I have been roused to write an article about how the government are usurping the powers of the parole board when it comes to deciding upon the release of certain prisoners from custody of the state. It is fundamentally wrong to act in contravention of the age old jurisprudential principle of separation of powers.
Trying to solve a problem which doesn’t exist
Dr. Laura Janes, is, I am proud to say, not only a fellow solicitor consultant at Scott-Moncrieff & Associates, but also a member of the Law Society’s Criminal Law Committee, and was the author of an article in the Law Society’s Gazette of 16th June 2023 under the above title. To quote
Sweeping changes to the Parole process in the Victims and Prisoner’s Bill are an afront to judicial independence and seeks to solve problems that do not exist…..
If passed in its current form (the bill), it will give the secretary of state the power to usurp the Parole Board and retake a Parole decision for prisoners involved in serious offences, involving murder, terrorism, and serious sexual offences. The secretary of state will be able to quash a decision, and retake the decision……
…..it risks undermining the administration of justice and judicial independence in parole cases…….no provision for the right to representation, legal aid…..or provision for a hearing of any kind…..Dr Laura Janes, Law Society Gazette 16th June 2023
Strong words indeed Dr, and moreover I agree entirely. Indeed I would go further
Separation of Powers
I remember distinctly my Jurisprudence Law Lectures when we learned about “Separation of Powers”. In other words there should never be an overlap between the Executive (Local Government), the Legislative (Parliament), and the Judiciary (Judges). We learned that judges were sometimes unhappy ruling over governmental decisions. In this example, however, a politician is taking on the role of a judge. And worse still, as Dr Laura says, there is a breach of the laws of natural justice because no hearing or right to representation.
I remember writing about this previously in my abuselaw blogspot blog as long ago as 2011. David Cameron was forever complaining that Human Rights were wrong (yes really!) in that it gave prisoners rights they didn’t deserve such as the right to vote. He criticised Europe for interfering with our sovereignty, then was surprised when the public voted to leave the EU. The Tories have long argued that we should have our own Bill of Rights, and detach ourselves from Europe. It was a Brexit argument which in view was deeply flawed. Human Rights are the best way of preventing a procession of Upper Court decisions each of which relies on common law precedent to produce a decision at odds with Human Rights.
Abuse of Power
In Child Abuse case law, Human Rights has come to our aid on several occasions eg. JR & Others v East Berkshire Community Health & Others EWCA Civ 2003 1151. Human Rights were at the heart of the principle that Social Services should be held to account for the way in which they exercise their duty to care for children.
To the Tories, indeed across the parties, power to do what they deem right for the country is paramount, and whenever judges make decisions which curb their power, they regard it as interference. Remember the Supreme Court decision which ruled that Boris Johnson’s advice to the Queen that parliament should be prorogued for five weeks at the height of the pandemic was unlawful.
The ultimate examples of when a dictator seizes power, and everything gets out of control are the likes of Pinochet in Chile, and Hitler in Germany. Typically, power divests into one man, and the powers of the judiciary are curbed or influenced by the Executive. Powers are centralised rather than separated.
The UK government is pursuing multiple legal reforms designed to re-balance “the relationship between the government, parliament and the courts” – a commitment made in the Conservative party’s 2019 election manifesto.
Why change the law?
Clearly, this change of the law is designed to enable the secretary of state, where he deems it necessary, to overule the Parole Board, who, in the minds of the Daily Mail and the like, have released prisoners when they are still a danger to the public, despite evidence to the contrary from psychiatrists/psychologists. This is particularly true of sex offenders who arguably will always have the urge to abuse children.
Recent stories include Colin Pitchfork, the double child killer who the Parole Board say can be released, and Charles Bronson, the famous burgler who was rumoured to be released after a Parole Board hearing.
Older readers may remember the time when the Home Secretary was responsible for deciding if offenders convicted of very serious crimes such as murder should be release on parole. That was deemed to be wrong by the standards of the time, and his powers were removed to the jurisdiction of the Parole Board. If the proposed new law comes in, we will be going backwards to a situation where there is no separation of powers, and the secretary of state (Legislative) takes on the power of a judge (Judiciary). Very wrong from the point of view of jurisprudence, but not necessarily politics.