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

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.

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