In a wide-ranging interview, Dominic Grieve QC insists criticism for the Human Rights Act isn’t totally without merit, and that legal aid is not dead
The last cabinet reshuffle in July 2014 resulted in more than a few raised eyebrows within the legal profession as one of the country’s most highly respected lawyers, Dominic Grieve QC, was removed from his post of attorney general and relegated to the back benches of the House of Commons.
Despite a swirl of stories suggesting the Conservative Party was attempting to remove internal opposition to its plans to repeal the Human Rights Act 1998, and potential withdraw the UK from the European Convention on Human Rights (ECHR), Grieve has repeatedly dismissed such speculation and, though he has spoken out publicly against the government’s human rights proposals, he remains a loyal Tory.
There is no denying that Grieve was a constant thorn in the side of some of his cabinet colleagues on certain issues, and one can imagine the barrister’s frustration with those in his own party who have spoken out against laws, both common and statutory, as well as scathing criticism levelled at the legal profession and judiciary. Conservative MP David Davies, who posted on his official blog that the deadly terror attacks in Paris were proof the UK should scrap the Human Rights Act, is a recent example.
“The idea that the ECHR presents an insuperable obstacle is, I think, mistaken,” says Grieve. “It’s well known I do not think every decision of the Court of Human Rights is correct, I’ve made it quite clear I sometimes disagree with it. The European court has to be careful about granting countries the margin of appreciation they need to the interpretation of the statute. On occasion, some interpretation of the convention in our own Human Rights Act by our domestic courts has gone further than is reasonable, but it’s also worth noting the pendulum is probably swinging the other way. We’ve seen a number of recent examples where the courts have actually been quite deferential to the problems the state faces. Therefore I’m wary of blaming any individual statute for the problems that government faces.”
So, did Grieve ever find it difficult explaining the rule of law to those parliamentarians who did not have the benefit of a legal education? “No, I think my colleagues have a very clear understanding of the rule of law,” he responds. “Occasionally there may be issues where you have to explain that the rule of law can’t be selective… Clearly there are some quite big issues – otherwise I’d still be in office. We’ve had quite big disagreements within my own party, but that’s not to say my colleagues are cavalier with the rule of law. There is always going to be a degree of tension between government’s desire to further the public interest by taking decisions which it thinks are reasonable, and the fact that the legal system sometimes prevents that happening. That’s not a sign the system isn’t working; on the contrary, it’s a sign the system is working. It’s the sliding of the tectonic plates.”
However, Grieve admits there does seem to be a lack of understanding in parliament as to how the profession works: “I’m afraid the diet of ‘fat-cat lawyers’, which appears in the tabloid press, sometimes masks the reality. Of course, there are some barristers and solicitors who may be doing financially very well out of the practice of law, but the underpinning of the rule of law in the United Kingdom is the work of numerous people who are relatively poorly remunerated. I don’t think this picture often emerges.”
One of the tasks Grieve set himself as attorney general was to advise his colleagues of the potential problems likely to arise if practitioners stopped undertaking publicly-funded work. “It is so unremunerative that you can’t make a decent living and maintain a standard of living which is commensurate with academic study, achievements, aspirations, and a need for a reasonably comfortable way of life. You can’t simply depend on people’s total altruism to practise law for sums of money they could earn now in skilled manual occupations,” he adds.
Legislating for the sake of it
The move from the office of attorney general to being just another back bench MP has gone reasonably well, according to Grieve: “It’s always a bit of a shock when you come off the front benches because, firstly, you’re very busy, and secondly you are very well supported by civil servants to help you with your work, so your life is almost entirely structured. It’s like a gilded cage.”
It is understandable that such a sea change may take some time for Grieve to come to terms with, especially when you consider this is the first time he has been relegated to the back of the Commons since 1999. “When you’re put on the back benches you’re certainly left to your own devices,” admits Grieve. “I’ve had lots of requests to do things, which I’ve enjoyed accepting. I may even have accepted too much, because one of the consequences is that you suddenly have to do all this largely unsupported. I’ve got a very good parliamentary staff, but it’s tiny compared to what I had previously.”
Nevertheless, the former attorney general has remained busy throughout the autumn term. He has taken a keen interest in the parliamentary debates over the Counter-Terrorism Bill and the Criminal Courts Bill, and given lectures on human rights, religion and public law, and on the wider issue of the UK’s international legal obligations.
In addition, Grieve has openly declared his intent to return to practising as a barrister at Temple Garden Chambers. “I haven’t actually done private practice since 2008,” he says. “I stopped in the last two years before the general election, but I have obviously been practising as attorney general and thought I might be able to get some work and get back into court again.”
Considering his expertise in health and safety and environmental law, it is unsurprising to hear Grieve’s thoughts on the Lord Chancellor’s less than critically acclaimed Social Action Responsibility and Heroism Bill (SARAH). “It was well-intentioned,” he insists. “But the attempts at providing some sort of reassurance by symbolic means in legislation of people’s ability to intervene, without fear of being sued for negligence, was, in fact, not changing the law at all, and therefore, pointless.”
“It’s not that I’m critical of the legislation,” he continues, “but I think it is questionable to introduce legislation through parliament which isn’t really legislating, but this seems to have become something of a habit. We’ve had other examples in the past under Labour. I can see it responds to a public concern, but even though it does all those things, I would on the whole have preferred it if we had refrained from doing that. But it’s innocuous.”
While Grieve does not think SARAH will have too great an impact on either his practice, or that of his colleagues at the Bar, he believes its passage through parliament raises an interesting question about the way we go about legislating in this country. “It is a given you legislate for political reasons, but symbolic reasons is, I think, an extension of legislation that I find questionable,” he says. “We have the statute book pretty well cluttered up with things, and to then produce something which doesn’t really make a difference to the law is slightly unfortunate.”
Despite suggestions to the contrary, Grieve does not believe his former role as attorney general and chief legal adviser to the government is in conflict with the position of head of the Bar:
“If the Bar doesn’t want to have the attorney as its head, then the Bar can effectively choose to do so. The Bar has a Bar Council and a chairman of the Bar. For all practical purposes of negotiation with government, representing the interests of the Bar in discussions with the Ministry of Justice, it’s well established that it’s the chairman of the Bar Council who deals with that. The title – head of the Bar – originates before the existence of the Bar Council. It represents the fact that the attorney was seen as being the barrister within government.”
Taking that into consideration, what are the advantages for the barrister profession of keeping the attorney as its head? “The attorney has historically taken an interest in the Bar’s wellbeing and attends council meetings if he wishes to do so. I know there’s been some variety in that, but when I was in office either I or the solicitor general would normally attend. That was useful for us in terms of understanding what was going on, and I hope I was of some assistance for the Bar during a period of very great difficulty, in terms of negotiations with the government.”
Though he was not intimately involved in some of the high-profile negotiations in relation to legal aid, Grieve says that where there was a point he could reasonably put across to government about the difficulties facing the legal profession, he would do so.
Grieve also believes the changes that have come about through the Constitutional Reform Act, including the way in which the Lord Chancellor’s and the Secretary of State for Justice’s role has been merged, means the links which previously existed between the legal professions and government are no longer there in the same form. “I think that makes it incumbent on the law officers, if they can, to try and act as facilitators in the dialogue between the government and a profession which is absolutely vital to the administration of justice in this country,” he adds.
If you want a lawyer, change the law
Fallout from the Constitutional Reform Act is still the cause of much grumbling within legal circles, specifically the amalgamation of the roles of Lord Chancellor and the Secretary of State for Justice. Many within the profession point to this piece of legislation as leading us to the appointment of the first non-lawyer Lord Chancellor in 440 years, not to mention one of the most unpopular, in Chris Grayling.
“The Act makes quite clear he need not be a lawyer” explains Grieve. “At the same time, it is clear that if the Lord Chancellor is to do their job properly, they need to have an understanding of the way in which the legal system works. It is clearly part of the job description, and future Lord Chancellors must recognise that. But if we wanted to go back to a system wherein the Lord Chancellor has to be a lawyer, we would have to provide for it in statute. It was always inherent when we enacted the legislation that there was going to come a time when we would have a Lord Chancellor who wasn’t a lawyer.”
Taking into account the profession’s general dissatisfaction with our incumbent Lord Chancellor, would it be worth the next government, whoever that may be, ensuring a lawyer takes over that important role? “We need a Lord Chancellor who develops good relations with the judiciary and the legal professions,” responds Grieve. “I don’t think it need be a lawyer, but it does need to be somebody who can be positive about those relationships… but the hard truth is that the Lord Chancellor has had a very difficult brief delivered to him on the basis of the savings which government has had to make.”
Grieve says the Ministry of Justice (MoJ) has been forced to make savings far larger than almost any other government department, and the balancing of his department’s budget has been an unenviable task for Grayling. “I’ve done my very best to help him,” adds Grieve. “I know that he’s wanted to do his best to make sure that there is a healthy legal profession, good rule of law and good access to justice, and, in fairness, he has been responsive to representations that have been made.”
As an example, Grieve points to the last round of discussions concerning the government’s criminal legal aid plans, which led to Grayling shelving some of his proposals until after the next election. “They will of course then have to be considered,” says Grieve. “I would urge both branches of the legal profession to make use of the time available to try to build the dialogue so we can find some satisfactory solutions.”
One of the primary reasons the MoJ’s budget is under such scrutiny from government is the fact that the department is also responsible for funding the prison service, as well the justice system. “When there is financial constraint, are you going to disregard the needs of the judiciary and the justice system because you prefer to put the money towards prisons?” questions Grieve. “We need to think very carefully about ensuring there are sufficient resources to maintain the justice system. It’s one of the key obligations of government and if you don’t have adequate access to justice, then you start getting not only the consequences for the professions but also the knock-on social consequences, which may be undesirable.”
Criminal practitioners are currently awaiting the outcome of the judicial review into the Lord Chancellor’s controversial proposals for legal aid duty contracts, and many believe the pending decision is the profession’s last chance to reverse the tide of the government’s widely criticised plans. Should the LCCSA, CLSA and Law Society fail in their legal challenges, will legal aid be laid to rest?
Grieve argues that legal aid has not yet disappeared: “We’re still talking about a figure of £1.5bn plus which is being paid on legal aid. To say legal aid has vanished is wrong. We are in a position where legal aid is available for criminal work because of our international and national obligations to ensure people are properly represented in the criminal courts, but in the civil work context, legal aid is very hard to access.”
Grieve suggests the transition away from legal aid in certain areas of practice, such as personal injury, has been accomplished without disadvantaging the public. However, there are some areas where such cuts do create potential problems. “One of the things that has been worrying government is that legal aid has been slightly abused by people who have brought cases without merit,” he says. “We have to ensure people can be properly represented when they go into court for cases which clearly have a major impact on their wellbeing.”
Whoever is in government after the election this May is, according to Grieve, going to have to focus on the long-term delivery of adequate access to justice: “Without that, the difficulty is you get too many litigants in person, which clogs up the courts, adds to costs, and raises the problem of diminishing the quality of justice. We tend to pride ourselves on having a very high quality of justice, but we need to be very careful we don’t end up with what turns out to be an inadequate justice system where, quite apart from the fact people might not be getting access, the quality of what they’re getting is unsatisfactory.”
There is little doubt that the impending election is on the mind of all politicians, and Grieve is no different. But, unlike others across the political spectrum, he may be able to call on support from the legal profession to bolster his party’s chances of remaining in government. “I get invitations from colleagues asking me to address legal audiences in their constituencies. And as a member of the Bar, and a bencher at my Inn, I continue to take advantage of all the opportunities I have to network with the legal profession, and persuade them, even though they may have some criticisms of the current government.”
Despite quite public disagreements over their legal policies, Grieve is still of the opinion that a Tory government would be the best option for the country and the profession: “I believe the Conservative Party offers a better future for this country than the alternatives. That I may have disagreements with my party over some issues doesn’t in any way diminish or detract from that. Of course, if there is another party offering a brighter future for the legal professions, I think [they] ought to exercise their forensic skills and ask how, because rationally on some of the issues that have been particularly controversial in the last five years, I don’t think there is any alternative being offered.”
Image copyright of Mary van der Luit Photography
This feature article was first published in Solicitors Journal on 27 January 2015 and is reproduced with kind permission