Comment: MPs must stop the government passing a law to protect itself against scrutiny

Justice denied? Changes to legal aid would protect government from legal challenge
Justice denied? Changes to legal aid would protect government from legal challenge
Ian Dunt By

By Nicholas Lavender

Bar Council Chairman, Nicholas Lavender QC, warns MPs: don’t discourage your constituents from asserting their rights.

No-one is perfect. No government is perfect, no local authority is perfect and no other public body is perfect.  To err is human.

Yet governments, local authorities and other public bodies take decisions which affect people's lives.  And yet inevitably, since they are human, some decisions will be wrong and devastating for the people affected by them. 

So there needs to be a mechanism for correcting public bodies' mistakes.  And there is.  It is called judicial review.  Judicial review is the process people use to challenge unlawful decisions by those in power.  It can, for instance, stop imprisonment without charge, prevent care homes and schools from being closed or moved without good reason, and halt wrongly-granted planning permission.

On Monday MPs will be asked to constrain judicial review and make it harder for their constituents to challenge unlawful action by Government, local authorities and other public bodies.  I hope they will resist the invitation.

So what is driving these changes?

In an article in The Daily Mail on September 6th 2013, the day on which the government's consultation was launched, the lord chancellor claimed that judicial review is being used as "a promotional tool by countless left-wing campaigners".

The joint committee on human rights (which included the present solicitor general) took a dim view of this, and said in its report:

"Such politically partisan reasons for restricting access to judicial review, in order to reduce the scope for it to be used by the government's political opponents, do not qualify as a legitimate aim recognised by human rights law as capable of justifying restrictions on access to justice, nor are they easy to reconcile with the lord chancellor's statutory duties in relation to the rule of law."

The government, which is often the defendant in judicial review cases, is proposing changes to the law applicable to judicial review cases in a way which would load the dice in favour of itself and other public authorities.  This is troubling.

The House of Lords passed three sets of amendments to the bill, with a common theme.  Each set would preserve the judges' present discretion to do the right thing in individual cases.  I hope that MPs will see the sense in this and will uphold the Lords' amendments.

The alternative is the government's proposal.  That is to limit the judges' discretion by telling them what to do in various circumstances.   But to my mind it is just wrong for government, which is so often the defendant in these cases, to be telling the judges how to deal with these cases. 

The chances are that every MP has at least one constituent who is a victim of an unlawful decision by the government or another public body.  It is difficult to imagine why MPs would vote to make it harder for their constituents to take action against injustices like this.

Nicholas Lavender QC is chairman of the Bar Council.

The opinions in's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.


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