Public Law and Popular Justice
| Author | Carol Harlow |
| DOI | http://doi.org/10.1111/1468-2230.00363 |
| Date | 01 January 2002 |
| Published date | 01 January 2002 |
THE
MODERN LAW REVIEW
Volume 65 No 1January 2002
Public Law and Popular Justice
Carol Harlow*
Group litigation is becoming commonplace. Rules of standing have been relaxed
to allow groups to bring representative actions on behalf of their members or to
act `in the public interest'. Groups increasingly intervene in actions between third
parties, presenting amicus briefs. This article traces the origins of group action in
courts and speculates on the possible effects of changes which blur traditional
distinctions between legal and political process, concluding that the legal process
must be kept broadly within traditional boundaries, if the qualities of
independence, rationality and finality for which it is valued are to be maintained.
Groups in the legal process
It is only recently that I have felt a sense of unease about the phenomenon of
group litigation and about the random way in which it has been allowed to evolve
in this country. (I shall use the term ‘campaigning group’ to include interest,
pressure and social action groups, terminology more familiar to political
scientists, rather than the acronym of NGO, familiar from international relations,
because it more clearly expresses the underlying shift in our legal process which I
want to describe). When, at the start of the 1990s, my colleague Richard Rawlings
and I published Pressure Through Law, groups in this country were just beginning
to ‘come out’ and, with the encouragement of some judges, engage in litigation in
their own name. Lawyers will appreciate why this was a novelty, though non-
lawyers will probably not see why it should have been so. The lawsuit in common
law countries tends to be characterised as a contest between two ‘individuals’,
who take responsibility for the presentation of the case; in technical language it is
described as adversarial or ‘bipolar’. Groups of individuals cannot sue unless the
group is incorporated, which gives it ‘legal personality’. Historically too, the
common law has strongly discouraged the support of litigation by third parties.
1
Vestiges of this attitude remain today; as the unsavoury episode of Hamilton vAl
ßThe Modern Law Review Limited 2002 (MLR 65:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 1
*Professor of Law, London School of Economics and Political Science. I wish to thank my friends and
colleagues, Richard Rawlings and Jo Jacob, for the help they gave me in preparing this lecture. It is
dedicated to my friend and mentor, John Griffith, holder of the Chair of Public Law when I arrived.
1 Maintenance is the common law crime and tort of supporting one of the parties to litigation
financially or otherwise. An agreement to share the proceeds (as in the modern contingent fee
arrangement) aggravated the offence to champerty. Criminal liability was abolished by the Criminal
Law Act 1967. Tortious liability is still possible and is sometimes still pursued in contingent fee
Fayed
2
recently reminded us, those who support an unsuccessful litigant
financially may find themselves heavily penalised in costs.
Our book drew attention to the rise of group litigation in this country but it also
‘outed’ groups, revealing that much litigation between individuals was actually a
cover for group activity. It highlighted the contrast with the American legal system
which, although also an adversarial, common law system, had moved in a very
different direction. Over there, campaigning in court by pressure and interest
groups was a recognised activity, the subject of many studies by lawyers and
political scientists. We noted how the methods by which campaigning groups
operated, notably by third party interventions and the so called ‘Brandeis Brief’, a
presentation of sociological and economic materials, ostensibly put before the
court to set its decision in context,3were being copied in this country. Our book
documented a rather dramatic extension of campaigning litigation on both sides of
the Atlantic, beginning to extend into the two main transnational courts, the
Strasbourg Court of Human Rights and the Luxembourg Court of Justice, the latter
much less welcoming.4If we had doubts about the wisdom of the development, we
did not say so, other than to deplore the practice of lobbying judges. Indeed, I
myself once presented an argument for wider rights of standing at the European
Court of Justice,5though that was in the context of a political system notable for its
‘democracy deficit’ and in a period of unashamed judicial constitution-making.
Looking back, I do not think we envisaged dramatic changes in this country. We
were observing – or so we thought – the impact of law on the political process and
we did not at the time realise that what in fact was occurring was a partial
colonisation of the legal by the political process.
The political process can be compared to a freeway, to which all the citizens of a
modern democracy should have access. Equally, it is a free-for-all in the sense that,
within the limits of free speech, everyone should have their say. The judicial
process is valued for different qualities. It is formal in character, its conclusions are
– and should be – reached through an artificial method of reasoned proof based on
arguments submitted by the parties to an independent and impartial judge. Its
objective being primarily the protection of legal interests, it is appropriate for
access to be limited to those who can show such an interest. This is, of course, a
stereotype. I am suggesting, however, that, if we move too far away from the
stereotype, we may end by stultifying it. If we allow the campaigning style of
politics to invade the legal process, we may end by undermining the very qualities
of certainty, finality and especially independence for which the legal process is
esteemed, thereby undercutting its legitimacy.
2Hamilton vAl Fayed [1999] 1 WLR 1569. Inability to pay his costs led Mr Hamilton to be declared
bankrupt (The Times, 23 May 2001), following which Mr Al Fayed took action against eighteen
backers who contributed £400,000 to Mr Hamilton’s legal campaign. The action ultimately failed.
3 For the origins, see C. Harlow and R. Rawlings, Pressure Through Law (London: Routledge, 1992)
76–77.
4ibid, chap 6.
5 C. Harlow, ‘Towards a Theory of Standing for the European Court of Justice’ (1992) 12 Yearbook of
European Law 213. The argument might have to be revisited and updated in the context of the new
European Charter of Fundamental Rights, 2000/C 364/01 (18.12.2000).
The Modern Law Review [Vol. 65
2ßThe Modern Law Review Limited 2002
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