Parole Board: Dominic Raab making an “already difficult job close to impossible”

We asked for copies of communications between the Parole Board’s Chair and Chief Executive and the Ministry of Justice that related to the “root and branch” review of parole that the government published earlier this year. All of those documents are available at the foot of this article. What they show is a deep divide between the board and Raab, and a cavalier approach by the justice secretary, pressing ahead regardless and at one stage causing the board to complain that the way he was acting was making its members’ “already difficult job close to impossible”.

The first thing that becomes clear from the documents is that the changes to parole — designed to make it much harder for people to get to open prisons, and to give the justice secretary a veto over the release of individual prisoners — are the personal obsession of Dominic Raab.  We learn from an email dated 30 April 2021 that his predecessor, Robert Buckland, favoured tribunal status for the Parole Board. That would have confirmed the court-like status of the board, and therefore its independence from political interference. But Buckland’s departure in the autumn of 2021 led to a re-write of the root and branch review and a complete reversal in the direction of travel.

Faced with that change in political direction, the board sought to reassure Raab that his concerns about release decisions in high profile cases were misplaced. In a letter of 8 February 2022, the board explained that it almost invariably followed the advice of the department’s professional specialists in such cases. It urged the secretary of state to appoint counsel more frequently, but pointed out that a panel taking decisions that were “swayed by sentiment” rather than focused on future risk would leave the board “wide open to a rationality challenge”. It suggested that if he was still concerned that a panel might ignore all the professional advice it received, there could be an avenue of appeal for the secretary of state to the Court of Appeal.

The board’s advice fell on deaf ears, and the root and branch review was published on 31 March 2022 with a description of a “problem” that the board simply didn’t recognise, and a set of “solutions” that it felt were both wrong in principle and likely to increase the risk to the public. There is a key letter from the board to Raab dated 10 May, responding to the review’s conclusions. It welcomes many aspects of the review. But not all. In particular:

• Having sought legal opinion, the board specifically refutes Raab’s assertion that the board has become less concerned about public protection in response to caselaw on the release test. The letter states “It is simply not correct to state that the board has treated its task as a balancing exercise considering the competing interests of the prisoner and the protection of the public. With respect our legal reading is that the test has not seen a drift away from its original meaning. It remains in the terms set out in your foreword and requires no refinement”.
• The board expresses concern that setting new statutory criteria for release may “impede the ability of panels to take into account all aspects of risk”.
• While more than open to the prospect of more people with a police background becoming board members, the letter describes how any requirement that a panel should have include from a particular background in a particular case may actually increase risk to the public and could be unlawful.
• The board makes clear its view that Article 5 of the European Convention on Human Rights requires decisions on release to lie with a court or court-like body, and it goes on to explain the basic problem in domestic law of anyone being “judge in their own cause”. In other words, the secretary of state cannot be both a party to the panel’s proceedings and then act as the decision maker as well.
• The board states in terms that the proposals to change the criteria under which people can be recommended for a move to open conditions will have the result that “some of the most complex individuals will be released directly from closed conditions into the community, with less certainty on how they might behave and that could increase risk to the public”.
• Unlike the ministry, the board makes an estimate of the likely consequence of the changes on the need for prison places. It suggests 800 additional places a year may be required — equivalent to a new medium-sized prison.

The board also raises a number of practical implementation questions. They all go unanswered and Dominic Raab implements the changes to criteria for open conditions in June. But he doesn’t stop there. He also introduces secondary legislation (which requires no parliamentary debate) to institute the preparation of a “single view” from the secretary of state in some cases. In the same rule change, he forbids report writers and witnesses commissioned by him from making recommendations to the parole panel. None of this was in the root and branch review, and as has become only too obvious, it’s a change that has practical implications that no-one has thought through. It prompts this agonised email of 16 June from the Parole Board to the ministry:

The final email in this depressing sequence (dated 14 July 2022) shows just how desperate the justice secretary has been to make his announcements, regardless of whether they are ready to be implemented. The board points out that inadequate arrangements are being made to support victims who choose to observe parole hearings as a consequence of one of the root and branch review’s recommendations. A desperate haste, driven by political considerations, has trumped even the interests of victims.