QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
|- and -
|SECRETARY OF STATE FOR JUSTICE
Melanie Cumberland (instructed by the Government Legal Department) for the Defendant
Hearing date: 29 June 2017
Crown Copyright ©
Mrs Justice Lang:
The issue in the claim for judicial review
"Power to change test for release on licence of certain prisoners
(1) The Secretary of State may by order provide that, following a referral by the Secretary of State of the case of a discretionary release prisoner, the Parole Board—
(a) must direct the prisoner's release if it is satisfied that conditions specified in the order are met, or
(b) must do so unless it is satisfied that conditions specified in the order are met.
(2) "Discretionary release prisoner" means—
(a) an IPP prisoner,
(4) An order under this section is to be made by statutory instrument.
(5) A statutory instrument containing an order under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
"IPP prisoner" means a prisoner who is serving one or more of the following sentences and is not serving any other life sentence—
(a) a sentence of imprisonment for public protection or detention in a young offender institution for public protection under section 225 of the Criminal Justice Act 2003 (including one imposed as a result of section 219 of the Armed Forces Act 2006);
(b) a sentence of detention for public protection under section 226 of the Criminal Justice Act 2003 (including one imposed as a result of section 221 of the Armed Forces Act 2006);"life sentence" has the same meaning as in section 34 of the Crime (Sentences) Act 1997.
Grounds of challenge
i) The Parliamentary statements made by the then Secretary of State in Parliament (Kenneth Clarke QC MP), to the effect that the Government would consult as to the use of the power under section 128 LASPO 2012, gave rise to a legitimate expectation that consultation would take place.
ii) Failure to consult led to conspicuous unfairness, giving rise to a common law duty to consult.
iii) Failure to consult was inconsistent or incompatible with the legislative purpose. Parliament left the relaxation of the release test to the discretion of the Defendant, instead of imposing a mandatory duty upon him, or making some other legislative provision for existing IPP prisoners, because of the Defendant's assurances that he would consult as to the exercise of his power under section 128 LASPO 2012.
"(1) Declaratory relief reflecting the Court's conclusions;
(2) a quashing order of any decision already taken to take no action, and/or a mandatory order that consideration and consultation be given to the power of s.128 LASPO within a reasonable time. The Claimant invites an order that the [Secretary of State] shall forthwith review the test in s.128 LASPO 2012 and within 12 weeks (or such other period as the Court shall think fit) put forward to the Houses of Parliament proposals for affirmation; and
(3) adjourning final relief to enable the Defendant to, within a reasonable time, supply to the Court its proposals identifying what steps are to be taken. Thereafter the Court to determine whether to make any further order."
"(1) declaratory relief;
(2) a quashing order of any decision already taken to take no action in relation to consultation and/or exercise of s.128 LASPO 2012; and/or a mandatory order that consideration and consultation be given to the power in section 128 LASPO 2012 within a reasonable specified time; and
(3) (if appropriate) adjourning the question of any such further or other relief as may be appropriate to a subsequent time or giving liberty to apply for further relief."
Proceedings in Parliament and the Bill of Rights 1689
Parliamentary privilege, Article 9 BR 1689 and the separation of powers
"That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament."
"Is it only the freedom of debates etc. that must not be questioned? Or does the restriction apply generally, so that it is forbidden to speculate as to the meaning of a speech in Parliament or the intention underlying it?
Authority up to the decision of the House of Lords in Pepper v Hart shows the wider proposition to be the correct one. Blackstone said 'whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere'. Lord Denman said 'whatever is done within the walls of either assembly must pass without question in any other place' while Patterson J said 'whatever is done in either House should not be liable to examination elsewhere'. Lord Coleridge CJ said 'What is said or done within the walls of Parliament cannot be inquired into in a court of law'.
In 1958 Viscount Simonds said 'there was no right at any time to impeach or question in a court or place out of Parliament a speech, debate or proceeding in Parliament'. In 1972 Browne J said 'what is said or done in the House in the course of proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House'. In 1974 Lord Simon of Glaisdale said 'I have no doubt that that the respondent . . . is seeking to impeach proceedings in Parliament, and that the issues raised . . . cannot be tried without questioning proceedings in Parliament'. In 1983 Dunn LJ said that where Hansard was cited in a judicial review case:
'… the court would have to do more than take note of the fact that a certain statement was made in the House on a certain date. It would have to consider the statement or statements with a view to determining what was the true meaning of them, and what were the proper inferences to be drawn from them. This, in my judgment, would be contrary to article 9 of the Bill of Rights.'"
"In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges: Burdett v Abbot (1811) 14 East 1; Stockdale v Hansard (1839) 9 Ad. & E1. 1; Bradlaugh v Gossett (1884) 12 QBD 271; British Railways Board v Pickin  AC 765; Pepper v Hart  AC 593. As Blackstone said in his Commentaries on the Laws of England, 17th ed. (1830), vol 1, p.163:
"the whole of the law and custom of Parliament has its origin from this one maxim, 'that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.""
"….Hunt J. based himself on a narrow construction of article 9, derived from the historical context in which it was originally enacted. He correctly identified the mischief sought to be remedied in 1689 as being, inter alia, the assertion by the King's Courts of a right to hold a Member of Parliament criminally or legally liable for what he had done or said in Parliament. From this he deduced the principle that article 9 only applies to cases in which a court is being asked to expose the maker of the statement to legal liability for what he has said in Parliament. This view discounts the basic concept underlying article 9, viz. the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect."
"46. These authorities demonstrate that the law of parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the separation of powers, which in our constitution is restricted to the judicial function of government, and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature…."
"such a promise would not in our view give rise to a legitimate expectation enforceable in public law, such that the courts could intervene to prevent the expectation being defeated by a change of mind concerning the holding of a referendum. The subject-matter, nature and context of a promise of this kind place it in the realm of politics, not of the court, and the question whether the government should be held to such a promise is a political rather than a legal matter. In particular, in this case the decision on the holding of a referendum lay with Parliament and it was for Parliament to decide whether the government should be held to any promise previously made."
"9 The ground rules are not controversial. The courts cannot question the legitimacy of an Act of Parliament or the means by which its enactment was procured: see British Railways Board v Pickin  AC 765, and as to proceedings in Parliament, Article 9 of the Bill of Rights). Nor may they require a bill to be laid before Parliament: see Wheeler v Office of the Prime Minister and others  EWHC 1409 Admin , paragraph 49:
"In our judgment, it is clear that the introduction of a Bill into Parliament forms part of the proceedings within Parliament. It is governed by the Standing Orders of the House of Commons (see, in particular, standing order 57(1)). It is done by a Member of Parliament in his capacity as such, not in any capacity he may have as a Secretary of State or other member of the government. Prebble (cited above) supports the view that the introduction of legislation into Parliament forms part the legislative process protected by Parliamentary privilege. To order the defendants to introduce a Bill into Parliament would therefore be to order them to do an act within Parliament in their capacity as Members of Parliament and would plainly be to trespass impermissibly on the province of Parliament."
10 The converse must also be true. The courts cannot forbid a Member of Parliament from introducing a Bill. To do so would be just as much an interference with Parliamentary proceedings as to require the introduction of a Bill.
11 The Unison challenge is not so blunt, but if successful it would require the Secretary of State to defer or delay introducing the Health Bill until he had consulted on its principle. Any court ordered prohibition would be conditional, but it would nevertheless be a prohibition. I consider that it would go against the restraint exercised by the judiciary in relation to Parliamentary functions, for the reasons explained by Sir John Donaldson MR in Her Majesty's Treasury v Smedley  QB 657 at 666C to E. For that reason alone, I would decline to make a prohibitory or mandatory order which in any way inhibited the Secretary of State from introducing legislation to Parliament at a time and of a nature of his choosing."
"49 ……Nor can the point be met by the grant of a declaration, as sought by the claimant, instead of a mandatory order. A declaration tailored to give effect to the claimant's case, would necessarily involve some indication by the court that the defendants were under a public law duty to introduce a bill into Parliament to provide for a referendum. The practical effect of a declaration would be the same as a mandatory order even if, in accordance with long-standing convention, it relied on the executive to respect and give effect to the decision of the court without the need for compulsion."
Reference to Hansard
"Thus the reasons put forward for the present rule are first, that it preserves the constitutional proprieties, leaving Parliament to legislate in words and the courts (not Parliamentary speakers), to construe the meaning of the words finally enacted; second, the practical difficult of the expense of researching Parliamentary material which would arise if the material could be looked at; third, the need for the citizen to have access to a known defined text which regulates his legal rights; fourth, the improbability of finding helpful guidance from Hansard."
"…[Pepper v Hart] turned on a narrow point, the meaning of "the cost of a benefit" in section 63(2) of the Finance Act 1976. The minister gave what was no doubt taken to be a reliable statement on the meaning of that expression. Here the issue turns not on the meaning of a statutory expression but on the scope of a statutory power. In this context a minister might describe the circumstances in which the government contemplated use of a power, and might be pressed about exercise of the power in other situations which might arise. No doubt the minister would seek to give helpful answers. But it is most unlikely that he would seek to define the legal effect of the draftsman's language, or to predict all the circumstances in which the power might be used, or to bind any successor administration. Only if a minister were, improbably, to give a categorical assurance that a power would not be used in a given situation, such that Parliament could be taken to have legislated on that basis, does it seem to me that a parliamentary statement on the scope of a power would be properly admissible."
"Then there is the question whether it is proper to examine the statements made by ministers during the passage of the 1975 Act through Parliament as reported in Hansard. Here again I think that it is, at best, highly doubtful whether in this case this exercise is legitimate. My own view is that it is not. It is important to appreciate the purpose for which your Lordships have been invited to undertake the exercise. It is not to construe words used in the legislation which are said to be ambiguous or obscure or which, having regard to their ordinary meaning, would lead to absurdity: see Pepper v. Hart  AC 593, 640C per Lord Browne-Wilkinson. Its purpose is to identify the reasons of policy for which the discretionary power to make orders restricting or preventing increases in rents was sought to be obtained from Parliament by the executive. It is not the language used by the draftsman that is in issue here, but what was in the mind of the minister.
In my opinion there are sound reasons of principle for rejecting the argument that statements made by ministers in Parliament may be used to identify the policy and objects of an enactment for the purpose of identifying the scope of a discretionary power which Parliament has conferred on the executive. As Lord Reid made clear in Padfield v. Minister of Agriculture, Fisheries and Food  AC 997, 1030B–C, the policy and objects of the Act must be determined by construing the Act. The underlying rule is that it is the intention of Parliament that defines the policy and objects of the Act, not the purpose or intention of the executive. The law-making function belongs to Parliament, not to the executive.
The limited exception to the general rule that resort to Hansard is inadmissible which was recognised in Pepper v. Hart  AC 593 is available to prevent the executive seeking to place a meaning on words used in legislation which is different from that which ministers attributed to those words when promoting the legislation in Parliament. That was the situation which appears to have arisen in that case where, as Lord Bridge of Harwich observed at p. 616G–H, the argument which was before the House on the first hearing of the appeal raised an acute question as to whether it could be right to give effect to taxing legislation which was capable of two possible interpretations in such a way as to impose a tax which the Financial Secretary to the Treasury had assured the House of Commons it was not intended to impose.
No such issue has been raised in this case. As I have already sought to explain, the passages in Hansard to which your Lordships have been referred deal not with the meaning of words or possible interpretations of expressions that were or might be ambiguous but with statements made by ministers as to matters of policy. I consider that to permit resort to Hansard as a source for material of that kind to define the scope of a discretionary power conferred by Parliament would be to extend the decision in Pepper v. Hart well beyond its proper limits. I respectfully agree with my noble and learned friend Lord Bingham of Cornhill, for all the reasons that he has given, that it is important that the conditions laid down by the House in that case should be strictly insisted upon. I also agree with him that, if a minister were to give a categorical assurance to Parliament that a discretionary power would not ever be used in a given set of circumstances, that statement would be admissible against the executive in order to control its exercise. But I also think that it is important to stress that as matter of principle the decision in Pepper v. Hart should be confined to cases where the court is concerned with the meaning that is to be given to the words used in legislation by Parliament. It would be contrary to fundamental considerations of constitutional principle to allow it to be used to enable reliance to be placed on statements made in debate by ministers about matters of policy which have not been reproduced in the enactment. It is the words used by Parliament, not words used by ministers, that define the scope within which the powers conferred by the legislature may be exercised."
"97 The Court of Appeal made extensive use of materials from Hansard. If it were necessary to do so, I would be inclined to hold that the time has come to rule, as Lord Hope of Craighead apparently did in R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd  2 AC 349, that Pepper v Hart  AC 593 should be confined to the situation which was before the House in Pepper v Hart. That would leave unaffected the use of Hansard material to identify the mischief at which legislation was directed and its objective setting. But trying to discover the intentions of the Government from ministerial statements in Parliament is constitutionally unacceptable. That was the submission made by Sir Sydney. If it were necessary to rule on the matter I would be inclined to accept the submission.
98 I am content, however, in this case to judge the use made by the Court of Appeal of Hansard materials by the strict criteria of Pepper v Hart : R (Jackson) v Attorney General  QB 579, paras 73-87. Sir Sydney subjected the reliance on references in Hansard to detailed criticism. Having taken into account the contrary submissions of the Attorney General my view is that the present case does not satisfy the requirements of Pepper v Hart. In the first place the legislation is not obscure or ambiguous. No member of the House has come to a different conclusion on this point. It follows that the principle in Pepper v Hart is inapplicable. In any event, the references to Hansard contain no important indications on the very point in issue. Alternatively, if it is right to admit such material, I would hold that its weight is minimal and cannot possibly prevail over the words used by the parliamentary text."
i) the use by courts of ministerial/promoter's statements as part of the background to the legislation, when construing an enactment pursuant to Pepper v Hart;
ii) "the established practice by which courts, when adjudicating upon an application for judicial review of a ministerial decision, may have regard to a ministerial statement made in Parliament. The decision of your Lordships' House in R v Secretary of State for the Home Department, ex parte Brind  1 AC 699 is an example of this";
iii) Evaluating the compatibility of primary legislation with rights under the ECHR, pursuant to the Human Rights Act 1998.
"49. ….There is no reason why the courts should not receive evidence of the proceedings of Parliament when they are simply relevant historical facts or events: no "questioning" arises in such a case. Similarly it is of the essence of the judicial function that the courts should determine issues of law arising from legislation and delegated legislation. Thus, there can be no suggestion of a breach of parliamentary privilege if the courts decide that legislation is incompatible with the [ECHR] …... The courts may consider whether delegated legislation is in accordance with statutory authority, or whether it is otherwise unlawful, irrespective of the views to that effect expressed by ministers or others in Parliament: R (Asif Javed) v Secretary of State for the Home Department  QB 129 para 33…"
"The rival contentions in this case about the Hansard material underlines the danger of resorting to it except when absolutely required under Pepper v Hart  AC 593. Not only must the context of the remarks of the minister or promoting parliamentarian be fully appreciated, in this case, the need to persuade an opposition member on the standing committee to withdraw amendments on the basis that what she proposes is already covered by the existing clauses of the Bill. There are also the difficulties of interpreting what the minister or promoting parliamentarian means which can result, as in this case, in the focus moving from understanding the language of the legislation as enacted to attaching a meaning to the language of debate. Thirdly, legislation is the product of a process and at the end of it a democratic assembly as a whole enacts it. Thus what is said at one point in the process need not necessarily coincide with the parliamentary intention at the end (if ever that could be divined)."
Ground 1: Legislative purpose
Ground 2: Consultation
Ground 3: Unlawful failure to exercise powers under section 128 LASPO 2012
"10. The relevant extract from this more recent advice to ministers, on the option of amending the release test, is reproduced below:
Option 3 Retain discretionary release for IPPs, but change the release date
The current release test used by the Parole Board for IPP prisoners is set out in statute – the Board must consider whether it is "satisfied that it is no longer necessary for the protection of the public" that the prisoner should remain detained. The Secretary of State has a power to change this test by secondary legislation (affirmative procedure).
However, finding a new release test has proved difficult:
- if the link with risk to the public is retained then, in the opinion of the Parole Board, and our lawyers, Parole Board decisions are unlikely to change;
- if the test does not have that link to risk it can in theory be drafted to force up the release rate, but it raises the question of what the Parole Board will be considering (and why they are needed for the release process) as assessment of risk is the Board's function;
- neither we nor the Parole Board consider that reversing the burden of proof so that the Parole Board would have to determine why the prisoner could not be released, as has been suggested by some campaigners, would have any significant effect; and
- in response to the inevitable serious further offending, it is highly likely that the Secretary of State would be criticised for lowering the test for release.
For these reasons, we would not recommend pursuing this option.
11. The outcome of these submissions has been that ministers have consistently decided not to pursue the option of invoking the section 128 power and instead pursue the measures which now form part of the joint NOMS / Parole Board action plan on IPPs – explained in more detail below.
The measures taken by the Secretary of State to enable IPP prisoners to make progress through the prison and parole system and reduce their level of risk
12. The Secretary of State and the Parole Board have made significant efforts to enable IPP prisoners to make progress through the prison estate; to reduce their level of risk; to tackle delays in the parole system; and to obtain release. These measures have been developed and have borne fruit. They have had the effect of mitigating many of the concerns expressed in relation to the IPP regime, and in the parole system more broadly, and rendering the amendment to the release test unnecessary. These measures, and impacts, are described below:
(a) The Parole Board has increased efficiency and its capacity to hold more oral hearings through a new operating model and improved case management system. In 2014, the Ministry of Justice allocated an additional £1.2m funding to help the Board cope with the increase in demand for oral hearings following the Osborn Supreme Court judgment in 2013.
(b) Since then, IPP prisoners have continued to be released in increasing numbers. The latest statistics show that in 2015, there were 512 first releases of IPP prisoners (compared to 419 in 2014) which is the highest number of annual releases so far. In 2015/16, 38% of IPP oral hearings completed by the Parole Board resulted in a release decision. This compares with 28% in 2011/12. This includes both unreleased and recalled IPPs. At the end of June 2016 the population of IPP prisoners had been reduced to 3,998, from 4,614 at the end of June 2015.
(c) The number of outstanding cases for the Parole Board to hear has reduced 33.8% from 3163 (in January 2015) to 2093 (in September 2016). This refers to all cases which require a Parole Board hearing not just IPP cases.
(d) In parallel, the National Offender Management Service has been working for some years to improve the management and progression of prisoners serving IPP sentences. A range of work to improve IPP prisoners' sentence progression continues to be taken forward and streamlined and more flexible processes for assessing, allocating and managing IPP offenders have been introduced. Resources have also been redirected toward early assessment of needs and prioritisation of places on offending behaviour programmes; IPP prisoners continue to be included amongst priority groups to receive interventions. NOMS has already made significant improvements to increase the supply of rehabilitative interventions for IPP prisoners and has invested in interventions where there is a strong evidence base that they will have a positive impact on offenders' risks.
(e) All IPP prisoners have a sentence plan, but central case reviews of IPP prisoners are being undertaken by a team of National Offender Management Service psychologists and lead policy officials. NOMS has identified a cohort of post tariff IPP prisoners with violent offences who are not making progress despite two or more parole reviews. The central team is engaged in an ongoing process of reviewing these cases and identifying actions for offender managers to take with a view to re-engaging offenders and achieving progression.
(f) This work has helped to derive clear themes as to why these individuals were consistently failing to progress, relating to: hopelessness, lack of engagement, low motivation, personality disorder and mental health issues, and instability/problematic prison behaviour, in particular. The central team is now reviewing those IPP prisoners who have failed to progress following two post tariff parole reviews where the index offence is of a sexual nature.
(g) The Secretary of State is committed to delivering a parole system in which prisoners have timely hearings and has been working closely with the Parole Board to deliver improvements and efficiencies to tackle delays and reduce the backlog.
(h) The Parole Board Rules 2016 (a revision of the previous Rules), which commenced on 22 November 2016 now allows parole panels to release IPP prisoners after consideration of the papers - without progressing to an oral hearing - if they consider that the evidence warrants this approach; this allows for a release decision to be taken much quicker in appropriate cases.
13. In providing ministers with advice on the measures that have been taken, and evidence on the impact these have had on IPP progression and releases, it seems apparent that the current "public protection" release test applied by the Parole Board has not proved to be an impediment to IPPs securing their release in increasing numbers. For this reason, despite successive ministers considering it carefully as an option, there has been no decision taken to invoke the section 128 power."
Ground 4: Section 149 Equality Act 2010
"What is required is that he address possible impacts, assessing whether there is a disadvantage, how significant it is, and what steps might be taken to mitigate it. In the context of advancing quality of opportunity – one aspect of the duty – that means taking the opportunity to see whether more might be done for women, having regard to their particular circumstances. Nothing even approaching this has been done."
This part of Cranston J.'s judgment has not been appealed.
Ground 5: Article 3 ECHR
"108…a life sentence does not become irreducible by the mere fact that in practice it may be served in full. No issue arises under art.3 if a life sentence is de jure and de factor reducible. In this respect, the Court would emphasise that no art. 3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society. This is because states have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender's continued detention were necessary for the protection of the public."
Note 1 William Blackstone, Commentaries on the Laws of England (17th edn, 1830) i 163. Popplewell J said that the origin of this ‘seems to have been Coke’: Rost v Edwards  2 QB 460 at 473. [Back] Note 8 Bennion (at p.604) traces it back to Millar v Taylor (1769) 4 Burr 2303, per Wills J. at 2332. [Back]
Note 1 William Blackstone, Commentaries on the Laws of England (17th edn, 1830) i 163. Popplewell J said that the origin of this ‘seems to have been Coke’: Rost v Edwards  2 QB 460 at 473. [Back]
Note 8 Bennion (at p.604) traces it back to Millar v Taylor (1769) 4 Burr 2303, per Wills J. at 2332. [Back]