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15 March 2023

Blog: Parole – the Bailey judgement – a key change ruled unlawful

PRT director Peter Dawson has written a blog about the judgement from The High Court published today about the chaotic introduction of legislation and guidance that prevented experts from giving the Parole Board their view on whether a prisoner could safely be released or sent to open conditions.

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