Parole Board (Amendment) Rules 2022

Baroness Prashar Excerpts

Tuesday 18th October 2022 Lords Chamber

Moved by

[Baroness Prashar]

That this House regrets that the Parole Board (Amendment) Rules 2022 introduce a “single view” procedure which (1) will prevent forensic psychologists, prison and probation officers, and other specialists working for or commissioned by His Majesty’s Prison and Probation Service from making recommendations to the Parole Board on the release or transfer of prisoners to open conditions, (2) has potentially profound implications for the sentence progression of individuals subject to Parole Board oversight, and (3) has been made by the made negative procedure, with no external consultation or parliamentary debate.

Relevant document: 10th Report from the Secondary Legislation Scrutiny Committee

[Baroness Prashar (CB)]

My Lords, I declare my interest as a former executive chairman of the Parole Board of England and Wales from 1997 to 2000. This regret Motion relates to a specific part of the statutory instrument which amends Part B of Schedule 1 to the Parole Board Rules 2019 to allow the Secretary of State to give a single view on suitability for release or transfer in certain cases. The introduction of the “single view” procedure forms part of a wider series of changes to the parole system introduced by the former Justice Secretary and Lord Chancellor, Dominic Raab.

The first ground for regret is that the specific change implemented by the statutory instrument—preventing forensic psychologists, prison and probation officers and other specialists working for or commissioned by His Majesty’s Prison and Probation Service making recommendations to the Parole Board—was introduced without consultation. This meant that those with experience of the parole system had no input into the new statutory instrument. Such radical changes to how the parole system works should have been implemented only after those who work in it were consulted. The manner in which these changes were introduced, with no consultation even with the Parole Board, undermines confidence in the professionals and the system.

The second ground for regret is that the Government have simply failed to establish that there is a problem which justifies the package of changes made. In other words, there is no evidence of the problem the changes purport to solve. These changes may well result in increased risk to the public, as the Parole Board is denied the benefit of expert opinion and the opportunity to see how prisoners respond in conditions of lower security. As we know, having the benefit of expert opinion and proper risk assessment is important to ensure that prisoners are prepared for reintegration into society.

The reason for introducing the “single view” procedure was to respond to recent cases in which expert witnesses employed by the Secretary of State took a different view from that of the Minister. Parole panels hear different opinions and, after consideration, reach their own conclusions. The Secretary of State may disagree and can now insist on a reconsideration. This provides an adequate remedy in such situations. Therefore, excluding the input from expert witnesses appears extreme and ill judged.

The department expects the “single view” procedure to operate rarely, in perhaps 150 cases out of over 3,000 annually, but the rule changes go much further. They prevent witnesses employed or commissioned by the Secretary of State providing a recommendation to any parole hearing either in writing or orally. This represents a major interference with the Parole Board’s ability to operate independently and undercuts the independence of a court-like body. It also undermines the professional standing of witnesses, for whom risk assessment is a core skill.

The “single view” procedure is currently subject to an ongoing judicial review in the case of Bailey v Secretary of State for Justice. In this case, the court has provided interim relief solely to the plaintiff on the basis that the parole panel should be free to ask any questions relevant to its task and expect the witness to answer them. This includes asking an expert witness for their recommendation. This judicial review is an important test of the “single view” procedure.

My third regret is the change in the criteria by which prisoners may move to open prison. These changes were expressly opposed by the Parole Board and the National Association of Probation Officers. As we know, the period spent in open conditions is a practical aid to resettlement in the community, and considered recommendations by the Parole Board, albeit subject to the Secretary of State’s approval, are crucial for public protection. These directions had three tests: that the prisoner is assessed as having a low risk of absconding; that a period in open conditions is considered essential to inform future decisions about release and to prepare for possible release on licence into the community; and that the transfer to open conditions would not undermine public confidence in the criminal justice system.

The second test is controversial as it sets the bar for open release very high and excludes prisoners who have progressed well and for whom a move might be considered beneficial, rather than essential. It prevents the decision-makers from considering whether a move to open prison might reduce risk and improve the prospect of safe release.

The third test—that the transfer to open prison would not undermine public confidence—is completely open-ended, and no guidance has been provided as to the circumstances in which it might apply. Now, only the Secretary of State considers the public confidence criteria, a task which essentially falls on officials. This has led to a dramatic reversal in the proportion of prisoners being approved for transfer to open conditions.

The Parole Board has estimated that the consequent delays may add 800 a year to the number requiring prison places. The Prison Reform Trust has recently received data from the Parole Board showing that, prior to these changes, 94% of recommendations for open conditions made by the Parole Board were accepted; since the change in criteria, and despite a falling number of recommendations, only 87% have been accepted.

Since the Worboys case in 2018, the parole system and the Parole Board have been subject to multiple reviews; some have been independent of the ministry, but the root-and-branch review prompted by the 2019 Conservative manifesto was conducted by unnamed officials within the department. Only aspects limited in scope were subject to public consultation, but change introduced by this statutory instrument formed no part of that review, and the Parole Board was given almost no notice of it, still less consulted.

The Parole Board has an enviable record; in recent cases only one in 200 releases resulted in a person being charged with a further serious offence. Every time a prisoner absconds, or a person released on parole commits a serious further offense, public concern is wholly understandable, but it is important that the response to these cases is proportionate. The Parole Board has co-operated in an exemplary way, with some radical changes in its operation. Its willingness to provide the public with reasons for decisions in individual cases, its adoption of a reconsideration process, and its skill in undertaking the complex challenge of holding some hearings in public all show that the Parole Board is open to new ideas. But some of what has been forced upon it in recent months has clearly been ill-thought through, and I hope that the Minister might now be open to a conversation on how these aspects of reform might be adjusted.

To conclude, I ask the Minister why the Secretary of State decided not to consult before introducing the statutory instrument, and if he will do so now. Given the dramatic reversal in the proportion of prisoners now being approved for transfer to open conditions, what is the Minister’s assessment of the probable delay before those prisoners may now be safely released from prison?

On the “single view” procedure, what is the Minister’s assessment of the impact of the new procedures on public protection, particularly in cases where decisions on release or transfer are complex, and where the Parole Board will not now have the benefit of clear recommendations from officials? I beg to move.

--- Later in debate ---

I am not in a position to answer all the questions that the noble Lord, Lord Ponsonby of Shulbrede, was kind enough to ask; I think there were six and maybe several sub-questions within the six. I will have a look at the transcript, if I may, and answer what I can in due course as with other questions asked by noble Lords this evening. There was no consultation in this case. This is within the legislation; that is the procedure that is normally adopted for amendments to these rules. I am perfectly happy on behalf of the Government to say that we will keep this issue under review and see how it works out. There is a case in the High Court, which I cannot comment on, which may affect the outcome. The essential point is that these rule changes in no way undervalue the importance of the reports or the assessments that will continue to be provided by prison and probation staff and psychologists. Those will remain vital. In closing, I pay tribute to all the staff in the service who provide those reports and reassure them that their role will continue to be vital, as heretofore.

[Baroness Prashar (CB)]

My Lords, I know that time is rushing on and the Front Bench is keen to close the debate. I first want to thank all the colleagues who have contributed to this debate and say that I respect the alternative views expressed by the Minister and the noble Baroness, Lady Newlove.

I found the Minister’s response rather confusing. He was trying to justify the unjustifiable. If I wanted to refute every point, it would take me about half an hour, which I do not have. This really highlights why it is important to have a consultation—a proper debate—so we are not eroding the fundamental principles on which the Parole Board actually operates. At the outset he said it was an arm’s-length body and should be respected as such. Also, if may say so, experts can give their opinion but from my experience the Parole Board hears different, conflicting views and it makes up its own mind. It does a risk assessment, which it is good at. Its record shows that.

I ask the Minister, having listened to this debate and felt the unease round the House, whether the Government will be willing to meet to see how some of these things are going to be discussed. We need clarity about what actually is intended. I am leaving this debate more confused than enlightened. But I thank the Minister for the response and everybody else for their contributions. I beg leave to withdraw the Motion.

Motion withdrawn.