Ryder, R (on the application of) v The Lord Chancellor

The claimant, Stephen Ryder, murdered Janet Kemp on 4 June 2000. At that time he was on licence following convictions for burglary and theft. Ms Kemp, who had known him for over 20 years, had offered him temporary accommodation at her home in exchange for his redecorating it. He killed her four days after moving in. He hit her on the head several times with a brick and then stabbed her repeatedly with a kitchen knife. He then hid the body in a roll of carpet and concealed it in a garden shed. In the following days he stole money from the house and sold furniture and electrical goods taken from it before handing himself in to the police on 15 June 2000.

The claimant was convicted after a trial at Norwich Crown Court on 16 May 2001. He was sentenced, as required by law, to life imprisonment. In due course the minimum term was set at 16 years. The claimant will not be eligible for release before 2017 (subject to credit for time spent on remand in custody, if applicable).

The claimant appears to have conducted himself most commendably while in prison. On 3 September 2013 his case was referred, under s.239 of the Criminal Justice Act 2003, to the Parole Board with the aim that what is described as a “pre-tariff review” should take place by February 2014. It is common ground that that course was taken with a view to the Parole Board considering whether to recommend the transfer of the claimant to an open prison as a potential precursor to his ultimate release.

Such matters are not always dealt with by way of oral hearing. On 5 November 2013, however, the claimant’s solicitors (who held a relevant contract to offer prison law advice) submitted written representations requesting an oral hearing before the Parole Board, the work being funded for that purpose under the then available Criminal Advice and Assistance schemes.

In January 2014 the claimant’s solicitors were notified that the application for an oral hearing had been granted. However, by letter dated 6 January 2014 the Legal Aid Agency notified the claimant’s solicitors that the claimant did not qualify for legally aided advocacy assistance at the forthcoming Parole Board hearing. That position was maintained on behalf of the defendant Lord Chancellor in a written response dated 31 January 2014 to the claimant’s solicitors’ letter of claim dated 17 January 2014.

A number of issues have fallen away before the matter came on for hearing before us. What, in essence, remains is this. The decision to refuse legal aid for advocacy assistance at the Parole Board hearing was founded on the provisions of the Criminal Legal Aid (General) (Amendment) Regulations 2013, SI 2013/2790 (“the Amending Regulations”) which had made amendments to the Criminal Legal Aid (General) Regulations 2013, SI 2013/9 (“the Regulations”). It is common ground that the Amending Regulations had the effect that criminal legal aid was not available for, among other things, pre-tariff review hearings before the Parole Board. The claimant argues that in this respect the Amending Regulations, and in consequence the decision of 6 January 2014, are invalid. By claim form issued on 23 February 2014, with subsequently amended grounds, the claimant seeks an order quashing the relevant parts of the Amending Regulations; a mandatory order that the defendant, the Lord Chancellor, provide him with advocacy assistance for the oral pre-tariff review hearing; and damages. Permission to apply was refused on the papers but subsequently limited permission to apply was granted after an oral hearing.

The nub of the claim is that, so it is said, the Amending Regulations are in breach of Article 14 of the European Convention on Human Rights. It is further said that the Amending Regulations breach common law principles of consistency. A yet further ground is sought to be added by proposed amendment. That is to the effect that the Amending Regulations are ultra vires, in that they were not authorised under the primary legislation, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”).

It may be noted that this is not the first time that the Amending Regulations have come before the courts. In particular, a challenge was raised as to the validity of the Regulations and the Amending Regulations in R (The Howard League for Penal Reform) v The Lord Chancellor [2014] EWHC 709 (Admin). It was among other things claimed in that case that there had been a failure sufficiently to consult; that the removal of criminal legal aid in such cases was bound to lead to unfair decision-making; that the Amending Regulations were irrational; that the Amending Regulations unduly interfered with principles of access to justice; and so on. All such challenges failed before the Divisional Court (Rafferty LJ and Cranston J): to the extent, indeed, that permission to apply for judicial review was refused, albeit permission was given to cite the judgment. It was said, at paragraph 54 of the judgment, that the forum for advancing the concerns raised “remains the political”.

It was common ground before us that the issues raised in that case (on which, we gather, an appeal is pending) are not the issues raised in the present case. However, it is worth drawing attention to that case, not least because the reserved judgment of the court contains in paragraphs 5 to 35 a detailed and valuable review of the legal context and of the whole process leading up to the making of the Regulations and the Amending Regulations. There is therefore little point in replicating that review in this judgment: especially when that previous decision will be readily available to those interested in this branch of the law.

Consequently I will confine myself to the principal statutory provisions relevant to the present case.

Section 15 of LASPO, to be read also with s.41, relates to criminal legal aid. In particular, s.15(1)-(4) provides as follows:

“15.

Advice and assistance for criminal proceedings

(1)

Regulations may provide that prescribed advice and assistance is to be available under this Part to an individual described in subsection (2) if—

(a)

prescribed conditions are met, and

(b)

the Director has determined that the individual qualifies for such advice and assistance in accordance with the regulations (and has not withdrawn the determination).

(2)

Those individuals are—

(a)

individuals who are involved in investigations which may lead to criminal proceedings (other than individuals arrested and held in custody at a police station or other premises),

(b)

individuals who are before a court, tribunal or other person in criminal proceedings, and

(c)

individuals who have been the subject of criminal proceedings.

(3)

When making the regulations, the Lord Chancellor must have regard, in particular, to the interests of justice.

(4)

The regulations must require the Director to make determinations under the regulations having regard, in particular, to the interests of justice.”

The Regulations which came into force on 1 April 2013 were made in accordance with s.15(3) of LASPO. The recital to the Regulations includes the statement:

“In making these Regulations, in accordance with s.15(3) of [LASPO], the Lord Chancellor has had regard in particular to the interests of justice.”

Regulation 12 specifies the conditions prescribed for the purposes of s.15(1) of LASPO. These include as one of the conditions a condition (Regulation 12(2)(g)) that the individual concerned must:

“…be the subject of proceedings before the Parole Board.”

Thus far the claimant would have been eligible for legal aid at an oral hearing before the Parole Board. But this was altered by the Amending Regulations which came into force, in the relevant respects, on 2 December 2013. For, by Regulation 4(4), paragraph 12(2)(g) of the Regulations was amended so as to add the words: “where the Parole Board has the power to direct the individual’s release”. It is this provision, if valid, which has the consequence that the claimant ceased to be eligible for advocacy assistance at the oral hearing before the Parole Board.

This is because, as was common ground before us, the Parole Board had and has no power to direct the release of the claimant before the expiry of the specified minimum term. Under s.239 of the Criminal Justice Act 2003, the Parole Board is given the powers and functions there specified. Thus as to those individuals, such as the claimant, serving mandatory life sentences the Parole Board has power to direct release upon expiry of the specified minimum term (or tariff): s.28 of the Crime (Sentences) Act 1997. But no such power exists, so far as the Parole Board is concerned, prior to the expiry of the life prisoner’s minimum term. In such a situation the Parole Board’s functions, under s.239(2) of the 2003 Act, are confined. Such sub-section provides:

“(2)

It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.”

It was agreed before us that the oral hearing before the Parole Board in this case is “to do with” the early release of the claimant: because a transfer to open conditions would potentially tend to facilitate release once the minimum term had expired. But there is no obligation on the Secretary of State to follow such advice as is given by the Parole Board (although he often will); and Regulation 12(2)(g) of the Regulations as amended by the Amending Regulations accordingly precludes the grant of legal aid to the claimant for the purpose of the oral review hearing.

It should also be noted that there is no statutory requirement for the Secretary of State to arrange any pre-tariff review hearing before the Parole Board and no statutory entitlement for life (or other indeterminate sentence) prisoners to have one. Nevertheless, it is policy in appropriate cases for there ordinarily to be an eligibility for such pre-tariff prisoners to seek to have their cases referred to the Parole Board for consideration of the suitability to transfer to open conditions: see paragraph 4.1 of PSI 36/2012. In this regard, there is a prior sifting or screening process; the evidence adduced before us indicated that only around 40% of pre-tariff indeterminate sentence prisoners actually are referred to the Parole Board for a pre-tariff review. As will be gathered, the claimant had successfully passed through the sifting process in the present case.

Directions have also been given by the Secretary of State to the Parole Board in this regard. In the version extant in 2014 it was, among other things, stated that “a period in open conditions is essential for most life prisoners”: indeed, a previous Parole Board policy paper had regarded open conditions as “the only true testing ground”. In a more recent direction from the Secretary of State, it is rather more cautiously said that “open conditions can be particularly beneficial for such [indeterminate sentence prisoners] where they have spent a long time in custody….”

Nevertheless it is clear on the evidence that an indeterminate sentence prisoner is not required to have spent time in open conditions before he may, on expiry of the minimum term, be released. The evidence adduced before us – although subject to some element of challenge – indicated, putting it broadly, that in the three year period up to June 2014 approximately 15% of mandatory life prisoners were released directly from closed conditions: with a significantly higher percentage for other indeterminate sentence prisoners.

Against that – brief – review of the statutory framework and the applicable context, I turn to the arguments.

I would, however, make one observation straight away. It was a running sub-text of the claimant’s argument that the Amending Regulations were in this regard a thoroughly bad thing: counterproductive, unjust and unwise. It is emphasised that a transfer to open condition is, for the great majority of life prisoners, a practical necessity prior to any release: practical necessity not only in the sense that they are relatively unlikely to be released unless they have spent time in open conditions but also in the sense that they are much less likely to be equipped to return to society and thereafter lead constructive and crime-free lives (to the benefit of society at large) without the prior exposure to open conditions and the assistance such experience of open conditions can give. Accordingly, the availability of legal assistance and representation at a relevant pre-tariff review hearing is, it is said, essential to facilitate a just outcome for the benefit not only of the prisoner but also of society at large. There was in this regard placed before us, without objection, a witness statement of His Honour John Samuels QC, who has enormous experience of the criminal law in general and of prison and Parole Board matters in particular, making just such points with very great force.

But in my view such considerations cannot be permitted to dictate the outcome of this case. As the review in the The Howard League for Penal Reform case explains, such points had been made in the consultation process. A view to the contrary has ultimately been taken by the Lord Chancellor exercising his statutory powers, however. The aim – a policy aim – stated in the publicised proposals was that legal aid should be targeted on those who need it most, for the most serious cases in which legal advice or representation was justified: along with considerations of making substantial savings to the cost of the legal aid scheme and the delivery of better value for money to the taxpayer and maintenance of public confidence in the scheme.

The ultra vires argument

It is, I think, convenient first to deal with the new ground sought to be raised by proposed amendment.

Mr Southey QC, for the claimant, sought to argue that the Amending Regulations in this respect were ultra vires. Mr Chamberlain QC, for the defendant, did not object to the proposed amendment on the ground of it being raised only very late in the day. His objection was that it was not arguable.

In my view, it is appropriate, essentially on pragmatic grounds, to grant permission to amend to pursue this point; and I would do so. That said, I nevertheless take the view that there is no substance in it.

Section 15 of LASPO unquestionably gives the power to make regulations for the specified purposes. In making such regulations, the Lord Chancellor “must have regard, in particular,” to the interests of justice. That, as both the consultative history and the express wording of the recital to the Regulations indicate, has happened in this case. In such circumstances an argument based on the doctrine of ultra vires can gain simply no purchase.

It became clear that Mr Southey’s argument had founded itself on parts of the relatively recent decision of the Divisional Court in R (Public Law Project) v Lord Chancellor [2015] 1 WLR 251, [2014] EWHC 2365 (Admin).

But that case is plainly distinguishable from the present. For one thing, that case involved consideration of the provisions relating to civil legal aid – not criminal legal aid. But, perhaps more fundamentally, the criteria there under discussion were wholly different from the present case. In that case, civil legal aid was, under Part 1 of Schedule 1 of LASPO, to be designed for those in the greatest need. It was proposed to introduce, by secondary legislation, provisions removing from the scope of Part 1 those who failed a residence test. It was common ground that there was no legal duty to provide legal aid for such civil cases. In such circumstances the arguments on behalf of the Lord Chancellor included the proposition that the introduction of a residence requirement was to be justified on the ground of need to harbour scarce resources.

The Divisional Court, however, held that the powers conferred by s.9 of LASPO, read with s.41, were to serve and promote the objects of Part 1 of Schedule 1 to that Act: and that the introduction of a residence test had nothing to do with the need there identified but rather was designed to exclude those not having a sufficiently strong connection with the UK. It was held that that did not accord with the purpose of the primary legislation.

In my view that aspect of this very interesting decision (the case was also decided against the Lord Chancellor on discrimination grounds) is not in point in the present case. On no view can the Lord Chancellor here be said to have introduced a collateral requirement extraneous to the purpose of the primary legislation. On the contrary, the amendment of Regulation 12(2)(g) was precisely one aspect of targeting those perceived to be in the greatest need. It is a matter of judgment as to who is to be assessed as in the greatest need. The decision of the Lord Chancellor was that it was no longer justifiable to extend legal aid for advocacy assistance at oral hearings relating to those in respect of whom the Parole Board had no power to direct release. The financial and other priorities were considered to lie elsewhere. That, in my opinion, plainly is within the ambit of the statutory wording and statutory purpose of LASPO. Mr Southey submitted that the interests of justice required that those in the position of the claimant should receive legal aid at pre-tariff review hearings: and their need was, he said, no less than that of determinate sentence prisoners or those who were post-tariff. But that is assertion. This was a judgment, having due regard to the interests of justice in particular, for the Lord Chancellor to make. Disagreement on rational grounds with that judgment can provide no support for an ultra vires argument.

Accordingly I would reject this ground.

Discrimination

The next point was, in reality, Mr Southey’s principal point.

It is founded on Article 14 of the Convention. That is to the following effect:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The argument also brought into play Article 5 of the Convention. That, in the relevant respects, provides as follows:

“1.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)

the lawful detention of a person after conviction by a competent court;

(b)

the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)

the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)

the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)

the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)

the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

….

4.

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.”

For the purpose of this aspect of the argument, Mr Southey understandably stressed that the issue here was not whether there was justification for removing the availability of legal aid funding for prisoners in the position of the claimant. The issue was whether there was justification for treating groups of prisoners differently. Some – for example, those indeterminate sentence prisoners who are post-tariff or those prisoners who have been subject to recall – are eligible for legal aid at Parole Board hearings. But under the Amending Regulations others – such as the claimant – are not. That is what is said to constitute unfair discrimination: and for this purpose it matters not that there is no statutory entitlement (or entitlement under Article 6 of the Convention) to legal aid.

Mr Chamberlain did muse that such an argument could not even get off the ground had all other prisoners likewise not been accorded any entitlement to legal aid at Parole Board hearings. But that is, in my view, nothing to the point. As stated by Lord Bingham in A v Secretary of State for the Home Department [2005] 2 AC 66, [2004] UKHL 56 at paragraph 68 of his judgment:

“Any discriminatory measure inevitably affects a smaller rather than a larger group, but cannot be justified on the ground that more people would be adversely affected if the measure were applied generally. What has to be justified is not the measure in issue but the difference in treatment between one person or group and another.”

For the purposes of assessing a discrimination argument of this kind, the House of Lords approved a five stage approach in R (S) v Chief Constable for South Yorkshire [2004] 1 WLR 2196, [2004] UKHL 39. Thus at paragraph 42 of the speech Lord Steyn said as follows:

“42.

Based on the approach of Brooke LJ in Wandsworth London Borough Council v Michalak[2003] 1 WLR 617, 625, para 20, as amplified in R (Carson) v Secretary of State for Work and Pensions[2002] EWHC 978 (Admin), para 52 and [2003] EWCA Civ 797, [2003] 3 All ER 577, five questions can be posed as a framework for considering the question of discrimination:

(1)

Do the facts fall within the ambit of one or more of the Convention rights?

(2)

Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison?

(3)

If so, was the difference in treatment on one or more of the proscribed grounds under article 14?

(4)

Were those others in an analogous situation?

(5)

Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?”

In point of practice, these stages – in particular stages (4) and (5) – involve a degree of overlap; and ultimately the position has to be looked at as a whole: see paragraph 43 of the speech of Lord Steyn. Nevertheless, I think it convenient to follow the approach of counsel before us and to address matters by reference to these identified stages.

First question

The first question therefore is whether the facts fall within the ambit of one or more of the Convention rights.

Mr Southey submitted that they do. But his arguments did not convince me.

Mr Southey, with respect, rather struggled to identify the Convention right within which the facts were said to fall. He conceded that Article 5 by itself confers no right to a pre-tariff review (let alone at an oral hearing) by the Parole Board. That is so because until the minimum term has expired the detention is necessarily lawful for the purposes of Article 5.1: see paragraph 11 of the speech of Lord Hope in R (Walker) v Secretary of State for Justice [2010] 1 AC 553, [2009] UKHL 22.

Further, as stated by Lord Bingham in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, [2006] UKHL 54 at paragraph 16 of his speech:

“During the currency of a lawful sentence, Article 5.4 has no part to play.”

Mr Southey conceded that Article 5.4 was not engaged in the present case (a concession reflecting that also made in The Howard League case: see paragraph 37).

Mr Southey, however, drew attention to what Lord Bingham went on to say in Clift. Thus at paragraph 18 he said:

“I accordingly find that the right to seek early release, where domestic law provides for such a right, is clearly within the ambit of Article 5, and differential treatment of one prisoner as compared with another, otherwise than on the merits of their respective cases, gives rise to a potential complaint under Article 14.”

And at paragraph 23 he said:

“But in any event I consider the right to seek the early release recommendation of an independent, court-like, body, expert in the assessment of risk and immunised against external pressure, to be a right of sufficient value to engage, potentially, the application of Article 5.”

The problem here, in my view, is that – unlike the position in Clift – the claimant had and has at this stage no right under domestic law to seek early release. That right only arises once he has served the minimum term: which he has not yet done. But Mr Southey argued that his case nevertheless came within the ambit of Article 5 because, he submitted, there was a “close relationship” between the “core values” which Article 5 was designed to protect and the differential treatment in question.

I do struggle with this. The claimant has no right to liberty at this stage. He is lawfully detained in circumstances where his minimum term has not yet expired. It is true that a transfer to open conditions may well greatly facilitate – perhaps enable – his release in due course on expiry of the minimum term. But he nevertheless has no legal right to such a transfer, let alone such a release. Further, while it can fairly be said that for many life prisoners a transfer to open conditions will be a necessary pre-condition for release (see the remarks of Keith J in R (Yusuf) v Parole Board [2011] 1 WLR 63, [2010] EWHC 1483 (Admin)) that is neither a legal pre-condition nor an invariable de facto pre-condition: as the above cited evidence, recording an average of around 15% of mandatory life prisoners achieving release from closed conditions, shows.

Accordingly, I would not be inclined to accept that the facts here show a sufficiently close relationship with the “core values” which Article 5 was designed to protect.

Mr Southey, however, sought to rely on certain observations of the Supreme Court in R (Kaiyam & Haney) v Secretary of State for Justice [2015] 2 WLR 76, [2014] UKSC 66. It was stated at paragraph 33 of the judgment of Lord Mance and Lord Hughes (with whom the other Supreme Court Justices agreed):

“Particularly where a tariff is of a relatively long period, a prisoner’s progression towards release through courses and experience in open conditions should, where and to the extent feasible, be facilitated not merely after but also in advance of the tariff period, so as to keep open the possibility of release on or shortly after its expiry. That is indeed Mr Haney’s complaint in the present case. Yet, on the European court’s approach, treating the present issue as falling within the text of Article 5.1(a), no complaint can apparently arise until the expiry of the tariff period, and any complaint can then only arise if the failure to provide courses, etc continues after the expiry of the tariff period.”

It was further stated that it was implicit in the scheme of Article 5 that the State is under a duty – an “analogous” or “ancillary duty” – to provide a reasonable opportunity for a prisoner to rehabilitate himself and to show that he no longer poses a danger, even if not within the express language of Article 5; and this was so as much before as after the expiry of the tariff period: see paragraphs 36, 38 and 48 of the judgment. I can therefore see that these statements do lend some potential support to Mr Southey’s argument. But in making those statements the Supreme Court also stressed that the ancillary duty thus arising did not directly impact on the lawfulness of the prisoner’s detention as such and thereby give rise to a duty to release: the remedy, indeed, in that case was a (modest) award of compensation for the frustration occasioned. Moreover, Kaiyam & Haney was concerned with cases where prisoners were, so it was said, not given a reasonable opportunity of rehabilitation with a view to persuading the Parole Board in due course that they did not represent a danger to the public. But that cannot be said in this case: for here the claimant has been given the relevant opportunity, by being granted an oral pre-tariff review hearing. And for that (whether under the Convention or otherwise) there is no necessary right to legal aid.

Overall, therefore, I would not be minded to accept that the first question can be answered in the claimant’s favour. But I do not rest my decision on that view which I have formed on this question. I consider that there are yet other, and compelling, reasons why the claimant cannot succeed, as I will come on to explain.

Second question

This is easily answered. It is common ground that there was such a difference in treatment.

Third question

This is also easily answered. Authority of the House of Lords, binding on this court, has established that the difference in treatment is not on one or more of the grounds prescribed under Article 14.

The only characteristic prescribed in Article 14 on which the claimant is in any position to rely is what can be described a “non-suspect” ground (that is, a ground not related to discrimination on the ground of sex, race etc). In this case, he has to rely on the epithet “other status”.

But the decision of the House of Lords in Clift (cited above) is to the effect that a prisoner’s status under his sentence is not within the ambit of Article 14 at all. Mr Southey necessarily had to concede as much. He did point out that the European Court of Human Rights seems to have taken a different view: [2010] 51 EHRR 13. But under the doctrine of precedent of the law of England and Wales this court is bound to follow the decision of the House of Lords in Clift: and indeed there have been a number of occasions when the domestic courts, including the Court of Appeal, subsequent to the decision of the European Court of Human Rights in Clift have done so. Further, in Kaiyam & Haney the Supreme Court, while saying that it saw “some force” in the submission, in the light of the European court’s decision, that the difference should now be taken to represent a relevant difference in status, made no decision reversing the House of Lords decision in Clift.

In such circumstances, in my view, there is no element of exceptionality available to this court to justify considering the matter afresh. This court in consequence should follow the decision of the House of Lords in Clift without further debate of the underlying issue. That conclusion in itself, therefore, would seem to be fatal to the claimant’s case.

Fourth and fifth questions

I finally deal with the remaining questions. In a case such as this they are closely interlinked and are best taken together.

Here too I consider that the claimant cannot succeed.

In my view the comparators put forward on behalf of the claimant are not in a situation truly analogous with his situation. The particular comparators put forward are post-tariff indeterminate sentence prisoners; determinate sentence prisoners in respect of whom the Parole Board is empowered to direct release under s.24A or s.26A and paragraphs 6, 15 and 25 of Schedule 20B of the 2003 Act; and prisoners on licence recalled to prison, where the Parole Board may direct release under s.32 of the 1997 Act or sections 255B, 255C and 256A of the 2003 Act.

These, as I see it, are not truly analogous (or, as it is sometimes put, “relevantly similar”): just because these are all cases where the Parole Board can direct release. But the case of the claimant, and those in his position, is quite different: he not having served his minimum term, there is no power in the Parole Board to direct release. All it can do in his case, if so minded, is recommend that the Secretary of State transfer to open conditions. That may or may not be a precursor to release – although, as I have already said, a transfer to open conditions is neither a de jure nor a de facto condition precedent for release – but it is not release. Thus like is not being compared with like. Indeed that distinction reflects precisely the rationale for the Amending Regulations being drawn as they are.

Such a distinction cannot possibly, in my view, be described for these purposes as irrational, in the public law sense. On the contrary, in my view, there is – whether or not one agrees with the wisdom of the decision – clear justification for this differentiation as marked by the Amending Regulations. As Mr Chamberlain also pointed out, the differentiation is nothing to do with unchangeable personal characteristics. It is nothing to do with (in the language of R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, [2005] UKHL 37) a “suspect” ground of discrimination, such as, for instance, sex or race.

As Lord Hoffmann crisply put it in Carson at paragraph 31 of his speech:

“There is a single question: is there enough of a relevant difference between x and y to justify different treatment?”

In my view, as will be gathered, the answer here clearly is: yes. There are obvious policy considerations here. The Lord Chancellor, having regard in particular to the interests of justice, had to factor in, among other considerations, both the burden on the taxpayer and the need for maintaining public confidence in the legal aid system, in the context of identifying those most in need of scarce resources to avail themselves of legal aid. A line had to be drawn and the Regulations and the Amending Regulations draw that line. The present is not, I accept, a case directly analogous to a case of, for example, social welfare payments. But allocation of public resources is in issue; and in my view this is an area where the court should indeed be slow to substitute its own view for that of the government or executive: cf. the observations of Lord Neuberger in R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311, [2008] UKHL 63. As he stated, in the context of that case, at paragraph 57:

“57.

The fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, a court will conclude that the policy is unjustifiable. However, this is not such a case, in my judgment.”

I do appreciate Mr Southey’s point that the present context relates to prisoners and, in one sense at least, to the potential liberty of the subject. Further, it is true that in the Public Law Project case (a case plainly distinguishable from the present case on the issue of discrimination, I add, given its different facts and context) Moses LJ, at paragraph 78 of his judgment, held that the provision of legal assistance is “far from analogous” to the distribution of welfare benefits. But that does not provide carte blanche for the court to interfere. Indeed it remains telling that there is no absolute entitlement in all cases to an oral hearing before the Parole Board of either pre- or post-tariff prisoners (cf. R (Osborn) v Parole Board [2014] AC 1115, [2013] UKSC 6). It will also be recalled that s.28(7)(a) of the 1997 Act only entitles a life prisoner to have his case referred to the Parole Board for potential release after he has served the relevant part of his sentence, and subject also to s.28(7)(b) and (c). Further, as Mr Chamberlain submitted, even where two types of case may be assessed as deserving of an oral hearing that does not require a conclusion that they are equally deserving of legal aid. After all, as I have said, there is no absolute entitlement to legal aid in parole cases. Mr Southey frankly conceded that there may be cases where it is perfectly possible to have a fair hearing without legal representation. There thus is no necessary reason why a prisoner who will get legal aid for, say, a post-tariff review hearing relating to early release should equally get legal aid for a pre-tariff review hearing relating to transfer to open conditions.

I observe that, in the European Court of Human Rights decision in Clift itself, it is stated at paragraph 73 that a contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment; and that the legislature’s policy choice will generally be respected. It is also noteworthy that the court further said that “in principle a similar wide margin of appreciation applies on questions of prisoner and penal policy”. It is true that the last statement is subject to a proviso that the court must exercise “close scrutiny” where the complaint is that domestic measures have resulted in detention that is arbitrary or unlawful. But in the present case the claimant, as a pre-tariff prisoner, is not being subject to arbitrary or unlawful detention.

Moreover, as Mr Chamberlain pointed out, a prisoner aggrieved at a failure to transfer, or to consider a transfer, to open conditions has the prospect – subject to merits and means – of applying to the court for judicial review.

Overall, therefore, my clear conclusion is that there is a relevant and rational distinction which can properly be drawn, for the purpose of assessing eligibility for criminal legal aid, between cases before the Parole Board where there is power to direct immediate release and cases before the Parole Board where there is no such power. There is no unfairness (in the public law sense) which would enable or entitle the court to interfere. To draw the line as the Regulations and the Amending Regulations have done in this respect is not arbitrary: it has objective and reasonable justification and is a proportionate response. Nor (to deal with a further suggestion of Mr Southey) was there, in my opinion, any requirement to write in some kind of overriding discretion to cater for asserted exceptional cases. There may be cases where a “bright line” approach is not justified. But this is not one of them. A “bright line” approach was legitimate in this regard: indeed, there are many other such examples in the field of legal aid (and elsewhere).

Thus on this issue of discrimination under Article 14, and looking at matters in the round, I conclude that, for quite a number of reasons, this ground cannot succeed.

Common law consistency

I can take this last ground shortly. In my view, it has no substance. It is said that principles of common law consistency require that the claimant should not be treated inconsistently with other indeterminate sentence prisoners; and no arbitrary distinction between such prisoners is permissible.

In my view this argument can be no more than a variant of the Article 14 argument. I am prepared to accept that secondary legislation can be impugned on grounds of arbitrariness or irrationality. But, for the reasons I have given, the Amending Regulations cannot, on examination, be styled as arbitrary or irrational. In circumstances where the Article 14 argument has failed, this formulation of the argument also fails.

I would for my part dismiss this claim for judicial review.

I agree.