Judicial review. Intervention in the public interest

In cases of constitutional importance in the US and Canada, it is common to find a diverse range of interest groups filing briefs as amici curiae (friends of the court). An amicus curiae may not only present legal argument to assist the court, but also social and economic data (a 'Brandeis brief'). In the key abortion case of Roe v Wade [1973] 410 US 113, the US Supreme Court relied heavily on social, economic and historical data presented by amicus groups.

There is little scope for an interest group to be appointed as an amicus here, even if the outcome of a particular case may be critical to the sector of society it represents. In the UK, an amicus is appointed at the request of the court. It asks the Attorney-General to instruct counsel whose role is limited to assisting the court on the law.

In a recent report, A matter of public interest: Reforming the law and practice on interventions in public interest cases, Justice and the Public Law Project (PLP) recommend some landmark changes. Their working party, chaired by Mr Justice Laws, says interest groups should be permitted not only to bring direct public interest challenges by way of judicial review, but also to intervene in both public and private law cases, where matters of public interest arise.

However, to avoid a flood of 'busybody' litigation, they say that challenges or interventions should only be brought at the discretion of the courts, which will determine what is 'in the public interest'.

In relation to public interest challenges, Justice/PLP suggest a practice statement that sets out the criteria which a group wishing to challenge executive action in the public interest must meet. Their criteria are:

the case raises an important point as to the use of public power by a public body; or

the applicant has special expertise in or knowledge of the issue; or

the applicant represents a section of the public generally affected by the decision sought to be challenged; or

the applicant has a statutory role in relation to the subject matter of the proposed challenge; or

the case might not otherwise be pursued by anyone who is directly affected.

The criteria for intervening in litigation on a public interest basis could, they suggest, be set out in new rules of court as part of Lord Woolf's review.

Would-be interveners would have to apply in writing for leave, and show:

that the issue or issues in the case are a matter of public interest; and

that the intervention is likely to make a useful contribution to the proceedings.

At present, the UK Rules of the Supreme Court limit intervention in civil litigation by third parties who can show a personal interest. Ord.15 r6(2) (b) permits the joinder of parties whose presence is necessary to ensure all matters in dispute may be effectually determined. In judicial review Ord.53 r5(3) requires that the notice of motion must be served on “all persons directly affected”. And Ord.53 r9(1), somewhat anomalously, provides that any person “who desires to be heard in opposition… and appears to the court to be a proper person to be heard, shall be heard”.

On appeal, Ord.59 r8(1) provides that the Court of Appeal, a single judge or the registrar may direct that a notice of appeal or respondent's notice be served “on any person not a party to [the] proceedings”.

In Hasselblad v Orbinson (1984) 3 CMLR 540, Lord Donaldson said that, when deciding whether to allow a non-party to be served “the court would have to take account of what was the nature of the interest of the person to be served, what contribution was he likely to make to the achievement of justice, and what adverse effect would be suffered by the parties by the intervener being put in the position of a party to the extent that the notice of appeal was served on him”.

In the House of Lords, rule 34.1 of the Practice Direction states that interveners must petition the Appellate Committee for leave to intervene, whether or not the other parties consent to intervention. There are no equivalent rules for intervention in criminal appeals although in a recent appeal, Liberty was permitted to lodge a written argument with the consent of the parties.

The Justice/PLP recommendations, if followed, would represent a significant liberalisation of current policy and practice. Let us hope Lord Woolf can take notice of them.

The report is available from Justice on 0171 329 5or the Public Law Project on 0171 467 9800.