Raab acted unlawfully, court confirms

Dominic Raab acted unlawfully when he made a Parole Board rule that stopped prison and probation staff from recommending that a prisoner was suitable for release or transfer to open conditions, the High Court confirmed last week.

The justice secretary had apparently tried to avoid this outcome by speedily replacing the rule after it was found to have been an “impermissible interference with a judicial process”. But two judges have now said they will consider whether his officials — and conceivably Raab himself — should face proceedings for contempt of court.

Raab agreed to pay the legal costs of the two prisoners who had successfully challenged the unlawful rule. He did not ask the High Court for permission to appeal.

In their judgment delivered at 3pm last Thursday, Lady Justice Macur and Mr Justice Chamberlain set a new record by citing a decision of the Supreme Court that had been handed down at 9.45am on the same day.1

The March judgment

Readers may recall that I covered the earlier judgment on the day it was delivered.

Referring to an amendment to the Parole Board rules Raab had made last June, the two judges said on 15 March:

One of the secretary of state’s principal purposes in making it was to suppress or enable the suppression of relevant opinion evidence which differed from his own view in cases where he expressed one. That purpose was improper. The decision to make the rule was an attempt by a party to judicial proceedings to influence to his own advantage the substance of the evidence given by witnesses employed or engaged by him and an impermissible interference with a judicial process.

U-turn

On the day the judgment was given, Raab revoked earlier guidance under which staff had been told not to express a view on whether a prisoner was suitable for release or transfer to open conditions. New rules were made reversing the effect of Raab’s previous rules. These took effect on 3 April.

The April judgment

A day later, the court sat to consider what order it should make to give effect to its earlier ruling. At the hearing in March, Raab’s counsel had asked the court to use a new power that allows judges to suspend a quashing order until a later date. The court can also remove the retrospective effect of an order quashing an unlawful decision.

As I reported last year, this innovation was criticised in parliament by Lord Pannick KC as “a power for the court to say that an act unlawful when it was carried out shall be treated as if it were lawful at that time”. It would mean that “people who have suffered loss and damage by reason of unlawful government action would be denied compensation or damages for that wrong”.

But by the time of the hearing on 4 April, Raab’s unlawful rule had been superseded. “The result is that there is nothing left to be quashed,” the judges observed. All the court could do was to declare that the decision to issue the previous guidance was unlawful for the reasons it had given in March. So that’s what it did. If Raab had hoped to wipe the slate clean, he must have been disappointed: the new power to issue suspended and prospective-only quashing orders does not extend to judicial declarations.

Contempt of court

Explaining last month why the guidance issued bt Raab last year had been unlawful, the court said, in effect:

• if the Parole Board asks for a witness’s view on whether a prisoner is suitable for release or transfer to open conditions, the witness must normally answer. But

• the guidance issued last year induced staff working for the prisons and probation service to breach that legal obligation by refusing to answer.

Would that amount to contempt of court? If so, asked the court, how should it be dealt with?

The Parole Board argued that an unjustified refusal to answer a question would indeed amount to contempt and it should be dealt with by the High Court. The prisoners’ lawyers agreed that it was contempt but said it could be punished by the Parole Board itself. Raab argued that it could not be contempt of court because the board was not, in law, a court.

Was that right? The government cited a case decided by the law lords in 2005. The court had ruled on a challenge brought by a prisoner who murdered three police officers in west London in 1966; it was a notorious shooting which I remember well. In his ruling, Lord Woolf, for the majority, referred to the Parole Board as exercising an “administrative” function.

But that view had been superseded, the High Court decided last week. As the Supreme Court had confirmed a few hours earlier, the board “acts judicially and as a body independent of the executive”.

Given that the Parole Board exercised what amounted to “the judicial power of the state”, said Macur and Chamberlain, “a failure to answer a relevant and necessary question posed by the board could constitute a contempt of court”. But the board itself had no power to deal with alleged contempts. Any proceedings would be a matter for the High Court.

And then the court said this:

We concluded in our first judgment that guidance issued under the authority of the secretary of state instructed [prison and probation service] witnesses to refuse to comply with the board’s directions and to refuse to answer its oral questions in circumstances where the refusal could amount to a breach of the witness’s legal obligation.

The consequence of the conclusions we have reached in this judgment is that a refusal to answer an oral question could also amount to a contempt of court, provided that the question was relevant and necessary, the witness had a view to give, and the witness could not assert a legally recognised privilege against answering…

If such a contempt were committed, the person giving the instruction not to comply or not to answer could also be guilty of contempt of court…2

The fact that the contempt may have been committed by ministers or officials does not attenuate the obligation [of the High Court, under the civil procedure rules, to consider on its own initiative whether to initiate contempt proceedings in any case where it considers that a contempt may have been committed].

However, the court is not required to initiate proceedings for contempt where a formal explanation of the breach, supported by witness statements, has been given and where it concludes that the breach was not intentional and that measures have been put in place to avoid any recurrence…

At this stage, the court had no evidence on whether Raab was the “person giving the instruction not to comply or not to answer”. So it gave him an opportunity to file further evidence.

In the light of any evidence received, said the judges, they would decide whether they should “initiate contempt proceedings against any person or persons”.