Grayling is a headache for the profession

It is not often that a minister for justice or a Lord Chancellor can have been found to have acted ‘unfairly’ and ‘illegally’.

When he took office as Lord Chancellor, Grayling swore an oath: “I, Christopher Grayling,
do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God.”

It is hard to see how
acting unfairly and illegally is consistent with respecting the rule of law. An honourable man would have either appealed
the decision, or tendered his resignation. He is not appealing and not resigning.

The immediate reaction of the Ministry of Justice (MoJ) press office was instructive. Presumably acting on instructions from Grayling, it issued not the slightest hint of an apology, and no mention of the fact that the High Court had found that the Lord Chancellor had acted unfairly or illegally, summarising the judge’s withering judgment as one that simply “raises some technical issues on consultation process”. This hardly suggests the reaction of a man who feels in any way chastened.

Nor did Grayling’s recent speech to the Conservative Party conference offer any explanation, still less any hint of an apology. Astonishingly, he said nothing whatsoever about legal aid, except to milk some cheap applause for the fact that he had “stopped prisoners claiming legal aid, paid for by hard-working taxpayers because they don’t like the prison they’re in.”

So whether his defeat will actually make the slightest difference in the grand scheme of things is unclear, but it seems very unlikely. Grayling has re-opened his consultation because the court required him to do so (not that you would know that if you relied on the MoJ website or the new consultation documents themselves), but I would be astonished if his new plans turn out to be very different from the old ones.

I find it very hard to believe that he is entering into the new consultation with an open mind. Rarely has the recently coined word ‘nonsultation’ seemed more appropriate.

The criminal law now allows evidence of ‘propensity’ to be taken into account. Grayling has demonstrated a propensity to act unfairly and illegally and his shameless reaction to the court’s verdict reinforces my opinion that he will try to do so again.

Both branches of the profession are feeling thoroughly bruised and dazed, largely through having spent much of the last year banging their collective heads against the brutalist concrete walls of the MoJ.

The head banging will have to go on, at least until 15 October when the new consultation ends. It’s much too soon to put away the ibuprofen. SJ

Matthew Scott is a barrister practising from Pump Court Chambers

www.barristerblogger.com