Neutral Citation Number: [2017] EWHC 1948 (Admin)
Case No: CO/3419/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28 July 2017

Before :

MRS JUSTICE LANG DBE
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Between :

	THE QUEEN
on the application of

SCOTT HENLEY-SMITH	

Claimant	
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	SECRETARY OF STATE FOR JUSTICE	Defendant	

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Philip Rule (instructed by Irvine Thanvi Natas Solicitors) for the Claimant
Melanie Cumberland (instructed by the Government Legal Department) for the Defendant

Hearing date: 29 June 2017
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Judgment Approved
Mrs Justice Lang: 
1.	The Claimant applies for judicial review of the failure of the Defendant to consult upon, and then exercise, the power within section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO 2012”) as a means of relaxing the test for the release of prisoners serving sentences of imprisonment for public protection (“IPP”).
2.	Permission was refused on the papers by Holroyde J., but granted at an oral hearing by Leigh-Ann Mulcahy QC, sitting as a Deputy High Court Judge, on 23 November 2016.
The Claimant
3.	On 10 September 2007, the Claimant pleaded guilty to offences of false imprisonment, assault, criminal damage and harassment against his girlfriend. Between 1996 and 2006, he had been convicted of 9 offences of assault, rape, false imprisonment, criminal damage and harassment, all against women with whom he had an intimate relationship.  He had been sentenced to 4 determinate sentences of imprisonment of up to 5 years in length, a community rehabilitation order and a restraining order.  He had undertaken courses and programmes to address his offending behaviour but had still re-offended.
4.	In the light of his previous convictions for specified offences, and having regard to the other information before him, the sentencing judge assessed him as dangerous, applying section 229 of the Criminal Justice Act 2003 (“CJA 2003”), and finding that there was a significant risk that the Claimant would cause serious personal injury to women with whom he was in a relationship by committing further offences specified in Schedule 15 to the CJA 2003.  He was sentenced to IPP for the offence of false imprisonment (which has a maximum sentence of life imprisonment), with sentences of four months imprisonment concurrent for each of the other offences. In respect of the offence of false imprisonment, the Judge stated that, had a determinate sentence been appropriate, he would have imposed a term of imprisonment of 4 years, discounted by one third to a period of 2 years and 8 months to reflect his guilty plea.  The minimum term for the sentence of IPP had to be calculated at one half of the notional determinate sentence - 1 year and 4 months – to take account of the fact that he would have been eligible for release after serving one half of the determinate sentence. 
5.	The Claimant’s minimum term ended in 2008 but he remains in prison because, on review, the Parole Board has concluded, on several occasions, that it was necessary to continue to detain him for the protection of the public. 
6.	On 5 May 2010, following an oral hearing and consideration of a detailed dossier of reports, detailing courses undertaken and 1:1 sessions with a consultant clinical psychologist, a Parole Board panel concluded that,  although he had made very significant progress,  a cautious approach was justified in the light of his deeply entrenched violent and abusive behaviour.  The panel considered that there was a more than minimal risk that, if released, he would behave violently and abusively again, and so the safety of any future partner made it necessary that he should undergo a period of testing in open conditions prior to release.  
7.	On 28 January 2013, following an oral hearing and consideration of a detailed dossier of reports, a Parole Board panel agreed with the assessment of his Offender Manager that the Claimant posed a very high risk of harm within relationships, and his past offending history indicated that he would resort to violence against partners. His poor behaviour in open conditions had led to his recall to closed conditions. He committed some breaches of the rules, which led to him losing his employment. He had formed a relationship with a woman and he was observed behaving in an aggressive and controlling manner towards her. He withheld the existence of the relationship from his Offender Supervisor and Psychologist, and they considered that, despite the programmes he had successfully completed, he was either unable or unwilling to put that learning into practice in a way which gave them confidence that the risk of further offending was reducing. They recommended further assessments. None of the professionals, apart from the independent psychologist, recommended that the Claimant be returned to open conditions or released, and the panel agreed with their assessments. 
8.	On 4 January 2016, following an oral hearing and consideration of a detailed dossier of reports, a Parole Board panel concluded that the Claimant had to remain in custody to protect the public, because he represented a high risk to women, and there was a high likelihood he would re-offend.  He had been assessed as not meeting the criteria for psychopathic disorder, although he met the criteria for dissocial and narcissistic personality disorder. He had also been assessed as not having a diagnosable personality disorder although the panel was satisfied he had dysfunctional personality traits.  He did not have a mental disorder which would merit transfer under the Mental Health Act. The panel accepted the recommendation that he should be given another opportunity to progress to open prison and to put into practice what he had learned from his offending behaviour work. 
9.	Following this recommendation, the Claimant was transferred to an open prison where he will remain, subject to further review by the Parole Board.
The issue in the claim for judicial review
10.	The Claimant submitted that the sentence of IPP was unjust because he had served nearly ten years imprisonment and he was subject to indefinite detention whereas, if he had been given a determinate sentence, or even an extended sentence, he would have been released some time ago.  
11.	The Claimant submitted that it was widely recognised that the sentence of IPP was unsatisfactory and could operate unfairly, particularly when imposed upon prisoners with short tariffs, many of whom were not given sufficient opportunity to demonstrate the required reduction of risk whilst in prison, and for whom sentences of indefinite duration were disproportionate. 
12.	As a result, section 123 of LASPO 2012 abolished the sentence of IPP with effect from 3 December 2012.  However, Parliament only abolished it prospectively, not retrospectively, and so existing sentences of IPP continued to be lawful. 
13.	Section 128 of LASPO 2012 (as amended in April 2015) gave the Defendant power to seek to vary the test to be applied by the Parole Board when deciding whether or not to direct the release of an IPP prisoner, by means of a statutory instrument which would be subject to an affirmative resolution procedure by Parliament. Section 128 provides, so far as is material: 
“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.
…..”

14.	The Defendant has not exercised his power under section 128 LASPO 2012 and therefore, by virtue of section 28(6) Crime (Sentences) Act 1997, the Parole Board can only recommend release of an IPP prisoner if it is “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”.
15.	The Claimant’s challenge was founded upon the expectation that his prospects of being released by the Parole Board would be improved if the test for release was relaxed.  
Grounds of challenge
16.	The Claimant relied upon five grounds of challenge to the Defendant’s non-exercise of his powers under section 128 LASPO 2012.  
17.	Ground 1. The Claimant submitted that it was apparent from the Parliamentary debates on the LASPO 2012 bill that Parliament enacted section 128 LASPO 2012 to provide a means of alleviating or resolving the problems which it recognised that existing IPP prisoners faced.  Parliament clearly intended that the test for release applied by the Parole Board under the Crime (Sentences) Act 1997 should be relaxed. Therefore the Defendant was acting inconsistently and incompatibly with the legislative purpose by failing to exercise the powers conferred under section 128 LASPO 2012 and by maintaining the existing Parole Board test for release. 
18.	Ground 2. The Claimant submitted that the Defendant had acted unlawfully in failing to consult as to the exercise of the power conferred by section 128 LASPO 2012.  He should have consulted existing IPP prisoners, such as the Claimant, as well as other interested bodies. The duty to consult arose in any one or more of the following ways:
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. 
19.	Ground 3. The Claimant submitted that the Defendant’s failure to exercise the powers under section 128 LASPO 2012 to relax the release test was irrational, unreasonable or disproportionate. 
20.	Ground 4. The Claimant submitted that, by Section 149 of the Equality Act 2010, the Defendant was required to consider the impact of maintaining the present release test upon prisoners with mental health disability, disorder or illness.  He had not done so, and thus had failed to discharge the public sector equality duty. 
21.	Ground 5. By failing to relax the release test, the Defendant was failing to take positive steps to remove the real risk of a violation of Article 3 ECHR, in breach of the duty, imposed by section 6 Human Rights Act 1998, not to act incompatibly with a Convention right. 
22.	In section 7 of his claim form, the Claimant applied for the following remedies:
“(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.”
23.	In response to submissions by the Defendant, supported by Speaker’s Counsel, that the Court could not properly make a mandatory order requiring the Defendant to place an order before Parliament, the Claimant in his skeleton argument revised his application for relief to read as follows:
“(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.”
24.	The Defendant submitted that the scope and purpose of section 128 LASPO 2012 had to be ascertained from the plain meaning of the words used in the statute. Although Parliament abolished IPP sentences prospectively, it chose to maintain the existing IPP sentences, without varying the statutory release test.  Nor did it impose a mandatory duty on the Defendant to vary the release test. Instead it conferred a broad discretion on the Defendant as to whether to vary the test for release, and if so, in what terms. It did not specify that the test ought to be relaxed.  The Defendant had exercised his discretion lawfully by considering whether or not to vary the test, but instead deciding to improve the operation of IPP sentences, enabling more prisoners to meet the conditions for release.  
25.	There was no express statutory duty to consult on the exercise of section 128 LASPO 2012, and no such duty could be implied.  The Defendant’s statements in Parliament that he would consult could not give rise to a legitimate expectation that a consultation exercise would take place. 
26.	The Defendant submitted that Grounds 1 and 2 were not appropriate for determination by the Court because they constituted an impermissible interference in Parliamentary proceedings, breaching the principle of the separation of powers, and Parliamentary privilege, including article 9 of the Bill of Rights 1689 (“BR 1689”).  
27.	The Defendant invited the Court to follow the approach taken by the Court in R (Wheeler) v Office of the Prime Minister & Ors [2008] EWHC 1409 (Admin) and R (on the application of Unison) v Secretary of State for Health [2010] EWHC 2655 (Admin). The Defendant’s statement in the House of Commons that he intended to consult concerning the use of the power to vary the test for release was a political statement made in a political forum to politicians.  It could not give rise to legally enforceable public law rights on the part of IPP prisoners.   
28.	To require the Defendant to lay a draft order before Parliament would interfere with Parliamentary proceedings by directing a Member of Parliament to do an act within Parliament, and indirectly requiring Parliament to consider the order as part of its proceedings.  To prevent the Defendant from laying a draft order before Parliament until he had first undertaken a consultation exercise would also interfere with Parliamentary proceedings. A mandatory order, or declaratory relief which had the same effect as a mandatory order, would be equally objectionable.
29.	If and in so far as the public sector equality duty was engaged, the Defendant had complied with it by addressing the particular difficulties associated with IPP prisoners with mental health disabilities.
30.	Article 3 was not engaged. IPP was not an irreducible life sentence: see Vinter v UK (2016) 63 EHRR 1, at [108]. The Parole Board had considered whether the Claimant could be released on several occasions but reasonably concluded he represented too great a risk to the safety of women. There was no evidence that his mental state, including any risk of self-harm, met the Article 3 threshold.   
31.	In response, the Claimant contended that his claim neither questioned nor impeached proceedings or debates in Parliament, and so there was no breach of Article 9 BR 1689.  The claim was a challenge to the failure of the Defendant to carry out his duties pursuant to section 128 LASPO 2012. The Claimant submitted that he was entitled to rely upon the statements made by the Defendant in Parliament (i) as relevant historical facts or events (Office of Government Commerce v Information Commissioner [2010] QB 98, per Stanley Burnton J. at [49]); (ii) as an explanation of the executive’s motivation (Toussaint v Attorney-General of Saint Vincent and the Grenadines [2007] 1 WLR 2825 PC, per Lord Mance at [23]; and (iii) as an aid to the interpretation of the purpose and object of LASPO 2012.  He submitted that the meaning of section 128 LASPO 2012 was clear, not ambiguous, and therefore he did not seek to rely upon the principle in Pepper v Hart [1993] AC 593. The evidence of what was said by other Members of Parliament during debates was admissible as a means of identifying the “mischief” at which LASPO 2012 was directed. 
32.	The Defendant submitted that reference to Hansard in this case was only permissible for the limited purpose of setting out the relevant history.  The wording of section 128 LASPO 2012 was clear and the case did not turn on the construction of the provision.  Therefore the exception in Pepper v Hart, which permitted reference to a ministerial statement as an aid to statutory interpretation where the statute was ambiguous, did not apply.  The Claimant had gone beyond the permissible limits by relying upon the Parliamentary debates to identify what he claimed was the purpose of the legislation in order to impose a legal duty upon the Defendant to act in accordance with it, by consulting and laying a draft order before Parliament which would relax the statutory test. Use of Parliamentary material to define the scope of a discretionary power conferred by statute was impermissible (see R (Spath Holme Ltd) v SS for the Environment, Transport and the Regions [2001] 2 AC 349).
Proceedings in Parliament and the Bill of Rights 1689
Speaker’s Counsel
33.	The Government Legal Department, in a letter dated 18 April 2017, forwarded to the Administrative Court Office, “at the request of the Houses of Parliament”, correspondence from Speaker’s Counsel in the Office of Speaker’s Counsel in the House of Commons, which had been sent to the parties. Mr Rule objected to the admission of this material on the ground that the Office of Speaker’s Counsel was not a party to the proceedings. In my view, Mr Rule’s objection was not well-founded, and I admitted the evidence. 
34.	I was referred to a letter dated 19 December 2012 from the then Lord Chief Justice (Lord Judge) to Mr Carpenter, Speaker’s Counsel, which stated that the practice on the part of Speaker’s Counsel of writing a letter of advice to litigants who relied upon parliamentary material and might breach Article 9 of the Bill of Rights, served a useful purpose and it was not an interference with the judicial process. 
35.	There is precedent for the correspondence of Speaker’s Counsel to be placed before the Court: see Pepper v Hart, per Lord Browne-Wilkinson, at 623E-624C; R (Public Law Project) v Lord Chancellor [2015] EWCA Civ 1193, [2016] AC 1531, per Laws LJ at [19]. In Wilson v First County Trust Ltd (No. 2) [2004] 1 AC 816, at [54], Lord Nicholls said that the courts welcomed, and were assisted by, the participation, through counsel, of the Speaker and the Clerk of the Parliaments.  
36.	I did not consider that the admission of this correspondence was unfair to the Claimant. As I indicated to Mr Rule, the legal opinions expressed in the correspondence from Speaker’s Counsel did not bind the Court, and he was entitled to invite the Court to disagree with them. 
Parliamentary privilege, Article 9 BR 1689 and the separation of powers
37.	Article 9 BR 1689 provides:
“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.”
38.	The meaning of Article 9 was considered in Bennion on Statutory Interpretation, 6th ed., 2013, pp 617-620. Bennion explains, at pp. 618-619, that Article 9 has in the past been given a broad construction, preventing critical examination of statements made in Parliament to support a cause of action in the courts.
“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.’”
39.	In Prebble v Television New Zealand Ltd [1994] 3 WLR 970, [1995] 1 AC  321, a member of the legislature, who had been sued for libel by a former minister, wished to rely on statements by the minister in Parliament as part of his defence. The Privy Council held that this was an infringement of Article 9 BR 1689. 
40.	Lord Browne-Wilkinson identified Article 9 BR 1689 as part of a wider principle, saying, at 332D-F:
“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 [1974] AC 765; Pepper v Hart [1993] 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.””
41.	Lord Browne-Wilkinson explained the rationale behind Article 9 at 333H – 334C:
“….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.”
42.	The principles stated in Prebble were approved by the House of Lords in Hamilton v Al-Fayed [2001] 1 AC 395, per Lord Browne-Wilkinson at 402F – 403B.
43.	Stanley Burnton J. neatly summarised the principles in Office of Government Commerce v Information Commissioner [2010] QB 98, when he said:
“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….”
44.	In R (on the application of Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin), the Divisional Court dismissed the claimant’s claim that the Prime Minister was bound by a promise made in Parliament, and repeated outside Parliament, that the people would be consulted, by means of a referendum, on whether to ratify the  Lisbon Treaty.  
45.	Although in Prebble Lord Browne-Wilkinson said that the rationale of Article 9 was to allow legislators to “speak freely without fear that what they say will later be held against them in the courts”, Richards LJ (at [53]) rejected the argument that a case of legitimate expectation could not be founded on the Prime Minister’s statements to Parliament because it would involve questioning what was said in Parliament, contrary both to article 9 BR 1689 and the wider principle of Parliamentary privilege based on the need to protect free speech in Parliament.   His view was that the claimant was not questioning what was said, but relying upon it, thus adopting a narrower interpretation of article 9 than the Court in Prebble.  I consider that I ought to follow the approach taken by a Divisional Court, although I am doubtful about it.  
46.	However, Richards LJ went on to decide that, even if there had been a promise to hold a referendum, it was not enforceable in the courts, as it lay “so deep within the macro-political field that the court should not enter the relevant area at all” (at [43]), adopting and extending the analysis of Laws LJ in R v Secretary of State for Education and Employment, ex p. Begbie [2000] 1 WLR 1115, at 1130F-1131D, whilst noting that Begbie concerned a substantive not a procedural legitimate expectation.  Richards LJ said, at [41]:
“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.”
47.	In R (on the application of Unison) v Secretary of State for Health [2010] EWHC 2655 (Admin), Mitting J. applied the Divisional Court’s reasoning in Wheeler when rejecting Unison’s claim that it had a legitimate expectation, arising from statements made by the Secretary of State in and outside Parliament, that he would conduct a consultation exercise before legislation was introduced to Parliament.  Mitting J. held that the case was indistinguishable in principle from Wheeler and that “the subject matter of the claim and expectation places it squarely in the realm of politics and not of the courts” (at [13], [14]). 
48.	In my judgment, this case is indistinguishable in principle from Wheeler and Unison. The Defendant’s statement in the House of Commons that he intended to consult concerning the use of the power to vary the test for release was a political statement made in a political forum to politicians.  It was a matter for Parliament to decide whether to insert a statutory obligation to consult on the exercise of the powers under section 128 LASPO 2012, so as to confer legally enforceable public law rights on potential consultees.  Parliament chose not to do so.  Any subsequent demand for consultation ought properly to be decided in the political, not the legal, sphere.  
49.	The Defendant also relied on Wheeler and Unison in support of the submission that to require the Defendant to lay an order before Parliament pursuant to section 128 LASPO 2012, and to hold that he was under a legal obligation to consult before he did so, would be a breach of both parliamentary privilege and the constitutional principle of the separation of powers.
50.	In Unison, Mitting J. dismissed the claim on the ground that the relief sought was outside the scope of a judicial review, citing the judgment in Wheeler in support of his analysis: 
“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 [1974] 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 [2008] 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 [1985] 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.”
51.	I accept the Defendant’s submission that these principles apply equally to the Claimant’s case.  Under Ground 1, the Claimant’s case was that the Defendant was acting unlawfully by failing to lay an order before Parliament to relax the release test. If the Court upheld this ground, the Defendant would be obliged to lay an order to relax the release test, in order to comply with his legal obligation as found by the Court. Parliament would then be obliged to consider it, as an indirect consequence of the judgment of the Court. Under Ground 2, the Claimant’s case was that the Defendant was legally obliged to consult before exercising his power to lay an order before Parliament. If the Court upheld this ground, it would have the effect of preventing the Defendant from laying an order before Parliament unless or until he had undertaken a consultation exercise, even though there was no statutory duty to consult, because otherwise he would be acting unlawfully.  Thus, the consequence of allowing the Claimant’s claim was an interference by the Court with Parliamentary proceedings, which was contrary to Parliamentary privilege and the separation of powers. 
52.	I do not consider that the Claimant has overcome this fundamental obstacle by abandoning his claim for mandatory relief and seeking declarations instead, for precisely the reasons which Richards LJ gave in Wheeler:
“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.” 
53.	Although Wheeler and Unison were both concerned with the introduction of primary legislation, these principles apply equally to the introduction of secondary legislation.  In R v HM Treasury ex p. Smedley [1985] 1 QB 657, in which the claimant challenged as ultra vires a draft Order in Council which had been laid before Parliament by the Treasury, but not yet approved, the Divisional Court accepted that it had jurisdiction to hold that subordinate legislation was unlawful. However, Sir John Donaldson MR said “it would clearly be a breach of the constitutional conventions for this court, or any court, to express a view, let alone take any action, concerning the decision to lay this draft Order in Council before Parliament or concerning the wisdom or otherwise of Parliament approving this draft” (at 666E). 
Reference to Hansard
54.	Mr Rule relied extensively upon extracts from debates in Hansard in support of his grounds of challenge. 
55.	The long-established ‘exclusionary rule’ prohibits courts from consideration of Parliamentary debates and legislative history as an aid to statutory construction, save in certain circumstances. The justification for the exclusionary rule was summarised by Lord Browne-Wilkinson in Pepper v Hart, at 633A:
“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.”
56.	In a significant departure from past practice, the House of Lords in Pepper v Hart held that the exclusionary rule should be modified to allow reference to Parliamentary materials but only where specific conditions were met, namely: (1) the legislation was ambiguous or obscure or the literal meaning led to an absurdity; (2) the material consisted of a statement by the minister or other promoter of the bill; and (3) the material clearly disclosed the mischief aimed at or the legislative intention (per Lord Browne-Wilkinson, 634 D-E).
57.	Mr Rule rightly conceded before me that the first condition was not met in this case: section 128 LASPO 2012 was not ambiguous or obscure and its literal meaning was not absurd.  The second condition was not met either, as the extracts relied upon by Mr Rule were not limited to statements by the minister promoting the bill. He referred to debates which included opposition members arguing against the legislation and putting forward amendments, as well as evidence given to the Justice Select Committee by members of Parliament. 
58.	In R (on the application of Spath Holme Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 AC 349, the House of Lords sought to mitigate some of the problems which had arisen following Pepper v Hart by emphasising the importance of abiding by the three pre-conditions for admissibility of Hansard.  Their lordships also limited the application of the Pepper v Hart principle to cases where a ministerial statement was required to clarify the meaning of a statutory expression, and not to clarify the scope of a discretionary ministerial power.  Lord Bingham said at 392B-C:
“…[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.”
59.	Lord Hope said at 407E-408F:
“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 [1993] A.C. 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 [1968] A.C. 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 [1993] A.C. 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.”
60.	In my judgment, in this case Mr Rule wished to undertake an exercise which was analogous to the exercise which the House of Lords forbade in Spath Holme.  He sought to use Parliamentary debates to identify what he claimed was the purpose of the legislation with the objective of persuading me to impose upon the Defendant a legal duty to act in accordance with that purpose by consulting and then laying a draft order before Parliament which would relax the statutory release test. This use of Hansard, to define the scope of a discretionary power conferred by statute, was impermissible, in my view. 
61.	Mr Rule further submitted that he was entitled to refer to Hansard to demonstrate the “mischief” which LASPO 2012 was intended to remedy, and its purpose, regardless of the fact that there was no issue of statutory construction for the court to determine.  In my judgment, this submission was incorrect.  The “mischief” rule, now more commonly described as the presumption that Parliament intends an enactment to be given a purposive construction, has always been, and remains, a canon of statutory interpretation. 
62.	Prior to Pepper v Hart, application of the exclusionary rule meant that the “mischief” or “purpose” had to be ascertained from sources other than Hansard e.g. the statute itself, and non-Parliamentary external aids, such as White Papers, reports of official committees and Law Commission reports.  Indeed, this was one of the reasons why counsel for the appellant in Pepper v Hart submitted that the exclusionary rule ought to be relaxed: see the speech of Lord Browne-Wilkinson at 633D-E. The Pepper v Hart modification to the exclusionary principle expressly referred to Hansard references being permitted “where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words” (per Lord Browne-Wilkinson at 634E).  
63.	In R (Jackson) v Attorney-General [2005] UKHL 56, [2006] 1 AC 262, Lord Steyn, obiter, approved of the limitation placed on the application of the Pepper v Hart principle by Lord Hope in Spath Holme, and suggested that Hansard material could be used to identify the mischief at which the legislation was directed, but not to discover the Government’s intentions from ministerial statements.  He said:
“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 [2001] 2 AC 349, that Pepper v Hart [1993] 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 [2005] 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.” 
64.	Lord Steyn’s observations at [97] were applied by Lord Mance, in the Privy Council case of The Presidential Insurance Company Limited v Resha St Hill [2012] UKPC 33, who limited the examination of Hansard to “identify the mischief at which the legislation was directed and its objective setting” but not to go further and try to discover the intentions of the Government from ministerial statements (at [23]). 
65.	The Claimant submitted that these cases were authority for the proposition that Hansard may be used to identify the mischief, even where there is no issue of statutory interpretation and the meaning of the statute is clear and unambiguous.  In my view, this would be at odds with the extensive authority that the mischief rule is a canon of statutory interpretation, and recourse to Hansard for the purposes of statutory interpretation is subject to the exclusionary rule, as modified in Pepper v Hart. I do not consider it is appropriate for me to question any apparent differences in approach by senior appellate judges; all these authorities are binding upon me. For the purposes of this claim, the key point is that, in both Jackson and Presidential Insurance, the case turned on a disputed question of statutory construction and the court was applying the mischief rule/a purposive construction, which included consideration of Hansard, to assist in its task of statutory interpretation.  These cases are not authority for the proposition that the mischief rule permits the court to examine Hansard in order to identify the scope of a discretionary power conferred by statute.  Indeed, Lord Steyn expressly approved Spath Holme on this point. 
66.	In Wilson v First County Trust Ltd (No. 2) [2004] 1 AC 816, Lord Nicholls identified occasions when courts may properly have regard to statements made in Parliament without encroaching upon Parliamentary privilege, contrary to Article 9.  They were as follows:
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 [1991] 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. 
67.	Mr Rule relied in particular upon the “established practice” referred to at (ii) above. In Brind, the appellant claimed that the Secretary of State exceeded the limits of his power under section 29(3) of the Broadcasting Act 1981, and clause 13(4) of the Licence Agreement which governs the operations of the BBC, when he imposed restrictions on broadcasting by Irish organisations proscribed under the Prevention of Terrorism (Temporary Provisions) Act 1984.  The claim failed on all grounds.  The Secretary of State announced his decision to issue the Directives in a statement to Parliament.  Mr Scoble, a senior civil servant, filed an affidavit in the proceedings referring to the reasons for the decision, set out in the Hansard report of the statement. The Hansard report of the statement, and the debate which followed, were placed before the court without objection from any party, and without any judicial comment. 
68.	In the absence of any judicial comment in Brind, it is necessary to consider other authorities to determine the scope of the principle which Lord Nicholls was referring to in Wilson. 
69.	In Prebble Lord Browne-Wilkinson explained, at 337D, the distinction between “the right to prove the occurrence of Parliamentary events and the embargo on questioning their propriety”.  There was no objection to “the use of Hansard to prove what had been done and said in Parliament as a matter of history” (at 337E). “It will be for the trial judge to ensure that the proof these historical facts is not used to suggest that the words were improperly spoken or the statute passed to achieve an improper purpose” (at 337F).  
70.	Lord Mance applied Lord Browne-Wilkinson’s analysis in Prebble in Toussaint, in which the appellant challenged a compulsory purchase order made by the Government.  The Prime Minister made a statement to Parliament announcing the Cabinet’s decision and explaining the reasons for it.  Lord Mance said that it was permissible to rely upon the minister’s statement “to explain the conduct occurring outside Parliament, and the policy and motivation leading to it” (at [17]), provided there was no allegation of impropriety within Parliament (at [19]). 
71.	In Office of Government Commerce, Stanley Burnton J. said at [49]:
“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 [2002] QB 129 para 33…”
72.	The Defendant and Speaker’s Counsel accepted that it was permissible for the court to refer to ministerial statements and, where appropriate, other proceedings in Parliament, as evidence of relevant historical facts or events.  I agree with the submission of Speaker’s Counsel that the question which has to be asked was: for what purpose was the Claimant seeking to rely on the Parliamentary material? He was not relying upon it for the purposes of statutory construction. Nor was it required in order to carry out a compatibility exercise, as in Wilson, since it was not suggested that LASPO 2012 was incompatible with the ECHR. Although he was entitled to rely upon ministerial statements and if appropriate, other Parliamentary proceedings, as evidence of relevant facts or events, his use of Parliamentary material crossed over the boundary from permissible to impermissible, because he was inviting the Court to construe from the words of individual members, and their proposed amendments, the intention and purpose of Parliament when enacting LASPO 2012, in particular, section 128.  
73.	The Claimant’s approach was contrary to the “cardinal constitutional principle that the will of Parliament is expressed in the language used in its enactments”, not the reasons advanced in Parliamentary debate (per Lord Nicholls in Wilson at 843G). The constitutional principle is reinforced by pragmatic considerations because of the unreliable nature of Parliamentary statements and debates. In R (on the application of Unison) v Monitor [2009] EWHC 3221 (Admin), Cranston J. described the pitfalls of reliance on Hansard, with the insight of a former Member of Parliament and Law Officer, at [91]:
“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 [1993] 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).”
74.	So for the reasons set out above, my conclusion is that the Claimant was not entitled to rely upon Parliamentary materials for any purpose other than as a record of what was said and done, and then only insofar as it was relevant to establish his claim, and excluding those matters which I have ruled are outside the proper scope of a claim in the courts because of Parliamentary privilege and the separation of powers. 
75.	In reaching these conclusions, I have had regard to the following authorities in addition to those referred to above: Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997; R (Asif Javed) v Secretary of State for the Home Department [2002] QB 129; Secretary of State for the Home Department v AY [2012] EWHC 2054 (Admin); R (Justice for Health Limited) v Secretary of State for Health [2016] EWHC 2338 (Admin). 
Ground 1: Legislative purpose
76.	In the light of my rulings above, Ground 1 is now greatly reduced in scope. I consider it now without recourse to Hansard. The Claimant submitted that Parliament clearly intended that the test for release applied by the Parole Board under the Crime (Sentences) Act 1997 should be relaxed. Therefore the Defendant was acting inconsistently and incompatibly with the legislative purpose by failing to exercise the powers conferred under section 128 LASPO 2012 and by maintaining the existing Parole Board test for release. 
77.	The Claimant relied upon the well-known principle in Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997 that Parliament must have conferred the statutory discretion with the intention that it be used to promote the policy and objects of the statute, construed as a whole, and it would be unlawful for the minister to exercise his discretion so as to thwart or run counter to Parliament’s intention (per Lord Reid at 1030B-D).  The Claimant also referred to M v Scottish Ministers [2012] 1 WLR 3386 and R (Ben Hoare Bell Solicitors) v Lord Chancellor [2015] 1 WLR 4175.  
78.	I accept the Defendant’s submission that the scope and purpose of section 128 LASPO 2012 was clear from the words of the statute. Although Parliament abolished IPP sentences prospectively, it chose to maintain the existing sentences of IPP, without varying the statutory release test.  It did not impose a mandatory duty on the Defendant to lay an order before Parliament to vary the release test. Instead it conferred a broad discretion on the Defendant as to whether to vary the test for release, and if so, in what terms. It did not specify that the test ought to be relaxed.  Therefore the Defendant’s decision not to lay an order before Parliament to vary the release test, and instead address the problems faced by IPP prisoners in a different way, was a legitimate and lawful exercise of his discretion. 
79.	For these reasons, Ground 1 fails.
Ground 2: Consultation 
80.	The Claimant submitted that the Defendant was acting unlawfully in failing to consult as to the exercise of the power conferred by section 128 LASPO 2012, when he had said in Parliament that he would do so. He should have consulted interested bodies and individuals, including existing IPP prisoners, such as the Claimant. 
81.	For the reasons set out above, I have concluded that this part of the Claimant’s claim cannot be pursued because it is a breach of both Parliamentary privilege and the constitutional principle of the separation of powers.  However, in case that conclusion is wrong, I address the Claimant’s submissions, in the alternative.
82.	I cannot accept the Claimant’s submission that the lack of consultation was inconsistent or incompatible with the legislative purpose. Parliament could have legislated so as to impose a statutory duty to consult, or a discretion to consult if he considered it necessary or desirable to do so.  However, the statute made no mention of consultation in this context. The evidence of Mr Bailey, Head of the Release Policy Team, was that the Defendant had accepted his advisers’ recommendation to undertake  a consultation exercise as to the terms of the draft order, if it is proposed to exercise the power under section 128 LASPO 2012.  I consider this to be a lawful exercise of the Defendant’s discretion. 
83.	The Claimant also submitted that Parliamentary statements by the then Secretary of State gave rise to a legitimate expectation that consultation would take place. 
84.	On 1 November 2011, the then Secretary of State, Kenneth Clarke QC MP presented to the House of Commons clause 34, which later became section 128 LASPO 2012, on 1 November 2011: see HC Hansard Debates, Cols. 790, 791 and 805.  On 9 February 2012, Lord McNally, the then Minister of State for Justice, presented the clause to the House of Lords: see HL Hansard, Cols. 442 to 446.  Both Ministers stated that there would be consultation.   
85.	In order to found a legitimate expectation, the statement relied upon should be “clear, unambiguous and devoid of relevant qualification”: per Bingham LJ in R v Inland Revenue Commissioners ex parte MFK Underwriting Agencies Ltd [1990] 1 WLR 1545, at 1569G. I do not accept the Claimant’s submission that this is an exceptional case where this requirement can be dispensed with. 
86.	In my judgment, the statement by Kenneth Clarke QC MP on which the Claimant relies was ambiguous. Was the minister saying that he would consult about proposed changes to the release test before laying an order before Parliament, or was he saying that he would consult generally about the exercise of his powers under section 128, including whether or not he should lay an order before Parliament?  The statements by Lord McNally are also ambiguous, in my view.  The Defendant has stated in these proceedings that he has voluntarily decided to consult about any proposed changes to the release test, so if the former meaning is the correct one, then the claim has no purpose.  The Claimant had to establish that the statement was a clear and unambiguous promise to consult generally about the exercise of his powers (the latter meaning). In my judgment, he was unable to do so. 
87.	Alternatively, even if there was a clear and unambiguous promise to consult generally (the latter meaning), I doubt whether the Claimant can rely upon it because serving prisoners were not a class of person whom the minister promised to consult, or at whom the promise was directed.  It is not the usual practice of the Ministry of Justice to consult serving prisoners for their views on changes to sentencing law and policy.  
88.	In the alternative, the Claimant submitted that the lack of consultation would lead to “conspicuous unfairness” and so a common law duty to consult ought to be implied.  In R (Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662 (QB), Hallett LJ said, at [98], that a duty to consult may arise at common law “where, in exceptional cases, a failure to consult would lead to conspicuous unfairness”. It is well-established that there is no general common law duty to consult.   I am not aware of any case where the courts have imposed a duty on a minister to consult on the potential exercise of a statutory power which he has no current intention of using, and when he has no specific proposals to put forward for consideration.  The fact that Parliament has recently conferred the statutory power upon the minister, and chose not to impose a duty to consult, or a requirement to consider consultation in the exercise of his discretion, is an important factor weighing against implying a duty to consult at common law.  
89.	In my judgment, the lack of consultation has not and will not lead to unfairness, let alone conspicuous unfairness, because there is little to be gained from it, in the particular circumstances of this case.  The unsatisfactory nature of IPP sentences was well-documented prior to LASPO 2012, leading to its abolition by Parliament. Since then, an extensive range of critical opinions and evidence has been published regarding the flaws in the IPP sentence and its impact upon prisoners, as well as potential reforms. Mr Rule helpfully provided many examples in his skeleton argument, including statements and reports from past and present Chairmen of the Parole Board and HM Chief Inspectors of Prisons; reports from the Prison Reform Trust, the Institute for Criminal Policy Research and the Howard League for Penal Reform; and articles from distinguished academics and those specialising in sentencing reform.  There have also been a number of decisions by the courts criticising lack of access to rehabilitation programmes for prisoners serving IPP sentences, again summarised by Mr Rule in his skeleton argument.   The Defendant and his civil servants will have had the benefit of seeing all this material, as it is in the public domain, and no doubt it will have informed their views. 
90.	Mr Bailey’s statement referred to the results of the ongoing work carried out by HM Prison and Probation Service and the National Offender Management Service with IPP prisoners, which have been made known to the Defendant and his advisers.   Mr Bailey also referred to the measures taken by the Parole Board, in discussion with the Defendant and his advisers, to tackle delay, which has led to an increase in release rates.  
91.	It is also apparent from Mr Bailey’s statement that the Defendant has had informal discussions with the Parole Board on possible variations of the release test: see paragraph 10 of his statement, quoted at paragraph 97 below. 
92.	In the light of this material, I am satisfied that the Defendant and his advisers are likely to be well-informed about the problems with IPP sentences, and the arguments in favour of relaxing the release test, as well as those against. The Claimant was not able to point to any additional information or assistance which the Defendant might have obtained from a formal consultation exercise.  
93.	For these reasons, Ground 2 fails.
Ground 3: Unlawful failure to exercise powers under section 128 LASPO 2012
94.	The Claimant submitted that the Defendant’s failure to exercise the powers under section 128 LASPO 2012, to relax the release test, was irrational, unreasonable or disproportionate. IPP was an excessive and disproportionate sentence, which arbitrarily treated IPP prisoners less favourably than prisoners serving a determinate sentence. It was generally accepted that it had operated in an unsatisfactory manner because it was used by the courts more frequently than anticipated and because of delays in Parole Board hearings and lack of access to rehabilitation opportunities. The inherent uncertainty as to sentence length, and prolonged periods of detention, caused mental illness, self-harm, and suicide among IPP prisoners.  These factors led to the abolition of the IPP sentence. It was irrational not to ameliorate these problems for existing IPP prisoners by relaxing the release test. As this issue engaged fundamental rights, a Wednesbury review was insufficient, and a proportionality or full merits test ought to be adopted: see R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] 2 WLR 509. 
95.	In my judgment, the clear intention of Parliament, expressed in LASPO 2012, was to maintain IPP sentences for existing prisoners, despite accepting that IPP was a flawed sentence which ought to be abolished for the future.  Parliament entrusted to the Defendant the decision whether or not to pursue the option of laying a draft order before Parliament to vary (not necessarily relax) the release test. The Claimant was impermissibly seeking to fetter the Defendant’s wide discretion by submitting that it could only lawfully be exercised in the manner favoured by the Claimant.  
96.	I note that in R v Docherty [2017] 1 WLR 181, the Supreme Court dismissed a claim that the differential treatment of prisoners convicted before and after the abolition of IPP sentences did not discriminate against an IPP prisoner, in breach of Article 14 ECHR.  
97.	Mr Bailey said in his witness statement that the option of seeking to vary the release test, pursuant to the powers in section 128 LASPO 2012, has been put to Ministers as an option on a number of occasions.  He said at paragraphs 10 to 13:
“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.”
98.	In the light of this evidence, I accept the Defendant’s submission that he has exercised his discretion lawfully – both rationally and proportionately – by considering whether or not to vary the test, but because of the difficulties in finding a suitable alternative release test, instead deciding to improve the operation of IPP sentences, enabling more prisoners to meet the conditions for release.  The Claimant’s case well illustrates the difficulties in finding a suitable alternative release test as he has been assessed as presenting a continuing risk to the safety of women with whom he is in a relationship because of “deeply-entrenched violent and abusive patterns of behaviour”, despite years of imprisonment. My conclusion remains the same whichever legal test is applied to assess the lawfulness of the exercise of his discretion.  
99.	For these reasons, Ground 3 fails. 
Ground 4: Section 149 Equality Act 2010
100.	Section 149(1) Equality Act 2010 imposes a public sector equality duty which requires a public authority, in the exercise of its functions, to have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the Act and to advance equality of opportunity between those who share a relevant protected characteristic and persons who do not share it.  
101.	As Dyson LJ explained in R (Baker) v Secretary of State for Communities and Local Government [2009] PTSR 809,  at [31], the duty is not a duty to achieve a result, but to have due regard to the need to achieve the statutory goals. The term “due regard” means the regard that is appropriate in all the circumstances.  The duty need not be referred to expressly; the question is one of substance, not form (at [37]).  It is for the Court to decide if due regard has been had, but provided this is done, it is for the decision maker to decide what weight to give to the equality implications of the decision.
102.	The Claimant relied upon the judgment of Cranston J. in R (Coll) v Secretary of State for Justice [2013] EWHC 4077 (Admin), which concerned the provision of approved premises for women prisoners when released on licence, where he said, at [65]:
“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. 
103.	The Claimant submitted that the duty arose when the Defendant either took a decision not to consult or not to exercise the power under section 128 LASPO 2012. He alleged that the Defendant was in breach of the duty because he failed to consider the impact of maintaining the current release test upon those with mental health disability, disorder or illness. He pointed to evidence of an increased risk of self-harm and suicide among IPP prisoners, and their vulnerability.
104.	The protected characteristic relied upon is “disability” which is defined in section 6(1) of the Equality Act 2010, as “a physical or mental impairment” which has a “substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.  Under the Equality Act 2010, the burden of proof rests on the claimant to show that he satisfies this definition.  
105.	On the evidence before me, the Claimant is not disabled within the meaning of this definition. It is very doubtful whether the Claimant has any mental health disability, disorder or illness, on the basis of the reports summarised in the 2016 Parole Board decision.  But even if he does have some type of personality disorder, he has not shown that it has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. So I do not consider that the Claimant has a sufficient interest to succeed on this ground; or alternatively, to be entitled to any relief.  
106.	In any event, I am satisfied, on the evidence of Mr Bailey, that the statutory equality duty has been adequately discharged in the circumstances of this particular case. The measures taken by the Defendant to achieve more speedy progression of IPP prisoners through the prison system has included a specific focus upon those prisoners who have struggled to progress because of inter alia “personality disorder and mental health issues”.  HM Prison and Probation Service has put in place measures which specifically address the difficulties which such prisoners may face, such as psychology-led reviews of individual cases to produce personalised action plans for IPP prisoners who are difficult to manage, in order to improve their progress through the prison system. 
107.	For these reasons, Ground 4 fails. 
Ground 5: Article 3 ECHR 
108.	The Claimant submitted that the Defendant was failing to meet the positive obligation under Article 3 ECHR to ensure that steps were taken to remove the real risk of a violation of Article 3 ECHR, pursuant to section 6 of the Human Rights Act 1998.  A real risk of a violation means simply not a fanciful one and may be established by a relatively low percentage chance: Rathbone v Pennine Care NHS Foundation Trust [2012] 2 AC 72. 
109.	In the Detailed Statement of Grounds in the claim form, the Claimant submitted that he would be in detention for a period in excess of the lawful maximum sentence for the offence committed.  This was an error as false imprisonment is a common law offence and the maximum sentence is life imprisonment. 
110.	The Claimant also submitted that an indeterminate sentence may, after too long a period, become arbitrary or disproportionate and thus breach Article 3:  Lichniak [2003] AC 1 903; Bieber [2008] EWCA Crim 1601: Offen et al [2001] 1 WLR 253.  IPP sentences would be likely to offend this principle unless a more relaxed release test was introduced. However, the Defendant relied upon the judgment of the ECtHR in Vinter v UK (2016) 63 EHRR 1, where the Court held, in the context of life sentences: 
“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.”
111.	In my judgment, Vinter provided a complete answer to the Claimant’s submission. The Claimant has a serious record of violent offences against women with whom he has a relationship. In May 2010, the Parole Board concluded, after a careful assessment of extensive evidence, that he had deeply entrenched violent and abusive patterns of behaviour, and there was a risk that the safety of any future partner would be at risk, were he to be released. 
112.	By the time of his Parole Board hearing in January 2013, his poor behaviour in open prison led his Offender Supervisor and psychologist to conclude that, despite the programmes he had successfully completed, he was either unable or unwilling to put that learning into practice in a way which gave them confidence that the risk of further offending was reducing.  The Parole Board agreed with their assessment that he posed a very high risk of harm to his future partners. Most recently, in January 2016, the Parole Board considered the evidence and concluded that he should remain in custody because he represented a high risk to women and there was a high likelihood that he would re-offend. 
113.	Thus, it is clear, applying the principles set out in Vinter, that the Claimant’s continued detention has been, and continues to be necessary, in order to protect a section of the public, and so does not violate Article 3.  Furthermore, he has had, and continues to have, the opportunity to address his behaviour and reduce the risk that he will re-offend and harm women with whom he is in a relationship.  The recent transfer back to open prison gives him a fresh opportunity to demonstrate that he no longer needs to be detained.   
114.	The Claimant further submitted that the conditions of detention of IPP prisoners, particularly those who were vulnerable or suffered from mental illness, violated the principle enunciated by the ECtHR in Kudla v Poland (2002) 25 EHRR 11, namely, that “the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measures do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.”  Conditions of detention may violate Article 3 where they contribute to a deterioration in mental health: Aerts v Belgium (2000) 29 EHRR 50, at [64]. The Claimant referred to evidence that the uncertainty of the IPP sentence length and the difficulty in satisfying the release test, when rehabilitation courses etc. could not be accessed, led to distress, mental illness and even suicide. 
115.	In my judgment, the Claimant has failed to establish any real risk of a violation of Article 3 arising from the conditions of his detention.  The Parole Board reports show that he is not one of the unfortunate group of prisoners who have been unable to access courses or treatment. He has undertaken a large number of courses, both in his current and previous terms of imprisonment and he has had the benefit of 1:1 sessions with a psychologist.  
116.	By May 2010, the Parole Board was satisfied that he had made sufficient progress to transfer to open conditions, to undergo a period of testing prior to release. It was his poor behaviour whilst in open conditions which led to his recall to closed conditions and delayed his release, not the lack of opportunities for rehabilitation. He committed breaches of the rules which led to him losing his employment.  He also formed a relationship with a woman but withheld that information from his Offender Supervisor and psychologist, and he then began to behave in an aggressive and controlling way towards her. On their recommendation, he was assessed for mental disorders to explore underlying reasons for his offending, in an effort to find a more effective way to reduce the risk which he represented.  
117.	Further work was undertaken with the Claimant to address his behaviour, and on 4 January 2016 the Parole Board recommended that he should be given another opportunity to move to an open prison, and given an opportunity to put into practice what he had learned from his offending behaviour work.  He is now serving his sentence in an open prison, with opportunities to re-enter the community, and work towards release.  
118.	The Claimant does not have a diagnosable mental disorder, and although he has dysfunctional personality traits, he has been assessed as not having a diagnosable personality disorder. So I do not consider that it can be assumed that general observations about the impact of IPP sentences on mentally ill prisoners are applicable to him.  There is no evidence that his detention has caused mental illness, or caused him to self-harm, or to become suicidal.  
119.	In my judgment, the treatment of the Claimant has not given rise to any real risk of a violation of Article 3.
120.	For these reasons, Ground 5 fails.  
Outcome
121.	For the reasons set out above, the Claimant’s claim is dismissed.