Yuan Yi Zhu is Senior Fellow of Policy Exchange’s Judicial Power Project and Assistant Professor of International Relations and International Law at Leiden University.
Last week, the Supreme Court ruled that the Abortion Services (Safe Access Zones) (Northern Ireland) Bill, which criminalizes protests around abortion clinics, was compatible with the European Convention on Human Rights.
JUSTICE, a pressure group which “unequivocally supports reproductive rights and the ability to access abortion healthcare services” was allowed to appear in court as intervener to defend the bill’s validity.
By contrast, ADF UK, a religious pro-life charity which wished to intervene to argue against the bill (and with extensive experience in similar cases in front of the European Court of Human Rights), was refused permission to do so, without reasons being given – a standard practice.
To long-time observers of the judicial process, neither of these facts was surprising. As Anthony Speaight KC (himself a member of JUSTICE) demonstrates in a new paper for Policy Exchange’s Judicial Power Project, JUSTICE is one of the select number of NGOs, alongside Amnesty and Liberty, which are routinely given permission to intervene in judicial proceedings to which they are not a party.
Courts give these select charities, who share a very similar ideological agenda, a great deal of leeway when they seek to intervene. In the words of one of JUSTICE’s former directors, “the courts have virtually never said no to us”.
Nor are they required, like traditional amicus curiae (friend of the court) would be, to help the court by giving neutral expositions of the law; instead, interveners participate in legal proceedings to help one side or the other, without the pretence of neutrality but without the responsibilities of the actual parties.
Today, the involvement of these charities in court proceedings which do not otherwise concern them is so commonplace that it largely passes without comment.
Yet, as Speaight and Policy Exchange’s new paper makes clear, the practice of allowing pressure groups to intervene in judicial proceedings in which they were not a party was unknown in English courts before 1997, when the civil liberties pressure group Liberty was allowed to present written submissions in a criminal appeal.
The next year, Amnesty broke new ground when it was allowed by the House of Lords to intervene in the Pinochet extradition case. It is not clear how much Amnesty’s intervention helped the judicial process, especially as the case had to be heard all over again when one of the judges, Lord Hoffmann, was found to have undisclosed links with Amnesty which compromised the court’s appearance of neutrality.
Despite the Pinochet debacle, there was no turning back. The enactment of the Human Rights Act, in particular, seems to have created a spike in the number of interventions. In recent years, as many as a third of all Supreme Court cases feature at least one intervener.
The high watermark for interveners may have been reached in the Cherry/Miller (No 2) prorogation case, which saw no fewer than six interveners appear in court, briefing no fewer than 17 barristers between them (including seven Queen’s Counsel), all of whom appeared against the Government’s position, far outnumbering the government’s six lawyers, and several of whom largely repeated the same arguments, leading to a waste of judicial resources.
The seemingly inexorable rise of interveners with no individual stake in legal proceedings represents a departure from the traditional common law view of litigation, in which parties bring cases in order to claim protect their own rights or interests by seeking a judicial remedy.
This, combined with the fact that regular interveners tend to come from the same part of the political spectrum, risk fuelling further the impression that courts are political arenas in which political issues are thrashed out, a perception which undermines judicial independence and trust in the legal system.
Speaight’s solution, which builds on earlier proposals by Policy Exchange and recent changes to practice in the Canadian Supreme Court, is a new statutory provision which would require courts to consider whether a proposed intervention adds anything of value, would help the court in resolving issues between the parties, and is compatible with maintaining a balance between the competing contentions before the courts, before allowing them.
In addition, in the interests of transparency, His Majesty’s Courts and Tribunals Service would be required to publish a list of all applications for permission to intervene by NGOs, as well as all grants of permission to intervene by the courts.
These modest reforms would make it clear that the role of a court is to settle a particular dispute between parties, instead of acting as a political arena in which third sector organisations challenge disfavoured political decisions by other means. For their part, the transparency requirement would go a long way in dissipating the unfortunate impression that courts are unduly welcoming toward interveners of a particular political hue.
And the proposals would contribute meaningfully to the Government’s stated commitment to depoliticise the courts, which are increasingly asked to fulfil a policy-making role for which they are neither designed nor equipped.