A new Secretary of State for Justice and Lord Chancellor

10th May 2015

There is a new Lord Chancellor and Secretary of State for Justice – but what difference does this make?

 

In one way it is a welcome move.  The previous Lord Chancellor and Secretary of State for Justice – Chris Grayling – was not a success. This was not just because of the Treasury-driven cuts: those would have affected any politician in the job, and indeed implementation of the cuts in respect of civil legal aid were the responsibility of Grayling’s predecessor, Kenneth Clarke.

But Grayling made things needlessly worse.  His grand design for reforming criminal legal aid was unrealistic and botched, and the consultation had to start from scratch. Again and again the High Court found the Ministry of Justice to be acting unlawfully which, if you think of it, is a rather odd thing to happen to this particular department.  Scarce departmental resources were used to promote a Bill – an extended press release dubbed the “SARAH Act” – which actually made no change whatsoever to the law of the land.  And his personal stubbornness ended up with his spending £72,000 of taxpayers’ money to defend a prison books restriction which the bemused judge regarded as “strange” before quashing it.

The Ministry of Justice needs a fresh start, and it is good that it has got one.

 

The appointment of Michael Gove is controversial.  His record at Education received (and deserved) heavy criticism.  But any complaint as to his time at the Ministry of Justice should be based on what he now does as Lord Chancellor and Secretary of State for Justice, and not what he did elsewhere.  After all, the basis of natural justice is not to prejudge a case, and to be dismissive of him before he even starts is also to play into the hands of his political supporters.

That said, Gove will need to be careful as to the targets he chooses and the initiatives he launches.  Both the criminal and civil justice systems are in a delicate state, and the probation and prison services are already undergoing what can be euphemistically be called “change”.  One wrong move and there could be a political calamity, and prisons especially can ruin a politician’s reputation: ask David Waddington, the right-winger who was packed off to be Governor of Bermuda when prison riots erupted on his watch as Home Secretary (responsibility for prisons is now with the Ministry of Justice).

 

News reports suggest that Gove’s first job is to repeal the Human Rights Act 1998. That is something which gets easy applause but is actually not that straightforward – not least because it is unclear what could replace it which would be any different to the fairly limp legal provisions of the existing legislation.  There are also problems because of the devolution settlements: both Scottish and Northern Irish devolution have human rights protections built in the current arrangements.  And the English courts have spent a good part of the last decade “developing” the common law in anticipation of repeal so as to give rights protection to citizens.

So replacing the Human Rights Act is not as simple as it seems – though supporters of human rights now need to make the case against repeal a lot better than they have done so far.

 

Nobody knows how Gove will fare at the Ministry of Justice.  He is highly intelligent, a fluent communicator, and a cabinet “heavyweight”.  In all three respects he has a marked advantage over his predecessor.  On budget cuts he is in the same position as any new Secretary of State and Lord Chancellor would be in – and neither Labour nor the Liberal Democrats promised at the general election any increase in the legal aid budget.

One key question is whether the new Secretary of State and Lord Chancellor has a feel for the Rule of Law and how citizens can practically use and defend their legal rights.  Legal aid and access to justice are not really about the self-interest of lawyers: the issue is how citizens can go about and rely on the court system to ensure that the law is enforced.  There is no point in a legislature passing legislation if you cannot depend on those laws in the real world.

Another key question is whether the Secretary of State and Lord Chancellor wants probation and prisons policy to be an end  in itself, or the means by which society becomes safer in the medium to longer term.  There are currently over 80,000 people in prison, all of whom (with a handful of exceptions) are to be released back in to society. For a politician with vision, there is a chance with probation and prisons policy to make a genuine national improvement.

 

It may well be that this blogpost is too optimistic, and that the new Secretary of State and Lord Chancellor will be as bad as the last one, if not worse.   But that doesn’t have to be the case.

What is beyond doubt, however, is that the running of the Ministry of Justice needs drastic improvement, and that this improvement needs to be quick.

 

 

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23 thoughts on “A new Secretary of State for Justice and Lord Chancellor”

  1. Great post. If planned HRA scrapping goes ahead, which it seems it will, Courts will have to be robust and expansive on it’s interpretation of the new British Bill of Rights. The HRA jurisprudence is now deep in the common law, and hopefully judiciary will fill the gap. Stand up Justices, and be counted for as a guarders of human rights.

  2. Nice to see the that you advocate that Gove be judged on his record as Justice Secretary. I know this is an opinion piece, but not so great to see the needless bracketed ‘and deserved’ quote about his tenure at Education.

    Michael Gove is not an ideologue, but he will skewer woolly thinking. Abstract arguments will gain little traction with him in comparison with the pragmatic and the practical. He’s long been an advocate of drug counselling therapies being made universally available to prison inmates whilst serving their sentences rather than as an adjunct, or as an afterthought to their sentences as part of their probation plans. He may yet surprise you but, as ever, his success or otherwise will be dependent on the attitudes of the legal profession to him. I’ve yet to see much, this article apart, that displays a willingness to engage with him to improve the current situation.

  3. Interestingly, the 1998 article that’s been doing the rounds today in which Gove advocates bringing back hanging, is quite liberal in at least one respect. (article link: http://pastebin.com/5ynPaUjZ )

    It criticises the ability of the Home Secretary to set sentences for murders which, ironically, the Human Rights Act helped to get rid of in Anderson. Suggests there may be a glimmer of hope that he’ll recognise its value.

  4. You seem to be suggesting that he should get a completely free pass for all his prior actions and that his past should be completely ignored. This is somebody who has previously been in cabinet and has shown how he acts when in a position of authority. Why should this part of his career be conveniently put aside?

    It’s difficult to believe he has any real respect for the rule of law when he has spent so much time trying to avoid it. Just look at the lengths he went to in order to keep his emails outside the reaches of requests made under the freedom of information act when he was education secretary.

  5. Sorry, but I feel this cautious optimism is wholly misplaced. It is disingenuous to separate his new role from his existing record? As someone who followed Gove’s tenure as SoS for Education, it is clear that he takes pride in overriding the concerns of professionals as vested interests opposed to what he believes to be ‘progress’. He has shown no desire for consultation or collegiate decision-making, displaying an utter disregard for evidence-based policy, specifically on the controversial issue of Free Schools. I suspect, though hope against all hope that I shall be proved wrong, that in a year’s time you shall find as few legal professionals speaking well of him as you will find teachers doing so now.

  6. Gove’s predecessor in the role was stupid, brutal, annd effective: impervious to criticism and contemptuous of justice, a man more akin to a comissar than a politician.

    But Grayling was effective in ramming his agenda through: and I maintain that his agenda was to place the law above the common man’s financial means, and justice be damned – cost savings were a figleaf, nothing more, and all the ineffective bleating about the costs imposed by litigants in person only serves to highlight his success in that agenda.

    But that was then and this is now. So: Gove – who or what is he?

    What I remember of him is that he is blessed by a very special sort of cleverness that is equally- or over-matched by his ineptitude. He is easily flattered, if not actually vain, and the thick skin he has displayed at Education has some thinner patches – ridicule especially! – that it is better not to poke at: Gove can be vindictive.

    His particular skill, and his political value, is that he’s very good indeed at saying and doing the things that the Daily Mail approves, applauds, and encourages.

    That should give you pause.

    The perfect outcome is that Gove achieves political triumph and plaudits in the press for a cosmetic ‘victory’ that has no legal consequences whatsoever in eroding human rights: I doubt that anyone involved will show the very special kind of cleverness required for that.

    My prediction: Gove will not reverse the Grayling cuts to legal aid; the criminal Bar will completely wither; and his inept attempts at rolling back our international commitments to uphold the rights of every human being will be partially effective and extremely damaging.

    Longer-term: the unfinished business of the Grayling agenda requires the removal of all safeguards against the resulting denials and miscarriages of justice. Make no mistake: systematic injustice was a known consequence of the Grayling reforms, and someone in the current government considers that injustice to be advantageous.

    Who, and to whom, I will not speculate.

    But Gove is bright enough to know that there are ticking timebombs waiting to go off in the run-up to the 2020 election, and he may well attempt to gut the processes of review and re-examination that facilitate an overturned conviction. He will definitely lay the groundwork for effective media campaigns, including the vilification of the professions and the judiciary, if he believes that this protects his own political career against the consequences of his predecessor’s policy successes.

    That, too, should give you pause: and I would suggest, at the risk of raising a formidable ire among my betters, that senior figures in the professions and in the judiciary should seek advice – and pay retainers! – to media and PR advisers. The threat is Gove’s repellent friends in Fleet Street with the gloves off, and your own minister campaigning against you: think it over.

  7. The smart move would be to make a lot of noise about the HRA to satisfy the baying hordes and then decide that it’s part of the wider debate about Europe and defer action until the referendum.

    Whatever a UK Act says, while we’re part of the EU, EU remedies are available.

    Unless the UK devolves from Europe, UK legislation can’t stop a case being taken to a European court and that court having some legitimacy.

  8. I hope that when it comes to the HRA, judges will accept the democratic decision of the British people. I have no faith whatsoever that they will, though.

    As for Gove at Education: sure, he wound up a lot of vested interests but the bottom line is: he made schools better.

  9. The Human Rights Act is indeed included in the devolved Good Friday Agreement for N Ireland. This Agreement also includes the government of the Republic of Ireland, and Mr Gove might well need their agreement (as well as that of the NI politicians) before he can repeal the Act and replace it. I don’t imagine he thought of this extra complication

      1. Gove may well not like the Good Friday Agreement, but how is he going to get round the Irish government?

        And, on a related problem, but a bit off-topic, if the Tories are successful in their EU negotiations, this might need a referendum in Ireland—and Irish voters can be very pesky people.

  10. You are generous. Grayling vs Gove is the difference between Biffa Bacon & Raffles The Gentleman Thug.

  11. From memory, Gove’s articles in The Times before he became an MP tended to view the legal profession’s attachment to things like the rule of law as anachronistic shibboleths, so I’m not entirely confident he will b to the taste of most of the legal profession.

  12. I’ll reserve judgement for the moment.

    As someone with higher degrees in both literature and criminology; Michael Gove is going to be an interesting watch. Didn’t like his ridiculous micromanagement of the GCSE English Literature syllabus (which led to Arthur Miller, Sean O’Casey, John Synge and Steinbeck being removed from the exam list and replaced with…. Alan Bennett). I have images of him taking a hatchet to prison library collections or fussily removing items from prison canteen sheets.

    That said, while ‘free schools’ was a bit of a dodgy concept, returning discretion and management of their own establishments back to prison governors would be a welcome start. They should be able to manage the IEP scheme in particular – as they see fit for their own prisons.

    Realistically, there is only one way you can reduce costs and keep prisons decent and humane given the catastrophic effect of Grayling’s tenure. Reduce the prison population. And then stop needlessly criminalising people. The right has had some success in the US with this strategy – perhaps it’s time to follow America (again?)

    Regarding the Human Rights Act. Repealing it is all well and good but there is still the ‘problem’ of the Convention itself. Does this government really want to be the one which gave Putin and Erdogan free rein to ignore Strasbourg rulings? Because essentially that is what these proposals advocate.

  13. The point about the devolved nations is a good one. With the astonishing and welcome (to this commentator) victory of the SNP (50.3% of the vote note) means he had better tread very, very carefully as don’t be fooled, the SNP will be very alert to ANY suitable causus belli for independence and having just come top of the European league in LGBT rights has a track record in protecting and enhancing human rights so is well placed to argue cogently against and resist strongly any interference in Scotland on the matter.

    So are those subject to English law to have substantially worse human rights protections than the Celtic nations? Not a good look internationally and many affected will, as in other areas, perceive their lack.

    We certainly live in Interesting Times.

  14. Cameron has said he’ll campaign for a No vote in the promised referendum on leaving the EU. This isn’t the mark of somebody with a burning desire to repudiate the ECHR. I wonder if he takes the halfway house of HRA repeal any more seriously. The Conservatives have an overall majority, but a very small one – and there’s realistically only one non-Conservative MP who might be called on to support HRA repeal. As such, repealing the HRA is basically a whipping job. Gove’s a former Chief Whip, but he wasn’t very good at the job – he couldn’t get a bill on the bedroom tax defeated even with a three-line whip. Perhaps Cameron’s calculation is that Gove will take on HRA repeal, fail, and bury the subject for a generation – or at least until the next election, by which time he’ll be out of there. Another thing that makes me wonder about Cameron’s thinking is that actually repealing the Act would also be an each-way bet for the SNP – either the Scots get an opt-out, taking them another step closer to independence, or they get a policy imposed on them by the party that got 15% of the vote. Throwing fresh meat to the troops is fun, but does he really want to be the last Prime Minister of the United Kingdom?

  15. I actually disagree on support from other parties. I think the DUP would support repeal. So I believe the Tories have 9 others, including the UKIP MP. That gives the conservatives a potential majority of 24 but we can be sure that there are some Tories who would at least abstain. A couple of them (perhaps as many as 5) may even vote against. I think the chances of that have increased with the selection of the current cabinet. Not one single moderate amongst them.

    There’s much talk of repeal of the HRA being counter the GFA but it is noteable that the DUP were not signatories to the GFA.

    They’ve also come into conflict with Strasbourg before – most significantly with gay rights.

    1. Depends how much of a mess the DUP want to get into. They may not have been signatories to the GFA, but it is there, & would need renegotiating if the HRA were to be uprooted from NI. This may not be the only way out; some of the smarter abolitionists have pointed out that there already isn’t an identical HR regime across the nations of the UK, which may be a hint that the plan is to repeal the HRA UK-wide while leaving associated provisions in place in the devolved administrations. But if that were the direction of travel, you’d expect the DUP to oppose the government (for insufficient Unionism) rather than support it.

      1. Well given the DUP is the biggest party in Northern Ireland, it would have the commanding presence in any renegotiation. Surely something no-one with an ounce of sanity would think is the ideal situation.

        And the second largely party is Sinn Fein.

        So good luck with that.

  16. Justice in a form desired by a plaintiff in a civil case has become a purchasable commodity. Having recently been involved as a defendant in a claim alleging defamation by multi-millionaire crooks, the knowing lawyers who enthusiastically pursued the claim are now active in Courts defending them against the very same criminal charges they had alleged when published to be libels but where an Appeal against the libel claim had been denied. That legal aid is not available in such cases in the UK places a defendant in an untenable position that denies justice to those who are unable to match the financial investment of the other party, who then writes such costs off against tax having successfully overridden the right to free speech. The justice system is geared for the convenience of the Courts, the wealthy and their grovelling lawyers, where the application of law and justice are nowadays in direct conflict. The entire justice system needs radical reform but I doubt very much that any Government will have the guts or will to oversee it.

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