Brooke & Anor, R (on the application of) v Parole Board & Anor  EWHC 2036 (7 September 2007)
A recent decision of the England and Wales High Court considered whether the Parole Board had the necessary independence required by art 5(4) of the European Convention on Human Rights and may be relevant to a determination under s 24 of the Victorian Charter as to whether a court or tribunal is ‘competent, independent and impartial’.
Background to the Application
The Board was created under s 59 of the Criminal Justice Act 1967 and its status throughout had been that of an Executive Non-Departmental Public Body, operating under the ‘sponsorship’ of the relevant Department of State. However, its function had changed over time from that of an advisory board to the Minister with limited decision-making powers, to that of a body charged with the great majority of decisions relating to the release of prisoners.
The Claimants’ Case
The claimants applied for judicial review of the structure of the Board, contending that the way it was controlled by the Minister was such as to give it insufficient and real independence from the Executive. They referred in particular to the role of the Minister and his Department in appointing and dismissing Board members, controlling its budget, making its rules, housing and staffing it within the Department, and closely monitoring its activities. Not only was the Minister responsible for the Board, but he was also concerned as a party. Accordingly, the claimants argued that there was a breach of the requirements of art 5(4) of the European Convention that every court demonstrate independence and freedom from even unconscious bias.
The Court's Findings
The Court considered whether each of the abovementioned factors, either alone or in combined effect, created an objective absence of independence of the Board.
Appointment of members of the Parole Board
The Court acknowledged that a distinguishing feature in this case was that the appointing Minister was not only responsible for the Board but was also a principal party in every case the Board decides, which required clear evidence that the Minister ‘demonstrably abjures any significant input into the selection of members.’ Though the Minister had the statutory role of appointing members, in practice, the Minister was not personally involved. In the case of lay members, an external recruitment consultant conducted the advertisement process, and a three-member panel comprised of representatives from the Department, Board and the Office of Commissioner for Public Appointments (OCPA), interviewed candidates. The process was governed by OCPA principles, which included merit-based appointments and independent scrutiny. The High Court Judge members were appointed by the Lord Chief Justice. The Court held that, provided the arrangements in place for appointment of these members were strictly adhered to, the power of appointment alone did not create an objective absence of independence.
Probation officer members, on the other hand were appointed by a process of ministerial interviews and, moreover, remained employed within the Department. The Court, following the Court of Appeal decision in R (PD) v West Midlands and North West Mental Health Review Tribunal  EWCA Civ 311, held that the practical realities of the availability of suitable qualified persons was a relevant consideration on the question of independence. The Court found that given the difficulties recruiting experienced probation officers, and the fact that these members sit alongside judges and other lay and specialist members, there was not a significant risk that the performance of their duties as members would be affected by the likelihood of their returning to the Department at the end of their tenure on the Board.
Tenure of members
The Court held that the period of appointment (3 + 3 years) was near the low borderline of what is capable of providing the necessary guarantee of independence, but would, if taken alone, pass the test. However, coupled with the power to terminate the appointment of any member, without any procedure for the assessment of the merits, the provisions for tenure failed the test of independence.
Power of Minister of State to make rules
While of the view that rules being made by a party to the proceedings before the Board was not ideal, the Court held that the tabling of the rules before Parliament saved the rule-making power, by itself, from creating an appearance of lack of independence.
Power of Minister to give directions
The Court, applying the principle laid down by the Court of Appeal in R (Girling) v Parole Board  EWCA Civ 1779, held that while the power to give directions as to matters to be taken into account by the Board in discharging its functions is not in principle inconsistent with the Board's independence, the particular use made of it may create the appearance of want of independence, the more so when the Executive is a party to the proceedings. The Court held that where, for example, as was the case in Girling, directions would have the effect of narrowing the statutory test for the release of prisoners, this would create the appearance (and indeed fact) of lack of independence.
Funding of the Board by the Department
The Court held that while an independent budget granted by Parliament would enhance independence, such independent funding is not essential to independence. The Court held that ‘[p]rovided the Board's independence of decision making is scrupulously preserved from the exercise of departmental supervision of budget allocation’, there is no breach of art 5(4).
Sponsorship within the Department of State
The practice of regular and confidential meetings between representatives of the Board and one party to its decision, and the appearance given by housing of the Board within a departmental building and integration of its information technology with in-house Departmental provision, might not alone be inconsistent with objective independence, but taken together with the other incidents of sponsorship, such as funding, appointment of members, inadequate protection for security of tenure and the power to give directions, they were.
The Court made clear that there was no question about the independence of mind and impartiality of the individual members of the Board and no sign of any attempt by the Department to influence individual cases. In some respects the structure of the Board was consistent with the necessary objective independence. However, the Court held that the particular incidents of sponsorship in this case was such as to create what objectively appeared to be a lack of independence as required by art 5(4) of the European Convention.
Implications for the Victorian Charter
In the Victorian context, this decision has relevance to the scope, interpretation and application of s 24 of the Charter – which requires that a tribunal be competent, independent and impartial – to bodies such as the Parole Board and the Mental Health Review Board. If a body falls so far short of the requirements of independence and impartiality that it fails the test of being a ‘tribunal’ for the purposes of the Charter, consideration would need to be given to whether the entity is a ‘public authority’, and if so, must comply with the requirements of s 38 to act compatibly with human rights and properly consider relevant human rights in decision-making processes.
The decision is available at http://www.bailii.org/ew/cases/EWHC/Admin/2007/2036.html.
Rachel Nicholson and Jacqueline Goodall are members of the Allens Arthur Robinson Corporate Responsibility Group