Sir Stephen Sedley

The Lord Chancellor’s attitude to public interest litigation threatens the rule of law and the constitutional separation of powers,
writes Sir Stephen Sedley.

In 1916 the secretary of the Anti-German Union, Sir George Makgill, brought judicial review proceedings to remove from the Privy Council two wealthy Jewish philanthropists; Sir Ernest Cassel (who had actually converted to Catholicism) and Sir Edgar Speyer, on the ground that, although both were British subjects, they were not British-born.

The Blair Government dismantled our legal system overnight. The present Government has installed a politician as Lord Chancellor. Sir Stephen Sedley examines the consequences and warns of government’s growing practice of kite-flying.

Writers on the British constitution have always faced the problem that, contrary to what Mr Podsnap thought, it cannot simply be held up to the light and admired. The constitution is simultaneously a description of how, for the moment, we are governed and a prescriptive account of how we ought to be governed. In both respects (the former much more than the latter) it undergoes constant change; and there are concerns, highlighted by the radical changes currently being made to the legal aid system, that the process may be accelerating into a critical and damaging phase.

“No man is allowed to be a judge in his own cause” and yet surely a judicial oath is an answer to the appearance of partiality? Sir Stephen Sedley looks at the tests for recusal and who decides upon them.

Few people in this country, I would guess, reading the headnote above, attached to the official report of a recent decision of the US Supreme Court, would regard it as a difficult case.