R (Scott H-S) v Secretary of State for Justice

The claimant applied for judicial review of the Secretary of State's decision not to consult upon, or to exercise, the power in section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to vary the statutory test applied by the Parole Board to prisoners serving sentences for imprisonment for public protection (IPP). The court held that reliance on Parliamentary debates and ministerial statements to impose a legally enforceable duty to consult or to require the Secretary of State to lay a draft order before Parliament was impermissible because of Article 9 of the Bill of Rights 1689 and the constitutional separation of powers. The court applied the settled limits on use of Hansard (Pepper v Hart and Spath Holme) and concluded Parliamentary material could be used only as historical fact and not to define the scope of a discretionary statutory power.

The court further held that section 128 conferred a broad discretion on the Secretary of State and Parliament had chosen not to impose a duty to change the release test. On the facts (including ministerial advice summarised in the Bailey statement) the Secretary of State had lawfully, rationally and proportionately decided not to pursue changing the test and instead to improve parole processes and offender progression. The public sector equality duty under section 149 Equality Act 2010 had been addressed in substance and Article 3 ECHR did not assist the claimant in light of Vinter and the Parole Board's assessments. The claim was dismissed.

Background and parties. The claimant, serving an IPP sentence, sought judicial review of the Secretary of State for Justice for failing to consult about, and to exercise, the power in section 128 LASPO 2012 to vary the Parole Board's statutory release test for IPP prisoners. Permission was initially refused on the papers by Holroyde J. but granted at an oral hearing by a Deputy High Court Judge on 23 November 2016. The defendant was the Secretary of State for Justice.

Nature of the application and relief sought.

• The claimant sought declaratory relief, a quashing order of any prior decision to take no action and/or a mandatory order requiring the Secretary of State to consult and to review the test in section 128 LASPO 2012 and to put proposals before Parliament within a specified period.

Issues framed by the court.

• Whether ministerial statements in Parliament gave rise to a legitimate expectation to consult or otherwise created a legal obligation to consult prior to exercising section 128;
• Whether reliance on Hansard and Parliamentary debates to identify legislative purpose or to bind the executive would be prohibited by Article 9 of the Bill of Rights 1689 and the separation of powers;
• Whether a common law duty to consult could be implied (conspicuous unfairness);
• Whether the Secretary of State's failure to exercise the power was irrational, unreasonable or disproportionate;
• Whether the public sector equality duty (section 149 Equality Act 2010) had been breached; and
• Whether the Secretary of State had breached positive obligations under Article 3 ECHR.

Court's reasoning (concise). The court admitted correspondence from Speaker's Counsel but emphasised that Hansard and ministerial statements may be used only as historical fact and only within the strict limits established by Pepper v Hart and subsequent authorities. Use of Parliamentary debates to define the scope of a discretionary statutory power or to found a legally enforceable legitimate expectation was impermissible because it would question Parliamentary proceedings and risk breaching Article 9 and the separation of powers (the court followed Wheeler and Unison).

The court held section 128 LASPO 2012 vested a wide discretion in the Secretary of State and did not require consultation; the ministerial statements relied upon were ambiguous and not sufficiently clear and unambiguous to found a legitimate expectation to consult, and the claimant was not in a class the minister had promised to consult. There was also no basis to imply a common law duty to consult by reason of conspicuous unfairness given the extensive public material already available and the defendant's advisers' position that consultation would be undertaken if a decision to use section 128 were taken.

On irrationality and proportionality, the court concluded the Secretary of State had rationally and lawfully decided not to pursue changing the statutory test after careful consideration, and instead implemented measures (described in Mr Bailey's evidence) to improve Parole Board capacity, reduce delay and assist IPP prisoner progression. The court found the public sector equality duty had been addressed in substance and that Article 3 was not engaged on these facts, applying Vinter v UK and the Parole Board's repeated findings about the claimant's risk. The claim was dismissed.

The claim is dismissed. The court concluded that Parliamentary material could not be used to impose a legal duty to consult or to compel the Secretary of State to lay a draft order before Parliament without breaching Article 9 of the Bill of Rights 1689 and the separation of powers; section 128 LASPO 2012 vested a broad discretion which the Secretary of State lawfully exercised in choosing measures to improve parole processes rather than to change the statutory release test; the alleged legitimate expectation to consult failed for ambiguity and scope; no common law duty to consult was implied; the public sector equality duty had been addressed; and Article 3 ECHR did not afford relief in the circumstances.

Permission to apply for judicial review was refused on the papers by Holroyde J., and subsequently granted after an oral hearing by Leigh-Ann Mulcahy QC sitting as a Deputy High Court Judge on 23 November 2016. Not an appeal; this is a first instance Administrative Court judgment disposing of the claim on its merits.