Blog: House of Lords declares open season on Raab’s open conditions criteria

The debate was triggered in response to this oral question tabled by the Liberal Democrat Peer Baroness Burt. As Baroness Burt acknowledged in the debate, the answer to this question had in fact already been revealed in the government’s answer to a written question tabled by the former Home Secretary Lord Blunkett, which was published on 27 April. The answer showed that from January to March 2023, the secretary of state considered 90 recommendations by the Parole Board for a prisoner to be moved to open prison. The secretary of state accepted 14 recommendations and rejected 76.

What does this new data tell us?

Adding these figures to those obtained from a previous answer to a written question tabled by Kim Johnson MP, we now have five quarters of data on the impact of the changes. This data is produced in the table below.

On the positive side, the data show that the number of decisions being taken by the Ministry of Justice has returned to a similar level seen before the introduction of the new criteria. This should mean that the significant delays prisoners have been experiencing in obtaining a decision may begin to reduce.

We will submit a Freedom of Information request to find out how long prisoners are waiting to obtain a decision from the Ministry of Justice.

Less positively, the data reveals that the overwhelming majority of Parole Board recommendations for a transfer to open conditions continue to be rejected by the government, with five out of every six recommendations being refused in the latest quarter. This is an improvement on the 97% rejection rate seen in the second quarter of 2022. But it still represents a massive reversal of the trend prior to the introduction of the new criteria, when only one in 10 Parole Board recommendations were rejected.

What justifies such a significant reversal in policy?

It’s a question that clearly exercised many of the peers participating in the House of Lords debate. Baroness Burt asked what is the point of the Parole Board “making referrals if the Secretary of State is not going to listen?” In a similar vein, Lord Blunkett asked why, if the Parole Board was following the criteria set down by the Ministry of Justice in its own decision-making, was the ministry continuing to reject the overwhelming majority of the board’s recommendations?

The minister Lord Bellamy responded that “the Secretary of State’s view is that the Parole Board is not entirely following the change in criteria that was adopted in June 2022, particularly in regard to the essential nature of the move to open conditions to inform future decisions about release. There is indeed a further condition that the ‘transfer to open conditions would not undermine public confidence in the Criminal Justice System’. That is a matter for the Secretary of State.”

Why are cases being rejected?

PRT has previously criticised the vagueness of the new criteria and the lack of transparency in how they are being applied by the ministry. Under the new criteria, the secretary of state (or an official with delegated responsibility) will accept a recommendation from the Parole Board only where:

• the prisoner is assessed as low risk of abscond; and
• 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
• a transfer to open conditions would not undermine public confidence in the Criminal Justice System.

The Parole Board is required to apply the first two criteria in its own decision-making but is not obliged to follow the third, which is determined by the secretary of state. A Freedom of Information request made by PRT uncovered the reasons given by the Ministry of Justice when Parole Board recommendations were rejected for cases between June and November 2022. It showed that nearly two in five cases (38%) were rejected on the grounds of public confidence. These cases are being rejected by the Ministry of Justice on the basis of a criterion that is not specified in any published guidance and over which an individual prisoner has absolutely no control.

Another Freedom of Information request revealed that not a single case had been referred to the secretary of state personally and that each decision had been overseen by one unnamed official in the Ministry of Justice.

We will submit a Freedom of Information request to update this information now that new data are now available.

What impact will these changes have?

Our scrutiny of the changes suggests that we have gone from a system where the majority of decisions were made according to the transparent recommendations of an independent Parole Board; to one where they are decided by an unnamed and unaccountable official according to ill-defined criteria behind closed doors. Despite the minister’s assertions, peers are right to question the legitimacy of a system where the Parole Board is charged with making recommendations according to criteria set by the Ministry of Justice when the overwhelming majority of those recommendations continue to be rejected by the same department.

In the longer term, the changes are likely to have a significant impact on the sentence progression of indeterminate sentenced prisoners, limiting their opportunity to demonstrate reduced risk and thereby increasing the length of time they are likely to spend in preventative detention. The changes also undermine the important role of open prisons in public protection, and the opportunity they provide for indeterminate sentenced prisoners, under carefully controlled conditions, to take up volunteering and employment opportunity in the community and re-establish links with families prior to their release. These are all factors which evidence shows reduce the risk of reoffending.

The former shadow justice minister Baroness Chapman got to the nub of the issue in her question to the minister in the debate: “the principal reason that people are worried about this is because they believe that release straight from closed conditions and high security conditions increases the risk of reoffending and that a period in open conditions is very helpful in reducing that risk. Will the Minister return to the House at a future date to inform us of what has happened as a consequence of the decisions taken by the Secretary of State? Preventing a period in open conditions does not prevent release. All it does is prevent preparation for release.” The minister’s reply that “in modern thinking” open conditions were not the “only route” to progression towards release was thin to say the least.

So what is the real reason for the policy? During the debate, PRT trustee Lord Garnier sought assurances from the minister that politics played no part in the 76 recommendations which were rejected by the ministry. Lord Bellamy replied that “those decisions were all taken on the merits”. Many prisoners will find that hard to believe.

Mark Day
Deputy director