Not right for the job?

This should have been Chris Grayling’s big week.

In a speech tomorrow at his party’s annual conference in Birmingham, the lord chancellor and justice secretary is expected to launch the Conservatives’ new human rights policy. It is thought he will promise that a future Conservative government would not comply with an adverse ruling from the European Court of Human Rights unless parliament had first given its approval.

That would put the UK in breach of its international obligations, as I reported in the Gazette on 4 August, and so the plan will be opposed by Dominic Grieve, the former attorney general, as well as by Ken Clarke, Grayling’s immediate predecessor.

That won’t worry the justice secretary for a moment. He is on the way up, he may tell himself, and they are on the way out. Standing up to Strasbourg will go down well with the party faithful. But the issue dominating party politics at the moment is not human rights: it is constitutional reform. A decade ago, rebalancing the constitution was entrusted to a previous lord chancellor, Lord Falconer.

But when David Cameron wanted a minister to ensure that ‘English laws’ would be made only by English MPs, he turned to William Hague. Grayling was reduced to attacking regionalism in a newspaper article.

The lord chancellor was apparently sidelined on the very day the High Court quashed his decision to reduce the number of criminal legal aid contracts. His failure to give solicitors the opportunity to comment on two expert reports he had commissioned was ‘so unfair as to result in illegality’, Mr Justice Burnett said.

Responding in a tweet, Grayling’s press office tried to brush aside this unlawful behaviour as ‘technical issues on [the] consultation process which we’re considering’. This produced a withering response from legal tweeters. And Francis FitzGibbon QC added that Grayling seemed to be disowning Dr Elizabeth Gibby, his head of legal aid policy, who appeared to have told the court that nothing solicitors could have said would have made any difference.

Above the party fray, the view is gaining ground that Grayling is simply the wrong person for the job. Just as Cameron should never have appointed two inexperienced junior barristers as the government’s law officers in July, the prime minister should not have given the job of lord chancellor to a non-lawyer who still harbours political ambitions.

Under the Constitutional Reform Act, a person cannot become lord chancellor ‘unless he appears to the prime minister to be qualified by experience’. That can certainly include experience as a lawyer – either practising or academic. But it can also include experience as a minister, an MP or ‘other experience that the prime minister considers relevant’. So it is an entirely subjective, non-justiciable requirement that could be fulfilled by just about anybody over the age of 25.

The Bar Council says it is ‘so widely drawn as to be virtually meaningless’.

And that is what worries members of the House of Lords constitution committee. At the beginning of July, they announced an inquiry into the lord chancellor’s role. Peers sought views on whether in future, as before, the job should go to a lawyer who was not seeking further political advancement.

In July, the committee began taking oral evidence. Lord Hope, the former deputy president of the Supreme Court, recalled that ‘other relevant experience’ was added at a late stage in the bill’s parliamentary passage. ‘Some of us were rather dismayed,’ he added.

On hearing of Grayling’s appointment, Lord Judge had ‘rushed off to see whether he was qualified’. The former lord chief justice remained ‘extremely concerned’ about the breadth of the legislation. ‘I would be much happier if there was a statutory provision that required the lord chancellor… to have some legal qualification,’ he said.

Judge was supported by written submissions from the Law Society (‘while we do not doubt that non-lawyers are able to understand and appreciate the importance of the rule of law, the concepts may come less familiarly to them’) and the Bar Council (‘a lawyer will be best placed to understand the constitutional principle of the rule of law and to uphold the continued independence of the judiciary’).

Lord Phillips, the former Supreme Court president, was more concerned about whether the job might go to someone who was ‘first and foremost a politician hoping for further political advancement’.

Grayling is to give oral evidence in mid-October. But we know already that he will defend the status quo. ‘It is unnecessary for the office of the lord chancellor to be held by a lawyer now that the post-holder is no longer the head of the judiciary or entitled to sit as a judge,’ his officials said in written evidence. It was for the prime minister to choose the best person for the office.

True. But did he?