Legal professionals warn MPs: Don’t restrict your constituents’ legal and constitutional rights

13 January 2015

The Chartered Institute of Legal Executives (CILEx), The Law Society and the Bar Council have today urged MPs to amend legislation that would make it harder for their local constituents to stop public authorities making decisions unlawfully.

Following the first round of ping-pong on the Criminal Justice and Courts Bill there is still fierce disagreement about Government plans to restrict judicial review, the legal process used by groups and individuals to hold public authorities to account.

CILEx President Frances Edwards explained: "Public authorities like NHS trusts, Education Authorities, Local Councils and Government departments from time to time get things wrong, and it can have a huge impact on the lives of local communities when they do. It can mean hospital closures, planning permission wrongly denied or granted, or school places refused.

"Community groups, acting legitimately and in good faith, who challenge unlawful decision-making often need to pool their resources to foot the legal bills. The Government's late amendments are not sufficiently detailed to reassure us, and may still create a chilling effect on people contributing to a fighting fund without wishing to control the litigation, fearing they may be subject to costs."

Bar Council Chairman Alistair MacDonald QC said: "It would be ironic for democratically elected MPs to restrict their constituents' ability to exercise their legal and constitutional rights. By failing to vote for these amendments they will be making it harder for those who voted them into power to exercise their constitutional and legal right to hold government to account and challenge public authorities when they get it wrong."

The Bill is also trying to halt applications for judicial review if it is considered 'highly likely' that the public authority would have come to the same decision, if it had not acted unlawfully, unless it is a case of 'exceptional public interest'.

Law Society President Andrew Caplen said: "Whatever the hypothetical outcome, if a public authority makes a decision unlawfully they should not get away scott-free.

"The other problem with the 'highly likely' and 'exceptional public interest' tests is that they potentially create much more work at the pre-permission stage. As  legal aid is no longer available for this part of judicial review, those of restricted means will be unable to exercise their legal rights."

Bar Council Chairman Alistair MacDonald QC  said: "MPs' constituents face a double whammy - first they may have to fund even more lengthy and unnecessary legal arguments in the pre-permission stage, and second they may be liable for costs by contributing to a legal fund to pay for a legitimate legal challenge. This restricts access to justice and for no good reason at all."

 Ends

Notes to editors:

1. For further information, please contact Luke Robins-Grace at the Bar Council on: 0207 611 4689

2. About the Law Society of England and Wales:

The Law Society is the independent professional body, established for solicitors in 1825, that works globally to support and represent its members, promoting the highest professional standards and the rule of law.

3. About the Chartered Institute of Legal Executives (CILEx):

CILEx is the professional association representing over 20,000 Chartered Legal Executives, paralegals and legal professionals. CILEx provides vocational and apprenticeship routes to qualify as a specialist lawyer, and has been providing innovative vocational legal qualifications for more than 50 years.

4. About the Bar Council:

  • The Bar Council represents barristers in England and Wales. It promotes:
  • The Bar's high quality specialist advocacy and advisory services
  • Fair access to justice for all
  • The highest standards of ethics, equality and diversity across the profession, and 

The development of business opportunities for barristers at home and abroad.

The General Council of the Bar is the Approved Regulator of the Bar of England and Wales. It discharges its regulatory functions through the independent  Bar Standards Board