Victims and Prisoners Bill

Written evidence submitted by the Law Society of England and Wales (VPB03)

Victims and Prisoners Bill – House of Commons Public Bill Committee

1. The Law Society of England and Wales is the independent professional body that works globally to support and represent 220,000 solicitors, promoting the highest professional standards and the rule of law.

2. This written submission outlines our views on the Victims and Prisoners Bill, including areas where it should be amended.

Introduction

3. The Law Society welcomes the provisions in this Bill to provide an Independent Advocate for victims following major incidents, and to enhance victims’ access to justice by putting the Victims’ Code on a statutory footing.

4. The Government should take further steps to improve access to justice by removing the exceptional case funding test for legal aid in cases where an Independent Legal Advocate has been appointed and enhance their powers to include the ability to instruct lawyers on behalf of a victim.

5. Changes within this Bill to the Parole Board are likely to add complexity and delay to its decisions, while provisions to give the Secretary of State powers to usurp its decision making will override the common law principle that decisions about liberty are for the judiciary. These provisions should be removed.

Changes to parole and the power to usurp parole decisions

6. The Bill will give new powers to the Secretary of State to overrule the Parole Board in certain cases, while implementing a new test for release of prisoners.

7. The Law Society is not convinced these changes will make a positive difference for victims but may adversely affect them as they will inevitably result in delays, which could lead to the automatic release of a fixed term prisoner without licence conditions and supervision.

8. The Bill gives the Secretary of State the power to usurp the Parole Board and retake a parole decision for prisoners involved in serious offences, including murder, terrorism, and serious sexual offences. The Secretary of State will be able to quash a release decision and make it themself if the Parole Board has decided to release a prisoner in one of these cases.

9. The Parole Board will also be able to refer a case back to the Secretary of State if it feels it cannot adequately assess the risk to the public.

10. The Bill allows the Secretary of State to refer cases to the Parole Board and so becomes a party to parole proceedings. This power erodes the basic principle of common law that no one can be a judge in their own cause.

11. In the Pinochet case Lord Hope sets out the very lengthy history of common law which makes being a judge in your own cause objectionable and concludes that "Public confidence in the integrity of the administration of justice is just as important, perhaps even more so, in criminal cases".

12. Therefore, this power erodes this key common law principle and risks undermining the integrity of the administration of justice in parole cases, which are all about the liberty of the subject.

13. Should this measure be used, there is no right for legal representation, no access to legal aid or a specific process to follow. A Secretary of State may interview a prisoner, but there is no obligation to do so or for a hearing of any kind.

14. There is also limited scope for an appeal. A prisoner would be able to appeal to the Upper Tribunal on judicial review grounds or on the basis that the release test has been met, no other grounds are allowed. As liberty is at stake, this is an extremely limited safeguard, while there is no requirement for legal aid to be available.

15. The power of the Parole Board to refer a case to the Secretary of State because it is unable to decide appears to be highly unusual. It seems difficult to imagine a situation where the Parole Board feels it does not have the expertise to decide, but the Secretary of State does.

16. It is a fundamental principle of our legal system that decisions about the liberty of citizens are made independently by the judiciary, except where Parliament expressly provides to the contrary, a decision that must involve intense scrutiny. These changes would undermine a founding block of our common law.

17. As they pose a danger to access to justice and come with very limited safeguards or grounds for appeal, these provisions should be removed from the Bill.

New test for release on parole

18. The Bill will implement a new release test for the Parole Board when making decisions about whether to release an offender. Currently, the Parole Board must be satisfied that it is no longer necessary for the protection of the public that the prisoner should remain detained.

19. The new test outlines that there must be no more than a minimal risk that a prisoner would commit serious harm if released.

20. The Bill also requires the Parole Board to consider the risk of a list of specific offences being committed if a prisoner is released. Finally, the Bill sets out a list of factors decision makers should consider when making a public protection decision about a prisoner. These include elements like the nature of their offence, the conduct of the prisoner while serving their sentence and the risk of not complying with any licence conditions.

Impact on victims and prisoners

21. Practitioners have told us that the Board already takes these elements into account when making decisions. Adding these elements into legislation may make the process more complex and drawn out, while having little practical impact. A more drawn-out process will likely have a negative impact on victims and prisoners alike, as they are forced to wait for decisions to be made.

22. The Law Society believes that as these provisions apply equally to indeterminate and determinate prisoners, there is a real risk that fewer prisoners serving fixed sentences will be released on licence, instead being released automatically when their sentences end without any supervision. This may cause greater distress to victims as there will be no supervisory involvement from probation services.

Disapplication of section 3 of the Human Rights Act to prisoners

23. The Bill will disapply section 3 of the Human Rights Act to prisoners as a group when it comes to legislation about their release. Section 3 of the Human Rights Act requires courts to interpret legislation compatibly with rights under the European Convention of Human Rights as far as it is possible to do so.

24. This means that where there is ambiguity in legislation, with one possible interpretation being rights-compliant and another non-compliant, the courts should favour the one that respects rights. There is a limit on this in that courts cannot go against the ordinary meaning of the text, or the overall grain of the legislation.

25. The section 3 duty is necessary to provide consistent protection for rights as it enables an immediate remedy to the individual with minimal disruption. Disapplying this duty would mean that, where a decision regarding a prisoner’s release made under the legislation concerned is incompatible with Convention rights, courts will instead have to issue a declaration of incompatibility.

26. If these are not acted upon by the executive, it is likely the cases concerned will proceed to the European Court of Human Rights. Given that the domestic court will have already found an incompatibility, this increases the risk that the UK will be found to be in breach of its international obligations.

27. Disapplying it for prisoners as a group would significantly weaken the system of human rights protections in the UK. It undermines the universality of human rights by targeting a specific group to receive reduced protection. Similar provision has been made in respect of refugees and asylum seekers in the Illegal Migration Bill and the Law Society is greatly concerned that human rights protections are being removed from categories of people.

Application of Convention rights

28. In addition to disapplying section 3 of the Human Rights Act, Clause 45 directs courts to give the "greatest possible weight to the importance of reducing the risk to the public" when a question arises as to whether a person’s rights under the European Convention of Human Rights have been breached in relation to a decision made under legislation concerning prisoner release.

29. It is not clear what the "greatest possible weight" will mean in practice and will require interpretation by judges. We are concerned that this will lead to an increase in litigation challenging this new standard.

30. We also do not believe it has been evidenced by the Government that this change is necessary. In practice, judges already carefully consider potential risk to the public when considering issues of prisoner release and the balance to be struck with individual rights.

Disclosure of third-party material

31. We understand the Government will be bringing forward an amendment to introduce statutory duties on the police in relation to requests for third party material in all criminal investigations.

32. These statutory duties are already present in the law, and we will be examining them closely to understand any impact they could have on access to justice. Disclosure of evidence to the defence is fundamental to ensuring a fair trial.

33. Guidance on disclosure issued by the College of Policing, the CPS and the Attorney General have all stressed the importance of disclosure being targeted and relevant to a reasonable line of enquiry. If followed, they should help to protect privacy of victims, while ensuring effective investigations.

Establishment of an Independent Public Advocate

34. The Law Society welcomes the establishment of an Independent Public Advocate (IPA) in the Bill. This will provide support to victims when a major incident occurs, providing them with support and guidance in the aftermath of a serious event, like the Grenfell Tower fire.

35. The Government should go a step further and provide the IPA with powers to instruct lawyers on behalf of a victim and make access to legal aid automatic, removing the exceptional funding test. This will make sure victims are properly represented during an inquiry and enhance their access to justice.

Removal of the exceptional funding test

36. At present, legal aid is generally not provided for legal representation at inquests or inquiries. There is a limited Legal Help scheme, which can cover some preparatory work for an inquiry. For inquests, Exceptional Case Funding (ECF) may be available, but the test for receiving this is narrowly drawn and very strictly interpreted. Moreover, ECF may in some cases be offered only for preparatory help, and not for representation at a hearing.

37. It is welcome the Government intends to remove the means test for inquests that meet the current exceptional funding test.

38. The exceptional funding test states that legal aid should be granted where there are human rights considerations or a wider public interest. By definition, in cases involving an IPA there is a wider public interest. Removing the test would simply remove an added layer of bureaucracy, helping victims and saving public money.

39. The Bill should be amended to remove the exceptional funding test, and provide that legal aid is automatically available in cases where an IPA is appointed.

Powers for an IPA to appoint lawyers

40. The Government has acknowledged that inquiries following major incidents can be "daunting, confusing and overwhelming", with the IPA intended to provide support through this process. That applies whether the inquiry is in the form of an inquest, a public inquiry or otherwise.

41. Other interested parties will invariably have senior legal representation at every hearing. Providing legal aid would ensure that victims have legal representation and access to advice in the run up to and throughout an inquiry to help navigate this difficult process on a level playing field.

42. As the IPA is not permitted to provide legal representation or provide legal advice, the Bill should be amended to give them powers to explicitly include being able to appoint a lawyer on behalf of a victim.

43. A lawyer will be able to provide the advice and guidance for a victim, ensuring their best interests are kept at the forefront during an inquiry. This will have the added benefit of providing further independence when an inquiry involves the Government or its agencies.

44. This would be a welcome step to enhance access to justice and support victims.

Support for victims

45. The Law Society supports provisions within this Bill to enhance and protect victim’s access to justice. This legislation takes a number of steps to increase the rights of victims and increase their access to protections within the law.

46. The Bill will enshrine the Victims’ Code into primary legislation enabling better support for victims of crime. A duty will be placed on Police and Crime Commissioners, local authorities and others to work together and provide more coordinated support services for victims too. The legislation also provides statutory guidance for independent sexual and domestic violence advisers and enhances the role of the Victims Commissioner.

47. These are all positive steps that the Law Society broadly welcomes.

June 2023