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R (on the application of Stellato) (Respondent) v. Secretary of State for the Home Department (Appellant)
LORD BINGHAM OF CORNHILL
1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I am in full agreement with it, and for that reason agree that the Secretary of State's appeal should be dismissed and the respondent discharged.
2. I have had the benefit of reading in draft the opinion prepared by my noble and learned friend Lord Brown of Eaton-under-Heywood, and for the reasons which he has given I too would dismiss the appeal. I also agree with the observations of my noble and learned friend Lord Hope of Craighead on the significance of the procedure by which the 2005 Order was made.
LORD HOPE OF CRAIGHEAD
3. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brown of Eaton-under-Heywood. For the reasons he gives I too agree that the appeal should be dismissed and the respondent discharged.
4. As Lord Brown has explained, the answer to the question raised by this case depends on the proper construction of certain provisions in the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 (SI 2005/950 (C42)) ("the 2005 Order"). It is a remarkable feature of this case that, if their effect had been that the respondent was entitled only to release on licence despite having reached the three-quarter point of the ten year sentence which he received under the regime that was in force when he committed the offences for which he was sentenced, this would have been achieved by a method of legislating that exposed the measure to the minimum of Parliamentary scrutiny. This raises a point of practice on which I wish to add these brief comments.
5. The preamble to the 2005 Order states that it was made in the exercise of powers conferred on the Secretary of State by sections 330(4)(b) and 336(3) and (4) of the Criminal Justice Act 2003. Section 330(2), read with section 330(1)(a), states that any power which the Act confers on the Secretary of State to make orders and rules is exercisable by statutory instrument. Section 330(4) provides:
Section 336 deals with commencement. Subsections (3) and (4) of that section state that the provisions of the Act, other than those mentioned in the two preceding subsections, come into force in accordance with provision made by the Secretary of State by order, and that different provision may be made for different purposes and different areas. In note (a) to the 2005 Order attention is drawn to the fact that section 333(3) is relevant to the scope of the powers in section 330(4)(b). Section 333 deals with supplementary and consequential provisions. Section 333(3) provides:
6. The explanatory note to the 2005 Order confirms that the powers which the Secretary of State was exercising were those dealing with commencement and the making of transitional or saving provisions. It states (a) that the Order brings into force the provisions of the 2003 Act set out in Schedule 1 on 4 April 2005, those referred to in article 3 on 18 April 2005 and those referred to in article 2(2) and article 4 on 4 April 2007, and (b) that commencement in the case of provisions falling under article 4 and Schedule 1 is subject to the saving and transitional provisions contained in Schedule 2. Paragraphs 19 and 23 of Schedule 2 are the provisions that are under scrutiny in this appeal.
7. The 2003 Act reserved some measure of control over the exercise of these powers to Parliament. The systems which it selected must be seen in the light of those which Parliament itself has put in place for delegated legislation to be subjected to scrutiny. All statutory instruments made in the exercise of powers granted by an Act of Parliament are considered by the Joint Committee on Statutory Instruments. Its role is to assess the technical qualities of each instrument that falls within its remit and to decide whether to draw the special attention of the House to any instruments on any one or more of a number of specified grounds which are of a technical character: House of Commons Standing Order No 151; House of Lords Standing Order No 74. These grounds include that the drafting appears to be defective. Defects of that kind may include simple misprints such as those in paragraph 23 of the 2005 Order which Lord Brown mentions in paragraph 36. Where technical defects are discovered, they are drawn to the attention of the Department which was responsible for the instrument for its comments before the instrument is drawn to the special attention of both Houses. It is not surprising, in view of the huge volume of delegated legislation that has to be scrutinised by this Committee, that the misprints in paragraph 23 were not detected by it so that arrangements could be made for them to be corrected by the Home Office at the earliest opportunity.
8. Then, so far as the House of Lords is concerned, there is the Merits of Statutory Instruments Committee. Its terms of reference include the consideration of every draft of an instrument laid before each House of Parliament upon which proceedings may be taken in either House under an Act of Parliament. This is with a view to determining whether or not the special attention of the House should be drawn to it on grounds of a more general character. These are (a) that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House, (b) that it may be inappropriate in view of changed circumstances since the enactment of the parent Act, (c) that it may inappropriately implement European Union legislation and (d) that it may imperfectly achieve its policy objectives. Matters within the orders of reference of the Joint Committee on Statutory Instruments are excluded from those that it may consider.
9. Here again the volume of the material that passes through the committee's hands affects the number of instruments that can be singled out for detailed scrutiny. It is rare for instruments made in the exercise of commencement powers to feature on the list of those which are singled out for detailed scrutiny by the Merits Committee. Exceptionally, this Committee did draw attention to the draft Criminal Justice Act 2003 (Commencement No 12 and Transitory Provisions) Order 2005 on the ground that it gave rise to issues of public policy likely to be of interest to the House and was legally important: (Thirteenth Report, 10 November 2005, Session 2005-2006). But the purpose of this Order, which was made under sections 333(1) and (2)(a) and 336(3) of the 2003 Act, was to commence the provisions of section 43 of that Act which deals with applications by the prosecution for certain serious and complex fraud cases to be conducted without a jury. Section 330(5)(b) provides that an order bringing section 43 into force is subject to the affirmative resolution procedure. The Order was approved in the House of Commons, but it was withdrawn by the government shortly before it was due to be debated in the House of Lords.
10. The opportunity for wider and more detailed debate and scrutiny of delegated legislation in both Houses is determined by the provisions in the enabling Act. Four procedures are available: affirmative resolution procedure; negative resolution procedure; simply laying; and no parliamentary stage at all: Butterworths Legal Research Guide, 2nd edition (2001), para 4.74. Which of these procedures is prescribed in the enabling legislation will determine whether there are likely to be any debates. It is important in the context of this appeal to see what the 2003 Act laid down.
11. The relevant provisions in the 2003 Act are set out in section 330(5) and (6). Section 330(5) provides that a statutory instrument containing (a) an order made under various provisions which are listed in that paragraph, (b) an order under section 336(3) bringing into force section 43, (c) an order making provision by virtue of section 333(2)(b) which adds to, replaces or omits any part of the text of an Act, or (d) rules made under section 240(4)(a) (which enables the Secretary of State, in certain cases, to make rules to the effect that the number of days for which the offender was remanded in custody in connection with the offence or a related offence are not to count as time served by him as part of the sentence) "may only be made if a draft of the statutory instrument has been laid before, and approved by a resolution of, each House of Parliament." This is a reference to the affirmative resolution procedure. Section 330(6) provides that any other statutory instrument made in the exercise of a power to which the section applies is subject to annulment in pursuance of a resolution of either House of Parliament. This is a reference to the negative resolution procedure.
12. The affirmative resolution procedure requires that a resolution must be passed by both Houses before the order or rules can be made. This provides an opportunity for scrutiny and debate in the Chamber of each House or, in the case of the House of Lords, its detailed consideration in Grand Committee before a resolution is put to the vote in the Chamber. The negative resolution procedure is a less rigorous form of parliamentary control. The instrument is laid before both Houses for a period of 40 days. It takes effect on the expiry of that period unless it has been defeated by a resolution annulling it or praying that it be annulled. It is rare for instruments which are subject to the negative resolution procedure to be challenged in this way, and it is even rarer for such a challenge to be successful. In practice, subjecting the exercise of the power to the affirmative resolution procedure is the only way of ensuring that an opportunity is given for debate on an order or rule that is made under it.
13. The Secretary of State is given power by section 333(2)(b)(i) to amend or repeal any Act passed before or in the same Session as the 2003 Act when he is making any transitory, transitional or saving provision which he considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to any provision of the Act by an order made under section 333(1). As I have already mentioned, an order making provision by virtue of section 333(2)(b) which adds to, replaces or omits any part of the text of an Act is included among the orders that are subjected to the affirmative resolution procedure by section 330(5). But section 333(2)(b) was not among the list of the enabling powers that were mentioned in the preamble to the 2005 Order. The power to make transitory, transitional or saving provision which the Secretary of State was exercising in this case was that which he was given by section 330(4)(b). As the footnote to the 2005 Order points out, the section 330(4)(b) power is not limited by the extent of the power in section 333(2)(b). The effect of making use of the section 330(4)(b) power was to exclude the 2005 Order from the list of orders that are subject to the affirmative resolution procedure. It was subject only to the negative resolution procedure. It was laid before Parliament for the requisite period of 40 days after it was made. But it was not subjected to scrutiny by debate in either House.
14. The provisions in paragraphs 19 and 23 of Schedule 2 to the 2005 Order on which the Secretary of State's argument depends do not purport to amend or repeal the provisions of the Criminal Justice Act 1991 under which long-term prisoners were entitled to be released unconditionally when they reached the three-quarter point of their sentences: see sections 33(3) and 37(1). Nor do they purport to amend the Crime and Disorder Act 1998 by giving retrospective effect to section 104, which provided that, if a pre-30 September 1998 Act prisoner was released on licence and then recalled, his further release was to be on licence until the end of his sentence. Yet the result for which the Secretary of State contends would have the effect of depriving the respondent, and all the other pre-2003 Act offenders who are in the same position as he is, of the entitlement to unconditional release at the three-quarter point which they were afforded by the 1991 Act. The effect would be to amend the regime under which the respondent and others like him were sentenced retrospectively.
15. I respectfully agree with Lord Brown that, if such a surprising result were intended, it ought to have been enacted in the clearest of terms. In my opinion this conclusion is greatly strengthened by the method of legislating that was employed in this case. It could not have been better designed to ensure that, if it was intended, the matter would escape attention when the 2005 Order was being scrutinised under the parliamentary procedures which I have described. We have no means of knowing what instructions the draftsman was given, or whether the Minister of State's attention was expressly drawn to these provisions before she signed the Order on 24 March 2005. All we have to go on is the wording that is to be found in the Schedule. But one would have expected, in the light of the carefully worded provisions of sections 330 and 333 of the 2003 Act, that the Order would have been made under section 333(2)(b) and the affirmative resolution procedure used if it was the Secretary of State's intention that the respondent and others like him should be deprived of their statutory entitlement. The fact that the order was not made under section 333(2)(b), with the result that the affirmative resolution procedure was not used, is a powerful indication that paragraphs 19 and 23 are to be understood as dealing only with matters of definition and procedure of a transitional nature, not with matters of substance affecting prisoners' rights about which an opportunity ought to have been given for debate in Parliament.
16. I have had the benefit of reading in draft the opinion prepared by my noble and learned friend Lord Brown of Eaton-under-Heywood, and for the reasons which he has given I too would dismiss the appeal.
LORD BROWN OF EATON-UNDER-HEYWOOD
17. The respondent is a prisoner serving a ten year sentence for offences committed in June 1998. On 27 December 2005 he reached the three-quarter point of that sentence and became entitled to his release. Was he, however, entitled to be released unconditionally or was he entitled only to release on licence, subject to recall at any time until the end of his sentence? That is the issue for your Lordships' determination on this appeal and ultimately it depends upon the true construction of certain saving and transitional provisions relating to the new parole scheme introduced with effect from 4 April 2005 by the Criminal Justice Act 2003 (the 2003 Act).
18. First, however, I must indicate something of the prisoner release system and how it has changed over recent years. In particular it is necessary to notice certain core features of three successive statutory regimes, respectively under Part II of the Criminal Justice Act 1991 (the 1991 Act), under the 1991 Act as amended with effect from 30 September 1998 by the Crime and Disorder Act 1998 (the 1998 Act), and, with effect from 4 April 2005, under Chapter 6 of Part 12 of the 2003 Act. Your Lordships are concerned only with the application of these regimes to long-term determinate sentence prisoners (those sentenced to four years or more) like the respondent.
19. Under the 1991 Act long-term prisoners became eligible for release on licence (parole as I shall call it) at the Home Secretary's discretion on the Parole Board's recommendation at the halfway point of their sentence (section 35(1)). At the two thirds point, if not already released, the prisoner became entitled to parole (section 33(2)). At the three quarter point, the prisoner was entitled to his freedom; if he had before then been recalled to prison and was still in custody he was entitled to be released unconditionally (section 33(3)); if he was then on parole his licence at that point expired (section 37(1)). The prisoner could not, in short, be required to serve more than three quarters of his sentence. Section 39 (under the heading "Recall of prisoners while on licence") provided for recall in either of two ways: