Chris Grayling, justice secretary: non-lawyer and 'on the up' politician | Joshua Rozenberg
Joshua Rozenberg www.theguardian.com joshua-rozenberg
<strong>Joshua Rozenberg:</strong> Grayling's main qualifications for justice minister are that he is perceived to be right-wing and once shadowed prisons
https://assets.guim.co.uk/static/frontend/icons/homescreen/apple-touch-icon.svg
the Guardian
We all knew it was going to happen sooner or later. When Tony Blair sacked Lord Irvine as lord chancellor nine years ago, launching the back-of-an-envelope bombshell that was later refined into the Constitutional Reform Act 2005, we realised straight away that Irvine's successors would no longer need to be lawyers. That blow was softened by the successive appointments of Lord Falconer, Jack Straw and Ken Clarke. All had been called to the bar. Falconer and Clarke were successful QCs.

Although Straw moved quickly into full-time politics, he never lost his respect for the profession he had joined. Clarke, in particular, got on well with Lord Judge, the lord chief justice, whom he knew when both were young jobbing barristers in the Midlands.

Now, in Chris Grayling, we have a lord chancellor and secretary of state for justice whose main qualifications for a post that has existed for 1,400 years are that he is perceived to be right-wing and once shadowed prisons.

Does that matter? After all, the lord chancellor no longer sits as a judge in the UK's highest court — as Irvine did by virtue of his office. He no longer even appoints the judges - though legislation currently before parliament would give him a say in the two most senior appointments. And he must swear an oath both to defend the independence of the judiciary and make sure there are "resources for the efficient and effective support of the courts" — whatever that may mean.

Of course, nobody would expect the health secretary to be a doctor, the education secretary to be a teacher or the Northern Ireland secretary to be Irish. You might even regard it as positively undesirable for a minister to be associated with the profession he or she has to work with.

But it matters very much indeed. Grayling is not only the first non-lawyer to become lord chancellor in modern times. He is also the first holder of that office who might reasonably regard himself as on the way up in politics; it was because the role was always seen as a retirement job that it used to carry such an attractive pension. If Grayling is looking to advance his career, or even the prospects of his party at the next election, he will find there are easy headlines to be won by attacking the judges for being soft on sentencing or for upholding the human rights of unpopular members of society.

That would make it much harder for Grayling to achieve the effective working relationship that the he needs to have with the lord chief justice. There are many responsibilities in which the two of them must concur. To take just one example, the Constitutional Reform Act 2005 gives the lord chief justice and the lord chancellor joint responsibility for dealing with complaints against judges. Acting together, they have the power to sack certain judicial office-holders. Even the most senior can be reprimanded. There is certainly scope for mischief here.

No doubt Grayling will tell us that he would be guided by the lord chief justice on such matters. That may be wise; but it is not what parliament intended. The lord chancellor should not be a rubber stamp. Getting the balance right is going to be much harder for a non-lawyer to achieve, even with the support of his officials.

Tim Dutton QC, former chairman of the bar, said on Tuesday that the new justice secretary must fight hard for all the elements that make up the rule of law. An instinctive grasp of that elusive concept may not come easily to a non-lawyer. Even more difficult for Grayling will be balancing his responsibilities for prisons with his responsibilities for the judges who send people there and for paying enough money to the lawyers whose job it is to ensure that people are not wrongly imprisoned. It's a much more demanding job than he might imagine.

Dominic Grieve is very well suited to the post of attorney general and I am not surprised to see him remaining in that post instead of succeeding Clarke. If Grieve had become justice secretary, Edward Garnier, the solicitor general, might have moved up a rung and become attorney general. As it is, Garnier is now out of a job.

This is a pity, although Garnier always gave the impression that he was rather surprised to be in the government in the first place. Perhaps he was just too laid back and charming.

His successor, Oliver Heald, is equally charming, but perhaps rather more Conservative. Heald practised at the bar for more than 20 years, but moved into politics before reaching the stage at which he would have become a QC. Perhaps for this reason, neither he nor - I suspect anyone else - was expecting him to become one of the government's law officers.

Under Labour, the post of solicitor general was sometimes held by MPs who were politicians first and lawyers second. Whether you regard that as a wise approach rather depends on whether you want the solicitor general to be the cabinet's second most senior legal adviser or to be a backbench MP who can promote reforms such as the deferred prosecution agreements that Garnier has been pushing for.

Whichever way you look at it though, there has been a distinct shift to the right among holders of the key legal posts in government, just as there has been within the government as a whole. Legal politics are beginning to look interesting.