There has been genuine shock and sadness at the sacking of Nick Hardwick, the chair of the Parole Board for England and Wales, by justice secretary David Gauke. Gauke told Hardwick his position was “untenable” following the conclusion of a judicial review brought by two of the victims of the serial sex offender, John Worboys.
The judicial review found that the Parole Board panel had not enquired sufficiently into other allegations made against the prisoner – an omission it shared with the prison and probation experts working on the case for the previous 9 years. But the judges explicitly did not find that the panel’s original decision to recommend releasing Worboys was irrational. In fact, the majority of the failings it uncovered fell at the door of the secretary of state and his department, not the Parole Board.
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So it is hardly surprising that the Prison Reform Trust was not the only commentator to wonder exactly what it was that made the chair of the Parole Board’s position “untenable”. Indeed, the barrister who won the case against the Board considered that Nick Hardwick had been made a scapegoat by the justice secretary.
In the mid-1990s I ran the policy division that handled parole casework and sponsored the Parole Board. That was before the power to decide on the release of an indeterminate sentence prisoner had rightly been removed from the home secretary and given to the board. In those bad old days, it was simply unthinkable that any secretary of state would agree to the release of one of the very few “notorious” cases that then occupied the press.
Ministers no longer have that room for manoeuvre. In theory, the life sentence prisoners whose whole future depends on an expert assessment of whether they can safely be released – now over 10,000 in number – should at least have the reassurance that the period set for punishment is determined by a judge, and that the decision on release rests in the hands of a panel of independent experts, not a politician. With the liberty of the subject at stake, case law requires that the board operate as a “court-like body”, a defining feature of which is independence from the executive.
Gauke’s intemperate decision throws that into doubt. He has given the watching world to understand that a wrong decision has been made and that the person responsible has been punished for it. The political expedience which once occurred behind closed doors now happens in plain sight, and is all the more chilling for it.
The justice secretary has set himself up for a very hard road ahead. He plans new rules, new guidance, and a new internal appeal mechanism. He must solve the conundrum of how to take fair account of allegations never proved in court. He must find new resources for the extra work he has committed to, for both the board and the prison and probation services that advise it, and of course he must somehow find a new chair for the board that anyone will now believe is truly independent.
Ironically, in 2009, the Ministry of Justice consulted on whether the Parole Board should become part of the statutory tribunals system created by the Tribunals, Courts & Enforcement Act 2007, with all the real independence and robust procedural framework that would have guaranteed. Had it followed the logic of its own consultation paper, none of these issues would now be troubling Gauke. Why would a minister pass up that opportunity?
It is hard to escape the conclusion that, when it comes to the most notorious prisoners attracting the fiercest press attention, ministers still want to play God. It would be refreshing if, for once, they took decisive action to deny themselves that temptation rather than waiting to be pushed.