Grayling fails to argue he can make and break his own rules

Chris Grayling has once again been found wanting after the High Court declared yet another of his policies unlawful, despite attempts by counsel to argue he could make up the rules as he went.

The decision in R on the application of Gilbert v Secretary of State for Justice [2015] EWHC 927, which was delivered on Grayling's birthday, found the justice secretary's policy of excluding from transfer to open conditions any prisoner with a history of abscond, escape or serious release on temporary licence failure is inconsistent with his directions to the Parole Board under section 32(6) of the Criminal Justice Act 1991.

In a stinging judgment, the High Court seemed to criticise the Lord Chancellor's defence of policy and described it as 'striking'.

Tom Weisselberg QC of Blackstone Chambers who represented the Lord Chancellor submitted that the justice secretary had the power to amend or revoke the directions. Therefore, said Weisselberg, Grayling had the power to ignore or contradict them and that as they were not directions to him, but by him, he could not be bound by them.

The High Court dismissed this argument, saying: 'The Secretary of State could indeed amend or revoke the directions to the 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.'

Tweeting about the judgment from his @JackofKent account, David Allen Green, head of the litigation and media practices at Preiskel & Co, said: 'Our Lord Chancellor believes, genuinely, that he can break the rules, because he makes them.'

Green later added: 'Grayling is against expensive QCs, at public expense, making bad points in judicial reviews. Apart from when it is MoJ's QC.'

John van der Luit-Drummond is deputy editor for Solicitors Journal
john.vanderluit@solicitorsjournal.co.uk | @JvdLD