'Depoliticise' the courts by constraining interveners - thinktank

The government should ‘depoliticise’ the courts by introducing legislation curbing interventions by pressure groups in judicial review proceedings, a centre-right thinktank has said.

In a paper titled ‘How and why to constrain interveners and depoliticise our courts’, Policy Exchange’s Judicial Power Project says the practice of allowing pressure groups to participate in litigation as interveners is undesirable because it adds to the time and cost of proceedings, unevens the playing field and created the experience ‘that the judges have driven the last two decades’ expansion of human rights and public law hand in glove with a coterie of campaigners whose attitudes they share’.

The independent review of administrative law suggested criteria should be developed and publicised for determining when the courts will hear from an intervener. However, the government’s response to this recommendation was ‘muted’, Judicial Power Project says.

Its report includes a suggested statutory provision that would require the courts to consider if the proposed intervention would contribute submissions of value beyond those being presented by the parties, and how far the proposed intervention is compatible with maintaining a fair balance in the arguments being presented to the court.

The report says: ‘There is a justified concern that the prevalence of interventions by the pressure groups such as the “repeat players” has encouraged a judicial tendency over the last two decades to equate those groups’ policies with the public interest… None of this is a complaint against the pressure groups, who are fully entitled to utilise opportunities offered to them to advance their campaigns. The responsibility lies fairly and squarely upon the judges who have allowed and fostered the undesirable growth of pressure group interventions.

‘The government ought to be trying to depoliticise the courts. It ought not to miss a rare opportunity to take a small step in that direction.’ 

The report includes a foreword by former justice minister Lord Wolfson of Tredegar KC, who suggests the topic of interveners could be a candidate for future reform.

‘Any such reform would of course be loudly opposed by the NGOs, who will doubtless (again, and again incorrectly) characterise any change to judicial review procedure as being the death of the review jurisdiction and the immediate introduction of totalitarian government. But that hyperbole should not inhibit sensible reform. If we’ve learnt anything in the past decade or so, it’s that public law is too important to be left only to public lawyers,’ Lord Wolfson says.

Judicial Power Project’s latest report was written by Anthony Speaight KC, a member of legal thinktank Justice, a former chair of research of the Society of Conservative Lawyers, and a member of the government commission on a UK bill of rights in 2011-12.

This article is now closed for comment.