Chris Grayling is the first Lord Chancellor for 440 years not to be a lawyer, but bridles at the idea that this is in any way a drawback. He considers it, on the contrary, to be an advantage, for “it enables you to take a dispassionate view”, in which you do not “favour the bar or…the solicitors’ firms”.
Only when I transcribed the tape of this interview did I realise quite how astonishing Grayling’s remarks are. For by implying that no lawyer can as Lord Chancellor exercise impartial judgment, at least on any question affecting the legal profession, he appears to insult his many distinguished predecessors.
Grayling believes that “people naturally fight for their own interests”. This view may be realistic, but is hard to reconcile with any idea of even-handedness, whether by a Lord Chancellor or by the judiciary.
It is a mark of how bad relations have become between Grayling and senior lawyers, and how annoyed he is by their attacks on his lack of legal expertise, that he has launched such a counter-attack. When the Conservatives were still in Opposition, he made a reputation for himself as an attack dog, and these abilities are here deployed against his critics in the House of Lords.
In political terms, there is doubtless something to be gained from denouncing lawyers. Shakespeare’s line, “The first thing we do, let’s kill all the lawyers,” invariably wins applause.
It is also true that Tony Blair removed many of the Lord Chancellor’s functions, including the judicial role, so that the ancient office has been hollowed out. Grayling’s two predecessors, Ken Clarke and Jack Straw, were lawyers, but it is no longer essential to be a lawyer in order to be Lord Chancellor.
That historic title, whose holders can be traced to the Norman Conquest, is now combined with the new role of Justice Secretary, which entails running the courts and the prisons. It was to ask Grayling about his plans for the rehabilitation of offenders, which will take effect in 12 days’ time, that I went to see him. His account of this subject, in which he stakes his claim to be a compassionate Conservative – and his remarks about the EU referendum, how to fight UKIP, whether to open new grammar schools, the books for prisoners row, his lack of political heroes and his early life in the SDP – can be found after his views on lawyers, and on the need to reform access to judicial review.
ConHome: “Has it been a difficulty, for you as Lord Chancellor, that you’re not a lawyer, whereas every Lord Chancellor before you for 400 years has been a lawyer?”
Grayling: “I think it’s actually helpful rather than a hindrance. Because I think it enables you to take a dispassionate view. You’re not cup-tied in any way to your previous career or your chambers or your former firm.”
Grayling: “So you don’t arrive at a decision because you’re a barrister and therefore you favour the bar or because you’re a solicitor and therefore you favour the solicitors’ firms.”
ConHome: “Oh! I see.”
Grayling: “You have to take difficult decisions, but I think it enables you to take them in a dispassionate way. And the idea that someone who’s not a lawyer cannot believe in upholding the rule of law is just not right. I absolutely understand the need to uphold the rule of law. But there’s a difference between upholding the rule of law and saying the law is perfect and Parliament shouldn’t seek to change it.”
ConHome: “Yes well no one would say that.”
Grayling: “That’s my point of difference over judicial review. I think judicial review has a core purpose that’s really important, but some of the ways in which it’s being used are not appropriate.”
ConHome: “Who are these organisations that have been using it to block stuff?”
Grayling: “Well without naming names, one of the earliest cases I faced, which we in fact won, but which took a considerable amount of departmental time, was brought by a professional body seeking to delay a change that was going to affect its members. And the case was really just designed to delay the change by six months. And the argument was that we didn’t quite do the consultation the way we’d promised.”
ConHome: “So here was a kind of vexatious litigant.”
Grayling: “It’s lobby groups, it’s representative groups with an argument to make.”
ConHome: “Well anyone who wants to block a big planning thing, they think, can we get this JRd [judicially reviewed].”
Grayling: “And the truth is, the question ‘can we be JRd on something’ has permeated all parts of government. I think the purpose of JR is to hold government to account, and public bodies to account, for serious breaches where they are infringing on the liberties of an individual, the rights of an individual, the circumstances of an individual. It shouldn’t really be a campaigning tool, and yet that’s what it’s become. Indeed we’ve found on more than one occasion recently, when we’ve faced judicial review, that if you do a bit of searching around, you will find those involved in bringing the case being very open about the fact they’re doing so either to disrupt or delay government plans.”
ConHome: “Which was this professional body which was seeking to delay change?”
Grayling: “I wouldn’t name names, because that wouldn’t be fair.”
ConHome: “It seems you rather subscribe to the George Bernard Shaw view that ‘all professions are a conspiracy against the laity’.”
Grayling: “No I don’t think that, but I think people naturally fight for their own interests. It would be surprising if they didn’t. But that doesn’t mean they’re right.”
ConHome: “Wasn’t it Lord Mackay who tried to abolish the bar’s exclusive right of audience? The bar almost had a nervous breakdown about that. Lord Mackay was a lawyer, but they regarded him as a very threatening one.”
Grayling: “People don’t like change, and sometimes you have to push through change. But the fact that I’m not a lawyer makes me a bit of a target. Though ironically, many of the changes, take legal aid for example, which are the subject of most debate, where people have lost the right to access to legal aid, were actually pushed through by Ken Clarke as my predecessor, who of course is a QC. So people tend to miss that point.”
ConHome: “Anyhow, these people who think you don’t understand your duty to defend the rule of law, they’re just wrong about that, are they?”
Grayling: “I just think they’re wrong. Of course I have to uphold the rule of law but it doesn’t mean that the legal system is perfect and it doesn’t mean that there are limitless funds.”
ConHome: “A few days ago there was an angry letter in the Daily Telegraph from Lord Lexden, expressing their lordships’ grave displeasure with you, and saying ‘Britain must have a Lord Chancellor who puts duty to the law above party politics’.”
Grayling: “Well there’s a lot of noise being made about some of the reforms we’ve pushed through. They’re particularly concerned about the reforms to judicial review. Now when you actually look at what we’ve done, I’m afraid that the rhetoric of opposition against us really does I think run somewhat ahead of the facts.
“So if you take one example, one of the reforms says, if somebody finances a judicial review, the court should know who they are. Now that doesn’t seem to me to be unreasonable. You can perfectly well have a case where somebody with a vested interest bankrolls a third party to bring a judicial review, and therefore their presence isn’t known to the court. And I don’t think that’s acceptable.
“Likewise the changes we’ve made to the procedural side of judicial review. What we’re saying is if there’s a minor technical flaw, in a consultation for example, that would not in any way have affected the final decision, it makes no sense wasting taxpayers’ money, often in the tens of thousands of pounds, defending judicial reviews.
“And we’ve got organisations that use that kind of technical procedural flaw to try to delay something: to try and grandstand and make a political point. And I’m afraid I simply disagree with those who say the judicial review reforms are about party politics. They’re about trying to restore a sensible balance in an area of the law that is necessary to hold the public sector to account, but should not be abused.”
ConHome: “So you think their lordships have got this out of proportion, in fact.”
Grayling: “I think if they sat down and looked in reality at the detail of what we’ve done…”
ConHome: “Well they’re suppose to look at the detail. They’re a revising chamber.”
Grayling: “I think these are a measured set of changes. On Wednesday [i.e. today] my hope is that we will see the final stages in the Lords. We’ve made a couple of modifications to the proposals after discussions with the House of Lords. We’ve had some constructive dialogue and I hope that actually we’ll end up with something we’re both happy with after Wednesday’s debate.”
ConHome: “If there was a referendum today, would you vote to leave the European Union?”
Grayling: “This is a hypothetical question and I think we have to avoid getting involved in that debate in the run-up to the election because it creates a battle where there isn’t one. I’m a right-wing, eurosceptic Conservative. I do not support the status quo. We need to change our relationship with the EU. But actually I am equally very much behind David Cameron’s strategy of renegotiation.”
ConHome: “What’s the best way for the Conservatives to beat off the really considerable threat from UKIP in seats such as Thurrock?”
Grayling: “I think that ultimately, Bill Clinton said ‘It’s the economy, stupid’ [the expression is more often attributed to James Carville, Clinton’s campaign strategist], and I don’t believe he was wrong. The argument we have to win is that the economy’s improving, the labour market’s much stronger, wages are starting to rise again, the country’s clearly moving in the right direction, we talk about a long-term economic plan for real reasons, because there is one. That’s what we’re seeking to deliver, it’s making a difference. The alternative is to risk going back to chaos under Labour. I think the move to us may be relatively late in the day but it is a straightforward choice between steady as she goes on the path to economic recovery, or taking an almighty risk with the guys who we now know, knew that the crash was coming, and tried to cover it up so that they looked after their own political fortune. My gut instinct is that we’re probably in 1992 again, where actually the decision to stick with us in that turmoil probably was taken relatively late in the day.”
ConHome: “Are you in favour of the expansion of grammar schools?”
Grayling: “I went to a grammar school, I supported the grammar schools then, now I wouldn’t do anything to undermine them, but I’ve always said I am wary of a big programme of reorganisation, because reorganisation in the school system disrupts young people who are there in those schools at the time.”
ConHome: “Obviously someone like Graham Brady feels very strongly about this, he actually wants more grammar schools…”
Grayling: “I’m not opposed to them, I would not have closed them in the first place, but I also would be very wary about the scale of reorganisation you would need to put them back again.”
BOOKS FOR PRISONERS ROW
Grayling: “There was never a ban on books for prisoners. It was a fabrication by a left-wing pressure group. We never had any discussions at all. The only change we actually pushed through was to harmonise the rules that existed across the prison system. There’s never been the freedom to send parcels into prisons. You get one when you’re sentenced but after that it’s exceptional circumstances. The Howard League decided that one of the things this involved was books so therefore created a great campaign around books.”
ConHome: “Why weren’t you able to squash this campaign?”
Grayling: “Oh I talked to them endlessly, but it’s the kind of thing where the Left gets terribly excited.”
ConHome: “You’re smiling. You actually quite enjoyed this, I get the impression.”
Grayling: “Oh it was infuriating. When something is lobbed at you which is completely untrue, sometimes if people carry on saying it, it’s believed. It was never true in the first place.”
ConHome: “Who are your political heroes?”
Grayling: “I’m not sure…”
ConHome: “When you were studying history at Sidney Sussex it could have been Oliver Cromwell?” But Grayling laughed off this suggestion, made because both he and Cromwell went to Sidney Sussex College, Cambridge.
ConHome: “I saw, tantalizingly, that you were an SDP man at a very early stage.”
Grayling: “I was a member of the SDP for about a year and a half. I think I originally joined the SDP when it first started.”
ConHome: “Was that at Cambridge?”
Grayling: “No, it was before. I went to my first SDP meetings with a young lady I was interested in but it wasn’t mutual. But I didn’t stay a member for very long. I was involved a bit at university. And then I left the university, went into the media, wasn’t involved in politics for about five years, and then got involved in my late twenties, by which time I’d decided I was definitely a Conservative.”
ConHome: “Everybody is allowed a reckless youth, but in this reckless SDP phase, who was your SDP hero? Was it David Owen, or Roy Jenkins, or Shirley Williams, or none of them, perhaps?”
Grayling: “I’ve never really been a great person for political heroes. The history I did was much more economic. I was very interested in the history of the industrial revolution. I wrote my university dissertation on the industrial growth of Manchester. I wasn’t a great student of politics. If you said to me how would I describe myself today, I’m a Thatcherite right-wing Conservative.”
ConHome: “Was there any actual change in policy when you took over from Ken Clarke as Lord Chancellor and Justice Secretary in September 2012?”
Grayling: “Ken had focused predominantly on work in prisons, and we have carried on that work, and we are constantly looking for companies that will open up workshops and the like in prisons. So for example Halfords have just opened up a facility in prison, we hope they will move from one to more of those. They’re doing very much what Timpson have done, which is to have a mock set-up in prisons that trains people to work in their organisation, and when they come out of prison they’re frequently given the chance to have a job there.
“You’ve also got places where there are straightforward commercial contracts. So for example in Stafford we have a contract to assemble the number plate and tail-light boards that fit on the back of trailers. And that used to be done overseas and has been brought back in and is done by prisoners in prison. So that was really Ken’s big focus.
“My focus was to move towards the issue of the 50,000 prisoners a year who come out of jail having served short sentences, and get no support at all when they leave. Literally they walk onto the streets with £46 in their pocket, no support, no guidance, nothing. They walk out onto the streets and nearly 60 per cent of them reoffend.
“It’s a real gap in the system. And so the real focus of the reforms has been to deal with that, but also to diversify the range of skills involved in rehabilitation. I’m a great believer there’s some great work done in the charitable sector. And so we took the decision that we needed to create a system that was more efficient, so that we could free resource to provide support for those who get none at the moment.
“But we also wanted a greater focus on mentoring rather than simply supervision. So less formulaic supervision, and much more guidance, support and mentoring. If you look at the people coming out of prison, most of them – OK, there’s a few evil Mr Bigs – but most of them are people who come from the most difficult and deprived of backgrounds, failed at school, chaotic parenting, often with addiction problems.
“And these are people who if you talk to them, have little idea how to get their lives back together again. You are typically talking about young, troubled men, and if you don’t turn their lives around, they’ll just keep coming back. And so we’re looking for something that’s much more akin to working with them to help them turn their lives around, rather than simply supervising them when they leave.
“The third piece of the reform is really about trying to create a proper through-the-gate service, so that prisoners spend the last few months of their sentence in the area they are going to be released into. My vision is that they’re met at the gates by someone who’s already sorted out where they’re going to be living, who’s booked them into college if they need to carry on a college course, or into rehab if they need to carry on with rehab. The local provider will work in the local prison to plan for release.
“If you look at the crime situation in this country, most crime is being committed by people who have been round the system before. And this is really designed to try and crack that.
“I came to the department with two big focuses. One was to create a tougher narrative for the Conservative Party round the justice system. We are the party that’s tough on law and order, that looks after victims, that makes sure justice is done. So we have done a real variety of things to sentencing and the way the system works. But to balance that with an improved focus on the rehabilitation of offenders, which is very much what compassionate conservatism should be about.”
ConHome: “So you would call yourself a compassionate Conservative.”
ConHome: “You seem to be combining what Michael Howard [Home Secretary 1993-97] was famous for with what Ken Clarke [Home Secretary 1992-93; Justice Secretary 2010-12] got going with. So it’s both, is it?”
Grayling: “I think you can believe in tough justice, but also rehabilitation. Because ultimately, rehabilitating offenders is what you need to do if you’re going to prevent there being more victims in the future.”
ConHome: “Has your view developed at all while you’ve been doing this job? What do you feel you’ve learned about prisons which you didn’t already know?”
Grayling: “It’s become increasingly apparent over the past few months that the big challenge in prisons, the key reason for the rise in violence in prisons, is the spread of what are called legal highs but are in fact artificial drugs. And that I suppose to me it’s now become our most pressing priority in the prison arena, and we’ll be talking about this in the near future. That’s the factor that to my mind is probably putting the most pressure on the system.”
ConHome: “People do wonder how these drugs get into prison.”
Grayling: “Well tennis balls over prison walls are a popular option at the moment. We’ve even had one case where I think a dead pigeon was thrown over a prison wall stuffed with drugs. When I visited a prison in Berlin they showed me a shampoo bottle that had been manufactured with a special compartment in the centre of the shampoo full of drugs. So there is a lot of ingenuity that goes into this.”
ConHome: “What’s your explanation for this astonishing doubling of the prison population from 1993 to 2012?”
Grayling: “Well I think it’s a whole variety of reasons. No single factor. Child sex abuse is a big challenge for us now. It’s now putting big pressure on the justice system. We’ve seen nearly a thousand extra people in prison over the last 12, 18 months who’ve committed sex offences. So there are things that weren’t crimes and weren’t perceived to be crimes.”
ConHome: “Including some of these sexual offences that just weren’t taken at all seriously.”
Grayling: “That’s right…”
ConHome: “These sex offenders, how many more do you think there’s going to be?”
Grayling: “It is going to be one of the challenges for the criminal justice system in the next few years, because we are uncovering, as a society, a deep-rooted problem.We’ve seen a fall in crime in the last four or five years, which is good, but we have seen a growth in some more serious offences, of which sex crime is the most obvious. None of it is quantified. There is work going on in government at the moment to look at the scale of the challenge.”
ConHome: “So you don’t have any estimates of how many more?”
Grayling: “I don’t have any estimates but it is something clearly that we’re looking at very carefully.”
ConHome: “How much room have you got?”
Grayling: “We have got as of today about 3,000 spare capacity in the prison estate. We’ve also got a couple of thousand new places due to open in the next few months… You’ve had a big increase in the number of foreign national offenders which remains a big problem for us. There’s no single reason for it [the rise in the prison population]. And I think we’ve toughened our justice system as well. People have demanded a system that more visibly delivers justice to the victims of crime. And of course the spread of the 24-hour media has meant the justice system is much more open to public view and public scrutiny now.”
ConHome: “Is it? I don’t know. It may have been a long time ago now, but at the Tory conferences you had the hangers and floggers, didn’t you, reducing Willie Whitelaw [Home Secretary 1979-83] to tears and so on.”
Grayling: “And that’s the bit that has changed, and rightly so. We are not the party of hanging and flogging any more.”
Grayling: “We are still a party that believes in tough justice. We are also now a compassionate Conservative Party that believes in rehabilitation. The toughest people on law and order also believe you need work to stop people reoffending.”
ConHome: “Do you believe in the death penalty yourself?”
Grayling: “No, I’ve never believed in the death penalty, because we have a system that’s not perfect and has never been perfect, and I’ve no doubt over the decades this country executed people who were innocent, because the system didn’t get it right. If you give someone a life sentence you can realise you’ve made a mistake later and let them out. I’m entirely supportive of whole-life tariffs for the most serious offences.”