Wakenshaw, R (On the Application Of) v Secretary Of State For Justice

A quasi-judicial body must be independent in fact and must appear independent to a reasonable observer. Parliamentary provision for ministerial sponsorship or appointment does not, without more, undermine objective independence. Nor do legally relevant ministerial directions where the body is acting in an advisory capacity rather than deciding the issue. However, short and renewable terms combined with an unreviewable ministerial power to remove members may make tenure too precarious. Removal powers must include an independent and impartial procedure for determining the merits. Executive pressure on a judicial office-holder to resign, instead of using the formal removal procedure, is inconsistent with judicial independence.

The claimant, an indeterminate sentence prisoner whose detention was subject to periodic Parole Board review, sought judicial review of the Board’s independence under the common law and article 5(4) of the European Convention on Human Rights. He challenged ministerial sponsorship, appointments, tenure and directions to the Board. He also sought interim relief stopping the competition to appoint a new Chair after the resignation of the previous Chair following discussions with the Secretary of State.

The court considered earlier decisions concerning the Board’s independence, including the Divisional Court and Court of Appeal decisions in R (Brooke and another) v Parole Board (and another). Permission was granted on the tenure issue, while the application for an interim injunction was refused. The central issue was whether the Board’s arrangements satisfied objective independence.

1. The court applied the requirement that a judicial body must be both actually fair and apparently fair to a reasonable observer. The fact that the Ministry of Justice sponsored the Board did not, by itself, undermine independence. The earlier concern in R (Brooke and another) v Parole Board (and another) related to the former congruence between the sponsoring Ministry and the National Offender Management Service. That concern no longer existed.

2. The appointments process was objectively fair. Under Schedule 19 of the Criminal Justice Act 2003, the Secretary of State was required to appoint Board members, including the Chair. The use of advisory panels and independent members was consistent with objective independence.

3. Directions under section 239(6) of the Criminal Justice Act 2003 were legitimate if legally relevant. In relation to open conditions, the Secretary of State retained the decision-making function and the Board acted only as an adviser under section 239(3). The April 2015 directions therefore did not impermissibly dictate the Board’s decision-making.

4. The tenure arrangements failed the test of objective independence. Terms of three or four years, renewable for a further term, combined with a power to remove a member where the Secretary of State was satisfied that the member had failed to discharge the office for three continuous months or was unable to discharge its functions, lacked any independent procedure for determining the merits of removal. The reasonable, well-informed observer could regard such tenure as capable of improperly influencing decisions.

5. The Chair could not properly be treated differently from other Board members. The Chair retained significant judicial functions, and all members of the quasi-judicial body required complete objective independence. Pressuring the Chair to resign because the Secretary of State was dissatisfied with the Chair’s conduct breached the principle of judicial independence reflected in clause III of the Act of Settlement 1701. Formal removal procedures should be used instead.

6. Permission was granted, limited to a declaration that the tenure provisions failed the test of objective independence. The application to halt the competition for a new Chair was refused because it was disproportionate and the balance of convenience did not favour that disruptive remedy.