Transforming parole in Scotland: consultation

7. Independence And Governance

Transfer of Parole Board for Scotland to the Scottish Tribunals

What do we want to see?

7.1 The Parole Board is a tribunal Non Departmental Public Body (NDPB) and, as such is independent of Scottish Ministers. It is essential that this independence is maintained and supported in order that the Parole Board can discharge its judicial functions.

7.2 A possible option to further enhance the independence of the Parole Board could be for it to transfer to the Scottish Tribunals, as established by the Tribunals (Scotland) Act 2014 ("the 2014 Act").

What happens now?

7.3 Article 5(4) of the European Convention of Human Rights provides that: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by 'a court' and his release ordered if the detention is not lawful."

7.4 The criteria for 'a court' are independence of government and the parties, impartiality and a power to give a legally binding judgement concerning release. There is no doubt the Parole Board satisfies the criteria of 'a court'.

7.5 However, the Scottish Government currently sponsors the Parole Board and this may give the impression of influence over the Parole Board's decisions. That is not the case, but to put that perception beyond any doubt, a solution which removes the Parole Board from any appearance of interference or influence is sought.

7.6 As mentioned before, the Parole Board is already a tribunal NDPB which carries out functions of a judicial nature and as such, it has much in common with the Scottish Tribunals. Currently the functions of the Parole Board are mostly set out in the 1993 Act and the procedure it follows are governed by the 2001 Rules. The Parole Board is supported by dedicated staff who have built up expertise in the area.

7.7 There is currently no route to appeal a Parole Board decision and the only type of review available is that of judicial review.

7.8 The Parole Board's primary function is to decide, based on risk, whether to release prisoners to be supervised in the community for the remainder of their sentence and these decisions have always been made independently of Government.

Options for Change

7.9 If the Parole Board were to transfer to the Scottish Tribunals, the functions, as set out in the 1993 Act, would largely remain the same. There would require to be some changes to fit in with the Scottish Tribunals structure and the Parole Board as it is currently known would be abolished. The parole jurisdiction may become part of an existing Chamber or alternatively form a dedicated Chamber within the Scottish Tribunals led by a Chamber President.

7.10 The Parole Board would continue to follow its own rules of procedure although these would need to be re-drafted to reflect the move to the Scottish Tribunals and change in the Parole Board's name.

7.11 In addition, the Parole Board jurisdiction could continue to receive the same dedicated expert support from staff who could transfer over to the Scottish Courts and Tribunals Service (SCTS) under the Transfer of Undertakings (Protection of Employment) Regulations 2006 or the Cabinet Office Statement of Practice on Staff Transfers in the Public Sector, as appropriate and applicable.

7.12 It has been proposed that transferring the Parole Board to the Scottish Tribunals would help to underline the Parole Board's independence as a quasi-judicial body^[11]. Such a move would also provide clearer lines of accountability. The Lord President, as head of the Scottish Tribunals and as the most senior judge in Scotland, would bring a wide breadth of experience to the leadership of the parole jurisdiction and to its members. Risk assessment and protection of the public are already an integral part of the court structure and being part of that would bring the advantage of mutual training and development opportunities.

7.13 Furthermore, there would be a wider pool of judiciary to provide support to members and a vast array of experience to call upon. In addition, existing (suitably qualified) members of the Scottish Tribunals, who meet the criteria for appointment, could be assigned to the 'Parole Chamber'(see para 7.9 and Annex C), with the approval of, the President of Tribunals, the receiving Chamber President and the individual concerned, negating the need to go through a separate recruitment round. There may even be the possibility of utilising court judiciary.

7.14 There would also be a wider pool of non-legal members within the Tribunal structure, including those with medical expertise such as psychiatrists and mental health specialists.

7.15 There are wider possible practical benefits with the possibility that the Parole Board could make use of the SCTS's venues, technology and infrastructure which could make attendance at hearings more accessible, including for victims and their families.

Appeal Mechanism

7.16 Importantly, transferring the Parole Board to the Scottish Tribunals could also allow for a new review process and a new appeal procedure, which does not currently exist. The provisions in the 2014 Act allow the tribunal to review a decision made by it where for example, an administrative error has occurred, the tribunal has erred in law or the tribunal has erred in fact. A review avoids the need to appeal the decision as the tribunal may correct any accidental errors and issue a fresh decision notice. Although the Parole Board can currently regulate its own procedure, the 2014 Act's review process would allow a party in the case to request a review. In reaching a decision on whether to grant a review the tribunal may also decide to take no action or set aside the original decision.

7.17 The review process could consider errors of fact but it would not be a mechanism to appeal the decision as such, but rather an opportunity to correct mistakes and quickly remedy them. If the Parole Board were to transfer to the Scottish Tribunals it would be able to utilise this review process.

7.18 Currently there is no route to appeal a Parole Board decision, although a judicial review of a decision may be possible. If the Parole Board were to transfer to the Scottish Tribunals decisions could be appealed. The 2014 Act provides that any appeal would be on a point of law only. The First-tier Tribunal can consider whether an appeal to the Upper Tribunal on a point of law is justified and may give approval to proceed or refuse that application. If the First-tier Tribunal refuse, an application can be made directly to the Upper Tribunal. A decision of the Upper Tribunal may be appealed to the Court of Session on a point of law only if it raises an important point of principle or practice or if there is some other compelling reason for allowing the appeal to proceed.

7.19 The concept of transferring the Parole Board to the Scottish Tribunals is not a new one. The proposal had been considered as part of the consultation on tribunal reform in 2012^[12] and the Parole Board was included in that consultation as a tribunal that would be considered for transfer at a future date. This proposal also fits in with the Scottish Government's policy for a unified tribunal system in Scotland.

7.20 Further information about the Scottish Tribunals can be found in Annex C, along with a diagram of the current structure (proposed and actual transferred jurisdictions) illustrating where the Parole Board might fit in (it should be noted that no decision has been taken on this and no decision will be taken without discussion with the Lord President, the SCTS and the Parole Board itself).

Questions On Independence And Governance

Question 15: Do you agree that a transfer to the Scottish Tribunals would enhance the independence of the Parole Board?

Yes / No

If Yes, what do you consider the advantages and disadvantages would be with such a transfer? If No, Why not?

Question 16: A review and appeal are available in the Scottish Tribunals. Do you consider these processes should be available for the Parole Board?

Yes / No

If Yes, what are the benefits of having these processes available? If No, why should these processes not be made available in the case of the Parole Board?