Will the profession wish for the return of Grayling, despised for his incompetence, rather than deal with Gove’s ideology?

The king is dead. Long live the king! What should have been music to the ears of many a legal aid practitioner was instead greeted with consternation, as the news spread over the weekend that Michael Gove was to replace Chris Grayling as Lord Chancellor and secretary of state for justice.

The government’s announcement that the former education secretary – who had the ignominy of being the first minister in history to have a vote of no confidence passed against them by the teaching profession – has been greeted with a mixture of resignation and horror by lawyers.

Though it took teachers’ unions three whole years to pass a motion against Gove, the majority of the legal Twitteratti reached the same conclusion that he was bad news for their profession in but a matter of minutes on Saturday night. Yet amid the digital wails of despair there were also calls for patience.

Legal commentator Joshua Rozenberg wished Gove well in his new role and tweeted: ‘He has the necessary intelligence and sensitivity, but must also show some humility.’

Meanwhile, former Conservative MP and practising barrister Jeremy Hayes urged lawyers to show restraint before condemning the new Lord Chancellor as he was nothing like the previous master of 102 Petty France.

‘Michael Gove is a decent man. He will be angry, he will wonder how any Conservative secretary of state could let this happen on his watch. Worse, encourage it to happen. Grayling was the Dementor who sucked humanity and hope from our prisons,’ he said.

We find ourselves in previously chartered territory but with an unknown future. The man who the National Union of Teachers once dubbed a ‘demented Dalek on speed who wants to exterminate anything good in education’ is now responsible for the nation’s justice system and the second non-lawyer to hold the post of Lord Chancellor in 400 years.

The profession’s unfortunate experience with Gove’s predecessor is not likely to endear him much to lawyers who have questioned a Tory government’s commitment to the rule of law, nor will the immediate stories emanating from a well-briefed Fleet Street press. Many outlets have already reported how Gove has been promoted from his backroom roll of government chief whip to oversee Conservative plans to abolish the Human Rights Act.

Many will also wonder if Grayling’s replacement will just be a case of ‘same old, same old’ at the Ministry of Justice (MoJ). Grayling has the infamy of being dubbed one of the most ‘unlawful’ Lord Chancellors of all time thanks to numerous and successful judicial reviews against him. Gove already has some form in this department when in 2011 he was found to have behaved unlawfully after he axed the Building Schools for the Future (BSF) initiative without public consultation.

Mr Justice Holman told the high court that the then education secretary’s actions were ‘so unfair as to amount to an abuse of power’. Now, as head of the MoJ, will Gove maintain the same predilection for ignoring the law?

In addition, and before he has even been able to comment on his new appointment, Gove has become embroiled in controversy. As reported in the Independent, the new Lord Chancellor once proffered his opinion that the death penalty should be reintroduced into the criminal justice system.

While writing as a Times columnist in 1998, Gove said Britain was ‘wrong to abolish hanging’ and further claimed that the banning of the noose had ‘led to a corruption of our criminal justice system’ and ‘the erosion of all our freedoms’ rather than ‘a great liberal victory’, and that as a result the lack of capital punishment made the punishment of the innocent ‘more likely’.

Gove was frequently criticised by teachers for being too ‘old fashioned’ and for wanting to take education back to the ‘golden age’ of the 1950s. Whether the new justice secretary also has an old fashioned view of the justice system – complete with black caps for judges, scaffolds outside prisons, and a return to Latin in courtrooms (goodbye Woolf Reforms) – remains to be seen.

Will the legal profession soon be singing odes to Grayling and wishing for the return of a man its members could despise for his incompetence rather than ideology? Has David Cameron unleashed a far greater threat to the profession and the rule of law than Grayling ever was?

Have we, then, just traded a Dementor, intent on sucking the soul out of justice, for a Dalek keen to exterminate it? Only time will tell.

This blog post was first published in Solicitors Journal on 11 May 2015 and is reproduced with kind permission

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