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Permission granted by High Court in respect of the Independence of the Parole Board challenge

Permission granted by High Court in respect of the Independence of the Parole Board challenge

Last month we informed you all that we were bringing a challenge against the Secretary of State for Justice for effectively interfering with the Board and not having an independent Parole Board to satisfy Article 5 (4).

The claim followed on from the removal of the Parole Board Chair, Professor Nick Hardwick, who was asked to resign by the Secretary of State for Justice, in the wake of the John Worboys case.

At a hearing before Justice Mostyn on 26th July, we argued that the Minister had interfered with the Parole Board so as to breach the principle of judicial independence given the Board has the status of a Court.

The Court granted permission on the basis that there is a lack of security of tenure for Parole Members including the Parole Board Chair as evidenced by the circumstances in which the Chairman offered his resignation.

Justice Mostyn said "In my judgment, it is not acceptable for the Secretary of State to pressurise the Chair of the Parole Board to resign because he is dissatisfied with the latter's conduct. This breaches the principle of judicial independence enshrined in the Act of Settlement 1701. If the Secretary of State considers that the Chair should be removed, then he should take formal steps to remove him pursuant to the terms of the Chair's appointment.

I therefore grant permission to the claimant limited to seeking a declaration as follows:

"That the period of appointment (three or four years, renewable for three or four years) of Parole Board members coupled with the power of the Secretary of State to remove a member if he is satisfied that he or she has failed without reasonable excuse to discharge the functions of his or her office for a continuous period of at least three months, or is 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, means that the provisions for tenure of Parole Board membership fail the test of objective independence."

Tellingly, the Judge said,

"I think that the reasonable, albeit well-informed, observer could conclude that the short term of appointment, coupled with the precarious nature of the tenure, might wrongly influence a decision that had to be made."

We argued it was constitutionally improper for the Minister to have requested the head of a Judicial body to resign without any procedure being followed to determine whether there were grounds for his removal. We relied on a statement from Professor Nick Hardwick, which the Minister did not dispute in Court:

"The Justice Secretary told me he thought my position was untenable. I told him I did not think it was. We discussed this for a few minutes. I was not clear why he reached that conclusion. I told him I thought it was his job to protect judicial decision-making. He told me twice that he did not want to get "macho" with me. I am certain he used that precise word twice and I remember it because I thought it was an odd phrase to use. I understood it to be a clear threat.

I was quite clear I did not have an option to remain as Chair of the Parole Board although I wanted to do so and so I agreed to resign. We discussed how any announcement should be made. He suggested I should explain I have volunteered to resign. I said I wanted to make it clear I had not resigned voluntarily and that I believed I was still capable of leading the Parole Board.

I returned to the Parole Board office, drafted a resignation letter and sent it to the Justice Secretary that evening. I did not seek or receive any financial settlement.

A full hearing will take place in due course.

Our application for an injunction preventing the new Chair being appointed was refused. Our concern in respect of this remains, namely, that the Minister is able to directly influence the appointment of the Chair.

Dean Kingham, Head of Prison Law, Crime and Public Law at Swain & Co Solicitors says,

"This case has important constitutional law principles at it's heart, namely the separation of powers between the Government and the Courts. This case evidences that the Government were seeking to impugn the judicial independence of the Parole Board. The Parole Board does a difficult job and one that will always attract attention when high profile individuals are released. The very low rate of serious re-offending for those released shows they tend to take the right decisions. The manner in which the Minister sought to effectively remove the Chairman of the Board was very poor and the Judgment of Lord Mostyn is very critical of the Ministers conduct.

At the start of every parole oral hearing the Chair states the Board is independent of the Governemnt and this important principle needs to be vigilantly defended. Lord Justice Leveson recently spoke to the Board and said:

"At a fundamental level, however, Parole Board decisions should be treated with the same respect for integrity and independence as any other judicial decision. Independence is the bedrock of all that you do and should be the bedrock of the Parole Board. There should be no improper influence or interference, whether from the media, the public, or politics, in your decision-making process. Decisions should be, as I said earlier, made without fear or favour."

We at Swain and Co will do all we can to ensure the Government truly understands and respects the Board's independence."

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