1. Third Party Interventions The Scottish Public Law Group 2nd Annual Conference Edinburgh 7 June

2. What is an intervener? Intervention a traditional means for a 3rd party to join a case in order to protect their interests: ‘Intervention is unknown in our Courts of Law and Equity but is admitted in the practice of our Ecclesiastical Courts’ Chitty, 1834 However, the CPR now allows 3rd parties directly affected by a case to be either be named as an interested party (Part 54.1(2)), or joined as a party (Part 19.2(2)).

3. Intervener v Amicus Curiae Amicus curiae historically might be invited to take on an adversarial role on behalf of an unrepresented party. In other common law jurisdictions, amici became the basis for third party interveners in the public interest, esp. United States. In England and Wales, post-Woolf ‘advocate to the court’ has become more limited, non-partisan figure.

4. 3rd party interventions Most common law countries have long permitted third party interventions in the public interest: First NGO intervener before US Supreme Court: Ah How v United States 193 US 65 (1904). NAACP intervened in Guinn v United States (1915) and ACLU intervened in Carlson v California (1940). Now 90% of US Supreme Court cases involve an amicus brief. Also established practice before the Supreme Court in Canada and South Africa.

5. 3rd party interventions in the UK The House of Lords allowed public bodies as interveners from the late 70s, e.g: Shields v Coomes (1978) - EOC Science Research Council v Nasse (1979) – CRE & EOC Sivakumaran (1988) – UNHCR But the Children’s Legal Centre refused leave to intervene in 1986 in Gillick v West Norfolk Health Authority (1986).

6. 3rd party interventions in the UK A Matter of Public Interest: Reforming the law and practice on interventions in public interest cases (1996) JUSTICE and PLP report; R v Khan (1996) – Liberty Thompson and Venables (1997) – JUSTICE Pinochet (1998) – Amnesty and HRW Human Rights Act 1998 – Lord Chancellor’s statement Myra Hindley (2000) – JUSTICE’s 2nd intervention before the HL Brown v Stott (2001) – JUSTICE’s 1st intervention before JCPC

7. 3rd party interventions in the UK

8. Key issues in interventions Identifying suitable cases Obtaining pro bono assistance ‘Adding value’ The consent of the parties Application fees Oral v written submissions Costs

9. Some recent interventions RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10 A and others v United Kingdom (ECtHR, 19 February 2009) Secretary of State for the Home Department v AF and others [2009] UKHL 28 R (A) v B [2009] UKSC 12 Ahmed and others v HM Treasury [2010] UKSC 2 R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 Al Rawi and others v Security Service and others [2010] EWCA Civ 482 Al Khawaja and Tahery v United Kingdom (ECtHR, 19 May) Cadder v HM Advocate (UK Supreme Court, 24-26 May) Al Jedda v United Kingdom (ECtHR, 9 June)