Judicial Review: Common sense and the separation of powers

8 December 2014

Just one day before the Lords vote on Government attempts to restrict judicial review, Bar Council Chairman Nicholas Lavender explains why the Lord Chancellor cannot be the judge in his own case.

 During the Commons debate on Monday 1 December the Lord Chancellor said:

"These reforms are essential in restoring common sense to judicial review."

"It makes no sense to have a system that can be abused in the way it often is."

In response to the Lord Chancellor's comments, Nicholas Lavender QC, Chairman of the Bar Council said:"Judicial review was developed by the Judges, and not by Parliament or Government.  As the Lord Chancellor acknowledged, it 'was developed as a tool for citizens to challenge decisions taken by public bodies that unlawfully and adversely affect their lives.'

"The Government is often the defendant in judicial review cases.  It is understandable, therefore, that the Government should disagree with some of the decisions made by Judges in judicial review cases. 

"The Lord Chancellor made clear in the Commons debate that he does disagree with some of the decisions made by Judges in judicial review cases.  But these are decisions for the Judges, and not for the Lord Chancellor, who cannot be judge in his own cause.

"The fact that the Government of the day sometimes disagrees with the Judges does not justify a claim that the Judges lack common sense or are allowing the system to be abused.  It is certainly not a reason for using an Act of Parliament to curtail the Judges' discretion to do right in individual cases or to direct the Judges how to decide particular cases.  Yet that is what the Government is seeking to do."

At present, the Judges have discretion, depending on the facts of individual cases:

  • to grant permission to an applicant to apply for judicial review;

  • to allow a charity, NGO or other third party to intervene in proceedings where they have something valuable to contribute and to decide what, if any, costs that intervenor should be liable for; and

  • to require information about third parties, such as organisations who promote a judicial review application made by a "shell" company, who might be ordered to pay the costs of that application.

"The Government wants to use the Bill to curtail the Judges' discretion in these areas, to direct what should happen in such cases and to do so in a way which would discourage many challenges to the unlawful actions of public authorities, including the Government itself. 

"When a Government wants to substitute its own notion of common sense for that of the Judges in cases to which the Government is itself a party, we are right to be concerned about the separation of powers.  Applicants who are disappointed by the outcome of judicial review cases have no power to move the goalposts, and it is wrong for a defendant such as the Government to seek to move the goalposts in its own favour."


Notes to editors: 

  1. On Monday 1 December 2014 the Government voted down in the House of Commons amendments made to the Criminal Justice and Courts Bill by the House of Lords to protect the legal process of judicial review.  Those amendments will come before the Lords again on 9 December. 

  2. Further information is available from the Bar Council Press Office on 020 7222 2525 and Press@BarCouncil.org.uk. 

  3. 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