Justice secretary David Gauke. Credit: Stefan Rousseau/PA 

A High Court judge has criticised justice secretary David Gauke over the departure of Parole Board chair Nick Hardwick and made a formal declaration that the Parole Board’s tenure arrangements lack the necessary independence from government.

Hardwick resigned in March after Gauke told him his position was untenable following controversy over the board’s decision to release convicted rapist John Warboys.

The case was brought by Paul Wakenshaw, a convicted armed robber whose indeterminate imprisonment for public protection is periodically reviewed by the board.

Wakenshaw sought an injunction to halt the appointment of a new chair, and a declaration that Gauke’s conduct meant the board lacked the required independence under both common law and article 5(4) of the European Convention on Human Rights.

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Justice Mostyn ruled in his judgment that the relatively short appointment term – three or four years, renewable once – coupled with the justice secretary’s power to remove a board member if he considered they had failed to discharge their duties for a continuous period of three months, “without recourse to any procedure or machinery to determine the merit, or otherwise, of a decision to remove him or her… means that in this regard the provisions for tenure continue to fail the test of objective independence”.

He added: “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.”

He made a formal declaration that “the provisions for tenure of Parole Board membership fail the test of objective independence”.

The judge was also critical of the Ministry of Justice for failing to act on an earlier Divisional Court ruling that the appointment term failed the test for objective independence, and noted he was “told that the failure to amend the terms was an ‘oversight’ and that the Ministry of Justice will, as a “matter of urgency” consider revisions.

Turning to Hardwick’s resignation, the judge 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. “

The judge refused though to grant an injunction halting the next chair’s appointment saying this would be “a disruptive remedy”.

The MoJ has been approached for comment.