Grayling: the Lord Chancellor who told the High Court to disregard the Rule of Law

1 April 2015 (pm)

Today is the birthday of the current Lord Chancellor and Secretary of State for Justice, Chris Grayling.  

With parliament dissolved and with a general election just weeks away, he may not be in post, or indeed in any ministerial office, much longer.  But that did not stop the High Court giving him a sort of birthday present.

In a judgment handed down today the High Court held that yet again the Ministry of Justice under Grayling had acted unlawfully.  

It may seem strange to some that the very government department running the court system of England and Wales would ever be held to have acted unlawfully.  Indeed, the Lord Chancellor and Secretary of State for Justice has a duty recognised by statute to uphold the rule of law.  But during Grayling’s time at the department, the Ministry of Justice has repeatedly been found to have acted unlawfully.  

And today, on his birthday, came from the High Court another judgment that the Ministry of Justice had acted unlawfully, with a very telling passage.

The case was about whether Grayling could ignore the Ministry of Justice’s own statutory “Directions” (rules formally made under a statutory provision) when forcing a change of policy about the treatment of prisoners.

The High Court, unsurprisingly to anyone with a basic understanding of public law (in essence, the law which regulates activities of public bodies) held that it was not open to the Lord Chancellor and Secretary of State for Justice to simply ignore Directions made under a statutory provision.

But in a revealing paragraph, the High Court detailed what the Lord Chancellor and Secretary of State for Justice had instructed a barrister to make as a key submission: 

54. Mr Weisselberg’s principal submission in response on this issue in oral argument was as concise as it was striking. The Directions were issued by the Secretary of State. He has the power to amend or revoke them; therefore he has the power to ignore or contradict them. They are not directions to him but by him, and he cannot be bound by them.

This was a remarkable submission.  The judge described it as “striking” (which is judge-speak for “utterly bizarre”).    It is dismissed with ease by the court:

55. We cannot accept this submission. The Secretary of State could indeed amend or revoke the Directions to the [Parole] Board. But so long as they remain in force they are binding on the Board and also binding on the Secretary of State, in the sense that he cannot lawfully tell the Board to ignore them or his officials to frustrate them.

The current Lord Chancellor and Secretary of State for Justice appears to believe that because he makes the rules, it is perfectly fine for him to break the rules.

One problem with this approach is that the rule of law works both ways: you can hardly insist that others should abide by the law if you are happy to casually “ignore or contradict” the law.  Another problem is that it shows a serious lack of understanding of the nature of statutory provisions: he could not simply tell his civil servants to “ignore or contradict” Directions he had made under a statutory provision.

In a junior minister all this would be a deplorable attitude.  But in the Lord Chancellor and Secretary of State for Justice, it is a disgrace.

Grayling may well shrug at yet another court defeat, especially as he will “move on” soon.

But paragraph 54 of today’s judgment will provide a lasting memorial to his period in this historic office: the Lord Chancellor and Secretary of State for Justice who, in all seriousness, one day told the High Court to disregard the rule of law.

13 thoughts on “Grayling: the Lord Chancellor who told the High Court to disregard the Rule of Law”

  1. I’m becoming resigned to the Government’s casual disregard for due process and the rule of law. The sad thing is, I can’t believe that any of the other main parties would make any difference. They’re all cut from the same cloth, the only difference between them appears to be which part of the pattern they’re displaying.

    We as citizens should really be doing more to hold them to account, but what can we do when the threat of being voted out isn’t enough to get them to do any more than tell us not to worry our pretty little heads about it, as my MP Hazel Blears is wont to do?

    For this reason I advocate voting for the smaller parties in this election, disregarding all the FUD about the other prats getting in. The truth is, if we vote for a candidate in enough numbers, he or she will be elected to office, and that needs to happen.

    1. Mary just in today’s Guardian is a piece on the Paisley electorate currently held by Douglas Alexander with a majority north of 16,000. A 20 year old female student is the SNP candidate and she currently has an 8 point lead over Alexander according to an Ashcroft constituency poll.

      This is the power of the people having been awoken. it took the referendum to wake them up and it took a rather different organisation: RIC (Radical Independence Campaign) to do it. I helped and had more than a few doorstep conversations on the ‘why should I bother to register and vote?’ in most cases i left with their filled in voter registration forms (they were collected after each canvass/stall and hand delivered to the council register office). RIC is a loose conglomerate, it included Greens, Labourites, SNP, SSP, sundry others (like me) and even SWP who behaved themselves. It has no membership lists, nobody is ‘in charge’ we are a sort of anarchist collective. So I cannot claim to be a member, but I am RIC.

  2. In years to come people will look back with incredulity at Graylings tenure as Lord Ch. Hopefully never again will somebody so ill suited and unqualified be put in this role again. A quite staggering comment by the judge but I’m afraid it won’t get the publicity it deserves.

  3. I notice that judgment was dated 1st April. Do you think perhaps it was a prank played by the court?

  4. The use of the word ‘therefore’ is quite extraordinary: paraphrasing only slightly, the Secretary of State is the ultimate legislator, therefore he is above the law. Paging Carl Schmitt! Grayling’s attitude here isn’t so much disregard for the rule of law as outright opposition to it.

    I have a certain sympathy for Wendy Cockcroft’s comment. It’s an odd and under-remarked fact that Labour governments, at least since Wilson’s time, have shown fewer liberal instincts, less distrust of the police and less regard for legal principle than Conservative ones. (Every extension of the period of pre-charge questioning – from 24 hours to 48 and on upwards – has happened under Labour, for example.) But in Grayling we’re not simply looking at a vote-chasing jobsworth without a liberal bone in his body (which is probably a fair description of whoever would get the job under Labour). He’s systematically attacked the justice system in this country and undermined the law in both civil and criminal forms – and everything seems to suggest that he’s done so deliberately. There’s never been a worse or more dangerous Lord Chancellor, and hopefully there never will be.

    1. I should perhaps say, fewer liberal instincts in the field of criminal justice. And even then I’d have to make an exception for Roy Jenkins.

  5. Did many senior civil servants in the Ministry resign rather than do Graylings bidding and break the law?

  6. So the Nixon defence. ‘When the president does it that means its can’t be illegal’ or some such nonsense.

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