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Whatever its nature this is a very worrying case.

So ‘’[a]n MoJ spokesperson said: 'The parole board is independent from the government and ministers play no role in the decisions that it makes. Today’s judgment does not call that into question. We will carefully consider this judgment in relation to the tenure and removal of parole board members – we are looking at how we can address these concerns. It would be inappropriate to comment further while legal proceedings are ongoing.' ".

This is from the judgment - which anyone concerned about the preservation of the rule of law and judicial independence should read - with apologies for its length and if my iPad has skewed the numbering:

"An insight into the precarious nature of the tenure is given by the resignation of Professor Hardwick as Chair of the Board on 27 March 2018. Professor Hardwick was not removed pursuant to the terms of his appointment; he resigned. However, it is said by the claimant that Professor Hardwick was coerced by the Secretary of State into resigning; and, indeed, Professor Hardwick says as much in a statement made by him on 20 June 2018. This was, it is suggested, a plain case of constructive dismissal.

In his statement Professor Hardwick explains that on 27 March 2018 an advance copy of the judgment of the Divisional Court was received by the parties. He goes on to say:

"30. The Justice Secretary asked to see me at about 4.30 that afternoon. The meeting lasted about 15 or 20 minutes. I met him on my own. He was accompanied by one other person I did not recognise. 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.


31. 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.


32. 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."

The accuracy of that statement has not been disputed before me.

In his resignation letter Professor Hardwick stated: "you told me that you thought my position was untenable."

On Sunday, 22 April 2018 the Secretary of State appeared on the Andrew Marr show, on that occasion hosted by Nick Robinson. I have a transcript of the discussion. Part of it reads as follows:

"[Nick Robinson]: But you effectively sacked the guy who was the head of the Parole Board, Nick Hardwick, he said, 'I did not resign willingly, I resigned because the Justice Secretary' – you – 'said I had no choice.' So once again officials pay the price.

.
[The Secretary of State]: Well, I think in that case what Worboys has revealed is although there were many good things that were going on at the Parole Board there were a number of problems, and that requires a more fundamental review of the Parole Board rules and my belief was that required new leadership in the Parole Board."


It can be seen that, if not explicitly then certainly implicitly, the Secretary of State accepted that he had "effectively sacked" the Chair of the Parole Board.

It is important to recognise that while the role of the Chair of the Parole Board is largely one of leadership, the occupant of the office still has significant judicial functions. Further, it would not be appropriate to consider the role and status of the Chair separately from the role and status of other members of the Board. All the members of the Board, including the Chair, are members of a quasi-judicial body in respect of which there must be complete objective independence. Nothing in the Brooke decision justifies any distinction being drawn in respect of the Chair on the one hand, and the other members on the other.

There is nothing new about executive interference in the tenure of judges. I give two historical examples. From the earliest patents down to the Long Parliament in 1641 tenure of the judges of the King's Bench and Common Pleas was always at the King's pleasure: "quamdiu nobis placuerit"[2]. However, that was not the case in respect of the Barons of the Exchequer. From the time of the Tudor period they were granted during good behaviour: "quamdiu se bene gesserint". In 1628 Charles I became dissatisfied with the judgment of the Chief Baron, Sir John Walter, in the case of the Parliamentarians imprisoned for seditious speeches in Parliament and ordered him to surrender his patent. He refused to do so, on the ground that his grant was for good behaviour and that he should not be removed without a proceeding on a writ of scire facias (a predecessor of the modern remedy of judicial review) to determine whether he did bene se gerere or not. Charles I did not want to risk a trial and therefore allowed Baron Walter to retain his office and his revenues as Chief Baron until his death about a year later. However, the King commanded him to stay away from the court and not to perform his functions as a judge.

History repeated itself in 1672 when Charles II tried to remove Sir John Archer from the Court of Common Pleas. Archer held his patent during good behaviour and refused to surrender it without a scire facias. Rather than face a trial the King followed his father's example and ordered Sir John to forbear to exercise the office of a judge either in court or elsewhere and appointed another judge to fill his place[3].

It was as a result of many such episodes that Parliament enacted in clause III of the Act of Settlement 1701 that: "judges commissions be made quamdiu se bene gesserint and their salaries ascertained and established but upon the address of both houses of parliament it may be lawful to remove them". That has been the fundamental rule underpinning the independence of the judiciary ever since. Article III of the U.S. Constitution (1788) is to the same effect: "the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office."

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.”

Well said.

For the second time in a week or so I'm angry and alarmed at the way this government is behaving toward the rule of law and its judges or judicial officers. Their spokesperson obviously doesn't get it - bearing in mind that some parole board members are also full time judges in other jurisdictions.