Roberts (FC) (Appellant) v Parole Board (Respondents)
20. That conclusion makes it necessary to consider the other major question debated in argument, whether the Board has power to adopt this procedure. The Board was first established by section 59 of the Criminal Justice Act 1967, and was continued in existence by section 32 of the Criminal Justice Act 1991, which was in force when the appellant's current parole review began. Section 32, so far as material and as amended, provided:
Section 32 of and Schedule 5 to the 1991 Act were repealed and replaced by section 239 of and Schedule 19 to the Criminal Justice Act 2003, but it was not suggested in argument that this change had any bearing on the issue to be decided by the House.
21. The House was referred to Parole Board Rules made by the Secretary of State under section 32(5) of the 1991 Act in 1992, 1997 and 2004. The 1992 and 1997 Rules were in very much the same terms, although the 1997 Rules applied to wider classes of life sentence prisoners, and neither applied to mandatory life sentence prisoners until section 28 of the 1997 Act was amended by section 275 of the Criminal Justice Act 2003, which came into force on 18 December 2003. Common to the 1992 and 1997 Rules was a requirement in rule 5(1) to serve relevant information and reports on the prisoner or his representative. But this requirement was qualified by paras (2) and (3):
A right to be represented (subject to certain exclusions) was provided in rule 6, and a right for the prisoner to call witnesses and adduce evidence, subject to certain procedural conditions, by rules 7 and 8. The chairman of the panel had power to give directions (rule 9), among them a direction (rule 9(1)(d)):
There was to be an oral hearing of the prisoner's case unless otherwise agreed (rule 10) and the hearing was to be at the prison or other institution where the prisoner was detained (rule 12(1). It was provided in rule 13(2) that:
This paragraph was subject to paragraph (3) which provided:
Rule 15(2) provided:
22. The 2004 Rules come into force on 1 August 2004, and are accepted by the appellant as applying to his case, which was referred to the Board again by the Secretary of State on 21 February 2005. In these Rules certain changes were made. Rule 6(2) and (3) reproduce rule 5(2) and (3) of the 1992 and 1997 Rules, but with some expansion and qualification:
Rule 8, which in part reproduces rule 9 of the earlier rules in relation to the giving of directions, provides in (2)(d) that a direction:
The prisoner must give notice whether he wishes to attend the hearing (rule 14(3)). Rule 15 entitles him to call witnesses if he obtains leave to do so. Rule 18(1) provides that:
Rule 19(2) and (3) reproduce rules 13(2) and (3) of the earlier rules. Rule 19(6) is new and provides:
Rule 20, relating to the panel's decision provides:
23. A statutory tribunal has such powers as its parent statute confers upon it, whether expressly or impliedly, and no more. Where the power is express, no difficulty should arise. For purposes of implication, the test propounded by Lord Selborne LC in Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473, 478, has been treated as generally applicable, whether to companies, local authorities or statutory corporations. He agreed with James LJ that:
Section 111 of the Local Government Act 1972 empowers local authorities to do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions. Paragraph 1(2) of Schedule 5 to the 1991 Act, as already noted, empowers the Board to do such things and enter into such transactions as are incidental or conducive to the discharge of its statutory functions.
24. There is nothing in the 1991 Act or the 2003 Act which expressly authorises the Board to hold an oral hearing to review a tariff-expired mandatory life sentence prisoner's application for parole in a manner that does not accord with the well-known principles of natural justice. There is in particular nothing in either Act which expressly authorises the Board to make a decision adverse to a prisoner without disclosure to the prisoner of the case against him, so that he may answer it if he can; to deny him the benefit of an adversarial hearing; to provide for the exclusion of himself or his legal representative from the hearing; or to adopt a specially appointed advocate procedure. The Board and the Secretary of State did not argue otherwise. Rules made by the Secretary of State under section 32(5) cannot enlarge the powers conferred by the Act. This is trite law, and Mr Owen was right to concentrate his argument on lack of power in the Act and not on the effect of the Rules. But in any event, the 1992 and 1997 Rules do not begin to authorise the steps listed above; nor do the 2004 Rules purport to authorise them, despite some steps in that direction. If, therefore, the taking of those steps are to be justified as within the powers of the Board it must be because they are incidental or conducive to the discharge of the Board's functions. The Board and the Secretary of State contended that power to take such steps is indeed incidental and conducive to the discharge of the Board's functions, pointing to the undoubted importance of the Board's functions in protecting the public against the risk of injury or death and protecting witnesses against the risk of retaliation.
25. There are in my opinion two reasons, each of them independently conclusive, why this argument cannot be accepted. The first depends on the presumption that Parliament does not intend to interfere with the exercise of fundamental rights. It will be understood to do so only if it does so expressly. In R v Secretary of State for the Home Department, Ex p Pierson  AC 539, 574 Lord Browne-Wilkinson said:
Lord Steyn spoke to similar effect: pp 587-590. In R v Secretary of State for the Home Department, Ex p Simms  2 AC 115, 131, Lord Hoffmann expressed the point very clearly:
For reasons given above, the course proposed and so far adopted in the conduct of the appellant's parole review involves a substantial departure from the standards of procedural fairness which would ordinarily be observed in conducting a review of this kind. It would in my opinion violate the principle of legality, strongly relied on in argument by Mr Owen, and undermine the rule of law itself, if such a departure were to be justified as incidental or conducive to the discharge of the Board's functions.
26. My second reason for rejecting the implication argument is based on the historical record, which demonstrates that the presumption to which I have referred is not a lawyer's fiction but a practical reality. The procedure formerly adopted for handling deportation challenges raising sensitive questions of national security was finally condemned by the European Court in Chahal v United Kingdom (1996) 23 EHRR 413. In para 131 of its judgment in that case the Court referred with approval to a form of judicial control obtaining in Canada, apparently somewhat analogous to the special advocate procedure (although the Court has suspended judgment on the conformity of that procedure with the Convention: Al-Nashif v Bulgaria (2002) 36 EHRR 655, para 97). Parliament acted on this indication. In response to the judgment the Special Immigration Appeals Commission Act 1997 was enacted to establish the Commission. That Act conferred power on the Lord Chancellor to make rules (section 5(1)) and gave express power in section 5(3) to make rules which would:
Such rules were to be made by statutory instrument (section 5(8)) of which a draft was to be laid before and approved by resolution of each House. Seeking the House of Lords' approval of the first rules made under the Act, the Lord Chancellor acknowledged that the Commission's procedures departed from what would ordinarily be required to satisfy natural justice: House of Lords Hansard, 29 July 1998, Col 1587. Section 6 of the Act provided for the appointment of special advocates (not so described), who would not be responsible to the person whose interests they were appointed to represent. The Special Immigration Appeals Commission (Procedure) Rules 2003 (SI 2003/1034), now in force, lay down detailed provisions governing the withholding of material from the applicant and his legal representative (e.g. rules 10(3), 16(3), 37), the appointment and role of special advocates (rules 34-36), the holding of hearings in the absence of the appellant and his legal representative (rule 43), qualification of the appellant's right to cross-examine opposing witnesses (rule 44(5)) and a qualification of the Commission's duty to give reasons for its decision (rule 47). Thus whatever the merits of these procedures (which have caused concern to the House of Commons Constitutional Affairs Committee and a number of special advocates, as evidenced by the report referred to in para 18 above, but on which the House is not required to rule in this appeal), it seems clear that they have been authorised by primary legislation and by rules approved in Parliament. Reliance has not been placed on implication to warrant so significant a departure from ordinary standards of procedural fairness.
27. Schedule 3 to the Terrorism Act 2000, governing the Proscribed Organisations Appeal Commission, contained provisions very similar to those already noted in the Special Immigration Appeals Commission Act 1997, including (in paragraph 7) provision for special advocates, and was followed by the Proscribed Organisations Appeal Commission (Procedure) Rules 2001 (S1 2001/443) similar in effect to the SIAC Rules already mentioned. The Race Relations (Amendment) Act 2000, inserted a section directed to national security into the Race Relations Act 1976, and contained express statutory authority to make rules which would exclude a claimant and his representatives from the hearing and for the appointment of a special advocate who would not be responsible to the person whose interests he was appointed to represent. Schedule 6 to the Anti-terrorism, Crime and Security Act 2001, governing the Pathogens Access Appeal Commission, was very closely modelled on that pertaining to proscribed organisations in Schedule 3 to the 2000 Act, containing almost identical provisions. The Pathogens Access Appeal Commission (Procedure) Rules 2002 (S1 2002/1845) were closely modelled on the Proscribed Organisations Rules. Section 80 of the Planning and Compulsory Purchase Act 2004 made special provision for the appointment of a person to represent the interests of any person who would be prevented from hearing or inspecting any evidence at a local inquiry on grounds of national security. Rules made under the section to regulate this procedure were to be contained in a statutory instrument subject to annulment in pursuance of a resolution of either House. The Schedule to the Prevention of Terrorism Act 2005 contains detailed provisions governing the making of procedural rules, varying the ordinary rules of procedural fairness, in the context of control orders. Such rules are required to be laid before Parliament and are to cease to have effect if not approved by a resolution of each House within 40 days of the making of the rules. The Civil Procedure (Amendment No. 2) Rules 2005 (SI 2005/656 (L16)), made on 11 March 2005, contain detailed provisions governing the exclusion of a party and his legal representative from the hearing and the appointment of special advocates.
28. Reference was made in argument to four instances in which there had been a departure from the ordinary rules of procedural fairness in Northern Ireland:
(1) The Northern Ireland (Sentences) Act 1998 provided for prisoners serving sentences for scheduled offences to apply to Sentence Review Commissioners for early release if they were able to meet certain statutory conditions. By Schedule 2 to the Act the Secretary of State was empowered to make rules which might, among other things, provide for the withholding of evidence about a prisoner, the holding of hearings in the absence of the prisoner and his legal representative and the appointment of a person to represent the prisoner when he and his representative were excluded. Schedule 2 came into force on 28 July 1998 and on 30 July the Secretary of State, acting under the authority of Schedule 2, made the Northern Ireland (Sentences) Act 1998 (Sentence Review Commissioners) Rules 1998 (SI 1998/1859), which contained more detailed provisions to the same effect. Information could be withheld from the prisoner and his representative as a safeguard against dangers which included not only threats to national security but also adverse effects on the health, welfare or safety of any person.
(2) Section 85(1) of the Northern Ireland Act 1998 empowered Her Majesty by Order in Council to make provision dealing with a number of reserved matters listed in Schedule 3, one of which (para 9(e)) was the treatment of offenders. It was a broad power, extending (section 85(1)(c)) to the amending or repealing of any provision made by or under any Act of Parliament or Northern Ireland legislation. But (section 85(3)) no recommendation might be made to Her Majesty to make an Order in Council under the section unless a draft of the Order had been laid before and approved by resolution of each House of Parliament. In exercise of this power, by the Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564) Her Majesty in Council made provision for the appointment of Life Sentence Review Commissioners to deal with tariff and release decisions. Schedule 2 to the Order empowered the Secretary of State to make procedural rules, subject to annulment by resolution of either House. Such rules might provide for the withholding of evidence from a prisoner (para 3(e)), the conduct of proceedings in the absence of the prisoner and his legal representative (para 6(1)) and the appointment of a person to represent the interests of the prisoner when he and his representative were excluded (para 6(2)). Pursuant to Schedule 2, the Secretary of State made the Life Sentence Review Commissioners' Rules 2001 (SR 2001/317), which provided in rule 10(8) for conducting parts of the hearing in the absence of the prisoner and his legal representative, in rule 15(2) for the withholding from the prisoner and his legal representative of any information certified by the Secretary of State to be confidential, as defined, and in rule 16(2) for the appointment of a special advocate to represent the interests of the prisoner.
(3) The Northern Ireland (Remission of Sentences) Act 1995 came into force on 17 November 1995 (SI 1995/2945) and was significantly amended by the Terrorism Act 2000. Section 1(3) of the 1995 Act empowered the Secretary of State to revoke the licence of a person released from prison in specified circumstances
"if it appears to him that the person's continued liberty would present a risk to the safety of others or that he is likely to commit further offences; and a person whose licence is revoked shall be detained in pursuance of his sentence and, if at large, be deemed to be unlawfully at large."
A person whose licence was revoked was entitled under section 1(4) to make representations in writing to the Secretary of State about the revocation and to be informed as soon as practicable of the reasons for the revocation and of his right to make representations. There was no provision in the statute enabling the person whose licence had been revoked to seek a review of the lawfulness of his detention by any independent court or tribunal, and section 1(3) and (4) was plainly incompatible with article 5(4) of the Convention: see for example Waite v United Kingdom (2002) 36 EHRR 1001. This decision was made on 10 December 2002. On 13 January 2003 the Secretary of State issued a "Written Statement" in which he stated:
Annexed to this document was a note listing the additional safeguards the Secretary of State would apply. This provided that the Commissioner would decide the procedure for dealing with any representations, subject to paragraphs 5 and 6 which read:
These paragraphs were supplemented by paragraphs 7-9:
(4) Section 24(1)(c) of the Northern Ireland Act 1998 provided that a minister or department of the Northern Ireland government should have no power to do anything which discriminated against a person or class of person on the ground of religious belief or political opinion. Section 76 of the Act, applying to public authorities, was to similar effect, although expressly conferring a right of action. Where a person claimed to be a victim of discrimination in contravention of section 24 or 76, it was open to the person against whom the claim was made to propose to rely (section 90(1)(b) of the Act) on a certificate purporting to be signed by or on behalf of the Secretary of State certifying
"(i) that an act specified in the certificate was done for the purpose of safeguarding national security or protecting public safety or public order; and
(ii) that the doing of the act was justified by that purpose."
A claimant might appeal against the certificate to a Tribunal established under section 91, in accordance with rules made by the Lord Chancellor (section 90(2)), which might uphold or quash the certificate (section 90(3)). Section 91(1) established the Tribunal and section 91(2)-(6) governed the Lord Chancellor's rule-making power. It was specifically enacted that rules might provide for the withholding of information from the claimant, for the conduct of proceedings in the absence of the claimant and his legal representative and for regulating the functions of persons who might be appointed to represent the interests of the claimant when he and his legal representative were excluded (subsections 4(a), 4(b) and 4(c)). Power to appoint such persons was conferred on the Attorney General for Northern Ireland by subsection (7). In exercise of his rule-making power, the Lord Chancellor made the Northern Ireland Act Tribunal (Procedure) Rules 1999 (SI 1999/2131), which were laid before and approved by resolution of each House as required by section 96(6) of the 1998 Act. These rules made provision for the appointment of special advocates (rule 9), the withholding of information from the claimant (rules 10 and 11), the exclusion of the claimant and his legal representative from the hearing (rule 18) and the issue of incomplete reasons (rule 22).