Grayling: I’m the first impartial lord chancellor in 400 years
It's hard to know where to start with Chris Grayling's interview with Conservative Home today, but overall it's probably the part where he suggests he is the first objective lord chancellor in the history of the job.
The always brilliant Andrew Gimson asks Grayling if it has been "difficult" being the first lord chancellor in 400 years not to be a lawyer. Grayling answers:
"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."
"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."
You have to admire the chutzpah of it. Instead of Grayling's ignorance of the law being a weakness, it actually makes him the man who dares to speak truth to power, a force of common sense rocking a dull and dusty legal world.
But of course, Grayling is not shaking up legal traditions. His attacks are always one-sided: they target the citizen. Nearly every one of his reforms removes power from the average member of the public and retains it for those who can afford to pay. Where decisions were taken by the courts or prisons, he centralises the power to Whitehall. Where legal mechanisms allowed citizens redress, he makes them financially ruinous to pursue. And as for upholding the law, this is the man who was found by a court to have tried to turn legal aid into an "instrument of discrimination".
Grayling's interview sees him suggest he is better suited for the job of lord chancellor because he lacks a legal background
His main method of pursuing these reforms is typically to mislead his audience and then accuse his opponents of being liars. It is a tactic he pursues earnestly for the rest of the interview.
He says:
"One of the reforms [to judicial review] says, if somebody finances a judicial review, the court should know who they are. Now that doesn't seem to me to be unreasonable."
What this reform really does is make third parties financially liable. If a rich friend decides to help you pursue your case, they will now face the prospect of losing their home if you fail. That makes the assistance of wealthy benefactors rather less likely. Charities who might want to pitch in to try to challenge a government policy will find it financially impossible to do so.
Grayling goes on:
"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."
This reform actually does two things. Firstly it allows public bodies to break the law with impunity. Secondly, it turns what's known as 'permission stage' into a dress rehearsal for judicial review. That's significant, because the solicitors don’t get paid until after permission stage. So the 'highly likely test', as this reform is known, is actually a strategy to undercut the financial arrangements which make judicial reviews possible. As ever, the truth of what Grayling is doing is in what he does not say, rather than what he does.
The House of Lords has twice voted against Grayling's judicial review reforms
The interview goes on:
"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 supposed to look at the detail. They’re a revising chamber.'
"Grayling: 'I think these are a measured set of changes.'"
The exchange is funny but it is also revealing. After all, it was Grayling himself who appeared to fundamentally misunderstand the central function of his judicial review reforms, forcing him to admit that he misled the House. He then proceeds to suggest the Lords, who've shown over hours of detailed debate that they really do know what they're on about, should read the bill more closely.
The comedy becomes more pronounced when Grayling is asked about the prison book ban:
"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.'"
The prisoner book ban was a rule in the Incentives and Earned Privileges scheme, introduced by Grayling, which said that no parcels could be sent into prisons. It is not the case, as Grayling claimed, that "there's never been the freedom to send parcels into prisons". Previously it was up to the individual prison.
The prison book ban was ruled unlawful by the high court, but Grayling claims it did not exist
Here's what Prison Officers' Association general secretary Steve Gillan told me:
"For decades prison officers have dealt with parcels. They searched them. The reality is it was never really a problem. Now and then people tried to smuggle drugs in that way. But as professional prison officers we found these items. The majority of these books and magazines that came in didn't have any drugs in them at all. People have been having their books sent in for 20, 30 years and now all of a sudden it's become a big issue for the secretary of state."
All Grayling did was replace the autonomy of individual prisons with a rule from the centre, in the same way that he is trying to replace court discretion with Whitehall mandate in judicial review. And most governors are not happy about it. As the former governor of Pentonville prison said, the book ban was "barbarous".
As for the view that the book ban idea was "a fabrication by a left-wing pressure group", I can deal with that more immediately. I was the one who asked Howard League chief executive Frances Crook to write a piece for us on the Incentives and Earned Privileges scheme and I was the one who asked her to focus mainly on the effect it would have on people trying to send prisoners books. It was not some grand conspiracy by a cabal of left-wing penal reformers. It was a chat about the more worrying implications of the parcels ban.
Even now, after the high court has ruled the policy was unlawful, Grayling claims it did not exist. It is a quite remarkable level of self-delusion. Small wonder the lord chancellor has grown to despise lawyers so much. His every utterance is increasingly filled with misleading statements which wouldn't stand up in a court of law.
