Raab's attempted tinkering with the Parole Board is a very serious business and the legal world is quite rightly making much of it. This Twitter thread by Andrew Sperling succinctly explains the background:-
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.
Yesterday'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")
Yesterday'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
--oo00oo--
The Prison Reform Trust have had a big hand in challenging Raab and published this yesterday:-
The High Court has today published a judgement about the chaotic introduction of legislation and guidance that prevented the Secretary of State’s experts from giving the parole board their view on whether a prisoner could safely be released or sent to open conditions. It could not be much clearer about the fundamental mistakes Dominic Raab committed in pushing it through.
The brief history is that, following the embarrassment of cases where he had personally disagreed with a parole board decision in a high profile case, but was confronted with the fact that his own experts had agreed with the board, Dominic Raab decided to ban those experts from giving recommendations in all cases. This went much further than a proposal made as part of the “root and branch review” of parole published in March last year, which would have required a “single view” prepared by the Secretary of State in advance of hearings about the most high profile cases – expected to number about 150 a year. The change was given effect by an amendment to the secondary legislation that governs parole processes and in guidance to HMPPS staff issued in July 2022 and then amended in October 22.
Following a judicial review on behalf of two prisoners affected by this change, the High Court has concluded that both the secondary legislation and both sets of guidance are unlawful. This is what the court says:
“There was no legal basis for these instructions, which would induce report writers to breach their legal obligations.”The court has even invited further submissions on the question of whether the Secretary of State has required his staff to act in a way which is in contempt of court.
At the time this was all happening last summer, it was obvious that officials were having to cobble a policy together at breakneck speed, with no consultation and with only a hazy idea of what the justification for such a dramatic change might be. As a result of a Freedom of Information request from PRT, the private exasperation of the unconsulted Parole Board became public, and is quoted in the judgement. Officials were reduced to producing a “script” for staff appearing at hearings which would not have looked out of place in an episode of “Yes, Minister”, as it tried to navigate through the challenge of sparing the Justice Secretary’s blushes while meeting the legal and professional obligations of a witness to a judicial proceeding.
The full text of the judgement includes a fascinating and rarely seen glimpse of what was happening in the corridors of the ministry during the chaotic run-up to the new rules being introduced in June 2022. Extracts of minutes of meetings between Dominic Raab and the senior officials responsible show what was actually driving the change in policy. It bore little relation to the submissions made to the court at this judicial review. As the lead official for the policy put it:
“This would fix(a) major presentational issue”
This was never about better decision making, or even public protection, but about political embarrassment.
But on another central issue those meetings also reveal the private opinion of the Justice Secretary on a very central issue. The judgement repeatedly confirms that the Parole Board has a judicial, and therefore scrupulously independent function:
“It is … well established that, when exercising powers in relation to the Board, the Secretary of State must not to do anything that undermines or would be perceived as undermining the independence of the Board or that encroaches upon or interferes with the exercise by the Board of its judicial responsibilities.”And that is because:
“A review of …. domestic (legal) authority demonstrates that the applicable principles first articulated in Strasbourg march in step with the doctrine of the separation of powers, which in this context is reflected in 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.”That is both clear and, for most people, uncontroversial. But this phrase appears in a note of a meeting attended by Dominic Raab (the Deputy Prime Minister, or “DPM”), his Permanent Secretary and the lead policy official:
“Outlined that he (DPM) believes the Parole Board is not judicial in its function but is a fact finding process”
It really couldn’t be any clearer that the DPM – Dominic Raab – is choosing to ignore what the law clearly provides.
This judgement really matters. As the court states, the Secretary of State’s actions “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 is not just poor policy making and poor administration, it’s an undermining of a process designed to treat prisoners fairly and keep the public safe.
But it matters also for what it shows about the presentational motivation behind the government’s approach to the parole process, and for the Justice Secretary’s fundamental refusal to accept that, in the absence of explicit statutory authority to the contrary, the liberty of the individual should be determined by a court, not by him.
This is all potentially relevant to legal challenges to the current refusal to send almost all indeterminate sentence prisoners to open prisons. But it is also relevant to the promised legislation which may give the Secretary of State the final say in decisions to release someone on parole. The rule change which the court has declared unlawful in this case was not even debated in parliament before it came into effect. It’s crucial that both MPs and Peers – the legislature – now do their job of restraining this over-mighty executive.
Peter Dawson
Director
Rabbs recatogorisation of HMP Aylesbury will also be problematic for the parole board.
ReplyDeleteThat decision has overnight changed the category of 400 inmates from B to C effectively removing a progressive step from the equation.
It may also have serious consequences for prisoners completing offending behaviour work.
Cat B – Prisoners for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult.
Cat C – Prisoners who cannot be trusted in open conditions but who have neither the resources nor the will to make a determined escape attempt.
Open prison is the only natural progression for a Cat C prisoner prior to release.
When the parole board decide not to release but recommends progression what then?
'Getafix
"What then?" They don't give a crap. If you consider their utter contempt for staff, then they're truly not remotely bothered about the impact upon the lives of those they prefer to keep locked up for longer in any event.
DeleteYesterday they unveiled a scheme to make it impossible for people not to refuse job offers, regardless of how inappropriate, BUT they gave a tax break & opportunity to build a massive nest egg to the wealthiest. In reality this will mean the highest paid (bankers, consultants, etc) can squirrel away even more of their tax-relief bonuses faster & retire even earlier, while the rest of us toil away in dysfunctional organisations at tasks which make us ill, for which we're paid peanuts & held accountable for every failure management choose to dump in our laps.
Same old same old.
Surely our great Probation leaders knew what our legal obligation to the Parole Board was? Did they advise the S of S that he could not instruct us to ignore our legal obligations ( referred to in the judgement) ? Surely someone Senior knew this?
ReplyDeleteDoes this mean anyone denied professional guidance at parole hearings, by means of the COM not being able to make recommendations, can sue the Government?
ReplyDeleteI
Via email:-
ReplyDelete"Dominic Raab should resign (many times over) AND
Senior Probation Managers and Senior Civil Servants should hide their heads in shame for repeatedly failing to stand up to Raab."
… as opposed to failing to stand up to Rees, Barton, Gove, Grayling? Get used to it, they never “stand up” for anyone but themselves.
DeleteI quite liked not having to make recommendations.
ReplyDeleteI don’t care about all that professional responsibility malarkey. Nobody respects poorly paid and overworked probation officers as it is.
I hope Raab appeals and wins.
Anon 18:17 I find this astonishing and sincerely hope it's not a widely-held view.
DeleteI think the feeling could be mixed. Bear in mind CRC POs were effectively removed from parole processes for many years. There are many that have never completed parole report or hearings.
DeleteWith really high caseloads anything that means less is welcomed. No recommendations can mean easier reports and quicker oral hearings. The threat of SFO-blame is lesser if we didn’t recommended in the first place.
On the other hand being allowed to make recommendations means we‘re not restricted in helping those we want to be released. Making recommendations in reports and at hearings is so much more meaningful. I’d like to say we’re paid to be professionals too but probation pay is crap.
Overall, I really don’t care either way.
I detect the signature contrarianist style of a blog troll, Jim.
DeleteA troll because they have a different perspective. Value diversity fool
DeleteI like the idea of not having to make recommendations. It makes the job easier. I hope Raab wins.
ReplyDeleteThat attitude belongs on the checkout at asda and national minimum wage.
DeleteAnyone who holds that opinion need turning out. Shouldn't be in the job.
What’s ASDA got to do with anything? Jim, that’s below the belt by 20.24. Boot them out the blog
DeleteSo now not only are there disparaging remarks about people who work for minimum wage in Asda, but also anyone with an alternative view should not be permitted to comment. The commentary on this blog has lost its way and is full of toxicity.
DeleteIsn't stopping something because you don't like it called cancel culture?
DeleteFrom Twitter:-
ReplyDelete"1 month left on probation! After 2 and a half years, I've seen them face to face less than a handful of times, help given.. 0! Total tick box exercise. Can see why people who may need guidance, support, options etc end up reoffending as it’s the easier option (not the right option) for anyone teetering or struggling after prison. I roll my eyes when I see probation headlines in the press and the solution, just throw more money at it, at what? Also so quick to send people back to prison unfortunately rather than solutions."