Carol Harlow: Keep politics out of the law courts

Extracted from the Chorley Lecture 2001 delivered by the Professor of Law at the London School of Economics

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 use the term "campaigning group" to include interest, pressure and social action groups, terminology more familiar to political scientists, rather than Non-Governmental Organisations 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 engage in litigation in their own names. Lawyers will appreciate why this was a novelty, though non-lawyers in the audience 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. Historically, the common law has strongly discouraged the support of litigation by third parties.

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 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. I do not think we envisaged dramatic changes in this country. We were observing the impact of law on the political process and we did not at the time realise that what 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, its conclusions are reached through a 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 suggest, 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 independence for which the legal process is esteemed, thereby undercutting its legitimacy.

The system of representative government we have painfully constructed is coming under attack; representative democracy is weakening before the powerful but illusory vision of a participatory democracy in which focus groups seem more important than Parliament. The climate of public opinion is relentlessly anti-élitist and, in a plural community, the concept of representation is losing power to the idea of representativeness, bringing pressure on the judiciary to be more typical of the community.

The legal process is transmuting into a freeway and, unless we are much more careful, it could degenerate, as has notably occurred in America, into a free-for-all. If this does not sound particularly democratic, there is no particular reason why it should. Courts are one of the pillars of a modern democracy, just as representative government is another. The contribution made by each to the democratic process does not have to be identical. Politics cannot do everything. Neither can law. Their distinctiveness needs to be recognised.