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8 December 2014

How Chris Grayling’s treatment of prisoners shows why Justice Secretary is a job for a lawyer

The story of the Lord Chancellor and the indeterminate sentence for the protection of the public.

By Anthony Lloyd

The appointment of Chris Grayling as Lord Chancellor in 2012 must have been the strangest since Sir Christopher Hatton’s appointment by Queen Elizabeth in 1587. Then, as in 2012, there was a strong field, including Sir John Popham, the Attorney-General, and Sir Thomas Egerton the Solicitor-General.

“What then,” in the words of Lord Campbell in his Lives of the Lord Chancellors chapter XLV, “was the astonishment of lawyers and citizens when it was announced that the Queen had chosen to be the keeper of her conscience, to preside in the Chancery and superintend the administration of justice throughout the realm, a gay young cavalier, never called to the Bar, and chiefly famed for his handsome person, his taste in dress and his skill in dancing – SIR CHRISTOPHER HATTON!”

As it happens, Sir Christopher, whose magnificent portrait hangs in the Hall of the Inner Temple, turned out to be rather a success. I wish I could say the same for Grayling.


The announcement that the office of Lord Chancellor was to be abolished was made by press release from 10 Downing Street on 14 July 2004 after a row between Tony Blair and Lord Irvine of Lairg, who was then Lord Chancellor. It came out of the blue, with little or no thought for the consequences. In due course, the Bill, which subsequently became the Constitutional Reform Act 2005, was introduced in the House of Lords.

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At the end of 2nd reading, it would normally have been referred to a Committee of the Whole House for detailed consideration. But instead there was a move to refer it to a select committee, so that the consequences of so important a measure could be considered in greater depth. The motion was strenuously resisted by Lord Falconer on behalf of the government. But it was carried; and the select committee duly reported.

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In the meantime, however, it had been discovered that the office of Lord Chancellor was so deeply buried in our constitution that abolition was no longer a possibility. It would have involved a huge amount of re-writing. So the name of the game changed. It was no longer a Bill for the abolition of the office of the Lord Chancellor, but a Bill for its modification. This gave new hope to those of us who were in favour of the status quo. Our objections centred around two main amendments.

The first was to ensure that the office was always to be held by a member of the House of Lords. The second was to ensure that it was always held by a lawyer. The reason for the first was the constitutional nature of the office of Lord Chancellor, which makes it desirable that it should be held by somebody who is at the end of his career, and is no longer subject to the political pressures associated with being reelected. The reason for the second was the close relationship between the Lord Chancellor and the judges, and the administration of the law generally.

Nobody would argue that the office of Secretary of State for Health should always be held by a doctor. But in the case of the Lord Chancellor, the relationship is on a different level. Some previous knowledge or experience of the law would seem to be an obvious pre-requisite. As Lord Mackay of Clashfern put it during one of our debates in the House of Lords: “When it comes to advising on legal issues the Lord Chancellor needs to have a legal background.”

Both amendments were passed in the House of Lords with substantial majorities, but rejected by the House of Commons. Their alternative, put forward at the last moment, would allow almost anyone to be appointed, “provided he appears to the Prime Minister to be qualified by experience”. It was this alternative which scraped through, with support from the Liberal Democrats.

When the Conservatives were in opposition, Dominic Grieve QC was appointed shadow Lord Chancellor. When the Conservatives were returned in 2010, Grieve would have been the obvious choice as Lord Chancellor; but Ken Clarke was appointed instead. Clarke was, if anything, even better qualified. He is not only a lawyer by profession but also an elder statesman reaching the end of his career. So Grieve became Attorney General.

When Clarke returned to the backbenches, Grieve was his obvious successor. The second choice would have been Sir Edward Garnier, the Solicitor General. Both were strong candidates. But neither was chosen. Instead the Prime Minister chose Grayling. He is not a lawyer, and would seem to have no other relevant qualification except being a member of the House of Commons, and Pensions Minister. On no view could he be regarded as coming towards the end of his ministerial career.

The Prime Minister’s reason for appointing Grayling rather than either of the obvious candidates has not been disclosed. If the reason was that they gave advice which he found unpalatable, then it discloses a misunderstanding of the office held by the Law Officers. They are not in every respect like other ministers. Their function is to give independent advice to the government on legal issues, advice which should normally be accepted unless there be some very good reason to the contrary.

The office of Lord Chancellor is currently the subject of an inquiry by the Select Committee on the Constitution. I do not wish to trespass on their ground. But out of interest I attended a meeting at which he gave evidence. I wanted to know how Grayling regarded the duties of Lord Chancellor after two years in office.

When he was asked whether with hindsight it would have been better to have had a lawyer in the job his answer was uncompromising. It was a positive benefit for the Lord Chancellor not to be a lawyer.

Even more worryingly, he seemed to be unaware of the special position of Lord Chancellor in relation to the rule of law. When the chair reminded him of the rule of law, he said that his duties in that regard were no different from those of any other minister. Those duties arose under the Ministerial Code, and that was that. This seems to ignore the specific duties imposed on him by the Constitutional Reform Act, Section 1, which provides:

This Act does not adversely affect

(a)    The existing constitutional principle of the rule of law, or
(b)    The Lord Chancellors existing constitutional role in relation to that principle

The Lord Chancellor’s role in relation to the rule of law is also recognised in the oath which he alone is required to take under Section 17 of the Act. 


I mention all this because it forms the background to the particular matter in relation to which, as it seems to me, Grayling has failed in his duty. It concerns the 650 prisoners currently serving indeterminate sentences for the protection of the public (IPP), imposed under Section 225 of the Criminal Justice Act 2003.  


Indeterminate sentences for the Protection of the Public (IPP)

David Blunkett, who introduced the sentence in 2003, has accepted that, though the idea was sound, the implementation was disastrous, for which he has apologised – a rare thing in politics. The problems became apparent very early on. When the sentence was introduced, it was expected that the uptake would be a few hundred prisoners a year at most. It was assumed that the new sentence would be “resource neutral”.

The result was very different. By 2007, the number of IPP prisoners was increasing at the rate of 1,800 a year, including many with very short tariffs. Something had to be done. So in 2007, Section 225 was amended. Indeterminate sentences ceased to be available for those with tariffs of less than two years; and whereas before 2007, the judge was bound to assume that the defendant was dangerous, that assumption ceased to apply thereafter. It was for the judge to decide in each case whether the defendant was dangerous or not.

But the amending legislation was too little and too late, and there was one crucial omission. It made no provision for those who had already been given indeterminate sentences with a tariff of fewer than two years before the amendment took effect. So one had this position: before 2007, a person committing a relatively minor offence, such as wounding, deserving a determinate sentence of, say, four years would be given an indeterminate sentence of two years, or half the notional determinate sentence. That was the way it was intended to work and did work.

However, exactly the same defendant committing exactly the same offence after 2008 could no longer be given an indeterminate sentence; it was no longer available. So he would have been given, correctly, a determinate sentence of four years. As a result, he will have been released years ago under the ordinary early release provisions entitling him to be released at the halfway stage.

Meanwhile, the 650 unfortunate defendants committing exactly the same offences before 2007 are still in prison, including eight who were given tariffs of fewer than three months, 22 fewer than six months, 27 fewer than nine months and 64 fewer than 12 months. They are currently being released by the Parole Board at the rate of 120 a year. So it will be another five years before the backlog is cleared. This is in addition to the seven or eight years by which they have already exceeded their tariff. How can this possibly be justified?

When Section 225 was repealed in 2012, parliament did not repeat the mistake it had made in 2007. The Lord Chancellor was given power under Section 128 of LASPO to vary the release test for these 650 prisoners so that it need no longer depend on risk. They need no longer satisfy the Parole Board that they are safe. The re;ease test need no longer depend on risk. There could have been no purpose in giving him that power other than to speed up the rate of release. Yet Grayling has declined to exercise that power. The question is: why?

He has given only two reasons. The first, given in February 2013, was that it would not be right to interfere with the decision of judges who had taken risk management issues into account. That was just plain wrong. The judges had not taken risk management issues into account. As already explained, they were bound to assume dangerousness until 2007, when the Act was amended.

The second reason was no better. “It would be inconceivable,” he said, “and indeed irresponsible to release individuals that the Parole Board assess as continuing to pose risks to the public”. The difficulty with that as a reason is that it disregards Section 128 of LASPO. The whole purpose of that provision was to enable the Lord Chancellor to change the release test for these prisoners. Was it then “irresponsible” of parliament to give him that power? Is it “inconceivable” that parliament intended him to use that power?

In March 2014, a leader in the Times ended: “the scandal which Mr Grayling should address is that a process set out in [Section 128] has not been followed in life”. “Scandal” is not too strong a term.

Furthermore, the High Court has just held that by failing to provide courses which enable prisoners to bring their cases before the Parole Board the Lord Chancellor is in breach of his public law duty. His only defence was that he could not provide the courses which the prisoners need to take because he does not have the resources, a defence which the Court rejected. But the remedy lay in his own hands.

The 650 prisoners with tariffs of fewer than two years cannot have been among the most serious of offenders. Of these prisoners, 262 pose only a low risk of reoffending; another 239 pose only a medium risk. If Grayling were to release all 650 under the power which he has been given, it would save £24m a year, out of which he could afford to pay for the courses in question, thereby fulfilling his public law duty.

It is clear, however, that Grayling has no great enthusiasm for reducing the prison population. Even so, he has a duty to secure, so far as he can, that prisoners are treated fairly as between one group of prisoners and another. This is a duty which lies at the heart of the rule of law. It is a duty that Grayling has failed to perform.

By keeping men in prison who were given very short sentences of fewer than two year more than eight years ago, Grayling is prolonging a grave injustice. He has been given a power by parliament under Section 128 in order to remedy that injustice. His refusal to exercise that power is, to my mind, inexcusable. He should remember the words of Sir Winston Churchill as Home Secretary spoken more than 50 years ago:

“The mood and temper in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country”.

We must make sure now that we do not fail that test.

Anthony Lloyd is a retired British judge and a member of the House of Lords