victims and Prisoners Bill was laid on Wednesday 29 March 2023 by Dominic Raab, the former Secretary of State for Justice, just before Easter recess.
Its long title is: “A Bill to Make provision about victims of criminal conduct and others affected by criminal conduct; about the appointment and functions of individuals to act as independent public advocates for victims of major incidents; about the release of prisoners; about the membership and functions of the Parole Board; to prohibit certain prisoners from forming a marriage or civil partnership; and for connected purposes.”
The Bill and explanatory notes can be found online.[1]
The next stage is its second reading, date yet to be announced.[2]
The Bill was introduced with a press release from the Ministry of Justice: “Victims placed at heart of justice system under radical shakeup.”[3] Yet as many victims’ groups, including Victim Support, have pointed out, the Bill has not met expectations for victims. The recent inclusion of a raft of additional provisions affecting people in prison may well prove a distraction from long promised reform for victims across the criminal justice system.[4] Of the 55 pages of the Bill, the substantive provisions and the relevant schedules relating to prisoners amount to 32 pages, almost 60 per cent of the Bill.
It remains to be seen whether Dominic Raab’s Bill which the Prime Minister described in his response to his resignation letter on 21 April 2023 as a “landmark” bill will be pushed through in its current form, despite the concerns of victims.[5] If it does, it will truly be a landmark bill: it will involve Parliament voting to undermine long established principles including the independence of judicial decision-making, fair process and the universality of human rights.
Executive overreach without fair process
The most concerning change is a proposed new power for the Secretary of State to overrule release decisions by the Parole Board for release in cases involving certain serious offences. This power will allow the Secretary of State to quash the decision of the Parole Board, which is an independent and court-like body, and substitute a fresh decision. There is no clarity in the Bill about how this decision would be made, although it is indicated that the Secretary of State “may” interview the person in prison as part of it. There is no mention of a right to make representations or have a lawyer involved, let alone any reference to legal aid being available if a lawyer is involved. In a recent case the High Court noted “the common law principle that decisions about the liberty of the subject should be taken by a body which is independent of the executive and impartial as between the parties, save where Parliament expressly provides to the contrary” (§12 R(Bailey) v SSJ [2023] EWHC 555 (Admin)). The only safeguard is that if the Secretary of State decides not to release the person, then there is a right of appeal to the Upper Tribunal.
There is also a new power to dismiss the Chair of the Parole Board on grounds of “public confidence”. In 2018, the High Court held that “it is not acceptable for the Secretary of State to pressurise the Chair of the Parole Board to resign because he is dissatisfied with the latter’s conduct. This breaches the principle of judicial independence enshrined in the Act of Settlement 1701” (§31 R(Wakenshaw) v SSJ [2018] EWHC 2089 (Admin). The express statutory right to remove a Chair on grounds of public confidence may well be seen to be attempting to put into law an unacceptable interference with judicial independence.
Disapplying human rights for people in prison
When I teach my students about human rights, the first lesson will always remind them of the principle that human rights are inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. That is why the key human rights instrument, adopted in 1948, is called the “Universal” Declaration of Human Rights. Yet this Bill seeks to disapply to prisoners the key provision in our own Human Rights Act 1998 that can require the Courts to read legislation in a way that is compatible with human rights. It also puts a blanket ban on the right of people on whole life orders in prison to get married, even though they currently need permission from the Secretary of State anyway.
So what next?
There are other changes in the Bill affecting people in prison going through the parole process, which I have summarised in a little more detail below. They all have one thing in common: they will make an already difficult process more complex and drawn out. But they will inevitably cause delay which is costly, financially and emotionally, for everyone involved. It is not clear that they will make anyone safer and they will undermine key legal principles of independence and fairness.
Let’s hope that the new Secretary of State for Justice, whose first tweet in the post described the job as “a hugely important brief that upholds the values of our great country – the rule of law, justice for victims and the right to a fair trial” [6], will listen to the voices of victims and pause before progressing Part III of this Bill.
**Summary of the key changes**
Changes to the test for release by the Parole Board (sections 32 and 33)
The Bill proposes a revised test for release. It is quite long and complicated and requires more things to be taken into account and there is a greater emphasis on the burden being on the person applying to prove that they are safe for release and the risk they pose is no more than minimal. The press release says “The bill will also legislate for a new release test for the Parole Board making it clear that public safety is the only priority when making release decisions – to stop a balancing exercise taking into account prisoners’ rights.” The current test is whether the Parole Board is ‘satisfied that it is no longer necessary for the protection of the public’ that the prisoner should remain detained. There is nothing in the current test about the Parole Board balancing rights and I am not aware that this is something that happens currently. So I am not sure what mischief these changes seek to solve or whether they will achieve that.
A power to change the test for release (section 34)
A new power and procedure to usurp the Board in certain serious cases (sections 35 to 37)
The press release describes these provisions as a power to “block” the release of certain prisoners:
“The bill includes measures to ensure dangerous offenders face the strictest scrutiny including…Creating a new tier of the most serious offenders including murderers, rapists and terrorists and giving the Justice Secretary the power to veto the release of those offenders in the interest of public safety. It will also be available in cases where the Parole Board cannot confidently decide the release test has been met.”
The specific offences include murder, (b) an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004, where a child has died as a result of the prisoner’s unlawful act, specified terrorism offences and rape. The power is more than a “block”. It enables the decision to be made by the Secretary of State instead of the Parole Board. The Bill proposes it can be done either by the Parole Board referring the case back to the Secretary of State or, where, a decision for release has been made, the Secretary of State can quash it and decide the case again.
Whereas the Parole Board has a specific process to decide if someone should be released or not which includes the right to legal representation etc, it appears that the only procedure set out for the Secretary of State is that he or she can decide to interview the person if they want. There is no reference to legal representation. There is no right to be interviewed. There are no other procedural safeguards set out in the Bill. The Bill authorises the Secretary of State to make further rules on this procedure in due course.
A new appeal route to the Upper Tribunal where the Secretary of State has used the new decision-making power (Sections 38 and 39)
Where the Secretary of State uses the new power to make a decision about release instead of the Parole Board, there is a new right of appeal to the Upper Tribunal. The appeal is on classic judicial review grounds or on the basis that the release test is met: no other grounds of appeal are allowed. Presumably this is the procedural safeguard to justify the approach that the Secretary of State proposed to take in the first place. However, it is questionable whether, where liberty is at stake, it is permissible to place safeguards in the appellate stage only. There is no reference as to whether or not legal aid will be available at this stage.
A new power to enable the Secretary of State or the Upper Tribunal to set or direct licence conditions (sections 40 and 41)
Disapplication of s3 of the Human Rights Act to prisoners as a group (sections 42 to 45)
The Bill states on the first page that it is compatible with the Human Rights Act 1998 and this section is misleadingly entitled “Application of Convention rights. Yet this section is the disapplication of human rights to prisoners as a group in respect of legislation about their release. It is very hard to see how the Bill can be compatible with the Human Rights Act when it disapplies its application to whole groups of people.
It states that with, respect to the legislation relating to the release of life and fixed term prisoners “section 3 of the Human Rights Act 1998 (legislation to be read and given effect in way which is compatible with Convention rights) does not apply to this Chapter or any subordinate legislation made under it.” A further provision requires that in any judicial review proceedings that arise from issues concerning the release of a prisoner “the court must give the greatest possible weight to the importance of reducing the risk to the public from persons who have committed offences in respect of which custodial sentences have been imposed.”
This, along with a parallel section in the Illegal Migration Bill, constitutes the first attempts to disapply a part of the Human Rights Act to a group of people. It now precedes the anticipated British Bill of Rights (the version initially laid was withdrawn under the Truss administration) and will therefore become a “testing ground” (in a similar way it has been in the Illegal Migration Bill) for making changes to our human rights framework.
New provisions relating to Parole Board members, including provision for members with a law enforcement background and restrictions and controls on the Chair (Sections 46 and 47)
There is a new requirement for the Board to include a member with a law enforcement background and the creation of a framework to enable requirements for certain cases to be considered by members from such backgrounds. The role of vice chair is also formally created, as it was not in statute before. The Chair is prohibited from taking part in any individual cases or even attending hearings. There are restrictions on the renewal of the roles of Chair and vice-chair (except by the Secretary of State) and a power for the Secretary of State to dismiss the Chair on grounds of public confidence, In 2018, the High Court held that “it is not acceptable for the Secretary of State to pressurise the Chair of the Parole Board to resign because he is dissatisfied with the latter’s conduct. This breaches the principle of judicial independence enshrined in the Act of Settlement 1701” (§31 R(Wakenshaw) v SSJ [2018] EWHC 2089 (Admin). The express statutory right to remove a Chair on grounds of public confidence may well be seen to be attempting to put into law an unacceptable interference with judicial independence.
New provisions to stop whole life tariff prisoners getting married or having a civil partnership (sections 48 to 50).
The press release states: “The new legislation will also stop prisoners serving whole-life orders from marrying or forming a civil partnership in prison. This will deny these criminals the important life events they stole from their victims while ensuring their horrific crimes are treated with the seriousness they deserve.” As of December 2022, there were 69 whole life tariff prisoners in the UK.[7] This provision appears to be a direct response to an attempt by serial killer Levi Bellfield to challenge a decision blocking him from marrying in prison and the new clause has certainly captured the headlines.[8] Although it has attracted, if not dominated headlines, it will affect very few prisoners and victims. The provision is an attention seeking clause, especially as at present any prisoner who wishes to marry has to seek permission of the Secretary of State and the Secretary of State already has the power to refuse it. To introduce a blanket ban, that would mean the Secretary of State could never authorise it, runs contrary to the principle of resocialisation which was held to be an important principle for all prisoners in the case Murray v The Netherlands ((2017) 64 EHRR 3).
[1] https://bills.parliament.uk/bills/3443/publications
[2] https://bills.parliament.uk/bills/3443
[3] https://www.gov.uk/government/news/victims-placed-at-heart-of-justice-system-under-radical-shakeup
[4] https://www.victimsupport.org.uk/victim-support-responds-to-the-victims-and-prisoners-bill/
[5] https://www.bbc.co.uk/news/uk-politics-65333734
[6] https://twitter.com/AlexChalkChelt/status/1649459062990405654
[7] https://prisons.org.uk/facts-figures/whole-life-orders-and-tariffs/
[8] https://www.lbc.co.uk/news/dominic-raab-block-parole-prisoners-marrying-levi-bellfield/