Legacy of a lay lord chancellor

Remember the days when a Conservative lord chancellor would remain in office for two full parliaments? Lord Hailsham served from 1979 to 1987; Lord Mackay from 1987 to 1997. But those were the days when lord chancellors were figures of substance, commanding respect even from their political opponents.

Times change. I do not know of anyone who has a good word to say for Chris Grayling. That is not because the lawyers I speak to would prefer the justice secretary to be one of their own. They spend their lives dealing with non-lawyers and have done their best to help him understand their concerns. Grayling is an intelligent man and masters the briefs prepared for him by officials. But his civil servants seem to be just as much in the dark about how the law works as he is. Either that or they are unwilling to speak truth to power.

Being the first non-lawyer to serve as lord chancellor for 440 years must surely be a disadvantage for Grayling. But that is not how he sees it. ‘I think it’s actually helpful rather than a hindrance,’ he told the website ConservativeHome in January. ‘It enables you to take a dispassionate view.’ The interviewer was so taken aback that he failed to ask Grayling how all his legally qualified predecessors had managed to get by.

And yet Grayling appears strangely ill-at-ease in the presence of lawyers. He seems to be one of those people who worry that someone with legal training will floor him with an obscure statute or little-known precedent. How else do we explain the justice secretary’s decision not to hold a single news conference in two-and-a-half years? Why else would the lord chancellor be so reluctant to appear on a legal programme such as Law in Action?

Not that his policy of briefing friendly news outlets seems to have done him much good. Asked recently by ConservativeHome who they would like to lead the party after David Cameron, only 1% of Conservative supporters chose Grayling. Boris Johnson led with 22%, just ahead of Theresa May.

There seems little doubt that Grayling would like May’s job if the Conservatives lead the next government. And I can see that Cameron might want to keep his current ministers in post if he finds himself running a short-lived minority administration. But it seems hard to believe that Grayling will remain lord chancellor for long.

Nobody has denied my report two weeks ago that his promised draft British Bill of Rights and Responsibilities has been shelved until after the election. Cameron and his advisers seem less enthusiastic about human rights reform in 2015 than Grayling was in 2013.

Perhaps Cameron has finally begun to realise how much anger and despair there is at the steady erosion in access to justice for which Grayling is held responsible. If the criminal bar can no longer attract the brightest pupils, the judiciary of the future is at risk.

Putting up court fees by as much as 600% is hardly going to endear Grayling to the small and medium-sized businesses whose owners are natural Conservatives. Companies will not prosper if they cannot afford to recover bad debts.

And take the devastating report on civil legal aid published last week by the all-party Commons justice committee. Yes, Grayling achieved his £2bn savings. But at what cost?

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has led to possible miscarriages of justice because officials answerable directly to Grayling had failed to ensure that the act’s safety-net – the so-called exceptional cases funding scheme – targeted the starving and the vulnerable.

On two occasions – one too recent for the report – the courts have found Grayling’s guidance unlawful. And the Legal Aid Agency compounded its mismanagement of the scheme, MPs found, ‘by failing to appreciate that the very low number of grants compared to the Ministry of Justice’s estimate was a sign that the process was not working as parliament intended’.

When LASPO was going through parliament, the MoJ estimated that 5,000-7,000 applications for exceptional funding would be made annually, of which around 3,700 would be granted. But over an 18-month period only 2,090 applications were made. Of these, just 151 were granted. And yet officials quibbled when caseworkers found £1 more in a bank account than an applicant had declared. Andrew Caplen, president of the Law Society, told MPs it had been paid in by the applicant’s mother to avoid overdraft charges.

As the MPs concluded, LASPO could not be shown to have delivered value for money because of the knock-on costs of the legal aid changes and increase in litigants in person. What, then, will Grayling be remembered for?

joshua@rozenberg.net