Why the Justice Secretary should be a lawyer…

Posted on 16th December 2014

After hearing evidence from a wide range of experts, and the current Justice Secretary/Lord Chancellor Chris Grayling, the House of Lords Constitution Committee published a report last week on the role of the Lord Chancellor. One of the questions they considered was whether the Lord Chancellor should have a legal background, given the special responsibility the post holds for the rule of law – a responsibility which includes making sure that the Government acts lawfully. The Committee concluded that it is an advantage to have a lawyer in the post, or alternatively to have someone with a constitutional background, but this is not essential.

The current Lord Chancellor is the first ever not to have a legal background. He also appears to have lost more cases against his department than any previous incumbent after two years in the job. In the process of losing these cases – and while he talks about trying to cut costs – he has incurred significant legal costs against his department, payable from taxpayer’s money.

The most recent loss was this week, when the Court of Appeal, including the Master of the Rolls (the President of the Civil Division of the Court of Appeal), agreed with the decision of the High Court that legal aid was being unfairly denied to individuals with complex immigration cases.

The question for the court to decide was whether exceptional funding should be available for the claimants. Exceptional funding (i.e. funding for cases outside the scope of the usual areas of legal aid) can still be granted if there are human rights issues at stake. The Director of Legal Aid Casework has to determine whether an individual case is worthy of exceptional funding, and must have regard to guidance given by the Lord Chancellor.

The Court of Appeal found that that guidance sent a clear signal that funding should only be available in rare and extreme cases, and this did not comply with the case law about when legal aid must be available (see paragraph 44 of the judgment in particular). The direction to the Director and the staff deciding legal aid cases should not be that there is a very high threshold before legal aid is granted, instead they should consider the facts and circumstances of the case, including the issues at stake (see paragraph 72 of the judgment). The guidance from the Lord Chancellor was therefore unlawful.

Lord Chancellors have lost cases before, and Lord Chancellors have been accused of not complying with the rule of law, but none have seen the sustained criticism that Chris Grayling has faced. In a job with such constitutional importance, charged with the fundamental responsibility for upholding the idea that the Government must comply with the law, it is difficult to see how a Minister dogged by such a poor track record can maintain his post. And, for the sake of public finances and avoiding costs orders if for no other reason, we should all hope that the next appointment is someone with a better grasp on the law.

The case is available here: http://www.judiciary.gov.uk/judgments/the-queen-oao-gudanaviciene-and-others-v-the-director-of-legal-aid-casework-and-others/

The report of the Constitution Committee is available here: http://www.publications.parliament.uk/pa/ld201415/ldselect/ldconst/75/7502.htm

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