R (Wakenshaw) v Secretary Of State For Justice [2018] EWHC 2089 (Admin)
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R (Wakenshaw) v Secretary of State for Justice [2018] EWHC 2089 (Admin) was a judicial review in the Queen’s Bench Division (Administrative Court) in which Mr Justice Mostyn granted permission to seek a declaration that the tenure provisions for Parole Board members failed the test of objective independence, but refused interim relief to halt the selection process for a new Chair.
Mr Wakenshaw had been serving an indeterminate sentence for public protection imposed on 23 October 2009 and had completed his minimum term. He challenged the independence of the Parole Board, seeking a declaration that it was not an objectively fair adjudicative body. He also sought interim relief to halt the selection process for a new Chair. He did not seek to prevent his own parole review from proceeding.
The claim was prompted by the resignation of Professor Nick Hardwick, the former Chair of the Board, on 27 March 2018 following a meeting with the Secretary of State in the wake of the Worboys controversy. Mr Wakenshaw’s grounds of challenge were that the Parole Board remained sponsored by the Ministry of Justice, that the appointment process was flawed, that tenure was too short and precarious, and that the power of the Secretary of State to give directions to the Board impugned its independence. The independence of the Board had previously been challenged in R (Brooke and another) v Parole Board (and another), decided in the Divisional Court at [2007] HRLR 1239 and by the Court of Appeal at [2008] 1 WR 1950.
Mr Justice Mostyn rejected the challenge to sponsorship. The Court of Appeal in Brooke had held that sponsorship of itself did not impugn independence; the sole concern had been that the sponsor was also the head of the National Offender Management Service. That congruence no longer existed, so the sole problem identified in Brooke had been resolved. The judge rejected the complaint about the appointments process, finding that it was actually abundantly fair and impartial. Under Schedule 19 of the Criminal Justice Act 2003, the Secretary of State was required to appoint members. For the Chair, an advisory assessment panel comprising a senior official, a High Court judge and two independent members was constituted. Applications were sifted and candidates interviewed. A handful were presented to the Minister for choice. The Minister was allowed to reject the appointable candidates and appoint someone else, but only after consulting the Commissioner for Public Appointments and justifying the decision publicly. That power had never been exercised for the Parole Board. After the Minister’s decision, the successful candidate might be invited to attend the House of Commons Justice Select Committee. The Divisional Court in Brooke had held that the arrangement was quite consistent with objective independence.
The judge also rejected the challenge to directions given to the Board by the Secretary of State pursuant to section 239(6) of the Criminal Justice Act 2003. Mr Wakenshaw took issue with directions issued in April 2015 concerning suitability for open conditions. Mr Justice Mostyn held that the Board was not operating as an independent court when giving such advice, as the decision was reserved to the Secretary of State. The Board acted as an adviser. The April 2015 directions did not give an impermissible steer. The Court of Appeal in Brooke had held at paragraph 55 that such directions would be legitimate provided they were legally relevant.
The challenge to tenure succeeded. In the 2016 recruitment exercise, some members were appointed for three years and some for four years, renewable for three or four years. Members held their positions during good behaviour. The terms of appointment provided that the Secretary of State could terminate an appointment if satisfied that the member had failed satisfactorily to perform his duties, become incapable of carrying out his duties, been convicted of a criminal offence, conducted himself in a way that it was not fitting that he should remain a member, or acted in contravention of the Board’s code of conduct. The Divisional Court in Brooke had held at paragraph 42 that the relatively short term of appointment coupled with the power to remove where the Secretary of State was satisfied that the member had failed satisfactorily to perform his duties, without any procedure for determination of the merits, meant that the provisions for tenure failed the test for objective independence. Mr Justice Mostyn was shown the appointment letter for Professor Hardwick dated 26 January 2016, which provided that the Secretary of State could remove the Chair if he failed without reasonable excuse to discharge his functions for at least three months, had been convicted of an offence, was an undischarged bankrupt, or was otherwise unfit or unable to discharge his functions. Although told those revised terms were generic, subsequent investigations showed this was not the case. The terms for panel members had remained exactly as they were at the time of Brooke. The failure to amend them was described as an “oversight”. The Ministry of Justice undertook to consider whether the terms of appointment for all current members should be amended to reflect those for Chairs, and to ensure that future appointments reflected the terms for Chairs. Mr Justice Mostyn rendered judgment on the footing that the new terms were in place or shortly would be. There was no formal machinery for the merits of a removal decision to be challenged in an independent and impartial forum. The only recourse would appear to be judicial review.
Ms Gallafent QC, appearing for the Secretary of State, argued that the objectionable discharge provision had now gone so the problem identified in Brooke no longer applied. Mr Stanbury, appearing for Mr Wakenshaw, argued that this was a semantic distinction. The exact words might have gone but the power was virtually the same under the new terms. Mr Justice Mostyn agreed with Mr Stanbury. The relatively short period of appointment coupled with the power to remove without recourse to any procedure or machinery to determine the merit of a decision to remove meant that the provisions for tenure continued to fail the test of objective independence. The reasonable observer could conclude that the short term of appointment, coupled with the precarious nature of tenure, might wrongly influence a decision.
The judge considered the resignation of Professor Hardwick as Chair on 27 March 2018. Mr Wakenshaw contended that Professor Hardwick had been coerced by the Secretary of State into resigning, and Professor Hardwick said as much in a statement made on 20 June 2018. The accuracy of that statement was not disputed. Professor Hardwick explained that on 27 March 2018 an advance copy of the Divisional Court judgment in the Worboys case was received. The Justice Secretary asked to see him at about 4.30 that afternoon. Professor Hardwick met the Justice Secretary alone. The Justice Secretary told him he thought his position was untenable. Professor Hardwick did not think it was. The Justice Secretary told him twice that he did not want to get “macho” with him. Professor Hardwick understood it to be a clear threat. He was quite clear he did not have an option to remain as Chair, although he wanted to do so, and so agreed to resign. In his resignation letter Professor Hardwick stated that the Justice Secretary had told him his position was untenable. On 22 April 2018 the Secretary of State appeared on the Andrew Marr show. When asked whether he had effectively sacked Professor Hardwick, the Secretary of State said that what Worboys revealed required a more fundamental review and that his belief was that this required new leadership. If not explicitly then certainly implicitly, the Secretary of State accepted that he had effectively sacked the Chair of the Parole Board.
Mr Justice Mostyn emphasised that while the role of the Chair was largely one of leadership, the occupant still had significant judicial functions. It would not be appropriate to consider the role and status of the Chair separately from that of other members. All members, including the Chair, were members of a quasi-judicial body in respect of which there must be complete objective independence. Nothing in Brooke justified any distinction between the Chair and other members. The judge held that it was not acceptable for the Secretary of State to pressurise the Chair to resign because he was dissatisfied with the latter’s conduct. This breached the principle of judicial independence enshrined in the Act of Settlement 1701. If the Secretary of State considered that the Chair should be removed, then he should take formal steps to remove him pursuant to the terms of the Chair’s appointment. The judge gave two historical examples of executive interference, citing the cases of Sir John Walter, Chief Baron of the Exchequer, in 1628 and Sir John Archer of the Court of Common Pleas in 1672. Clause III of the Act of Settlement 1701 provided that judges’ commissions be made during good behaviour and their salaries ascertained and established, but that upon the address of both houses of Parliament it might be lawful to remove them. That had been the fundamental rule underpinning the independence of the judiciary ever since.
Mr Justice Mostyn granted permission to seek judicial review limited to seeking a declaration in the following terms: that the period of appointment of Parole Board members coupled with the power of the Secretary of State to remove a member if he was satisfied that he or she had failed without reasonable excuse to discharge his or her functions for a continuous period of at least three months, or was unable to discharge the functions of the office, without recourse to any procedure or machinery to determine the merit of a decision to remove him or her on one or other of these grounds, meant that the provisions for tenure of Parole Board membership failed the test of objective independence. The judge expressed the hope that it would be possible for the parties to agree a consent order incorporating the declaration.
The application for interim relief to halt the current competition to select a new Chair was refused. Mr Justice Mostyn held that even though the claimant was arguably entitled to the declaration, it by no means followed that the competition should be halted. The claimed interim relief appeared to go wider than the substantive relief sought. If the declaration were made, further changes would need to be made to the terms of appointment, likely by providing for a fully independent and impartial review to examine the merits of a removal, and that amendment would have to be made available to all existing as well as future members. Mr Stanbury only gently pressed the application. The judge was not satisfied that the balance of convenience militated in favour of such a disruptive remedy.
In short, Mr Justice Mostyn granted permission to seek a declaration that the tenure provisions for Parole Board members failed the test of objective independence because of the short term, renewable appointments combined with the power to remove members without any independent procedure to determine the merits, but he refused interim relief to halt the appointment of a new Chair.