Pressure Through Law

PRESSURE THROUGH LAW

Litigation has long been recognised by political scientists in America as a useful method of gaining ground and attracting publicity for pressure groups. In Britain, however, recognition that the courts fulfil such a role has come more slowly. Despite this lack of recognition, pressure through law is far from a modern phenomenon. As the authors show, such cases can be identified in Britain in the 18th century, as when abolitionists used courts to test the legality of slavery at common law. Carol Harlow and Richard Rawlings look at the extent to which pressure groups in England use litigation, presenting a view of the courts as a target for campaigners and a vehicle for campaigning. They begin with a description of the tradition of pressure through law in Britain, tracing the development of a parallel tradition in the United States, which has been influential in shaping current British attitudes. The authors examine by means of case studies the way in which campaigners are using the various opportunities afforded by the criminal and civil legal process in England today. They look at the rapidly changing European and international scene, discussing transnational law, the European Community and the Council of Europe. The authors conclude with an evaluation of the uses of pressure through law and its consequences for the legal and political system. Carol Harlow and Richard Rawlings, both of the Law Department at the LSE, are experienced in public law and familiar with political science literature. They are therefore able to relate legal systems to the political process in a book designed to be accessible and of interest to lawyers, to political scientists and to lobby group activists.

PRESSURE THROUGH LAW Carol Harlow and Richard Rawlings

London and New York

First published in 1992 by Routledge 11 New Fetter Lane, London EC4P 4EE This edition published in the Taylor & Francis e-Library, 2005. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” Simultaneously published in the USA and Canada by Routledge a division of Routledge, Chapman and Hall, Inc. 29 West 35th Street, New York, NY 10001 © 1992 Carol Harlow and Richard Rawlings All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Has been applied for ISBN 0-203-99139-7 Master e-book ISBN

0-415-01549-9 (Print Edition)

CONTENTS

List of tables

1

x

Acknowledgements

xii

Note on references and abbreviations

xiii

Table of cases

xiv

INTRODUCTION

1

A ‘black hole’

2

Legal culture

5

Vocabulary and classification

7

A prospectus

10

PHILANTHROPY AND DISSENT

11

Abolitionists in court

11

Courts and political cases

16

Parliament and courts

18

Suffragists and courts

21

Prosecution societies

24

Moral crusaders

28

Prosecution: ‘public’ or ‘private’ right?

31

Maintenance and champerty: obsolete common law offences?

32

Libertarian puritans

35

Vice and vigilance

36

‘A vision and its fulfilment’

38

Protecting the helpless

39

Open spaces and the countryside movement

43

v

2

The death of maintenance

46

Win some, lose some

48

The modern environmental movement

49

Civil liberties

51

Conclusion

57

LIBERTY THROUGH LEGALITY: THE UNITED STATES EXPERIENCE

61

A common law heritage

61

A diversity of courts

67

Slavery: from Somerset to Dred Scott

69

Women as persons

72

Josephine Goldmark and the ‘Brandeis brief’

75

‘Conservatives in court’

76

The ‘watchdog of Negro liberties’

79

Civil liberties

51

Third party intervention and ACLU

88

American freedom in the post-war period

90

Pressure and public interest

92

Greening America

94

The half-empty cupboard: women in court again

97

The ‘New Right’

97

Pro-choice versus pro-life

100

Cleaning up the criminal process

101

Cruel and unusual? Death as the target

104

The victims’ lobby

106

Conclusion 3

GROUP ACTION IN THE CIVIL COURTS Introduction

57 111 1

Costs and funding

114

Disaster groups, disaster lawyers

119

vi

Western promise: The class action

122

Poor relation: The representative action

125

Muddling through? The lead action

127

Representatives in conflict

131

A technical question?

133

Collective injuries, collective remedies

135

Housing cases and community lawyers

136

Public and private law: access to court

138

Standing to sue: planning cases

140

The Attorney-General and the public interest

142

Against the unions: The Freedom Association

144

Opening up standing

145

Towards representative proceedings? The CPAG

146

Conclusion 4

57

COURTS, CAMPAIGNS AND LOBBYISTS

153

Separate identity

153

Good fit: the ACA

156

Radical challenge: professional restraint

157

Political defences and the Peace Movement

160

Defence campaigns and the ‘BWNIC Case’

163

Political theatre in Newbury

164

Trespass as a campaign tool

166

Objective: publicity

168

Secrecy and discovery

169

Professional foul?

173

Blair Peach and racism

174

In tandcm? courts and Commons

176

Afterword: campaigns against miscarriage of justice

179

A watershed: the Thalidomide affair

181

vii

Opren and after

183

Lobbying the courts

188

Gillick among the pressure groups

192

Conclusion 5

THE STRONG ARM OF THE LAW Introduction

57 197 1

A constitutional right? Philips and private prosecution

199

The private right to prosecute: apparent or real?

200

Animal welfare and animal rights

203

Objective and opportunity: an example from environmental crime

209

Pressure for prosecution: The Blackburn cases

210

‘Mightier than the sword’

211

LIFE, abortion and the Crown Prosecution Service

215

‘Victims’ rights and Victim Support

217

The victim as survivor: feminist challenge

219

Pressure versus hate-crime

222

Unheard: The Gay London Policing Group

224

Criminalising disaster

224

The Campaign Against Drinking and Driving

228

The theatre of the absurd

230

Conclusion

57

6

GLOBAL POLITICS, TRANSNATIONAL LAW

233

1.

The international scene

233

Insider status at the UN

236

UN enforcement procedures: a dead letter?

239

Towards adjudication

241

An age of lawspeak?

242

Campaigning against the death penalty

244

National courts and international norms

246

viii

2.

3.

Pressure for peace

248

The European Convention on Human Rights

250

The NCCL: a repeat player

252

Procedural problems: standing, interventions and amicus briefs

255

Stop the cane

258

Family rights

259

Snakes and ladders

260

Networking and the ECHR

262

The European Community

264

Creating networks

264

Standard setting: first steps

267

Citizen enforcement

270

The Commission and citizen enforcement

272

Lobbying and the ECJ

273

A friend at court?

276

Test cases for women

277

A statutory pressure group?

280

National courts and networks

282

Conclusion 7

57

PRESSURE THROUGH LAW

285

An alternative tradition

285

Pluralism and changing context

288

Predictors of success

293

Group personality

299

Good fit and respectability

301

Externality

302

‘Drainpipe’ to ‘freeway’

304

Group action and legal process

308

Striking back?

311

ix

The future of pressure through law

313

Notes

317

Bibliography

323

Index

347

TABLES

2.1 Amicus briefs from non-governmental advocates in noncommercial Supreme Court cases 5.1 Work of RSPCA inspectorate, 1981–8 6.1 Number of applications to Commission and Court 6.2 Pressure groups in the European Court of Human Rights

99 204 251 253

James Blackadder composed a footnote… He used a pen; he had never learned newer methods; Paola would transfer his script to the glimmering screen of the word-processor… Blackadder looked at all this, and crossed out the adjective ‘curious’ before ‘feminist attack’. He thought about crossing out ‘somewhat lurid and imaginative’ before Cropper’s account of the seances. These superfluous adjectives were the traces of his own views and therefore unnecessary. He contemplated crossing out the references to Cropper and Dr. Wicker in their entirety. Much of his writing met this fate. It was set down, depersonalised, and then erased. Much of his time was spent deciding whether or not to erase things. He usually did. A.S.Byatt, Possession.

ACKNOWLEDGEMENTS

In the course of writing this book we have talked and written to so many people about their experience of, or views on, pressure through law that it is impossible to thank them all individually. Unless they have requested otherwise, their help or that of the group which they represented is acknowledged in the text. To some people, however, we owe a special debt of gratitude. First and foremost comes Susan Hunt, who (not for the first time nor, we hope, the last time) has struggled uncomplainingly with every version of the manuscript, deciphering the undecipherable and reconciling incompatible word processors. Our colleague Rodney Barker read the final draft and to him particularly—though also to the publisher’s anonymous reader —we owe valuable suggestions. Of other friends and colleagues who read specific chapters or sections we would like to thank Louise Christian, Cyril Glasser, Rosalyn Higgins, Richard Plender and Tony Prosser. From America we had generous help from Norman Dorsen and Marc Galanter. Sharouk Al Sabbagh was our first research assistant and Ian Steyn carried out all our Lexis searches. Later, Alison Real (to whom our debt is a long-standing one) and Simon Curran took on the laborious tasks of checking references and the bibliography and compiling the tables. The index was made by Elisabeth Ingham. Finally, we are grateful to Messrs Chatto and Windus and Peters Fraser and Dunlop for permission to quote from A.S.Byatt’s novel, Possession. Carol Harlow and Richard Rawlings, December 1991

NOTE ON REFERENCES AND ABBREVIATIONS

The references in brackets in the text are to the authors and publication dates of books, pamphlets and articles listed in the bibliography. The date of cases is given in the text; the full reference is to be found in the consolidated table of cases. Many pressure groups use acronyms. These are explained in the text at the first time of use and can be cross-checked in the index. The abbreviation AR stands for Annual Report; Annual Reports are not listed in the bibliography. The abbreviation i/v is used throughout to mean interview.

TABLE OF CASES

A v. Liverpool City Council [1982] AC 363 A v. United Kingdom Case No. 6840/74 (ECHR, Commission) A.G. Securities v. Vaughan [1990] 1 AC 417 A-G v. Antrobus [1905] 2 Ch. 188 A-G v. Guardian Newspapers [1990] 1 AC 109 A-G v. Harris [1961] 1 QB 74 A-G v. Leveller Magazine [1979] 2 WLR 247 A-G v. News Group Newspapers plc [1988] 3 WLR 163 A-G v. Times Newspapers [1974] AC 273 A-G ex rel. McWhirter v. Independent Broadcasting Authority [1973] QB 629 A-G’s Reference No. 3 of 1989 The Times, 18 October Abdulaziz, Cabales and Balkandali v. United Kingdom [1985] 7 EHRR 471 Ainslie v. Eli Lilly (1989) 15 June (unreported) Air Canada v. Secretary of State for Trade (No. 2) [1983] 1 All ER 910 Alam and Khan Case No. 2991/66 (ECHR, Commission) Albery and Budden v. BP Oil & Shell Oil [1980] JPEL 586 Alyeska Pipeline Service Co. v. Wilderness Society (1975) 421 US 240 Ashingdane v. United Kingdom [1985] 7 EHRR 528 Baggs v. United Kingdom Case No. 9310/81 (ECHR, Commission) Bakke v. Regents of the University of California (1978) 438 US 265 Beal v. EliLilly (1988) The Independent, 30 March Beatty v. Gilbanks (1882) 9 QBD 308 Beatty v. Glenister (1884) 51 Law Times 304 Bethell v. Commission [1982] 3 CMLR 300 BEVC v. Commission (1991) 28 November (unreported) Bibby Bulk Carriers Ltd. v. Cansulex Ltd. [1988] 2 All ER 820 Birmingham City DC v. McMahon (1987) 10 HLR 452 J.Bollinger SA v. Goldwell Ltd. [1975] RPC 185 Booth v. Maryland (1987) 482 US 496 Boyce v. Paddington Corporation [1903] 1 Ch. 109 Bradbury v. Enfield LBC [1967] 1 WLR 1311 Bradlaugh v. Newdegate (1883) 11 QBD 1 Bradwell v. Illinois (1873) 83 US 130

xv

British Nuclear Fuels Ltd. v. Greenpeace (1986) 25 March (unreported) British Nuckar Fuels Ltd. v. Stichting Sirius (1987) 30 October (unreported) Brogan and Others v. United Kingdom [1988] 11 EHRR 117 Brown v. Board of Education of Topeka (1954) 347 US 483 Bushell’s Case (1670) 6 St.Tr. 999 The Butter-buying Cruises Case (1981), see Rewe-Handellgesellschaft Re C (a minor) [1989] 2 All ER 697 Re C (a minor) (No. 2) [1989] 3 WLR 252 C v. United Kingdom Case No. 10358/83 (ECHR, Commission) C, G and Others v. Jamaica (1989) Case No. 251/87 (UN Committee of Human Rights) California v. Sierra Club (1981) 451 US 287 Campbell and Cosans v. United Kingdom [1982] 4 EHRR 293 Campbell and Fell v. United Kingdom [1984] 7 EHRR 165 Re Central Funds Costs Order [1975] 2 WLR 1227 Chandler v. DPP [1964] AC 763 Cheney v. Conn [1968] 1 All ER 779 Cherokee Nation v. State of Georgia (1831) 30 US 25 Chorlton v. Lings (1868) 4 LRCP 374 Chrzanowska v. Glaxo Laboratories Ltd. [1990] 1 Med LR 385 The Civil Rights Cases (1883) 109 US 3 Cocks v. Thanet DC [1982] 3 All ER 1135 Coker v. Georgia (1977) 433 US 584 Commission v. United Kingdom [1979] ECR 419 Commission v. United Kingdom [1982] ECR 260 Commonwealth v. Aves (1836) 18 Pickering 194 (USA) Connecticut Action Now Inc. v. Roberts Plating Co. (1972) 457 F 2d 81 (USA) Cossey v. United Kingdom [1991] 13 EHRR 622 Costa v. ENEL [1964] ECR 585 Covent Garden Community Association Ltd v. Greater London Council [1981] JPL 183 D v. NSPCC [1977] 1 All ER 589 Daar v. Yellow Cab Co. (1967) 433 P.2d 732 Davies v. Eli Lilly & Co. (1987a) 137 New Law journal 1183 Davies v. Eli Lilly & Co. [1987b] 1 All E R 801 Davies v. Eli Lilly & Co. (1988) The Times, 16 January Davies (Joseph Owen) v. Eli Lilly & Co. [1987] 1 WLR 1136 Davies (Joseph Owen) v. Eli Litty & Co. (No. 2) (1987) The Times, 23 July deFreitas v. Benny [1976] AC 239 Defrenne v. Sabena (No. 1) [1976] ECR 455 Defrenne v. Sabena (No. 2) [1978] ECR 1365 Distillers Company v. Commission [1980] ECR 2229 Doe v. Bolton (1973) 410 US 179

xvi

DPP v. Hutchinson and Smith [1990] 3 WLR 196 Drake v. Chief Adjudication Officer [1986] 3 All ER 65 (ECJ) Dred Scott v. Sandford (1857) 60 US 691 Dudgeon v. United Kingdom [1983] 5 EHRR 573 Duke of Bedford v. Ellis [1901] AC 1 Duncan v. Jones [1936] 1 KB 218 East African Asians v. United Kingdom [1981] 3 EHRR 77 Eaton Baker v. R. [1975] AC 774 Edwards v. Aguillard (1987) 107 US 2571 Eisen v. Carlisle and Jacquelin (1974) 479 F 2d 1005 (USA) Elias v. Pasmore [1934] 2 KB 164 Engel v. Vitale (1962) 370 US 421 Entick v. Carrington (1765) 95 ER 807 Epperson v. Arkansas [1968] 393 US 97 Filartiga v. Pena-Irala (1980) 630 F2d 876 (USA) Fletcher v. Peck (1810) 10 US 162 Flynt v. Ohio (1981) 451 US 619 Ford of Europe lnc. and Ford Werke A-Gv. Commission [1984] 1 CMLR 649 Frank v. Magnum (1914) 237 US 309 Friends of the Earth v. Federal Communications Commission (1971) 449 F 2d 1164 (USA) Fruit and Vegetable Cases (Conféderation Nationale des Producteurs de Fruits et Légumes v. Council) [1962] ECR 471 Furman v. Geargia (1972) 408 US 238 Gardiner v. A.H.Robins & Co. (1984) 747 F 2d 1180 (USA) Générale Sucrière Case [1973] ECR 1465 Gill v. El Vino Co. Ltd. [1983] 1 All ER 398 Gillick v. West Norfolk and Wisbech Area Health Authority [1985] 1 All ER 533 Gouriet v. Union of Post Office Workers [1977] 3 WLR 300 Grant v. Thompson (1895) 72 Law Times Reports 204 The ‘Greek Case’ (1969) 12 Yearbook of European Human Rights 1 Gregory v. Camden LBC [1966] 1 WLR 899 Griswold v. Connecticut (1965) 381 US 479 Guinn v. United States (1915) 238 US 347 Halford v. Brookes (1991) The Guardian, 30 September Hammer v. Dagenhart (1918) 247 US 251 Handyside v. United Kingdom [1976] 2EHRR 737 Harman v. United Kingdom [1982] 7 EHRR 25 Haseldine v. Hoskin [1933] 1 KB 822 Hewitt and Harman v. United Kingdom Case No. 12175/86 (ECHR, Committee of Ministers) Hibbs and Birmingham v. United Kingdom Case No. 11991/86 (ECHR, Commission)

xvii

Re HIV Haemophiliac Litigation (1990) The Independent, 2 October Home Office v. Harman [1983] 1 AC 280 Irish Shipping Ltd. v. Commercial Union Assurance Co. plc [1990] 2 WLR 117 Johnston v. Chief Constable of the Royal Ulster Constabulary [1986] 3 WLR 1038 (ECJ) Kirkland v. Robinson (1986) The Times, 4 December Knight v. Wedderburn (1778) M. 14545 (Scotland) Ladd v. London Road Car Co. (1900) The Times, 24 March Langran v. Hayter, Surendan v. Hibbs (1985) 4 June (unreported) Lawless v. Ireland [1960] 1 EHRR 1 Leach v. Money (1765) 19 St. Tr. 1002 League Against Cruel Sports Ltd. v. Scott [1985] 2 All ER 489 Leyland Cars v. Vyas (1979), see Science Research Council v. Nassé Line v. RSPCA and Marsh (1902) 18 Times Law Reports 634 Lingens v. Austria [1986] 8 EHRR 103 Lochner v. New York (1905) 198 US 45 Re Lonrho plc and Others [1989] 3 WLR 535 Loveday v. Renton and Wellcome Foundation Ltd. [1990] 1 Med LR 117 Re M and H (minors) [1988] 1WLR 462 Macarthys Ltd. v. Smith [1980] ECR 1275 Malone v. Metropolitan Police Commissioner [1979] 1 All ER 256 Malone v. United Kingdom [1984] 7 EHRR 14 Marbury v. Madison (1803) 5 US 60 Markt & Co. Ltd. v. Knight Steamship Co. Ltd. [1910] 2 KB 1021 Martell v. Consett Iron Co. [1955] 1 All ER 481 Martin v. Hunter’s Lessee (1816) 14 US 97 McCleskey v. Kemp (1987) 481 US 279 McCulloch v. Maryland (1819) 17 US 579 McGavern v. A-G. [1982] Ch 321 Meah v. McCreamer (No. 1) [1985] 1 All ER 367 Memoirs v. Massachusetts (1966) 383 US 413 M.Michaels (Furriers) Ltd. v. Askew (1983) The Times, 25 June Miles v. Cain (1989) The Times, 15 December Minersville School District v. Gobiti (1940) 310 US 586 Minor v. Happersett (1875) 88 US 162 Mira v. Aylmer Square Investments Ltd. [1990] 22 HLR 182 Miranda v. Arizona (1966) 384 US 436 Missouri ex rel. Gaines v. Canada (1938) 305 US 337 Monnell and Morris v. United Kingdom [1987] 10 EHRR 205 Moore v. Dempsey (1923) 261 US 86 Morehead v. New York ex rel. Tipaldo (1936) 298 US 587 Morris v. Crown Office [1970] 1 WLR 792 Mortensen v. Peters (1906) 8F (J) 93 (Scotland)

xviii

NAACP v. Alabama (1960) 357 US 449 NAACP v. Button (1963) 371 US 415 Nash v. Eli Lilly (1991) The Times, 13 February Nevilk v. London Express Newspapers [1919] AC 286 Newman v. Piggie Park Enterprises Inc. (1968) 390 US 400 New Windsor Corporation v. Mellor [1975] 3 All ER 44 Nicolo (1990) CE 20 October 1989, 15 Euro. LR 267 (France) Re Northern Dist. of California Dalkon Shield IUD Prods. Liability Litigation (1982) 693 F 2d 847 (USA) O, W, B, R and H v. United Kingdom [1987] 10 EHRR 82 Operation Dismantle v. The Queen [1985] 1 RCS 441 (Canada) O’Reilly v. Mackman [1982] 3 WLR 1096 Partie Ecologiste ‘Les Verts’ v. European Parliament (1987) 2 CMLR 343 (ECJ) Peach v. Commissioner of Police of the Metropolis [1986] 2 WLR 1080 Pearce v. Secretary of State for Defence [1988] AC 755 Pearne v. Lisle (1749) 27 ER 47 People v. Lemmon (1852) 5 Sandford 686 (USA) Phoenix General Insurance Co. of Greece v. Administratia Asigurarilor de Stat [1988] QB 216 Plaumann v. Commission [1963] ECR 95 Plessy v. Ferguson (1896) 163 US 537 Poe v. Ullman (1961) 367 US 497 Powell v. Alabama (1932) 287 US 45 Pratt and Morgan v. Jamaica (1989) Cases No. 210/85, 225/87 (UN Committee of Human Rights) Price v. Civil Service Commission [1978] ICR 27 Price v. United Kingdom Case No. 1240/86 (ECHR, Commission) Pride of Derby and Derbyshire Angling Association v. British Celanese [1953] Ch 149 Prudential Assurance v. Newman Industries [1980] 2 WLR 339 Quietlynn Ltd. v. Southend-on-Sea BC [1990] 3 All ER 207 R. v. Arrowsmith [1975] 1 All ER 463 R. v. Billam [1986] 1 All ER985 R v. Brent LBC ex p. Gunning (1985) The Times, 30 April R. v. Brownson [1971] Crim. LR 551 R. v. Central Birmingham Health Authority ex p. Collier (1988) 8 January (unreported) R. v. Chief Adjudication Ofjicer ex p. Bland (1985) The Times, 6 February R. v. Chief Constable of Devon and Cornwall ex p. Central Electricity Generating Board [1981] 3 All ER 826 R. v. Chief Metropolitan Stipendiary Magistrate exp. Choudhury [1990] 3 WLR 986 R. v. Cullen and Others (1991) 92 Cr. App. R 239

xix

R. v. Curran (1988) 5 January (unreported) R v. Denbigh Justices ex p. Williams and Evans [1974] 2 All ER 1052 R. v. Doncaster MBC ex p. Braim (1987) 85 LGR 233 R. v. DPP ex p. Hallas [1988] Crim. LR 316 R. v. DPP ex p. Langlands-Pearse (1990) 30 October (unreported) R v. DPP ex p. Starkey and Guy (1987) 14 December (unreported) R. v. Ealing Justices ex p. Dixon [1989] 3 WLR 1098 R. v. Hammersmith and Fulham LBC ex p. People Before Profit Ltd. (1982) 80 LGR 322 R v. Hillingdon LBC ex p. Puhlhofer [1986] AC 484 R. v. HM Coroner at Hammersmith ex p. Peach [1980] QB 211 R. v. HM Coroner for East Kent ex p. Spooner [1989] 152 JP 115 R. v. Horseferry Road justices ex p. Independent Broadcasting Authority [1986] 3 WLR 132 R. v. Hull Prison Board of Visitors ex p. St Germain [1979] QB 425 R. v. Independent Broadcasting Authority ex p. Whitehouse (1985) The Times, 14 April R. v. Inland Revenue Commissioners ex p. National Federation of SelfEmployed and Small Businesses Ltd. [1982] AC 617 R. v. Legal Aid Area No. 10 (East Midlands) ex p. McKenna [1990] 1 Med LR 375 R. v. Legal Aid Area No. 8 (Northern) Appeal Committee ex p. Angell [1990] 1 Med LR 394 R. v. Leicester City Justices ex p. Barrow [1991] 3 WLR 368 R. v. Lemon [1979] AC 617 R. v. Lord Chancellor ex p. Alexander (1986) The Times, 27 March R. v. Metropolitan Police Commissioner ex p. Blackburn [1968] 2 QB 118 R. v. Metropolitan Police Commissioner ex p. Blackburn (No. 3) [1973] 2 WLR 43 R. v. Metropolilan Police Commissioner ex p. Blackburn (No. 4) (1980) The Times, 7 March R. v. Minister of Agriculture, Fisheries andFood ex p. Roberts and Others (1990) The Independent, 13 November R. v. Poole BC exp. Beebee (1990) EGCS 160 R. v. R. [1991] 3 WLR 767 R. v. Reading Crown Court ex p. Hutchinson [1988] QB 384 R. v. Secretary of State for the Environment ex p. Hammersmith andFulham LBC (1990) The Guardian, 4 July R. v. Secretary of State for the Environment ex p. Rose Theatre Trust Co. [1990] 2 WLR 186 R. v. Secretary of State for Health ex p. Keen (1990) The Times, 22 February R. v. Secretary of State for the Home Department ex p. Northumbria Police Authority [1989] QB 26

xx

R. v. Secretary of State for the Home Department ex p. Sivakumaran [1988] AC 958 R. v. Secretary of State for Social Services ex p. CPAG [1990] 2 QB 540 R. v. Secretary of State for Social Services ex p. CPAG and GLC (1985) The Times, 16 August R. v. Secretary of State for Transport ex p. Bracken (1985) 15 July (unreported) R. v. Secretary of State for Transport ex p. Factortame [1990] 2 AC 8 R. v. Secretary of State for Transport ex p. Factortame (No. 2) [1990] 3 WLR 818 R. v. Social Fund Inspector ex p. Healey (1991) The Times, 22 April R. v. Social Fund lnspector ex p. Stitt and Others [1990] COD 288 R. v. Stafford Justices ex p. Customs and Excise Commissioners [1990] 3 WLR 656 R. v. Stanley and Others (1990) 18 October (unreported) R. v. Steyning Justices ex p. Roberts (1985) The Times, 15 June R. v. Swale BC ex p. Royal Society for the Protection of Birds (1990) The Times, 11 April R. v. Westminster City Council ex p. Monahan [1990] 3 WLR 408 R. v. Williams (1797) 26 St. Tr. 653 Rassemblement des opposants à la chasse et autres (1988) CE 7 October Rec. 334 (France) Rees v. United Kingdom [1986] 9 EHRR 56 Reiter v. Sonotone Corporation (1979) 442 US 330 Rewe-Handellgesellschaft Nord v. Hauptzollamt Kiel (the Butter-buying Cruises Case) [1981] ECR 1805 Riley v. A-G [1983] 1 AC 719 Roberts v. Ruggiero (1985) 3 April (unreported) Robinson v. Everett [1988] Crim. LR 699 Robinson v. Jamaica (1989) Case No. 223/87 (UN Committee of Human Rights) Robinson v. Whittle [1980] 1 WLR 1476 Roe v. Wade (1973) 410 US 113 Roth v. United States (1957) 354 US 476 Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 2 WLR 239 Save Britain’s Heritage v. Number 1 Poultry Ltd. [1991] 1 WLR 153 Scenic Hudson Preservation Conference v. Federal Power Commission (1966) 384 US 941 Science Research Council v. Nassé, Leyland Cars v. Vyas [1979] 3 WLR 762 Scopes v. Tennessee (1927) 154 Tenn 105 (USA) Scottish Old People’s Welfare Council, Petitioners (1987) SLT 179 (Scotland) Secretaty of State forDefence v. Guardian Newspapers Ltd. [1985] AC 339 Shanley v. Harvey (1762) 28 ER 844 Shields v. E.Coomes (Holdings) Ltd. [1978] 1 WLR 1408

xxi

Sierm Club v. Morton (1972) 405 US 727 Silkwood v. Kerr-McGee Corp. (1984) 464 US 238 The Slave Grace (1827) 166 ER 179 Smith v. Cardiff Corporation [1954] 1 QB 210 Smith v. Cardiff Corporation (No. 2) [1955] 1 All ER 113 Re Smith Kline andFrench Laboratories Ltd. [1989] 2 WLR 397 Soering v. United Kingdom [1989] 11 EHRR 439 Somerset v. Stewart (1772) 165 ER 1414 Southwark LBC v. Williams [1971] Ch 734 Stanford v. Kentucky, Wilkins v. Missouri (1989) 106 L Ed 2d 306 (USA) Stephenson v. McWhirter (1989) 23 January (unreported) Stewart v. United Kingdom Case No. 1044/82 (ECHR, Commission) The Sunday Times v. United Kingdom [1979] 2 EHRR 245 Re Taylor’s Application [1972] 2 All ER 873 Terry v. Ohio (1968) 392 US 1 Thomas v. Sawkins [1935] 2 KB 249 Thompson v. Oklahoma (1988) 487 US 815 Thynne, Wilson and Gunnell v. United Kingdom [1991] 13 EHRR 622 Times Newspapers Ltd. and Others v. United Kingdom (‘Spycatcher’) (1991) The Times, 27 November Torfaen BC v. B&Q plc [1990] 2 WLR 1330 (ECJ) Turner v. Secretary of State for the Environment [1973] 72 LGR 380 Tyrer v. United Kingdom [1978] 2 EHRR 1 United jewish Organisations v. Carey (1977) 430 US 144 United Kingdom Nirex Ltd. v. Barton (1986) The Times, 14 October US v. Anthony (1873) 24 F Cas 829 US v. Cruikshank (1876) 92 US 588 US v. Darby (1941) 312 US 100 US v. Reese (1876) 92 US 214 US v. Spock (1969) 416 F 2d 165 Van Gend en Loos [1963] ECR 1 W v. Meah [1986] 1 All ER 935 Wallersteiner v. Moir (No. 2) [1975] 1 All ER 849 Wandsworth LBC v. Winder [I984] 3 WLR 1254 Warwick v. United Kingdom Case No. 9471/81 (ECHR, Commission) Webster v. Reproductive Health Services (1989) 106 L Ed 2d 410 (USA) Weeks v. United Kingdom [W87] 10 EHRR 293 West Virginia Stale Board of Education v. Barnette (1943) 319 US 624 White v. Fox and Dawes (1932) The Times, 4 December Wiggins v. Lavy (1928) 54 Times Law Reports, 721 Wilkes v. Wood (1763) 98 ER 489 Williams v. Home Office (No. 1) [1981] 1 All ER 1151 Worcester v. State of Georgia (1832) 31 US 515 X v. United Kingdom Case No. 905/80 (ECHR, Commission)

xxii

X v. United Kingdom [1981] 3 EHRR 188 X Ltd. v. Morgan-Grampian (Publishers) Ltd. [1990] 2 WLR 1000 Young, James and Webster v. United Kingdom [1981] 4 EHRR 38 Zahn v. International Paper Co. (1973) 414 US 291 Zamir v. Secretary of State for the Home Department [1980] 2 All ER 788

INTRODUCTION

There is an association called the National Association of Freedom of which we know nothing except that it has a secretary, Mr. John Prendergast Gouriet. It is said by his critics to be a right wing pressure group. But that is no concern of ours. Lord Denning, in Gouriet v. Union of Post Ofjice Workers (1977) This book is about ‘pressure through law’: that is the use of law and legal techniques as an instrument for obtaining wider collective objectives. The subject is one which has engaged our attention for many years and which draws on several of our previous interests. The starting pointwas our work in administrative law, a subject traditionally presented in terms of power contests between individuals and the state (Harlow and Rawlings 1984:11). As we came to realise, however, that a significant proportion of modern cases concealed a group dimension, we became interested in the use of courts by groups to vindicate collective rights and in the response of the courts to this growing phenomenon. This in turn sparked off a commitment to ‘public interest law’, American terminology which broadly speaking refers to the use of law on behalf of disadvantaged groups in the community to achieve social reform and legal change (Cooper and Dhavan 1986:5). Not only is public interest law overtly collective in character but it is also rooted in theories of pluralism in modern democracies (Dahl 1982). We were thus forced to explore further the nature of the links between the twin disciplines of law and political science, another long-term interest. All three themes came together in this study of the use of law by pressure groups in twentieth-century Britain.*

* The words ‘Britain’ and ‘British’ have been used with circumspection. While the political system is largely unitary, the legal system is not: Scotland and, to a lesser extent, Northern Ireland, have separate legal systems. Again, while some of the groups which we have studied operate throughout the United Kingdom, others have associate or companion groups in Scotland, Wales or Northern Ireland. Our experience is with the English legal system on which we have focused. We have tried to indicate this by the terminology.

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A ‘BLACK HOLE’ Some further words of explanation are necessary. The choice to limit our study to pressure groups rather than interest groups (some tighter definitions will be found below) was conscious and deliberate. We started our research at a period before the almost terminal decline of the Welfare State and before the full effect of Thatcherism and Reaganism had been felt. Interest in corporatism and the corporate state had passed its zenith but the doctrines were still influential. Starting with Eckstein’s influential study of the British Medical Association (1960) there were many case-studies of corporate, commercial and industrial lobbies and close attention had been paid to the dealings of government with powerful insider groups, especially those between unions, industry and government. True, there was little sign of interest in corporate legal strategies, but it was not a field we particularly wished to enter. Studies of collective legal action were few and far between. They were largely confined to the area of industrial relations, were subsumed under the rubric of labour and trade union law and were widely seen to constitute a special, even unique, category, a characterisation we felt to be misleading and hoped to dispel. We have not, however, entirely precluded ourselves from straying on to interest-group territory: local ratepayers’ associations or membership organisations like the National Federation of Self-Employed and Small Businesses receive an occasional mention. We have also included one example of a litigation strategy which, at first sight, seems to fall on the wrong side of our boundary line. The Equal Opportunities Commission (EOC) is one of several statutory agencies empowered to undertake or sponsor legal proceedings or render assistance to litigants. As it happens, the EOC has chosen to concentrate substantial resources in this area, sponsoring an important series of discrimination cases in the European Court of Justice. In the context of the women’s movement, we have dealt with this token ‘statutory pressure group’ in Chapter 6. The central focus of this book, however, is the world of single-issue politics, social-action law and the multiplicity of cause and pressure groups working in this world. We have not (though we might have done) included political parties, partly because their activities did not seem—at least as documented—to involve widespread use of the legal process. Studies of political pressure and lobbying in both the United Kingdom and European Community were beginning to burgeon, but so far as we could see the standard literature was virtually silent on the subject of pressure through law. The earlier landmark studies of interest group theories of government, pluralism and pressure groups by authors such as Stewart (1957), Finer (1966) and Wootton (1975, 1978) also passed over the topic. Their focus was on campaigning aimed at, and leading to, legislative change and on the techniques for lobbying Westminster and Whitehall.

INTRODUCTION 3

Although the many theoretical discussions of campaigning and the numerous case-studies of individual organisations may incidentally discuss litigation or quasi-judicial procedures such as planning inquiries, little or no interest has been shown by political scientists in campaigning through litigation. Alderman’s Pressure Groups and Government in Great Britain (1984) sets the tone. Alderman accords legal action less than a page under the general heading of ‘going public’. As lawyers, we knew that well-established, respectable groups working for the disadvantaged (the Child Poverty Action Group (CPAG), for example) had shifted their attention away from what Cranston (1985:279) calls the ‘Fabian’ style of lobbying (seeking to influence through presentation of information and rational argument) towards the use of legal techniques to secure given objectives (Dhavan and Partington 1986:244). The Joint Council for the Welfare of Immigrants had told us that this change of style had much to do with changes in governmental attitudes during the 1980s; it was harder to gain entry, hence to maintain the Fabian style of lobbying. We had seen too, how voluntary organisations like MIND, steeped in the tradition of service provision, had shifted emphasis in the 1970s to a ‘rights enforcement’ strategy and ideology (Gostin 1986). We felt that the literature had failed to keep pace with this shift towards litigation as a method of campaigning. Our contribution seems more timely in that the period during which we have been working has proved to be a period of rapid political change. The rise of the European Community, together with the increasingly legalistic framework of all First World governmental systems, has created new ‘windows of opportunity’ for pressure through law. As concern has grown over the unrepresentative nature of the lobbying and pressure politics which seem to have become an ineradicable feature of modern government, many new studies of pressure politics (Grant 1989, Wilson 1990a) have appeared on the bookshelves. To our surprise, the possibilities of pressure through law remain unexplored. Nor have lawyers shown much more interest, Cooper and Dhavan’s Public Interest Law (1986) touched the subject tangentially with a number of case-studies of the litigation strategies of individual groups. The most notable contribution remains that of Prosser in Test Cases for the Poor, a survey of test cases undertaken for CPAG. Although his focus is limited by his subject-matter, Prosser includes a concise but percipient comparison with the United States (1983:8–18). A gap none the less remains which we have set out specifically to fill. This gap seems the more surprising when one turns to the American political science literature where pressure through law adds a substantial segment to the voluminous writing on pressure groups. Both of this century’s pioneering works on group theory, Arthur Bentley’s The Process of Government (1908) and David Truman’s The Governmental process (1951), recognised that the Supreme Court was susceptible to group pressures and that it was frequently called upon to mediate between competing group interests. In 1959, Clement Vose contributed the first full-scale case-study of a pressure group litigation

4 PRESSURE THROUGH LAW

strategy, Caucasians Only, an analysis of the Supreme Court cases brought by the National Association for the Advancement of Colored People (NAACP) to test the legality of racially discriminatory restrictive covenants. Vose’s study helped to project the view of pressure through law as essentially a liberal phenomenon, invented by the NAACP in defence of civil rights. The studies which followed his were mainly of radical or liberal groups (using these terms loosely and in their American sense). It was left to Lee Epstein to redress the balance with her full-length study of Conservatives in Court (1985) which documented the progress made by right-wing groups (Epstein’s own terminology) as they set out in the Reagan era to match and even surpass the Supreme Court appearances of their liberal opponents. The rapid growth of interest in group litigation is incidentally demonstrated by Epstein’s 1985 bibliography which records some sixty relevant books, articles and papers on the subject. Why the difference? To the authors, the answer to this question turns partly on visibility. The American governmental and political system is infinitely more open than the British, a contrast fostered in one society by Freedom of Information legislation and in the other by Official Secrets Acts. Openness extends to the legal system: court proceedings are televised, lawyers regularly make press statements and media appearances. Programmes like LA Law and films like Class Action testify to popular fascination with the legal process. Judges are used to operating inside a hothouse of publicity; a book like The Brethren (Woodward and Armstrong 1979) could not, even ten years later, be written about the British judiciary. Well before the current explosion in media promotion, a prominent American suffragist was explaining women’s suffrage litigation as essential to bring the cause more widely before the public. ‘Every newspaper in the land would tell the story [and] the question would be thoroughly discussed by thousands, who now give it no thought’ (Francis Minor, quoted O’Connor 1980:36). In this country, programmes like Out of Court, Law in Action and That’s Life are just beginning to educate campaigners to the campaigning uses of law and litigation. The lesson is being learnt fast. Campaigning groups understand not only the value of publicity but also the publicity value of pressure through law. Publicity works in unexpected ways. It can turn an isolated case into a crusade or retrospectively elevate an insignificant tribunal decision into an important test case. Today, many of the groups whose activities are described in this book are not content to rely on the media; they have developed sophisticated information networks of their own. From the researcher’s standpoint, American openness serves a crucial secondary purpose of helping to identify pressure group cases which might otherwise be overlooked. In both legal systems, for reasons explained more fully in Chapters 3 and 5, civil lawsuits involving groups are usually brought in the name of individuals while criminal prosecutions are taken in the name of the state. The modern American tendency to relax the rules of civil procedure so as to facilitate class and representative actions and to allow

INTRODUCTION 5

standing to groups, helps to bring pressure-group activity out from behind the curtain. Much the same could be said of funding through a contingent fee arrangement which, unlike the English legal aid system, does not put a premium on finding an impoverished ‘frontman’. Amicus briefs, a striking feature of American legal procedure discussed in Chapter 4, again serve a vital purpose. At one and the same time, they enable group participation in the legal process and enable it to be identified (the socio-legal analyses of Supreme Court litigation quoted in Chapter 2 would have been simply impossible in England), so easing the way to judicial recognition of group involvement in litigation. English judges, by way of contrast, seem to go out of their way not to recognise the phenomenon, as in the citation from Lord Denning which heads this Introduction. When the phrase pressure group occurs, it tends to come rather quaintly in quotation marks to indicate judicial distaste. A more theoretical and perhaps a more conventional answer to the intriguing question of the gap is to be found in divergent constitutional models. The written Constitution of the United States restricts the competence of both state and federal legislatures, grants to the Supreme Court a constitutional jurisdiction and (though this is more arguable: Bickel 1962, Berger 1977) legitimates judicial policy-making. In addition, the American Bill of Rights creates a ‘rights culture’ (Dworkin 1977) or ‘myth of rights’ (Scheingold 1974) which renders resort to law an obvious choice. To put this slightly differently, law and adjudication form an inherent part of the American political and constitutional culture of which the Supreme Court stands as a visible reminder to political scientists. In sharp contrast, the British doctrine of Parliamentary Sovereignty enthrones a theoretically untrammelled Parliament in reality overshadowed by a dominant executive. This can be read as creating a ‘political constitution’ in which rights have to be ‘claimed’ through the political process (Griffith 1979). This one-sided picture, we suggest, may have contributed to a presentation of lobbying as aimed solely at Westminster and Whitehall. The models, in other words, may have disguised the extent to which pressure through law has always been part of the British tradition. LEGAL CULTURE This book has a sub-text which also does something to explain the ‘black hole’ in the British literature of pressure politics. Again in contrast to the United States, a marked divide between law and political science as academic disciplines has developed in this country (Griffith 1982). Partly in consequence, the dominant view has been that law is not a branch of political science. In his leading student textbook Barker (1978:95) makes the point that theorising about the judicial system and what he vaguely terms ‘the general assumptions of law’ has not formed part of the mainstream of political thought in Britain. The authors have elsewhere described this apolitical tradition of law

6 PRESSURE THROUGH LAW

as rooted in legal theories (Harlow and Rawlings 1984:4–6) which, in this country, have come under concerted attack only in the last two decades (Sugarman 1986). In saying this, we do not of course intend to suggest that formalism and judicial independence form no part of the American constitutional and legal heritage. The ideas and values which underlie the two political and legal systems form part of the common stock of western political theory and have much in common. American legal theory or jurisprudence is, however, generally agreed to be less formalist and more realist in character than English (Atiyah and Summers 1987). Moreover, there has been a greater input from the socio-legal and ‘critical legal studies’ movements (Unger 1986) into American legal thought. This tradition has a bearing on our subject-matter. Generations of belief in the apolitical tradition of law have necessarily conditioned the legal profession. Lawyers are quick to divest their case law of its political and social significance, reducing it to a boxed set of sanitised legal precedents. It is this traditional view of law as apolitical which is challenged by pressure-group activity around the courtroom. Taken too far, such behaviour may threaten the legal order and the tradition of independence which judges seek to uphold. The point is nicely made in an article in the Solicitars’ Journal entitled ‘Solicitors Versus Activists’. The author criticises pressure groups for introducing a ‘political perspective’ into legal proceedings via the media and suggests ways in which lawyers can meet the challenge of these new adversaries whose tactics, he warns, are often ‘less than legally respectable’ (Ricketts 1987:618). These adversaries, Ricketts implies, are never lawyers as lawyers would never be guilty of the impropriety of politicising lawsuits. As we hope to demonstrate, both assumptions are false. The rapid growth of the public interest law movement in this country (Cooper 1991) is enough in itself to expose Ricketts’s picture of lawyers as unrealistic. By definition public interest lawyers use law as a tool to secure political change for the disdvantaged. Again, a new breed of community lawyer works with law to secure community goals, often in the fields of housing or environmental law. The distinctive ideology of the law centre movement is again collective in mood and, though numerically small, the movement has been influential in changing lawyers’ attitudes to legal services for the community. Not all law centres, to give a single example, offer an open door legal service. Some limit their availability to disadvantaged groups, catering for tenants and not landlords or offering special services for immigrants and ethnic minorities. Even if such developments were disapproved as the marginal activities of wellintentioned, radical activists, we can point to mainstream practitioners indulging in pressure through law. In the lucrative specialist field of disaster litigation, for example, group actions have posed many procedural problems for courts. Behind mass claims of this type lies a special type of group or ‘litigation coalition’ which is formed to complain of the common grievance. These, the authors are persuaded, form an intrinsic part of mainstream pressure

INTRODUCTION 7

through law and, we shall argue, may often be ‘supplier led’ by a new breed of publicity-conscious lawyer well-versed in all the techniques of persuasion. And this is not all. The historical research which formed the basis for Chapter 1 revealed just how active lawyers have been in pressure politics. The presence of lawyers in a group was seen to influence the choice of techniques, pushing groups towards test cases or law-enforcement strategies in civil and criminal courts. Even groups which choose traditional Fabian lobbying techniques have need of lawyers, and the presence of skilled lawyers in campaigning groups may make the difference between success or failure. The literature shows, for example, that the majority of Private Members’ Bills are today drafted for Members by pressure groups (Marsh and Read 1988); yet the legal expertise on which they need to draw to fulfil this role is often taken for granted. Here is another hidden dimension of pressure politics which we hope to restore. VOCABULARY AND CLASSIFICATION Alderman (1984:22) has described the classification of pressure groups as a veritable cottage industry among political scientists and we might add that criticising others’ classificatory schemes has achieved comparable status! As lawyers coming to the methodology of a different discipline, we have eschewed this particular game. The most familiar distinction, which we use implicitly throughout, is that between ‘interest groups’ which, briefly, exist to further their members’ interests and ‘attitudinal’, ‘promotional’ or ‘cause’ groups such as LIFE or MIND. Here we have preferred Coxall’s broader approach (1981), according to which essentially philanthropic organisations like CPAG are treated as cause groups to underline their distinctiveness from occupational interest groups or professional associations like the Law Society. These, together with trade unions, we have left to one side. Inevitably there is some overlap; one might find the Law Society acting as a cause group (to campaign for better legal services perhaps) while JUSTICE—a cause group dedicated to citizens’ rights—has been variously described as an interest group for, or pressure group of, lawyers. The two might even make common cause to fight a joint campaign: on miscarriages of justice, for example. Again, some membership organisations (like the Campaign Against Drinking and Driving) are best classified as cause groups; others, like the Federation of Small Businesses, already mentioned, could be said to fall into the interest group category; while the Freedom Association, a membership organisation heavily supported by business interests (Nugent 1979) straddles the two classes. We have construed the term ‘single issue group’ narrowly to indicate a group devoted to a single, specific objective: thus the Opren Action Group (OAG), which came into being specifically to campaign on behalf of elderly people affected by the drug Opren, is at the same time a single-issue group and a litigation coalition; the National Council for Civil Liberties (NCCL),

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pursuing a wide range of issues under the generic label of civil liberties, is not. The term ‘casework group’ usually possesses social service or welfare connotations but is wide enough to cover the provision of legal advice and services, which may be a major strand in the work of organisations like CPAG. Some groups, like the NCCL, exist primarily to campaign but offer a limited casework service; others are first and foremost casework groups. The point is an important one, since legal casework groups are obviously more likely to litigate or at least act as a ‘back-up’ resource to those who do. In practice all these categories tend to overlap. Casework feeds back into lobbying in the same way as a single issue group may form a coalition with, or be absorbed into, a broader lobby. The Herald Families Association, for example, is a victim support group formed after the Zeebrugge ferry disaster for casework purposes which soon became a litigation coalition. Together with similar groups, it later set up Disaster Action as an information network and back-up group for disaster victims generally. Disaster Action has campaigned with CitCom on the general issue of accident compensation. Or is Citcom really a single-issue group, defined in terms of accident compensation? It is ambiguities of this type which prompt doubts over the usefulness of this kind of classification game. Although, like Epstein (1985), we are concerned to show that pressure through law is not the prerogative of left-wing groups, we have made little attempt to attach political labels to our groups or canvass them as to their political persuasions unless this (as with the Freedom Association) was obvious. More central to our argument is the well-used description of ‘insider’ or ‘respectable’ groups which seek to be accepted by the authorities and are sometimes described as establishing a ‘sweetheart’ relationship with government (Whiteley and Winyard 1983). The National Trust or National Society for the Prevention of Cruelty to Children (NSPCC) are obvious examples. Insider groups might be seen as likely to eschew pressure through law; we have found, however, that this is not an inevitable rule. Somewhat unwillingly, we have adopted the tautologous word ‘proactive’ to refer to groups which take a positive decision to go to law. A ‘reactive’ group, by way of contrast, is one which has litigation forced upon it, leaving the group to react by a variety of tactics which may range from orthodox legal defences to highly unorthodox courtroom drama or political speeches from the dock. The distinction is occasionally helpful, in that such conduct may bring those using it into conflict with courts conscious of their dignity, a point to which we shall return; for other purposes, the history of civil protest shows it to be illusory (Barker 1990). Suffragettes or conscientious objectors, for example, could be categorised as ‘reactive’ in their relationship with the criminal process; in another sense, their conduct can be seen as involving a deliberate encounter with the law and a conscious decision to act outside its confining parameters. The response of the group OutRage to a series of prosecutions in which homosexuals received prison sentences for fondling and

INTRODUCTION 9

kissing in public was a mass ‘kiss in’in Piccadily Circus (The Independent, 2 September 1990). Insuch circumstances, arrest and prosecution might be described as ‘reactive’. As lawyers, we bring to the book our own terminology, though we have tried to avoid undue technicality, a decision which we realise some of our legal readers may find irritating. Most of the technical jargon is defined for the non-legal reader in the text. Two particular terms, however, are in such constant use as to warrant definition here. The term ‘test case’ is used by lawyers in several senses. It may refer loosely to a case in which several litigants find themselves in a similar fact situation and put up one case to establish how the law affects every case. This usage overlaps with the more technical legal terms of class, lead and representative actions, all of which are explained in Chapter 3. Or it may refer to a case brought to test the meaning of the law in a given area, as with the prosecutions described in Chapter 5 which establish the existence and ambit of the common law crime of blasphemy. Whether or not a particular case constitutes a test case in this particular sense is not always clear at the outset; the case may only assume importance retrospectively or by chance. In other words, the terms ‘test case’ and ‘testcase strategy’ may imply a degree of intention absent in fact. Perhaps the term is best regarded as synonomous with ‘significant case’, a formulation which is less precise as to when its importance was recognised (Smith 1986). A second term which needs a word of explanation is Galanter’s celebrated distinction between ‘one shot’ and ‘repeat’ players (1974)—in other words, between parties who are seldom involved in litigation and those who, like insurance companies or some government departments, either litigate frequently or find themselves on the receiving end of multiple claims. Galanter was making the point that repeat players benefit from experience and acquire expertise. Government departments usually employ in-house legal departments while large corporations are well-resourced and can employ specialist lawyers who are themselves repeat players. This provides a major impetus for pressure groups to even the odds by themselves acting as repeat players or offering back-up services to ‘one shot’ players. Many of the groups described in this book perform just such a function. Recourse to law is often seen as narrowing the gap between the disadvantaged and political elites (Cortner 1986). Powerful interest groups and government departments, however, combine insider and repeat player status. The question then becomes whether the ‘impartial’ adjudicatory process is able to iron out the double disadvantage. Although the construction of a classificatory grid has not been a primary objective for the authors, we do not want to deny its usefulness as an analytical tool. However, experience soon taught us the limitations of existing systems when applied to our subject-matter. There was some help to be gained from the American literature, particularly from the work of Karen O’Connor, evaluated in Chapter 7. In writing the book, however, we have devised our

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own evaluative criteria centred around the concept of ‘good fit’. A group achieves ‘good fit’ with the legal system when subject-matter, means and objectives are all compatible with the ideology of the common law. Since this theme is developed in detail in the later chapters, this is all which needs to be said at this point. Finally, the reader will find much reference to ‘networking’, a term used simply to signify the deliberate exchange of skills, information and resources. There is a veritable jungle of groups whose offshoots are tangled and intertwined. Some have an important function as information networks, coordinators or ‘back-up centres’ for lawyers and grassroots groups. The way in which these networks operate has become a major interest for the authors. A PROSPECTUS For the reader’s convenience, we end this Introduction with a description of the book’s contents: In Chapter 1 we examine the antecedents of pressure through law in an attempt to trace some of the signposts to the modern era. We stress the continuity of the indigenous tradition of campaigning through courts. Chapter 2 contains a selective account of the American experience. Our main aim is to lay the foundation for later chapters in which we argue that dissimilarities in the legal and political systems of the two anglophone countries may render ‘legal transplants’ infeasible. In Chapters 3 and 4 we deal with the civil legal process in modern England. In Chapter 3, we define and develop our theory of the ‘litigation coalition’, examining the factors which have brought this type of group into being and the technical problems posed for the legal system. We also discuss the rise of group actions in public law and consider the representativeness of the groups which seek to use it. Chapter 4 deals with the tug-of-war which often develops between courts and pressure groups and the tension between the legal and political processes. In Chapter 5 we turn to the criminal law, concerned to restore it to its rightful place in the history of pressure through law. We discuss the use and extent of the private right to prosecute but venture too behind the scenes to see how groups may bring pressure to bear on prosecuting authorities and so achieve their goals indirectly. Chapter 6 describes the development of transnational legal action and examines the use made respectively of international law and the United Nations; the European Convention on Human Rights and the institutions by which it is enforced; and the European Community. In Chapter 7 we attempt to evaluate the experience of pressure through law and end with some predictions about its future.

1 PHILANTHROPY AND DISSENT

Take a dozen Quakers, be sure they’re sweet and pink Add one discussion programme to make the people think… Garnish with compassion—just a touch will do Serve with deep humility your philanthropic stew. Anon. Pressure through law is often presented as a modern phenomenon. It is seen as arriving in Britain via the United States during and after the 1960s and as directly linked to the American civil liberties movement. Many people believe that it all started in 1954 with Brown v. Board of Education of Topeka, the famous Supreme Court ruling which ended racial segregation in state schools. Nothing could be further from the truth. The use of law by pressure groups to achieve reform and to establish rights may be as old as pressure groups themselves. Long before the twentieth century, test cases and pressure-group litigation can be identified in Britain. ABOLITIONISTS IN COURT To make this point more graphically, let us look a little more closely at one of the most celebrated cases ever fought in an English court of law. James Somerset was a slave brought to this country from the West Indies who escaped from his master. He was later retaken and held on a boat on the Thames to be returned to the West Indies. Somerset, however, had attracted the attention of Granville Sharp, a man already at this time dedicated to the abolition of slavery. Sharp’s interest in the matter had arisen when, in 1765, he had befriended one Jonathan Strong, a slave abandoned by his master after illtreatment which had rendered him useless for work. After Sharp’s brother, a surgeon, had nursed him back to health, Sharp found work for Strong where he was seen and reclaimed by his master, David Lisle, who had him taken up and thrown into prison as a runaway. But Sharp had the legality of the detention tested before the Lord Mayor’s court and Strong was discharged on the ground

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that he had been taken up without a warrant. Later, Lisle sued Sharp for damages but decided not to pursue his suit which never came to trial. Sharp abandoned his profession, at considerable financial sacrifice as he was not a rich man, and made a detailed study of English law on the subject of slavery, which was published as a pamphlet in 1769. Since Strong’s case, Sharp had been looking for a case to test conflicting views which existed of the common law. According to an opinion given in 1729 by the AttorneyGeneral and Solicitor-General of the day, a slave remained his master’s property even when in England; in other words, the common law recognised slavery. This view was upheld by the Attorney-General when he later became Lord Chancellor (Pearne v. Lisle (1749)). Sharp also had an opinion from Blackstone, the greatest legal authority of the age, to the effect that the antislavery viewpoint ‘would be uphill work in the Court of King’s Bench’. On the other hand, some of the earlier precedents, especially a celebrated dictum from Lord Northington, a previous Lord Chancellor, to the effect that the air of England was ‘too pure for a slave to breathe’ (Shanley v. Harvey (1762)) indicated that the common law did not acknowledge slavery, and there was also some current judicial support for this view (Wiecek 1974). Sharp himself had succeeded in one such case in 1770, when he was called to the assistance of Thomas Lewis, a slave, by a Mrs Banks, whose servants had heard his screams and rescued him from two watermen who were dragging him to a boat with the intention of selling him as a slave in Jamaica. Mrs Banks was so moved that she professed her willingness to meet the costs ‘of bringing the delinquents to justice’ and Sharp successfully applied for habeas corpus on Lewis’s account (Lascelles 1928:16–34). But the case was not decisive. Lord Mansfield, the presiding judge, was able to side-step the issue because the jury’s verdict was ambiguous: it was not clear whether the jury meant that there could be no slavery or merely that Lewis was not a slave (Fiddes 1934:504). So Sharp was looking for an opportunity to test these contrary views of the law and James Somerset provided the perfect test case. An application for habeas corpus was made on Somerset’s behalf and this time Lord Mansfield had to face the issue. He urged a settlementbut to his chagrin both sides wanted to test the law. Stewart, the slavemaster, thus chose to rest his case on ownership rather than to adopt an alternative argument suggested by Lord Mansfield that an enforceable contract existed between the slave and his master. History has been generous to Lord Mansfield, whose grudging ruling was given only after he had several times unsuccessfully adjourned his court in the hope of settlement. In the end Lord Mansfield was persuaded to rule against Stewart, ending with a famous peroration which gave the impression, at least, that Mansfield rejected slavery on overriding moral grounds: The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law,

PRESSURE THROUGH LAW 13

which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memoiy; it’s so odious, that nothing can be suffered to support it, but only positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged. (Somerset v. Stewart (1772)) On the face of it, this was a substantial victory for Sharp. But did it ‘end slavery’, as many people today, including professional historians who credit a judicial decision with the abolition of slavery in England, believe (Klingsberg 1926:40)? Lord Mansfield himself understood the true ambit of the decision to be (i) that a slavemaster cannot seize his slave on English soil against the latter’s will; and (ii) that habeas corpus will lie to prevent this.1 In other words, the onus lay with the slave. If he was content to stay with his master, this was not against the law; if, on the other hand, he was courageous enough to escape, he could not be retaken (Lorimer 1984). At the time, however, the judgment was widely misinterpreted and possibly even misreported (Nadelhaft 1966:200–1). A myth grew up about the successful decision; the Press, the British public and Granville Sharp him-self, all spoke as though it had abolished slavery in England. Some people, including American abolitionists and judges, thought it went even further and challenged slavery in America and British colonies as well. Between 14,000 and 15,000 slaves were stated incorrectly by contemporary newspapers to have ‘received their freedom’ as a result of Somerset’s case and it is the peroration attributed to Lord Mansfield which gave the decision its resonance and enabled it to play a central role in the American anti-slavery movement (Nadelhaft 1966). Perhaps myths, but they were to endure. There are several further points to be made about this case. First, on the surface it is a private lawsuit between two individuals: Somerset and his master, Stewart. We can now see what contemporaries may have known: that behind the slave stood a group of other people not directly interested in the case but prepared (like Sharp) to take over its organisation or (like Mrs Banks in the Lewis case) to defray the expenses, which might be very considerable. In Somerset’s case we know that counsel accepted no fee for their services (in technical terminology, they acted pro bono or pro deo). This was a common practice in such cases before the introduction of legal aid made it more or less unnecessary. Although the test case vvas a clear example of pressure through law, it was not a pressure-group case: Somerset’s sponsors acted as generous and philanthropic individuals. Several years later, however, Granville Sharp was instrumental in setting up a pressure group when in 1787 he became a founder member and Chairman of the Committee for the Abolition of the Slave Trade. Thus the sponsor, who made the abolition of slavery his life-

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work, was a forerunner of the many philanthropists who were to become a feature of the Victorian political scene (Hollis 1974). Let us follow the Committee (later Society) for the Abolition of the Slave Trade a little further. In 1807 it became the African Institution, after it had become interested in the fate of freed slaves and hence in the foundation of Liberia. In 1823 this became the Anti-Slavery Society, later the British and Foreign Anti-Slavery Society, which in turn became the Anti-Slavery Society for the Protection of Human Rights. There was a regular network of such philanthropic associations in nineteenth-century England, often centring around well-known philanthropic dynasties, such as the Frys, with their enduring interest in penal reform, or charismatic personalities like Lord Shaftesbury.2 Many of these people were active in several groups. Granville Sharp himself was interested in the British and Foreign Bible Society. William Wilberforce, the most famous of all abolitionists, was from its formation the parliamentary representative of the Abolition Society and later chairman of the Anti-Slavery Society but we shall also find him active in the Vice Society. Shaftesbury was active in the National Society for the Prevention of Cruelty to Children as well as in the Climbing Boys’ Society, both of which used law to achieve their political ends. The groups are often difficult to trace because they split, fuse, merge and change names and objectives quite as often as the abolitionists did. There can be no doubt however that the personalities as well as the groups were closely interlinked. In other words, possibilities for ‘networking’ existed. Now let us consider the effects of Somerset’s case. Inside the country, the abolitionists’ victory was complete when, six years later, Sharp was able to obtain a similar ruling fom the Scottish courts (Knight v. Wedderburn (1778)). Now they had to change tack; the reforms for which they were asking could no longer be secured by judicial decision; legislation and governmental initiative became essential. The Abolitionists were becoming a well-organised lobby, utilising many of the techniques still familiar in the modern literature of political science: organised mass meetings, mammoth petitions presented to Parliament, regular briefing of MPs and peers (they also had their own parliamentary spokesmen, including Wilberforce) and, even at this early date, a boycott of goods produced by slaves (Klingsberg 1926:40–1). Their legislative successes came slowly and, not unusually, in piecemeal fashion. In 1807, the abolition of British participation in the African slave trade was secured; 1819 saw a Registration Act, designed to limit the numbers of slaves in British colonies and prevent evasion of the 1807 Act; finally, in 1833, an Act for the Abolition of Slavery throughout the British Colonies reached the statute book. The focus of activity had changed once again. From that time on, the anti-slavery movement would need to operate on an international plane— as it does today. In Chapter 6 we shall find the London-based Anti-Slavery Society working with the United Nations to exterminate oppressive practices resembling slavery throughout the world.

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There were, so far as we can tell, no more test cases to help the campaigners on their way—at least, not in this country—though Sharp and others had from time to time to come to the rescue of individual slaves illegally impounded and see the law enforced (Fiddes 1934:509). But the slavery question did come before the British courts again in one case in which the scope of Lord Mansfield’s judgment had to be directly considered. Did it really mean, as so many people thought, that a slave became free as soon as he or she set foot on British soil? The Slave Grace (1827) concerned the Registration Act of 1819. A West Indian resident had travelled to England with Grace, her personal maid and later returned with her to the West Indies. Grace made no protest and her mistress neither obtained nor even realised that she needed a certificate to reenter the West Indies with a slave. Moreover, she was not challenged by the customs officer, who knew them both, and two years elapsed before a prosecution was brought. On appeal, the case came before Lord Stowell, who ruled that entry into Britain was not enough of itself to free a slave; if the slave subsequently returned voluntarily to the West Indies without claiming his or her liberty he or she would revert to the condition of slave. Criticising Lord Mansfield’s judgment, he confirmed that the ambit of the ruling had been exaggerated. The relevance of this judgment to our theme lies in what followed. Although it did not come as a surprise, Lord Stowell’s judgment was not particularly welcome to the abolitionists. It effectively curtailed Lord Mansfield’s 1778 ruling by holding that slavery was suspended not ended, by presence on British soil. Stowell defended himself, however, in a letter to Justice Joseph Story of the American Supreme Court, which is interesting in that it presents an argument concerning the respective uses of litigation and legislation—in other words, the balance of power between court and Parliament—which is still very relevant today. Stowell first makes his personal position plain as ‘rather a stern abolitionist’ and ‘a friend to abolition generally’. He then maintains that courts, in implementing social policy of this type, may cause great harm to individuals and that it is to Parliament, which has the greater responsibility and standing in the matter, which ‘our zealots’ ought to turn (Story 1851:554–5). This is the more interesting because, in Somerset’s case Lord Mansfield had come to a converse conclusion, effectively putting the onus on the antiabolitionists to see the law changed: If the parties will have judgment, fiat justitia, ruat coelum, let justice be done whatever be the consequence… We cannot…direct the law; the law must rule us… An application to Parliament, if the merchants think the question of great commercial concern, is the best, and perhaps the only method of settling the point for the future. (Somerset v. Stewart (1772))

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If we did not know how strenuously Lord Mansfield had sought to avoid deciding the point of principle involved in Somerset’s case, we might think we were looking at a difference of opinion between (in modern terminology) an ‘activist’ or ‘interventionist’ and a ‘non-interventionist’ or ‘constructivist’ judge. This is a constitutional argument which has become very familiar in the United States, where the activities of the Supreme Court in civil liberties cases have unleashed an avalanche of argument over the proper constitutional ambit of judicial review. One tends to think of this as a modern argument, postdating suffrage reform. It is therefore interesting to see that, in these early cases, both judges describe the relationship between judges and Parliament in roughly the same way. COURTS AND POLITICAL CASES We have dwelt on the Somerset v. Stewart case because, in terms of the definitions in our Introduction, it is a test case. It was brought to establish what the law really was. In it, Lord Mansfield was asked to declare whether or not a ‘right’ existed or even, some would say in view of the previous precedents, to create a ‘right’. The citation from his judgment shows that he was very well aware of, and saw nothing novel in, this. The place of the courts in establishing political liberties was as well-understood by radicals and reformers as was its place in upholding authority by government and the establishment. The role of courts in the political process and of judges as political actors was well understood. On occasion it might even bring courts and Parliament into direct conflict. Just before Somerset’s case in the Reports, we find reported the case of Wilkes v. Wood (1763). This is one of a series of cases usually known as the ‘General Warrant’ cases, which also includes Entick v. Carrington (1765) and Leach v. Money (1765), in which the courts were asked to pronounce on the extent of the common law powers of arrest, search and seizure. The actions were brought against ministers of the Crown who had issued warrants without specifying the individuals, premises or goods to be acted against. Eighteenthcentury opponents of this practice compared it in terms to the tyrannical lettres de cachet issued by French monarchs to authorise arbitrary detention in the Bastille, so that the cases in which Chief Justice Pratt and Lord Mansfield were persuaded to rule against the practice of general warrants were both crucially important for civil liberties and were understood at the time to represent a great victory, moral as well as political, over the government of the day. In every sense of the term, they were test cases. Yet this is far from obvious in the Reports. Each case is brought in the name of an individual while the parties sued are subordinate officials, so that it is not at first clear either that the Secretary of State for Home Affairs was involved or that a crucial governmental ‘police power’ is in issue. Closer examination reveals that behind all these cases stands one man, the radical politician, John

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Wilkes, libertarian and rebel Member of Parliament. The searches, arrests and seizures challenged all involved attempts by the government during the years 1762–3 to close down his newspaper, The North Briton, regarded as subversive, and the plaintiffs were his printers and publishers. Who financed the cases we cannot be sure but we do know that the plaintiffs had been encouraged by Wilkes to sue after the latter had successfully prosecuted Lord Halifax, the Home Secretary, and had been awarded substantial sums in damages. The tactic was strikingly successful; in one year, fourteen printers were awarded damages. And John Wilkes was no ordinary litigant; this was neither his first nor last encounter with the law. He had already applied for a writ of habeas corpus when arrested on a Speaker’s warrant for a criminal libel arising from a privately printed pornographic satire, The Essay on Women. He was not a journalist but the leader of a political faction which commanded substantial support outside Parliament. In 1769, during or shortly after Wilkes’s self-imposed exile in France, a group of his supporters, on the initiative of John Horne Tooke, met in a tavern to found the ‘Society for Supporting the Bill of Rights’, one purpose of which was to support Wilkes financially. It was in fact extremely successful in appealing to City supporters for funds but its aims were much wider, it having been ‘originally instituted for the express purpose of supporting all those whose rights had been violated, whose fortunes had been injured, or whose persons had been seized and imprisoned, in opposition to the laws of the land’ (Stephens 1813:104). The Society came to a sticky end in 1771 following Wilkes’s self-interested refusal to allow it to participate financially in the defence of Bingley, a Wilkite publisher who had been sentenced by Lord Mansfield to three years’ imprisonment after Mansfield had unsuccessfully tried to revive the powers of the Star Chamber by personally conducting his interrogation. This led to a rupture between Wilkes and Tooke, who left to carry on the work through his newly formed ‘Constitutional Society’ (Stephens 1813:172–5). In its founding Resolution of 23 July, 1771 the Constitutional Society demonstrated its understanding of the importance of independent courts and the rule of law. Article 7 stressed the need to monitor judicial conduct. Article 9 required members to endeavour to expunge the Commons Resolution which had led to the ‘arbitrary imprisonment’ of London magistrates. The Society also intervened on behalf of humbler members of society; Stephens (1813: 167) tells us that ‘by the spirited intervention of the members, a humble mechanic, with right on his side, was enabled to foil the Lord Chief Justice of England’. The Society was the better placed to do this because, in addition to funds, it had at its disposal a deal of legal expertise. About one-tenth of the membership was legally qualified and worked for the Society in drafting and pleading cases. John Glynn and John Reynolds—Wilkes’s own lawyers—were members, along with Dunning, the advocate who had given his services to James Somerset. The treasurer and founder, John Horne Tooke, had qualified as a

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barrister, though he was debarred from practice because of his political activities. The Wilkites used every conceivable type of litigation, civil and criminal, to further their cause. They were active in the parliamentary privilege cases which involved Wilkes. They instigated criminal prosecutions of magistrates who showed hostility during disorders which arose out of the Middlesex elections. They undertook poor person’s defences and on one occasion revived the obsolete ‘appeal of felony’ in order to highlight the misuse of the royal prerogative powers to pardon the convicted murderers of a poor nightwatchman named Bigby on the intercession of their unsavoury, aristocratic friends (Brewer 1980:147–150, 157). They were involved also in a celebrated series of criminal libel cases over press freedom which ultimately led to the passage of Fox’s Libel Act in 1790. Here we will leave the Wilkites, a radical, anti-establishment pressure group in every modern sense of the term, if not an embryonic political party, fully conscious not only of the political effectiveness of successful legal action but of the publicity value of legal proceedings and able to exploit these consistently and to great effect. The fact that we have singled this group out for mention is not intended to suggest that it was unique. Modern historians have been able to show not only that many other such societies participated in the disputes surrounding Wilkes (Thompson 1963: Ch.5) but also the extent of group participation in the criminal process (Hay 1976). PARLIAMENT AND COURTS Before moving on, we must remind ourselves that during the nineteenth century the balance of power was shifting between courts and Parliament. There was a steady growth in the legislative output of Parliament. Significantly, in his classic Introduction to the Law of the Constitution, first published in 1885, Professor A.V.Dicey used the ‘general warrant’ cases to sustain an argument that English liberties were safely grounded in the common law; by 1906, when he published his second great work, Law and Public Opinion, the great apologist for the judiciary had to admit, albeit reluctantly, that ‘the lawmaking function of the courts has been to a certain extent curtailed by the development of parliamentary authority’ (Dicey 1906:361, 363). The extent of the slippage is more honestly reflected in the fact that Dicey devotes the greater part of his book to legislation, coming to judgemade law only in Chapter 12. Influential in promoting the paramountcy of the legislative process were the views of Jeremy Bentham, foremost legal philosopher of the period, to whose work Dicey properly gives considerable prominence (Dicey 1906:126–210). Bentham had consistently insisted on the need for legislation as a vehicle for reform of the antiquated common law. McLaren notes the influence of Bentham on many of the reformers active in the field of public health, sanitation, etc., notably Edwin Chadwick, who, like Bentham, had become

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convinced that significant government intervention was necessary if the problems of industrialization were to be tackled realistically (McLaren 1983: 208). Other writers see Bentham’s influence as less clear-cut and Harding finds a more pragmatic answer in the modernisation of parliamentary institutions and the growth of political parties, believing that the effect of nineteenth-century parliamentary reform was to compel the parties to have competitive legislative programmes on every subject, so that there could never be another period of legislative quiescence. The early reformers had, however, to work out the technique for promoting legislation. This was to raise support in Parliament, move for a select committee of one of the Houses…supply the committee with expert witnesses and draft bills, and finally carry through legislation on the wave of popular feeling created by a best-selling (and sometimes illustrated) Report. (Harding 1966:337) In making this point, we must remind ourselves that, until the party system developed into the all-embracing machine that we know today, when the preponderance of legislation is sponsored by the government, individual Members of Parliament, who might or might not hold ministerial office, were often able to carry Bills through Parliament without government sponsorship. Later, when the balance of power was shifting, the government could informally sanction the passage of Private Members’ legislation which otherwise had to give way to government business so that, if government did not find time for it, it was bound to fall. This was in fact what caused many of the Suffrage Bills introduced between 1867 and 1912 to fail, a point made bitterly from the dock of the Old Bailey in that year on behalf of the suffragettes. By this date, they felt able to argue that it was ‘the Government, which nowadays, and under our present methods of the conduct of Parliament, is responsible for legislation’. Thus it was the responsibility of the government to ‘bring in a Bill to give women the vote’ (Women’s Social and Political Union 1912:13). In the earlier part of the nineteenth century, the position was emphatically not the same. Many of the campaigns described in this chapter were carried out wholly or in part through Private Members’ Bills and Members of Parliament devoted to their cause who were prepared to persist in presenting endless petitions, motions, resolutions and Bills to the House. The abolitionists proceeded in just this way, hence the importance of Wilberforce to the movement. But the relationship was symbiotic: Wilberforce came into the movement as a young Member looking for a cause and made his name by it. Nor was abolition his only parliamentary interest: as an active member of the Clapham Sect and the Vice Society, he was responsible for introducing or lending his backing to several of their most controversial ‘morality’ measures,

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ranging from Lord Belgrave’s 1799 Bill to suppress Sunday newspapers, to two Bills against bull-baiting urged unsuccessfully on the Commons in 1800 and 1802. Thomas Erskine, who on one occasion appeared as counsel for the Vice Society, lent parliamentary support to some of their measures, as did Shaftesbury, a devout Christian throughout his life (Radzinowicz 1956:184– 207). Shaftesbury’s relationship with child labour legislation and the Factories Acts was somewhat similar. Hodder’s biography (1893) lists seven measures passed between 1802 and 1844 dealing with child labour in factories in all of which Shaftesbury was personally involved. He also secured the appointment of several committees and commissions of inquiry. He was not alone: the first Sir Robert Peel, a manufacturer, sponsored the Acts of 1802 and 1819. We must bear in mind that the emphasis on Parliament did not necessarily exclude litigation, which might be combined with lobbying, perhaps to suggest defects in the existing law. Nor did it exclude lawyers, whose drafting skills were very much in demand. Pressure groups relied on lawyers to brief Members of Parliament as to the meaning and possible effects of legislation before the Houses and to draft the Bills which they as Private Members would steer through Parliament. This method of campaigning put a premium on lawyerly skills but it meant also that Parliament rather than the law courts was the focal point of the law reformer’s attention. Today, when major legislation is almost invariably brought forward by the government, although it may originate in Cabinet or a Cabinet committee, it is largely shaped inside departments and the effect of this change has been to shift the centre of gravity once again. Pressure groups, although they are occasionally able to utilise the limited time allocated to Private Members’ Bills, are bound to devote much of their attention to Whitehall. We would stress once more that these techniques are not necessarily alternatives. Some groups specialise in one or other of the techniques of pressure and lobbying, other groups use all or some of the many campaigning techniques. For example, one group which has always operated through Parliament and the executive and would not, at least until recently, have contemplated rocking the boat by litigating, is the Howard League for Penal Reform. Founded in 1866 by Quakers as the Howard Association, the group has always had parliamentary representatives at its disposal and has preferred to remain on good terms with government, to participate where possible in committees of inquiry, to co-operate with Royal Commissions, and generally to achieve its goals through influence. Gradually the League drifted into what is often called a ‘sweetheart’ relationship with ministers and the Home Office (Rose 1961). The League has several parliamentary successes to its credit, which include some relatively recent legislation. This is important in view of the point made earlier that legislation has now become largely a government responsibility. When the Howard League was campaigning in the 1920s for a right to free representation for defendants charged with serious criminal offences, its volunteer lawyers drafted legislation which was introduced as a

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Private Member’s bill by R.H.Turton, MP, a League supporter. In due course this became the Poor Prisoners Defence Act 1930. Turton was acting in precisely the same way as Wilberforce and Shaftesbury in the previous century. Nor was this the end of the League’s successes: the Criminal Justice Act 1948 was a League Bill, initiated in and piloted through the House of Lords by its President, Viscount Templewood, a previous Home Secretary, acting in conjunction with Lord Chorley, a distinguished radical lawyer and proponent of law reform (Rose 1961, Ryan 1983:33–7). The point we are making is a dual one. Although the balance between the government and individual member has changed, it is still possible to achieve law reform either through Private Members’ Bills (Marsh and Read 1988) or through amendments to government legislation. To do this, however, often requires much tactful lobbying behind the scenes, and this may be undercut by the more open and aggressive approach of a litigation strategy. SUFFRAGISTS AND COURTS In the late nineteenth and early twentieth centuries, the experience of the early suffragists provides us with a more complex illustration of the interplay between courts and Parliament. After John Stuart Mill, an ardent suffragist, was elected to Parliament in 1865, he offered to petition Parliament in favour of female suffrage during the passage through the House of Commons of the Representation of the People Bill. The condition was that women could obtain 100 signatures in support of suffrage. Committees formed in London and Manchester obtained 1,449 signatures but the Bill provcd abortive because of the fall of the Liberal government. Further signatures were presented to the House on the introduction of the Tory Reform Bill of 1867 but the House remained unmoved and Mill’s amendment to substitute the word ‘person’ for ‘man’, a term which Mill -as events were to show, optimistically—believed would definitely encompass woman, failed (Sachs and Hoff Wilson 1978:22– 5). It was because of the failure of the parliamentary campaign that the suffrage societies decided to try the courts. Two factors influenced this decision, the first an exchange between the Hon.John Denman, QC, a distinguished lawyer who later became Chief Justice, and Disraeli, then Leader of the House, during a debate on the Reform Bill.Denman questioned Disraeli as to the government’s intentions given that, at least since Lord Brougham’s Interpretation Act of 1857, the term ‘man’ imported ‘woman’ unless there was express provision to the contrary. Disraeli’s reply was ambiguous; the matter was, he said, for ‘the gentlemen of the long robe’. Denman was dissatisfied; in his view, the courts would be constrained to decide the point in favour of women. About the same time, Mr Chisholm Anstey, a barrister described as ‘the champion of the Suffrage cause in law, as Mr. Mill was in Parliament’ (Mason 1912:37), presented a paper to the Social Science Congress arguing that

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women had always possessed the right to vote and had in fact been partially disenfranchised by the Reform Act of 1832. He persuaded Dr Richard Pankhurst (the husband of Emmeline Pankhurst and a barrister whose drafting skills were useful: he later drafted the Married Women’s Property Acts) that there was a chance of success in the courts. Persuaded by Pankhurst, the Manchester Suffrage Society set about careful preparations for a test case. Letters were sent to officials through-out the country requesting them to register women in accordance with Pankhurst’s interpretation of the 1867 Act. Thousands of women were persuaded to register despite the deterrent applied by some registration officers of a small fine for spurious claims. If struck off, the women appealed to Revision Courts from whence appeal lay to the Court of Common Pleas. Four judges under the presidency of Chief Justice Bovill sat to hear argument in the first of a number of appeals filed. Pankhurst himself appeared with Sir John Coleridge, QC, to support the argument he had espoused so strenuously. But the court ruled unanimously against the suffragist argument. The word ‘man’ in the 1867 Act was held not to include ‘woman’ since women, the court held, had always been under a legal incapacity and were debarred from voting at parliamentary elections (Chorlton v. Lings (1868)). The case was treated as a test case, and although this was advantageous in one way, as no costs were awarded, it meant also that, despite the strenuous protestations of Dr Pankhurst, the court refused to hear argument in any other of the appeals so that all fell together (Strachey 1928:114–6). What effect a success of the scale of Somerset’s case would have had for the women’s movement, we cannot know. Mrs Pankhurst felt that the courts’ intervention would have been decisive. As she said later at her trial before Chief Justice Coleridge after the suffragettes had turned to direct action: had the judges of that time decided…that since the women pay taxes and obey laws, they have the right to choose their tax-masters and their lawmakers like men—had the judges of that day agreed with the argument laid before them by your lordship’s father and my husband, this agitation would not have been necessary, the status of women would have been established, and sex exclusion would have disappeared. (Women’s Social and Political Union 1912:27) In fact, precisely the reverse had happened. The courts had ruled consistently against women, not only in the suffrage cases but in cases affecting university registration and the right to practise a profession (Sachs and Hoff Wilson 1978: 3–66). The effect of the rulings was inevitably to drive the suffragists back to Parliament where they were frustrated time after time by parliamentary procedure and the unwillingness of successive governments to help them. There was one early success to encourage the movement which followed directly from Chorlton v. Lings. A Miss Becker, a leading figure in the

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Manchester registration campaign, had organised a postal lobby of Members of Parliament were the case to go against them. On her way from the court, Miss Becker telegraphed her members, ‘Post your letters’. Eight hundred notes were sent, which may have been a factor in the passage through Parliament of an amendment inserted into the Municipal Franchise Act 1869 allowing woman suffrage (Strachey 1928: 116, Hollis 1987:29–47), though an alternative and more cynical reason often preferred is that MPs largely despised local politics and thought it a proper field of activity for women. In any event, the concession was short-lived as the judiciary promptly stepped in to construe the provisions so as to deprive women of this right, which they had actually enjoyed for centuries before the legislation (Sachs and Hoff Wilson 1978:76–8). Test cases were clearly proving a losing, not a winning, strategy. Blocked consistently by the courts, women were also receiving similar treatment in Parliament. In 1870, a Women’s Suffrage Bill drafted by the indefatigable Dr Pankhurst passed its Second Reading by thirty-three votes; immediately it was blocked at the Committee stage (Pankhurst 1931: 37–41, Strachey 1927:8–10). Eight suffrage bills introduced by sympathisers had met a similar fate by 1911 together with numerous resolutions resolutely talked out or superseded by government business. Governments promised legislation which was never forthcoming (Mason 1912:95–6). The suffragists faced a half-century of discouragement, violence and struggle before finally attaining electoral equality with men in 1928. In their later encounters with the courts, suffragettes moved into a reactive stance and their experiences, this time from the dock, were even less happy. When the movement moved into its aggressive and disorderly phase, the authorities turned to the criminal law and persistently pressed criminal charges. Convicted suffragettes, who usually refused to pay fines and went on hunger strike when in prison, were often treated with considerable brutality—indeed, one side-effect of this experience was to swell the membership of the prison reform lobby (Ryan 1983:3). The women had little hope of acquittal by magistrates hopelessly prejudiced against both the movement and its methods, but they learned instead to use the trials very successfully for publicity purposes. In 1908, for example, the Pankhursts and Mrs Drummond, leaders of the Women’s Social and Political Union, were summoned before the magistrates to be bound over after a demonstration at the House of Commons had been announced. When they refused to appear, they were arrested. Christabel Pankhurst made a long and lucid speech in their defence in which she indicted the judicial system with being ‘corrupted for party ends’. She also accused the authorities of using the binding-over procedure in order to ‘keep us in the police-court’ which was perceived as ‘disgraceful’. Her speech was later published as a pamphlet to gain further publicity (Women’s Social and Political Union 1908). In 1912 the two Pankhursts and Mr and Mrs PethwickLawrence did find themselves at the Old Bailey on charges of conspiracy to break shop-windows. The Attorney-General, prosecuting, tried to deny the

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political connotations of the case thus giving the defendants an opening for a ‘political defence’ from the dock. In a long and detailed account of the Union’s demands and the failures of the Liberal government to implement its promises to legislate, Pethwick-Lawrence (another barrister) and Emmeline Pankhurst demonstrated that this was a palpable untruth (Women’s Social and Political Union 1912). The motive of the authorities in wishing to keep the women in the police court may very well have been, as Christabel Pankhurst had suggested, to dent the defendants’ respectability by presenting them as petty criminals; it may have been a general wish to avoid jury trial—always a risk for the authorities in ‘political’ cases; equally, it could have been a desire to avoid the publicity generated by an Old Bailey trial. In the end, skilful use of the Old Bailey dock was made to secure sympathy, giving women an invaluable opportunity to demonstrate their own capabilities. In this way, the suffragettes set the tone for ‘political’ defences in later prosecutions described in Chapters 4 and 5. PROSECUTION SOCIETIES Today the obligation to see the law enforced and to prosecute violators lies generally with the police and prosecution services. It is not generally realised just how great a reversal of the common law position this is. Before the emergence of an organised police force capable of efficient law enforcement, the responsibility to apprehend and prosecute offenders rested with individuals, which in practice meant primarily on the victim of crime. This was a system with many shortcomings. The process of preparing evidence, collecting witnesses and finally conducting a successful prosecution was onerous and often expensive, and the state made no contribution to the costs of prosecution. Consequently, over a period of several centuries, prosecution societies had grown up which undertook, in exchange for an annual subscription, to help members who had been the victim of a felony to trace the offender and to mount a successful prosecution (Beattie 1986:48–50). By the end of the eighteenth century these were well established (Hay and Snyder 1989). By this time too, Parliament was showing considerable concern about the prevailing position, which was beginning to be seen as a serious impediment to the maintenance of law and order. Several statutes were passed, each time on the recommendations of a Select Committee, designed to ameliorate the prosecutor’s position. An Act of 1752 provided that a prosecutor who obtained a conviction might in a case of felony be awarded some of the costs and witness expenses by the court, and later Acts extended the scope of this legislation. In addition, specific Acts of Parliament might provide for the costs of prosecution to be met from a fine. These statutes failed entirely to remove the financial risks of prosecution. For example, in prosecutions under the Climbing Boys Acts, where magistrates were notoriously unsympathetic to prosecution and failed to convict or imposed derisory fines, prosecutors were

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taking a substantial, personal pecuniary risk that the cost of prosecution would ultimately land on them. Whether the position was in general as serious as Parliament believed it to be we cannot be sure. One modern authority suggests that, at least in cases of petty theft, costs were relatively low, averaging about £5, but the author is working from the figures of costs awarded by Assize judges and freely admits that the real costs of investigation may have been much greater (Beattie 1986: 41–6). Again, this figure may be relative; Henry Fielding, a Bow Street magistrate and reformer in this field, is quoted as saying that costs of two shillings were sufficient to put ‘the poor wretch who hath been bound to prosecute as under more concern than the prisoner himself’ and contemporary complaints about the costs (pecuniary and otherwise) of law enforcement are common. To act as prosecutor was not a sure recipe for popularity either. Many offences were still the subject of capital punishment or sentences of transportation. Fear of retaliatory action might force prosecutors to drop such charges (Hay 1983:170). Edwin Chadwick, the social reformer, once described a pollution case taken by a ‘Scottish gentleman’ on behalf of villagers: ‘Powerful influence was used to induce him to stay the suit, and he was by persons of his own class regarded as the persecutor of the authors of the nuisance’ (Chadwick 1842:360). This was by no means unique. One Peter Hall, a master sweep who had taken out a summons against the brother of Lord Hardwicke under one of the Climbing Boys Acts, had a similar experience and his temerity did little to soften the antagonism of Lord Hardwicke to the reformers when in 1863 the latter chaired the Select Committee on Children’s Employment (Hammond and Hammond 1923:226). A more extreme example is the case of an early RSPCA inspector whose activities so incensed a mob that he died after a brutal assault (Harrison 1973). We possess several well-documented studies of the way this system of private prosecution was operating in practice by the mid-nineteenth century. The first concerns the area which we should now describe as ‘environmental pollution’. A number of contemporary statutes (the Nuisances Abatement Act of 1821 is typical) provided for the enforcement of anti-pollution laws by means of a criminal indictment for public nuisance. In 1862, a Select Committee of the House of Lords was set up to examine the effectiveness both of this criminal procedure and the civil law alternative of an action in nuisance by an individual landowner for damages. The Committee heard evidence from many witnesses which showed fairly conclusively that recourse to the common law was beyond the reach of a poor man. Although the 1821 Act empowered the award of ‘proper and reasonable costs’ to the prosecutor, the Committee concluded that ‘the costs allowed on taxation are merely nominal in comparison with the expenses actually incurred’ ((1862) 14 Parliamentary Papers: vi). Moreover, compensation could not be awarded in the statutory action, to the Committee’s mind a substantial deterrent to law enforcement.

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Evidence from the land agent of one wealthy and public-spirited Northern landowner who had pursued several actions against the manufacturers of St Helens bore this out. In one Queen’s Bench action £900 in costs had been incurred to recover £2,000 in damages. Mr Worthington, a solicitor, described a second action, this time a prosecution, in which between 30 and 40 witnesses had been necessary and in which expenses greatly outweighed the costs which could have been awarded. His evidence is recorded: I can state what the expenses of the prosecution were; I do not know what the expenses of the defendant were, but within £100, or something of that kind; the expenses of the prosecution were £2,000; there were some expenses which some of the witnesscs did not ask for; altogether, no doubt, they amounted to £2,000… The prosecutors did not ask for any costs; I believe they would have been entitled to the county allowance, but not to any more than that probably. ((1862) 14 Parliamentary Papers: 60–1) We should contrast the expense of gathering evidence in pollution cases, civil and criminal, with Fielding’s example of petty theft. Proof of nuisance, which might involve tracing emissions and showing them to be noxious was both time-consuming and costly (McLaren 1983). We shall see in later chapters that this practical difficulty remains one of the greatest obstacles to face the environmental lobby today. Perhaps surprisingly in the light of our knowledge of the growth in prosecution societies, we find only one example of a neighbourhood action recorded in the Select Committee Report. Mr Garvey, a barrister apparently resident in Camden, described himself as ‘one of the petitioners who signed the petition from the inhabitants of Camden New Town’ and spoke throughout of ‘us’ and ‘our’ actions ((1862) 14 Parl. Papers: 188). The witness proved extremely well-informed about the intricacies of pollution law and the defects of the various types of legal action available. Asked whether an individual would be likely to undertake proceedings under the Nuisances Removal Act, for example, he replied, ‘No, and if he did once through public spirit he would not be likely to do it again; the manufacturer would have the advantage of him there’ ((1862) 14 Parl. Papers: 192). Mr Garvey saw as a more appropriate method of law enforcement in pollution cases the device of a public inquiry to be instituted by the Home Secretary on the petition of a majority of residents of a parish. Unwieldy though this machinery sounds today, it does reflect the collective, participatory approach of a local amenity society. Meanwhile, social reformers were also learning through hard experience that campaigns fought hotly through Parliament could be brought to nothing by subsequent failure to enforce the law. This was particularly true of early industrial legislation. In 1788, for example, an Act to protect children in the care of the parish was passed which prescribed the conditions in which

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apprentices could be kept. But it was widely disregarded—indeed, it has been said of the Act that, ‘in lacking measures for enforcement [it] resembled an aged lion without teeth’ (Phillips 1949). The Health and Morals Act of 1802, sponsored by Sir Robert Peel, required magistrates to provide enforcement machinery locally by appointing two ‘visitors’ empowered to enter and inspect mills and factories. This system simply did not work. The magistracy was either involved personally in manufacture or was closely involved with manufacturers, the result being inevitably that those ‘…who were charged with the enforcement of the law, were frequently vigorous opponents of its provisions, particularly if they themselves were affected in their private interests’ (Thomas 1948:29). By dismissing the case or awarding the minimum penalty, they could frustrate the object of the legislation: in 1837, for example, of 362 persons convicted, 245 were awarded the minimutn fine (Thomas 1948: 31). Later Factories Acts deliberately contained more effective enforcement machinery: either the Act provided criminal penalties for a breach or for a centralised inspectorate—which placed the responsibility for law enforcement squarely on the state—or sometimes both (MacDonagh 1977: Chs 1, 2). Once again we can see the typical, modern pattern of state responsibility for law enforcement beginning to emerge. The Climbing Boys Acts present a similar picture. With the help of Lord Shaftesbury, new and more effective legislation had been secured in 1840 to protect climbing boys which provided a fine for any person who employed or allowed any person under 21 to go up a flue. But there was no official enforcement machinery. It was always open to individuals to supply the deficiency and they sometimes did so. In 1840, Shaftesbury’s own diary records his pleasure in two successful actions: in addition to advancing the cause, he rejoiced, ‘I stood to lose several hundred pounds, but I have not lost a farthing’ (Hodder 1893:301). Another notorious prosecution, for the manslaughter of a Manchester apprentice aged 7 who had died in a flue, led to the formation of the Climbing Boys’ Society, chaired by Lord Shaftesbury. In essence this was a prosecution society, one purpose of which was to take over the work of law enforcement by collecting information and conducting prosecutions wherever possible. In addition, local prosecution societies began to appear throughout the Midlands, some relatively successful, others very short-lived. But even at the local level, cost was undoubtedly a problem. The 1840 Act provided for one-half of the fine to go to the informer (prosecutor) but, by setting the fine low as they invariably did, magistrates could stultify the enforcement of the legislation. In its Report of 1863, the Children’s Employment Commission, set up through Shaftesbury’s efforts to collect evidence and recommend reforms, concluded that the law was inadequate. Shaftesbury then managed to put through a new Act substituting imprisonment for fines in suitable cases. But by 1866, the Commission was again lamenting the ‘failure of the amended Act to answer its intended purpose’. Finally, an Act of 1875, which passed both Houses on a wave of emotion after a sweep had

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been sentenced to six months’ imprisonment for suffocation of his boy in a flue, strengthened the law and supplemented the ramshackle private arrangements for enforcement by involving the police. The legislation at last began to bite (Hodder 1893:586–600). MORAL CRUSADERS The very same evangelical conscience which fired the abolitionists and social reformers lay behind the work of the vice societies. These originated in the seventeenth century, but were revived in the mid-eighteenth century by John Wesley and the Methodists with the help of Sir John Fielding, senior Metropolitan Magistrate at Bow Street, the initial target being sabbathbreakers. The ‘Movernent for the Reformation of Manners’ was active over a period of some seven years in mounting prosecutions against all who met with its disapproval including gamblers, prostitutes, drunkards and sabbathbreakers: between August 1762 and January 1763, for example, it preferred 992 complaints, running into debt in the process. The Movement came to a sticky end when the tables were turned by a dubious King’s Bench action in which the large sum of £300 was awarded in damages against it. Not even a successful prosecution of the key witness for perjury was able to repair the damage to the Movement (Radzinowicz 1956:146). In 1787, William Wilberforce decided to take up Wesley’s unfinished work. His first step was to persuade the Privy Council to issue a ‘Proclamation for the Encouragement of Piety and Virtue’ which was duly done on 1 June 1787. That autumn, he set up a ‘Proclamation Society’ to see the Proclamation enforced, with the Duke of Montague as the first president and the support of both archbishops. In the first prospectus, members pledged themselves to ‘the prosecution…of criminal and disorderly practices…and enforce a stricter execution of the laws against vice and immorality’. With its powerful backers, the Society was well-placed to exert pressure on the magistracy, which it did at the outset by arranging for a circular to go from the Home Secretary to all sheriffs exhorting a firmer prosecution policy. By 1801, the Proclamation Society was fading away and a fiercer rival ‘The Society for the Suppression of Vice’, formed in 1802 with similar objectives, began to supplant it. The interest for us of a merger between the two, lies in a sharp change of style. The Vice Society, with membership drawn from the urban middle classes, was less well-placed to press the appropriate authorities into enforcing the law and was driven into acting on its own account: The Proclamation Society had always valued the closeness of its contacts with public authorities, especially magistrates…and its influence with the judiciary…the Vice Society’s leaders…while they attempted to cultivate contacts with magistrates, often found themselves rebuffed. From an early stage, they appear to have directed their efforts

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rather more towards supplementary police work than towards influencing the magistracy. (Roberts 1983:165) By 1803/4, the Vice Society numbered 1,200 members and was active in prosecution; in 1803, it secured 678 convictions in London alone, of which 623 were for sabbath-breaking (Roberts 1983:168). The Vice Society proceeded methodically and according to a preferred pattern. Its first step was to publish an abstract of the laws against vice—a long list, ranging from drunkenness, prostitution, profanity and fortunetelling to criminal libel and the circulation of obscene books. The Society then inspected a given area for breaches of law and warned potential violators of its intentions by issuing copies of the abstract which also listed the Society’s successes in prosecution. The last resortwas to prosecute the unrepentant—preferably in the King’s Bench, which was felt to have a greater deterrent value—and to publicise the convictions. The expressed policy was to waive the fine for a first offence of sabbath-breaking but press for the full penalty in all other cases. The penalties imposed could be severe. Even the sabbath-breakers had to pay their costs; keepers of ‘houses where unlawful dances were held’ or of private theatres, lost their livelihood when their ‘nefarious practices’ were suppressed by magistrates; those who arranged lotteries or published obscene books could find themselves in prison. One reason for this severity may have been that the Society paid the costs of prosecutions but could recoup itself from fines if successful (Radzinowicz 1956:498–507). Described like this, the activities of the Proclamation and Vice Societies, however distasteful or oppressive they may seem, fall squarely into an area which a modern reader would designate as ‘moral’; in other words, today we tend to equate ‘obscenity’ with ‘pornography’. At the period of which we are writing, however, the links between church and state, hence between the common law offences of obscene, blasphemous and seditious libel, were stronger, so that the political connotations of the offences were more obvious. Fears aroused by the spread of deism and atheism in the wake of the French Revolution strengthened the links (Walter 1990:35) and led to a number of controversial prosecutions. Thus Tom Paine was the subject of an official prosecution in 1792 for criminal libel in respect of Rights of Man, while his supporters in the Society for Constitutional Information were prosecuted for treason in 1794. In reviving the offence of criminal libel, which it claimed in evidence to the Commons Committee on Policing in 1817 had been virtually defunct before 1802, the Vice Society was operating in a highly charged political atmosphere and many of its prosecutions did in fact involve rationalist and radical rather than pornographic books. Typical was the trial of Thomas Williams in 1797 on a charge of blasphemy in respect of the publication of Paine’s earlier work, The Age of Reason. The Vice Society had briefed Thomas Erskine, a

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sympathiser with some of its aims, although he had earlier appeared for Paine in the 1792 prosecution. It would seem that Williams was not a rationalist or humanist, for Erskine records that, between the conviction and sentence, he chanced to come across Williams ‘sewing up little religious tracts’ in a miserable hovel in Holborn. He immediately suggested that the Society should decline to press for a penalty, but this was refused on the ground that it was stated policy to press for the full penalty in grave cases—better to leave the matter to the judge. Erskine immediately returned his brief, in breach, it seems, of contemporary etiquette, arguing in his usual fluent style that if he had been engaged for an individual rather than the Society: I must have implicitly followed my instructions, however inconsistent with my own ideas of humanity or moderation, because every man who is injured has a clear right to demand the highest penalty which the law will inflict… Such a voluntary Society, however respectable or useful, having received no injury, could not erect itself into a custos morum, and claim a right to dictate to counsel who had consented to be employed on the part of the King for the ends of justice only. Despite this humanitarian gesture, the Chief Justice, Lord Kenyon, sentenced Williams to hard labour for one year (R v. Williams (1797)). Its unfeeling stand in this case, described at the time by one of its own supporters as ‘a piece of pious cruelty for which there can be no defence’, did much to bring the Society into disrepute, yet did nothing to deter its enthusiasm. In 1818, when Richard Carlile, a freethinker and radical publisher, reprinted The Age of Heason, the Vice Society was instrumental in sending him to prison for two years, together with his wife and sister for shorter terms. But Carlile was able to use the dock as a vehicle for reading the whole text of Paine’s work in open court, obtaining publicity for the freethinkers’ cause. The case also produced a ‘whiplash effect’, inspiring ‘the first organised Freethought movement in Britain’, as local groups formed to support the victims of the Vice Society’s nationwide prosecution campaign formed themselves into permanent rationalist societies (Walter 1990:34–7). The Society’s usefulness to law enforcement officers, willing enough to screen themselves behind volunteers in the controversial field of public morals (Roberts 1984:169), was imperilled by the accusations of political bias incurred through prosecutions in such cases. The Society was also criticised for class bias on the ground that it hit at the leisure activities of the working classes but seldom if ever at those of the middle classes who filled its coffers (Sydney Smith once described it as a Society ‘for suppressing the vices of persons whose income does not exceed £500 per annum’). Finally, the Society’s true political colour was revealed when in 1820 it joined with the ‘Constitutional Association for Suppressing the Progress of Disloyal and

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Seditious Principles’, a ‘constitutional society’ very different in hue from those which had flourished in support of Wilkes and Paine. The link between the politically and the morally unacceptable was made explicit in the case of William Benbow, bookseller and publisher of The Rambler magazine. In 1822, the Vice Society prosecuted Benbow unsuccessfully in respect of a novel widely obtainable elsewhere, despite the fact that he had just served a 10-month sentence after prosecution by the Constitutional Association (St John Stevas 1956:36). His detention without bail on this occasion had given rise to a heated parliamentary debate initiated by Samuel Whitbread, MP (Parl. Deb. [1821] N.S. vol. 5, cols. 1484–1501). This debate is very relevant to our subject because it questioned not only the desirability of political prosecutions such as these being brought forward by a private body but also the legality of the practice. It was contended that the ‘association was formed against the common law of the land’ and that its prosecuting activities amounted to the common law wrong of ‘maintenance’ (defined below). Several distinguished lawyers including the AttorneyGeneral and Solicitor-General spoke in the debate which followed, in the main on the side of the Society. Only Mr Scarlett thought the Society actually unlawful; he took the view that it was usurping the functions of the AttorneyGeneral in whom the prosecution power was primarily vested. All the other lawyers who spoke adopted the contrary view that the right of prosecution was vested in individuals and that the Attorney-General possessed no monopoly to prosecute. Mr Brougham, for example, based his keen support for Benbow on moral grounds. He did not deny ‘the strict legality of the association on its professed principles… but the legality was no objection to the interference of the House. The abuse, even of a legal right, might be a fair subject for interference’ (cols. 1486–7). PROSECUTION: ‘PUBLIC’ OR ‘PRIVATE’ RIGHT? In these speeches, as also in Erskine’s apologia for abandoning his Vice Society brief, we can discern a disagreement over the nature of the right to prosecute. Clearly, the lawyers who spoke in the 1821 debate believed it to be vested in individuals, and everything that we have so far said about the development of the criminal law system and of the rise of prosecution societies suggests that this commonly held view was in fact correct (Hay 1983, Hay and Snyder 1989). Radzinowicz tells us that the activities of the Vice Society were ‘not seriously challenged at the time when their influence was at its height’ and that on every occasion when the judges did consider the matter they approbated the Society’s activities. Chief Justice Lord Ellenborough, summing up in one trial for the sale of obscene books, thanked the Society, remarking that he ‘did not know of one rule of law upon which they have at all trenched’ (Radzinowicz 1956:163–4). Later in the century we find Sir james Stephen, judge as well as historian of English criminal law, in no doubt at all

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that the right to prosecute was, in England, vested in ‘individuals who considered themselves to have been wronged’, an historical development which ‘gave to the whole procedure its character of a private litigation’ (Stephen 1883:419, 498). Stephen noted the contrast with the continental and American systems where the right was seen as a public right, vested in the state which possessed a monopoly of the prosecution power. The second half of the nineteenth century, however, was to see the rise of spirited efforts to reform the prosecutorial system, and several attempts were made to push legislation through Parliament establishing a public prosecution service (Kurland and Waters 1959). In 1879, this movement culminated in the establishment of the office of Director of Public Prosecutions and this development, together with the creation of modern police forces which in practice took over the duty of prosecution, led gradually to a change in the climate of public opinion. Today, as we shall see in Chapter 5, the prevailing view of prosecution is of a public right vested in the state and the private right to prosecute is seen as residual and exceptional. MAINTENANCE AND CHAMPERTY: OBSOLETE COMMON LAW OFFENCES? Whitbread’s second argument about unlawfulness turned on the ancient common law offence of ‘maintenance’, defined as the support of one of the parties to litigation either financially or otherwise. The common law has always seen the right to litigate as personal in character and not to be invoked by someone who has no ‘interest’ in the result of the dispute (Winfield 1921a). The term ‘interest’ was narrowly defined to mean someone with an actual legal right or a property interest to protect; it included, in the case of criminal proceedings, the Crown. (This was the foundation for the view that the right to prosecute might be a public right, though there is, of course, a wider philosophical argument concerning the right to inflict punishment on guilty individuals.) Not only was maintenance a criminal offence at common law but any agreement to share the fruits of litigation aggravated the offence, which then became known as ‘champerty’. Both offences were also actionable as a civil wrong or ‘tort’ in which someone who had suffered through the maintenance—in practice, usually the defendant—sued for damages. Reported cases are rare in the modern period, but the torts remained in existence until abolished by the Criminal Law Act 1967. The question raised by Whitbread as to whether they applied only to civil proceedings or to criminal prosecutions also, remained undecided. In an attempt to answer this question, it is necessary to jump forward in time by fifty years, to the stormy political and legal battles which surrounded the activities of Charles Bradlaugh, rationalist, President of the Secular Society, and owner of a journal called the National Reformer. Bradlaugh’s career provides a further illustration of the link between religion and the state. His

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unpopularity with the authorities is demon-strated by the fact that he had been prosecuted several times under repressive Press Acts until these were suddenly repealed in 1869. Bradlaugh’s connection with maintenance, however, derives from a later incident after his election to the House of Commons in 1880 when he refused to take the oath, asserting a right to affirm, and was in consequence expelled by the Serjeant-at-Arms. One way to exclude Bradlaugh from the House would be to see him disqualified as a convicted criminal and his opponents tried to use private prosecution for blasphemy as a means to this end, but Bradlaugh was acquitted (Walter 1990:49–51). In the same year, Newdegate, a fellow MP, learning that Bradlaugh had taken part in the proceedings of the House without taking the oath, procured Clark to inform against him. Clark sued for a penalty in the King’s Bench in terms of the Parliamentary Oaths Act 1866 which made this an offence subject to a ‘penalty of £500, to be recovered by an action in one of Her Majesty’s Courts at Westminster’. The manoeuvre failed when the House of Lords ruled on appeal that Clark had no interest sufficient to sue for a penalty and, when it emerged that Newdegate had undertaken to indemnify Clark against any costs incurred, Bradlaugh was able to take his revenge via an action for maintenance against Newdegate (Bradlaugh v. Newdegate (1883)). But was this maintenance? The Chief Justice, Lord Coleridge, thought that: the doctrine of maintenance is not confined to civil actions, and, if this [i.e., Clark’s prosecution] be legal, it will be legal to agree to pay the expenses of anyone who will indict another for the misdemean-our of non-compliance with any Act of Parliament. Lord Coleridge went on to state that any agreement to share the penalty would be champerty. Although this is not a conclusive precedent, because the statutory ‘informer’ procedure fell between the criminal and civil, it does cast new light on the 1821 debate, suggesting that a prosecution society might, after all, be guilty of maintenance and champerty. Stephen’s definition of maintenance as ‘the act of assisting a party in any legal proceedings, is also wide enough to embrace criminal proceedings (Stephen 1883:234–40). On the other hand, another leading legal historian and scholar, Sir Percy Winfield, later took the view from the coolness of his scholar’s study, that maintenance and champerty had never applied to criminal proceedings. Winfield reached this conclusion a little reluctantly because he was relying on a late nineteenth-century case whose reasoning he found unconvincing (Winfield 1921b:4–6). The argument was that someone who has been prosecuted and is later acquitted has a remedy in the shape of an action for ‘malicious prosecution’; therefore an action for maintenance is unnecessary (Grant v. Thompson (1895)). The trouble with this argument is that, as anyone familiar with the common law knows, it is neither tidy nor logical; overlapping remedies frequently exist and, indeed, are not

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necessarily undesirable. Again, malicious prosecution is much harder to prove than maintenance, as the plaintiff has to show that it was ‘malicious’ and ‘unreasonable’ to prosecute him which effectively rules out any action if he has been convicted. To summarise, the fact that the Vice Society’s activities went virtually unchallenged suggests two things: first, that Stephen was correct in seeing prosecution as essentially a private right exercisable by a group of individuals as well as a single person; second, that Stephen’s definition was too wide and that maintenance and champerty applied only to the civil law. Thus Brougham was probably right in thinking that the Vice Society’s activities, however undesirable, were strictly legal. The Vice Society had defended itself against charges of oppression with the argument that it represented the most appropriate medium for prosecution in a free country. The government could not easily undertake such a role without meeting accusations of restricting civil liberties; indeed this was precisely the line taken by the Home Secretary and other authorities in several of the cases we have described. Individuals, on the other hand, might fear to intervene for fear of becoming an object of hatred or ridicule like the unfortunate Reverend J.Bee Wright, a member of the Lord’s Day Observance Society (LDOS), who became so unpopular through his efforts to prosecute sabbath-breakers that he was forced in 1871 not only to cease his activities but to leave the area. Group action was seen as a protection against retaliation (although the fate of the original Reformation Society shows that revenge could extend to groups). A sabbatarian meeting was broken up in Carlisle in 1839 and one intervener shouted that sabbatarianism meant ‘fear God, honour the Queen, and work for your tyrants’ (Harrison 1967:109). After a similar experience, the National Sunday League was warned by the Home Secretary that it was playing a dangerous game. Lord Shaftesbury, its president, also had to warn an annual general meeting of the possibility of ‘mob violence’ (Harrison 1967:98). So although its nuisance value was undoubtedly considerable, the Vice Society’s prosecution strategy was unable to stimulate that ‘growth of social responsibility’ at which it aimed. The climate of public opinion was against the moralists, as the failure of its sympathisers in the Commons to carry the Society’s many proposals into law indicates (Hind 1987:324). Finally it dwindled into insignificance and its successors preferred less aggressive strategies. The Lord’s Day Observance Society, for example, was apparently ‘strangely indifferent’ to its potential role as law enforcer, though the symbolic value of the statute book seems to have been appreciated: ‘Better it is to have the laws of our Statute Book witnessing against Sabbath desecration even if their penaltiesshould notbe enforced’ (LDOS 1836, cited Harrison 1974:310). The late Victorian Temperance Movement also saw its role as educational; rather than prosecute drunkards, it aimed to provide ‘wholesome recreation’ in temperance halls (Harrison 1967:107).

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LIBERTARIAN PURITANS Josephine Butler, a significant figure in campaigns against the exploitation of ‘fallen women’, also preferred direct action to ‘pressure through law’. Butler was a friend of John Stuart Mill and shared his libertarian views, believing that the state should play no part in ‘checking profligacy’. Her first campaign, which grew out of her work for the reformation of prostitutes, was against the Contagious Diseases Acts. Because they provided for the forcible arrest and physical examination of prostitutes, ostensibly to halt the spread of venereal disease in the armed forces, Butler saw the Acts both as an incursion on the civil liberties of women and an incitement to immoral behaviour by men. The National Committee for Repeal of the Contagious Diseases Acts (NCRCD) was set up in 1877 to fight for total repeal. Butler and her supporters addressed public meetings, wrote pamphlets, lobbied MPs and put up ‘abolitionist’ candidates at by-elections (Butler 1954:80–106). On one occasion at least, as her testimony to the 1871 Royal Commission indicates, Butler did write to the 1871 Royal Commission officials and ministers concerning an individual case, though she professed herself dissatisfied with the result (C. 408–1 (1871):440– 41). Otherwise the NCRCD showed no interest in monitoring the Acts, in providing legal defences for women who were taken up or fighting test cases, all of which would have been possible alternative courses of action. Called to give evidence, Butler said that she could not inform the Commission on the operation of the Acts: ‘It is nothing to me whether they operate well or ill’ (C. 408–11 (1871):438). And when the ‘London Committee for Suppressing the Traffic in British Girls’ did show interest in prosecuting prostitutes and brothel-keepers as part of the developing campaign against ‘White Slavery’, Butler told them firmly that they should prosecute only procurers (Moberley Bell 1962:182). Their only attempt was not very successful. To draw attention to the implication of leading society figures in the trade, an ex-policeman was called to give evidence against a notorious Chelsea brothel-keeper who was charged under a private warrant with keeping a disorderly house. She pleaded guilty, the small fine imposed was paid by a client and, to the sponsors’ disappointment, the case received minimal publicity (Bristow 1977:106–7). It is interesting to compare Butler’s NCRCD with a very similar campaign fought by the National Anti-Compulsory Vaccination League (NACVL) for repeal of the Vaccination Acts, in which a defensive legal strategy did play a part. The NACVL had been set up in Cheltenham by the Revd and Mrs William Hume-Rothery in 1871 to co-ordinate opposition to the Vaccination Acts of 1867 and 1871 which made vaccination compulsory. The Acts were unpopular with many parents who were not convinced of the efficacy of vaccination and were worried about dangerous side-effects (a worry which, in the context of whooping cough, is still very much with us today). The Acts allowed local Boards of Guardians to take parents before the magistrates in respect of refusal or neglect to vaccinate any child. Worse, the Acts contained

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no escape clause for conscientious objection, even though the medical profession was unable to demonstrate that vaccination was risk-free. Magistrates and judiciary alike so consistently showed themselves to be squarely behind the public health authorities that the spate of prosecutions, together with the swingeing penalties imposed, drove the NACVL to take action. Local branches in areas with active Boards began to pay the fines of their convicted members. Then the Cheltenham group introduced a remarkable innovation. It started the League Mutual Protection Society, a combined legal defence and insurance association to which all anti-vaccinationists could subscribe at a rate of 5s. per person where the parent had been fined within the first six months of membership. In the first two months of its existence, the fund paid out £18 1s. Id. in fines; four months later, in March 1875, this had risen to £188. It is worth noting that, although the magistrates did not always allow the League to pay its members’ fines, its activities were never challenged under the doctrine of maintenance, though they do fall squarely within Stephen’s all-embracing definition. Like Butler, the NACVL finally won repeal through determined use of political pressure: lobbying, propaganda, promotion of Private Members’ Bills, refusal to obey the law. Repeal came in two stages after the Liberal landslide of 1906 brought more than 100 signed supporters of the NACVL into the House of Commons and with it came the end of the League and its innovative, mutual insurance strategy (MacLeod 1967:123). The League provides us with a model of legal assistance which was to become increasingly familiar in the modern membership society which provides specialist legal advice as one of its services. The Automobile Club, founded by Frederick Simms in 1897, actually took its first step in this direction in 1900 when it founded the Motor Vehicle Users’ Defence Association, annual subscription £1, to defend members who found themselves up on speeding charges. Every member was entitled to free advice and could then be referred to a local solicitor. Provided the advice was followed, the Club might help with costs in an appropriate case. The Club itself would act in all cases involving a ‘question of principle’ and would then meet the costs (RAC Journal, 30 December 1909:645). Today the RAC and AA provide a more sophisticated version of this service and many other organisations have followed suit. VICE AND VIGILANCE It was Butler’s second campaign against the ‘White Slave Trade’ which was to involve her indirectly in a brush with the criminal law. Amendments to raise the age of female consent from 12 to 16 had passed the Lords in 1883, 1884 and 1885; the problem was to get them through the Commons. Butler and Benjamin Scott, Chairman of the London branch of Butler’s Committee for Suppressing the Traffic in British Girls, approached W.T.Stead, a crusading

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journalist and editor of the influential Pall Mall Gazette for help. It was Stead who set up the notorious publicity stunt whereby Stead was to ‘purchase’ a young girl from her mother, ostensibly for the purposes of prostitution, though in fact the girl was immediately transferred to the custody of Salvation Army workers. Stead set about his scheme with the help of Butler’s protégée, Rebecca Jarrett, a prostitute ‘reformed’ by the Salvation Army. Unfortunately for Stead, the scheme backfired when the father appeared out of thin air and complained to the police, who prosecuted Stead and Jarrett (given the stiffer sentence) for illegally removing the girl from his care.3 The Stead case did help to secure the passage of the Criminal Law Amendment Act 1885, which not only raised the age of consent to 16 but in addition made procurement a criminal offence and raised the penalty for assault on a girl under the age of 13—more than the campaigners had originally been seeking. But the real interest of the case for us lies in the fact that a ‘reactive’ experience of the criminal law led directly on to a ‘proactive’ law enforcement policy from the Act’s sponsors. The National Vigilance Association (NVA) came into being in 1885 with the personal backing of the exuberant Stead. The organising secretary was William Coote, a zealot who was to devote the best part of his life to a crusade against ‘white slavery’. Josephine Butler was amongst the notables on the council though, as the NVA grew more repressive, she found herself increasingly out of sympathy with its aims. The NVA’s original objective, expressed in its title, was to be ‘the repression of criminal vice and public immorality’ and appropriately, since it started operations with the sum of £50, which was all that remained in the coffers of the defunct Vice Society, it chose at first to operate as a law enforcement group. To the NVA, its early efforts were not properly appreciated; as Coote wrote in 1907, courts and press joined together in hostility, losing ‘no opportunity of trying to discredit its work in the public mind’ (Coote 1907:2). But the NVA persevered with a policy of regular prosecution in magistrates’ courts, bringing testcases to the High Court where the law seemed unfavourable: it was the NVA, for example, which established that it was criminal for a married man to seduce a young woman with a promise of marriage which he could not fulfil (Coote 1907:6). The Vice Society’s role of cleansing society from pornography was continued with a crusade against French literature. The successful prosecution of Henry Vizetelly for publishing Zola, Flaubert and Maupassant exactly mirrors the earlier prosecutions of Benbow and others, ending in similar fashion with a pitiless prison sentence for the ailing and elderly bookseller (St John Stevas 1956:78–83). Art, advertising, the rnusic hall, postcards and photography came under the NVA’s vigilant scrutiny. Legal campaigning ran alongside well-organised parliamentary lobbying; ‘Stead’s Act’ was toughened with amendments and a series of statutes criminalising sexual practices considered deviant by the moral reformers secured.

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The fortunes of the NVA naturally fluctuated over the long period of its operation, but it was generally well-placed through influential friends to operate on several fronts at once. Relations with senior police officers were cordial and a close working relationship was also developing. For example, in rape cases NVA agents often interviewed the complainant and might collect further evidence before handing the case over to the police (AR 1896). At least one Attorney-General was a good friend, and Archibald Bodkin, who became Director of Public Prosecutions (DPP) in 1922, had previously been the NVA’s favourite counsel (Bristow 1977:224). At regional level, private prosecution was a major interest; the London branch, for example, was handling up to 200 prosecutions annually during the 1890s, and the Hull branch was also actively prosecuting in magistrates courts. In a House of Commons debate on a motion set down by Samuel Smith MP (an NVA Council member), and timed to coincide with the Vizetelly prosecution, the Home Secretary was urged to order greater vigour by prosecuting authorities in cases of obscenity. In reply, the Home Secretary stressed the duty of concerned individuals like Smith to assist the authorities by providing factual evidence (Hansard, Series 3 vol. 325. cols 1707–17). In fact the NVA already had this well in hand. The DPP’s office had been set up in 1879, and from 1887–1915 the annual reports tabulate those cases actually conducted by the DPP or his agents (List A) and all complaints made by the public to the office (List B) (Edwards 1984:378). The name of Vizetelly appears twice: first in the ‘A’ list, where a successful prosecution is recorded as resulting in a fine, the second time in the ‘B’ list, when the Attorney-General was consulted and declined to intervene. On both occasions, the complainant was Samuel Smith MP, who, it is recorded, proceeded in the second case with a successful private prosecution (1889 61 Parl. Papers (NS): 137). Prominent amongst the groups listed are the NVA and the fledgling Society for the Prevention of Cruelty to Children.4 The creation of the office had opened a new ‘window of opportunity’ which these two groups had learned to exploit, quickly becoming ‘repeat players’ in the game of pressurising the law enforcement officers to adopt a stern prosecution policy in their chosen areas of obscenity and cruelty. ‘A VISION AND ITS FULFILMENT’ The primary objective of the NVA as recorded in its constitution in 1887 was the protection of women and girls from sexual exploitation and more especially from prostitution. At national and later international level this aspect of the NVA’s work (which incidentally overlapped with that of Josephine Butler and the International Abolitionist Federation (AFI) with which Josephine Butler worked after 1875) absorbed much of the NVA’s time, together with the considerable energies of William Coote.

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Coote’s activities are not the first example of international networking and co-operation by pressure groups: the anti-slavery movement necessarily operated on a transnational basis from early days, and suffragism, too, was a cause which transcended national boundaries. Where these late-Victorian organisations differed was in their ability to set up genuinely international machinery to co-ordinate the work of national committees and provide them with a mouthpiece. Again, the NVA, AFI, and AntiSlavery Society all remained in business long enough to work with the new international organisations which emerged after the First World War. Both Coote and Butler were indefatigable travellers in support of their mission, and Coote’s organisational powers and insistent lobbying of notable figures in foreign countries enabled the NVA to take off at international level. Coote was able to stimulate the founding of several National Committees, often with government support. By 1899, he was in a position to promote an international congress in London at which the International Bureau, described in its constitution as a ‘permanent international organisation for perfecting and bringing into effect the work of the Congress’, was founded to operate from London. The Bureau’s main function was to co-ordinate the efforts of national committees and use the force of international public opinion to bring pressure to bear on national governments, but a more ambitious long-term aim was to see ‘white slavery’ prohibited by international law. The first step towards realisation of this ambition came relatively fast when Coote’s negotiations with the French government led to official conferences in Paris in 1902 and 1910. At the conferences, agreements were drawn up on the suppression of procurement of women and girls for immoral purposes abroad to be ratified by national governments (Coote 1910:140–7). In the inter-war period the emphasis changed: the Bureau worked with the League of Nations to secure international conventions, the first of which were signed at Geneva in 1921 and 1933 (162 Revue Abolitionniste 1957). After the Second World War, the AFI was granted consultative status by the United Nations Organisation and was able to participate in the drafting of a new Convention on the Suppression of Traffic in Persons adopted by the United Nations Organisation in 1957. Finally, the NVA sank from sight. Its role in combatting the exploitation of women for the purposes of prostitution was taken on by the Anti-Slavery Society. We shall pick up this story in Chapter 6. PROTECTING THE HELPLESS It is hardly surprising to find that, at the start of the nineteenth century, there was virtually no animal welfare legislation on the statute books (the exception being a single Act regulating cattle slaughter). A first priority was, therefore, to change this situation. Legislation of this type no doubt seemed outside the remit of nineteenth-century governments but there was no shortage of willing hands. In addition to veteran reformer William Wilberforce, an Irish MP,

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Richard Martin, was a founder member of the first London protection society and it fell to him in 1822 to pilot a Bill against cruelty to cattle through the Commons while Lord Erskine, a recurrent name in these pages, did the same for the Lords. (Incidentally, there is a depressing sameness about this picture. The standard modern cruelty legislation, the Animals Act 1911, was drafted and piloted through Parliament as a Private Member’s Bill and even today, when animal welfare is an important public issue, the initiative remains largely non-governmental.) The primary aims of the Society for Prevention of Cruelty to Animals on its foundation in 1824 were educational and included the publication of a series of tracts. Soon, however, the Society was able to establish its own inspectorate for the inspection of slaughterhouses and coaching stables. Parliamentary intervention then opened for it a law enforcement role similar to that of the Vice Society (in practice one of its progenitors) and the new Society was soon prosecuting regularly (Harrison 1967:102). Not only did the Society urge law enforcement on the appropriate authorities but it also set about building its own private law enforcement force in the shape of an inspectorate which was to increase from two full-time employees in 1825 to 125 in 1897 and set the pattern for the work of the RSPCA5 ever since. At first the RSPCA allowed its inspectors to take one-half of the penalty imposed in any successful conviction; not surprisingly perhaps, they found awareness of this made magistrates unwilling to convict and by 1840 the practice had to be ended (Moss 1961:59). The number of prosecutions rose steadily, doubling in every decade from 1830–9 when there were 1,357; between the years 1890–9, the figure had risen to 71,657—and the Society’s prosecution policy was highly successful. By 1849, its failure rate in the courts seems to have been much lower than that of the official police (Harrison 1973:807). The secret of success lay in centralisation; all decisions to prosecute were taken at the centre. The first General Secretary, John Colam, conducted all difficult and important cases, especially test cases, himself. He was usually successful; although not a lawyer by profession, he apparently had a natural talent for advocacy and was once told that, if he had selected the law as a profession, he would have risen to the top of the tree. Colam regarded the legal side of the Society’s work as of such importance that, on his retirement in 1905, he asked to be replaced by a solicitor (Harrison 1973:807). But, successful as it was in one way, in others the policy had a negative effect. The formidable number of arrests produced by the end of the century led to resentment and to accusations similar to those levelled at the Vice Society that the RSPCA victimised the working classes, ignoring the offences of the wellto-do. From time to time their inspectors bore the brunt of this in the form of violent attacks (Harrison 1973:795). It was hard for the RSPCA to disprove these criticisms; it did after all overlook foxhunting to concentrate on bullbaiting and ill-treatment of farm animals and cab horses. In sharp contrast, the National Society for the Prevention of Cruelty to Children was able to show

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that child abuse was not a purely working-class vice by reference to its prosecution record and so more easily dispose of the charges (Allen and Morton 1961:28). It is hardly surprising if the operations of the infant NSPCC (for convenience we shall keep this abbreviation throughout) resembled those of the RSPCA since there were close links between them. Inspired by an American precursor, the NSPCC was founded after an address made by Thomas Agnew to the Liverpool RSPCA. At the opening meeting, members’ attention was drawn by Samuel Smith, the Liverpool MP whose enthusiastic participation in NVA activities has already been recorded, to the patent inadequacies of a system of law enforcement which possessed no ‘Public Prosecutor’: Little children cannot conduct a prosecution themselves and may be beaten or starve almost to death in the present state of the law, without any person being empowered to take up their case. We have no-one legally constituted so to speak to be their protector. The society will, I presume, appoint an agent…who would be ready to institute proceedings where necessary. (Brack 1983:15) Though it remained a ‘casework’ group by preference, the NSPCC did appoint an agent and was also from the outset aware of the uses of lawyers in its work. The Liverpool chairman was always a lawyer and usually a magistrate, which enabled the Society to call defaulting parents before it for ‘remonstration and persuasion’ before resorting to prosecution. After the foundation of the London branch in 1884 by the Revd Benjamin Waugh in conjunction with Baroness Burdett Coutts and Lord Shaftesbury, and its transition five years later into a national society, a legal department was constituted and became the sole judge of the need to prosecute. Here again the RSPCA gave the lead; not surprising, as there were still close links. The NSPCC met in RSPCA headquarters and there was significant overlap in staff and membership. John Colam sat on the NSPCC executive committee and his son Robert acted as its general counsel (Behlmer 1982:67–8). Later, after the NSPCC’s work became well-known and was beginning to be effective, it was argued that its inspectorate could be wound up and its functions transferred to the police with whom it had for many years been working closely and harmoniously. The Home Secretary, Mr Asquith, disagreed, saying: There are persons who appear to think that the functions of the police and of the Society are overlapping and even conflicting. This is a great mistake. The main function of the police in this country is to maintain

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order and to punish crime. The object of the Society is first and foremost not to detect and not to punish but to prevent crime. (Allen and Morton 1961:25) This view of the Society’s dual role and unique contribution to child welfare was confirmed in 1895 in its Royal Charter which directs it ‘to prevent the public and private wrongs of children’ and to enforce the ‘law for their protection’. The NSPCC’s early history provides one interesting example of a test-case strategy. When in 1884–5, they were asked to rnake recommendations to Parliament with a view to new legislation, Waugh and the London branch, with the aid of their legal advisers plus the unofficial advice and assistance of the then Attomey-General, drafted a well-planned Bill using as precedents clauses in existing Acts. When the Bill was introduced, Waugh circulated 10, 000 copies of a pamphlet on the problems of ‘street children’ together with a twelve-page letter to every MP. Hand-in-hand with this expert publicity campaign went a different kind of lobbying: the NSPCC deliberately set out to point up inadequacies in the existing law by prosecuting several cases which they thought likely to fail. The tactic paid off. A Bill which many MPs had thought so revolutionary that it would take ten years to pass, in fact passed both Houses in ten months (Brack 1983:46–7). In 1889, the RSPCA threw off a second offshoot in the shape of the Royal Society for the Protection of Birds, founded by Montagu Sharp. By 1893, the RSPB was working jointly with the RSPCA to promote protective legislation which, through the efforts of the RSPCA, had been reaching the statute book in the last quarter-century. Unlike its progenitor, it moved into law enforcement only in the present century, probably because it works mainly in protecting habitat and species, leaving cruelty, where legislation reached the statute book far earlier, to the RSPCA. Today its small but efficient law enforcement section carries on a tradition established by the NVA in working closely with police forces at home and on the continent (i/v RSPB 1988) and has come to be seen by them as a specialist in its chosen area. As we shall see in Chapter 5, the RSPB has played a special part in drawing the attention of police and prosecutors to the need to enforce protective legislation. We shall find the modern RSPCA prosecuting regularly although it prefers to leave serious cases (charges of dog fighting, for example) at least nominally to the police, standing behind them with expert advice and providing evidence. The special status of the NSPCC received legislative endorsement in 1904 when NSPCC inspectors were first given a statutory power, which they still possess, to act in their own right when taking endangered children to a ‘place of safety’. These powers are not replicated for RSPCA inspectors who need police support for entry or arrest (Line v. RSPCA and Marsh (1902)). Today the NSPCC uses prosecution sparingly; in the last few years, for example, it has brought no prosecutions at all (AR 1988, 1989). It is, however, active in the specialist area of care and protection; in 1989 it secured 145 ‘place of

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safety’ orders in respect of 212 children, together with 98 care and supervision orders. The NSPCC may also act as agent for local authorities. These three voluntary organisations stand as a constant reminder of the groups which played so large a part in law enforcement throughout the nineteenth century. They are the pattern of the respectable voluntary organisation. They have many friends in high places and their royal charters and patronage attest to the special place which they occupy in British life. OPEN SPACES AND THE COUNTRYSIDE MOVEMENT Groups which today tend to be lumped together under the generic title of ‘Green Movement’ or ‘Environmental Lobby’ began to come into being in the nineteenth century and grew rapidly as the countryside came increasingly under threat from urbanisation and industrialisation. Lowe and Goyder (1983: 16 and Figure 2.1) note the foundation of at least ten such groups in the period 1880–1905. Many nineteenth-century groups (such as the Society for the Preservation of Ancient Buildings, founded in 1877 by William Morris, Ruskin and Burne-Jones; the Coal Smoke Abatement Society, now the National Society for Clean Air; the Garden Cities Association, now the Town and Country Planning Association) are still in existence. Membership overlapped extensively: for example, the housing reformer Octavia Hill, a member of the Commons Preservation Society, founded the Kyrle Society to provide ‘open air sitting rooms for the poor’ by reclaiming derelict graveyards and other small areas of metropolitan wasteland and turning them into gardens. Sir Robert Hunter, her honorary legal adviser, was Vice-President and Honorary Solicitor of the Commons Preservation Society. With Octavia Hill and Canon Rawnsley (an NVA activist), Hunter was active in founding the National Trust (NT) in 1895. In its early years, the NT openly exercised a ‘propagandist and campaigning role’ which it later abandoned, and participated with the Commons Preservation Society in campaigns to save Stonehenge (see pp.50–1), prevent the enclosure of Hampstead Heath, and prevent the degradation of Snowdon by the construction of a railway. Its main object, however, was always the purchase of large tracts of countryside for traditional uses. The NT’s first Secretary, Lawrence Chubb, later Secretary of the Commons Preservation Society, was on the Committee of the Council for Rural Amenities, today the Council for the Preservation of Rural England, when this was founded in 1926. Even the Ramblers’ Association, a members’ group of a somewhat different type, did not escape Sir Robert’s pervasive influence; in 1905 he became the first President of the Federation of Ramblers’ Societies which met in the Temple premises of the Commons Preservation Society (CPS Proceedings 1904:9). Thereafter, there were close links between the groups. In this way, a few dynamic people were able both to

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carry their policies into, and lend their expertise to, a number of diverse organisations and so leave their imprint on the modern environmental lobby. The Commons Preservation Society was founded in 1865 by Shaw Lefevre (later Lord Eversley), a Liberal MP and barrister who had intense feelings on enclosure and was to devote much of his life to fighting it. His interest grew out of membership of a Select Committee set up to review a private Act of Parliament enabling Lord Spenser to enclose and sell off as building land parts of the Putney and Wimbledon commons, over which he held manorial rights. The first objective of the Society was to save Putney and Wimbledon commons but its interests rapidly spread. The techniques pioneered in Wimbledon, Putney and Ham were used again to save Hampstead Heath, Waltham and Epping Forests and Tooting Common. Later campaigns saved Ashdown Forest, the New Forest and the Forest of Dean. The Society made its impact through a legal campaign to assert the ancient, common law right of ‘commoners’ to use land for common agricultural purposes such as grazing cattle or collecting wood which still exist in many parts of England. (The New Forest and Greenham Common are probably the best-known examples.) It was not the first group to do this; in 1813, to give one example, a group calling itself ‘The Bachelors of Windsor’ successfully opposed the enclosure of a field in the centre of Windsor customarily used for recreation (see New Windsor Corporation v. Mellor (1975)). It was, however, larger and less local and used the common law more consistently than earlier groups. It had from the outset ‘plenty of work on its hands’ and little money in its coffers, having been started with donations of £1,400 or so plus annual subscriptions of about £500. But the Society was exceptionally lucky in its lawyers. In addition to Lefevre and Hunter, Baron Pollock was a member while still at the Bar. The first, very able, Honorary Solicitor was Philip Lawrence, an eminent London solicitor resident in Wimbledon, to whom the Society had reason to be grateful, not only because his firm carried out its legal business but also because of his flair for selecting the standing counsel retained to advise and fight the Society’s cases. The excellent legal advice which the Society was able to offer soon gathered a reputation; when the City of London Corporation agreed to front the Epping Forest case, they preferred the Society’s indomitable Robert Hunter to their own lawyers (Lefevre 1910: 91). The Society had an astonishing record of success in litigation. To its founder, losing was a personal insult; favourable judges are described in his memoirs as ‘great’, those unfavourable as ‘biased’. Its preferred strategy, developed by Lawrence at an early stage, was proactive: wherever possible the Society would take the initiative in the civil courts. It was at this time possible to choose whether to proceed in Chancery or the common law courts of Queen’s Bench and there was an excellent reason for indulging in this early version of ‘forum shopping’: in practice cases set down in the Courts of Equity came on before Sirjohn Romilly and Sir George Jessel, both of whom were known to

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sympathise with the Society’s views. Eversley later noted the importance of educating judges in the common law courts ‘to depart from their attitude which, hitherto, had strongly favoured in closure, and to reach a new attitude helpful to the plaintiffs… reviving the much earlier legal presumption in favour of the commoners’ (Lefevre 1910:30, 101–2; Williams 1965:4–5). Like the Proclamation Society and the NVA, the Commons Preservation Society benefited from friends in high places. The Society’s preferred method of working was as follows. At the threat of enclosure, a local society would be formed to raise funds. Commoners, preferably ‘public-spirited men of substance’ (a definition wide enough to include the City of London Corporation in the Epping case) would be nominated as plaintiffs in potential litigation. The Society’s role was to advise and support. There were several advantages to this technique. On the one hand, the Society was able to sidestep technical questions as to standing to sue which are often a serious problem for groups (see Chapter 3) and avoid charges of maintenance while maintaining the credibility due to a representative local group. On the other hand, it was able to keep a measure of control over the proceedings. This was essential. Local committees were necessarily inexperienced and might be caught on the wrong foot. In one incident, the CPS had arranged for a local villager to break the lock on an obstructed right of way. This he did when the gate was open, exposing the CPS to a successful prosecution by the landowner in which it had to meet both sides’ costs—an unnecessary and expensive but not unique mistake (AR 1885– 6 No.2:8–9). A further reason to keep a grip on proceedings was that local settlements might damage the test-case strategy. After the Hampstead Heath suit had been settled by an offer by the Metropolitan Board of Works to buy the land, Lefevre complained that: Mr Gurney Hoare and the Commoners were…satisfied if their own Heath was preserved to them. They were not interested in the more general question of Commons…it would have been preferable, in the interest of all other cases, that the suit should have been brought to issue, and a judgment given on the rights of the Commoners. (Lefevre 1910:37–8) But the participation of local landowners and committees was necessary for the further reason that it provided some security for the costs other than the dangerously uncertain method of a public appeal. Costs could be enormous. An early Annual Report regrets the unfortunate outcome of a case in which a jury disagreement necessitated a new trial after litigation had already cost £15, 000, of which £3,000 was met by Bootle Council. Not surprisingly, this Report concludes by explaining that the CPS is always ready to advise the public and, if appropriate, to make a contribution to costs but the ‘one thing

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the Society cannot do is to fight actions…the funds of the Society would not permit it’ (AR 1898–9:20–3). The resources available to the powerful opponents whom the Society had often to take on made the danger from costs particularly acute. The Barnslake right-of-way case, fought after the Commons Preservation Society had joined forces with the Footpaths Preservation Society, was one in which it took particular pride. This affair started when the Great Western Railway (GWR) tried to block an ancient short cut over GWR land by staging a deterrent prosecution for trespass under its by-laws. This action was fought tenaciously through several courts to the point at which a judge told the GWR that ‘the money spent in litigation would have provided a bridge for all concerned’ (AR 1888–9:37). Undeterred, the GWR appealed unsuccessfully to the Court of Appeal and House of Lords. Even though the GWR had to pay the taxed costs, the Commons Preservations Society was £500 out of pocket. The GWR shifted its campaign to Parliament, introducing a private bill to overturn the courts’ decision and close the right of way (AR 1889–90:30; 1898–9:20–3). THE DEATH OF MAINTENANCE The Commons Preservation Society was rapidly becoming a specialist ‘repeat player’ and to have put it out of action, bringing to an end its sophisticated, centralised and coordinated ‘test-case strategy’ would have been a victory in itself. We have already said that only someone ‘directly affected’ or whose ‘legal rights’ were in issue could sue at common law; clearly, the national Commons Preservation Society could not bring themselves within this definition. Moreover, since anyone who in any way supported litigation was guilty of maintenance, the Commons Preservation Society was in danger even if it was operating—as we know it always did—behind a genuine plaintiff. Why was it never successfully challenged? The answer is that it was lucky. The argument was used by the GWR in the Barnslake case, but counsel was able to persuade the Court of Appeal that the litigation was actually maintained by the ‘subscriptions of the poor people in the neighbourhood’, a rather tenuous argument in view of what has just been said. There was, however, another escape route. At common law, a kindly backer who, like Mrs Banks in the slavery test cases, paid someone’s costs, might be able to plead ‘charitable purpose’—here the desire to ‘assist a poor man to obtain justice that would otherwise be beyond his reach’. For similar reasons, professional lawyers were generally exempt from proceedings for maintenance and champerty and were allowed (as we have already seen Dunning and Erskine do) to give their services gratuitously. Groups as well as individuals could claim the charitable defence; if, for example, a pressure group paid for the defence of one of its members in a test case or if a member who was legally qualified gave his services to another member, this would not be actionable unless they tried to recoup their fees or costs from damages, in

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which case the agreement would be champertous. During the nineteenth century, judges, who were clearly beginning to regard the old torts as obsolescent, allowed this limited defence to develop into a claim of ‘public interest’. Establishment of this new defence was a minor victory for the Commons Preservation Society in the Walton-in-Gordano case where CPS backing for local commoners was saved by precisely such a ruling from Mr Justice Wills (Hunter 1896:182). It was the ‘public interest’ defence which made it possible, as maintenance came to seem increasingly irrelevant to a society fast moving towards the era of legal aid, ‘to mould the older law of maintenance in such a way as to give expression to the needs of the modern community’ (Winfield 1921b:69). The judges took an altogether sterner attitude to champerty, however, on the somewhat spurious ground that ‘charity… must not and, indeed, cannot be mercenary’, and at the end of the nineteenth century, as legal aid societies began to be formed to help working-class victims sue in industrial injury or traffic accident cases, we find the doctrine invoked successfully against them.6 Here we are looking at the origin of the English rule against ‘contingency’ or ‘contingent fees’, whereby lawyers agree to fund litigation and recoup themselves from the costs. This rule is still in force and we shall see that it is very significant in the funding of group actions which we discuss in Chapter 3. Two leading twentieth-century cases sounded the death-knell of the ancient torts. The first involved a newspaper, the London Express, which was acting rather as a modern pressure group often does in searching out clients willing to bring test cases. The Express became involved in investigating the suspicious activities of a property speculator and encouraged readers to litigate with its financial support. The speculator retaliated with a civil action for maintenance against the paper but the House of Lords cut back the antiquated tort by effectively confining it to cases vvhere the original action had failed.7 The second case was much later in date and fought by the Anglers’ Cooperative Association (ACA), a group formed specifically to protect anglers’ interests by fighting test cases, whose litigation strategy is further described in Chapter 4. As in the Barnslake case, a local angling club and one of its members joined to fight a test case over the pollution of the river Derwent near Derby and the ACA agreed (as it invariably does) to indemnify them against costs out of its central fighting fund. The defendants, a powerful manufacturer and Derby city council, asked the court to strike this action out for maintenance. On the face of things the ACA was in trouble; the case did not fall within the ‘charitable purpose’ exception since the plaintiff was not impoverished and the national ACA technically had no ‘interest’ in the proceedings. Fortunately for the ACA, the Court of Appeal applied the ‘public interest’ defence, ruling that it was proper for the ACA to assist its members ‘with any funds at their disposal’ (Martell v. Consett Iron Co. (1955)). The judges had effectively killed maintenance, even if technically the ancient action lingered on until both maintenance and champerty were abolished more

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or less inadvertently in a tidying-up effort by the Law Commission in the Criminal Law Act 1967. WIN SOME, LOSE SOME The Commons Preservation Society never backed obvious ‘losers’ and prized its reputation for being right because of the advantage which it gave in negotiating. By 1897 it was congratulating itself that ‘the knowledge that the Society has given its opinion on a case admitted to it is often sufficient to arrest the action complained of and to prevent litigation’ (Report, 1893–6 (1897):7). Seven years later, when it was in a much stronger position, it was recording its pleasure at a new, arbitral role, having been approached by landowners and local authorities to arbitrate disputes on a number of occasions, ‘in every case with the happiest results’ (AR 1904:5–6). The very next year, however, its complacency was to suffer a serious setback. The Stonehenge case (A-G v. Antrobus (1905)) is mournfully described in several of its publications as ‘the greatest case the Society ever lost’. The affair commenced in 1899 when Sir Edward Antrobus, on inheriting his father’s estate, opened negotiations to sell Stonehenge to the government for £125,000, a sum then considered extortionate. When negotiations broke down, Sir Edward fenced part of the monument and erected a kiosk for the collection of entrance fees, effectively depriving the public of access to a number of established tracks which ran across the land. The Commons Preservation Society, consulted for a legal opinion, took the view that a public right of way existed and, in order to obviate problems of standing to sue, decided to ask the Attorney-General to authorise a relator action, a form of procedure more fully described in Chapter 3. A successful appeal for funds was accordingly made and when Sir Edward refused the Society’s offer to purchase, proceedings commenced with Professor Flinders Petrie, Sir John Brunner and Lord Eversley acting as relators. The case went badly from the start, when the judge, Farwell J, took the line that Sir Edward had been forced to erect the fence to protect the monument from damage done by the public. He went on to hold that no public right of way could exist because nobody since 1826 had been legally entitled to dedicate one. The Society could not leave a ruling so detrimental to the successful establishment of any public right of way but the obvious avenue of appeal had to be rejected for two reasons: first, the judge’s findings of fact were so ‘biased’ against the relators that it seemed impossible to secure a favourable ruling on the law from the Court of Appeal; second, there was no more money. Sir Edward’s taxed costs had been about £2,250, those of the relators £1,650, the guarantee fund only £1,500; the costs could be met only because the Society’s solicitors waived their fees and two of the relators paid the outstanding bills. In this dilemma, the Society turned to Parliament, drafting a Public Rights of Way Bill designed to reverse the decision by providing that

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thirty years’ uninterrupted use should create an almost irrebuttable presumption of a public right of way. Introduced by Mr Paulton in 1906, the Bill was blocked; in 1907, Ramsay MacDonald MP tried again with a draft which passed its Second Reading with the Law Officers’ approval but was blocked and fell when Eversley’s efforts to persuade the government to take the Bill over failed (AR 1906–7:40). In the end, the Society had to wait until 1932 for a Rights of Way Act. Usually the Society was more successful with legislation. Not only did it promote its own local, private Bills, many of which reflected its experience in the courts: for example, settlements with the landowners of Wimbledon, Wandsworth and Hampstead were incorporated into Private Acts managed by Sir Robert Hunter, now the Society’s solicitor. Hunter also drafted the National Trust Act 1907, which gave the Trust semi-public status through its power to declare its land inalienable and to make by-laws for regulation and protection of the land. Wearing his other hat, Hunter managed to insert into this Act two sections obliging the Trust to preserve common land ‘unenclosed and unbuilt on’, a sly move which led to ‘serious differences of opinion’ with the Board of Agriculture (Fedden 1968:163–6). Hunter won; he and Eversley became past masters at slipping clauses into other people’s legislation. Sometimes more general legislation seemed necessary. For example, the Commons Act 1876 was introduced by Eversley to compensate agriculturalists for hardship caused in a series of government Enclosure Acts (Williams 1965:13). Similar steps were taken by the same Members to prevent the gradual enclosure of the New Forest. This time, Lord Mount Temple was the ‘Society’s member’ of a Parliamentary Select Cornmittee which got its recommendations incorporated in the New Forest Act 1877 (Lefevre 1910:164–6). Again we would like to stress continuity. One century after its foundation, the very same Society was found lobbying for ‘valuable amendments’ to the Commons Registration Act 1965 at the Committee stage (Williams 1965:30). THE MODERN ENVIRONMENTAL MOVEMENT Today there are many more groups and societies to carry on the work started by the Commons Preservation Society and to perfect the techniques it pioneered. Since the Second World War, the total number of national environmental groups has more than doubled. Local environmental societies have also multiplied; in 1957 there were approximately 200, by 1973 more than 1,000 (Brookes and Richardson 1975:312). Many of these groups use litigation for law enforcement purposes. The Open Spaces Society and Ramblers’ Association are direct heirs of the Commons Preservation Society, using minor prosecutions and trespass actions consistently as part of their campaign to keep open footpaths and rights of way. Environmental groups have been active in the field of judicial review, forcing important changes in the law of standing, as we shall see in Chapter 3. The Doncaster Civic Trust

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finally succeeded in burying the Stonehenge precedent, when it sued to secure recognition of a public right of access to Doncaster Common which the Council was trying to close off as a private golf club (R. v. Doncaster MBC ex p. Braim (1987); Space 1987, vol. 22 no. 8:10–11). Recourse to law is not always deliberate. Environmental groups often arrive in court as defendants to a civil action by landowners for trespass. The celebrated ‘mass trespass’ on Kinder Scout in 1932 organised by the tiny British Workers’ Sports Federation ended in a magistrates’ court after public order charges were unexpectedly preferred—an unintended result (Rothman 1982). More recently Greenpeace has been sued and stood in the dock in defence of the direct action taken at Sellaileld to protest against radioactive pollution of the Irish Sea. This is a dangerous strategy which may lessen the group’s credibility and detract from its ‘respectable’ image. So in 1932, official ramblers’ groups declined to take part in the ‘mass trespass’ on the ground that it would imperil their relations with local landowners, while Greenpeace has taken steps to soften the radical image produced by its Sellafield tactics. The National Trust, with over 1 million members, tries to remain out-side law and politics, working closely with governments of every persuasion, its real function being to act as ‘the banker of the conservation movement’ and not as a campaigning group. It does not always avoid the political; in 1989 and 1990, for example, Annual General Meetings were disturbed by the contentious issue of fox-hunting, which the NT sought to deflect into Parliament, the proper place, in the Chairman’s opinion, for such a debate (AR 1990; The Guardian, 14 December 1990). The NT is not entirely above lobbying, however, and knows how to use its many supporters in the House of Lords to good effect. In 1962 it was estimated that 120 of 932 peers were members of the National Trust, a fact which came in useful when the Trust, acting in coalition with local amenity groups (Friends of the Lake District and the Ullswater Preservation Society) were mobilising support to defeat a Private Bill which had government backing to turn Ullswater into a reservoir. By a happy coincidence, Lord Birkett, one of the most celebrated advocates of his generation, was President of the Friends of the Lake District as well as Chairman of the quasi-governmental Standing Committee on National Parks. His Second Reading speech was reckoned amongst his greatest forensic performances and the Bill was defeated (Montgomery Hyde 1964:609–18). As with animal welfare legislation, much environmental legislation emanates from pressure groups, often acting through Private Members rather than government. The Civic Trust drafted the Civic Amenities Act 1967 which was introduced as a Private Members’ Bill by their Chairman and founder, Duncan Sandys MP. Lord Beaumont sponsored an ‘en-dangered flora’ Bill in 1973, professionally drafted with the help of a grant of £500 from the World Wildlife Fund (Brookes and Richardson 1975: 323). Friends of the Earth, working with a sympathetic peer, Lord Wynne Jones, got the Endangered Species Bill onto the statute book despite governmental opposition. In 1973,

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the United Kingdom finally committed itself to an international Convention drawn up by a pressure group working at the international level. This regulated the trade in endangered species, and shamed the government into supporting new legislation (Enloe 1975:294; (1973) 3 Ecologist 233, (1974) 4 Ecologist 34). Finally, in Chapter 6 we shall find the apolitical NT joining a broad coalition of environmental groups to fight aspects of water privatisation legislation in 1988. Much has changed, yet little has changed. It is a world in which environmentalists think increasingly in global and continental terms yet one in which Sir Robert Hunter and Lord Eversley would find themselves still very much at home. CIVIL LIBERTIES It is perhaps surprising to a twentieth-century reader to find the ‘respectable’ Salvation Army on the sharp end of a prosecuting policy. The Army was a religious, not a political, movement nor—except in so far as it participated in NVA activities—was it ever a prosecution society; indeed, we have already noted the marked reluctance of the temperance movement in the second part of the nineteenth century to prosecute other than occasionally (Harrison 1967: 107). The Army was pushed unwillingly into court by the activities of the ‘Skeleton Army’, a gang of roughs put up by brewers and publicans to hinder it. By 1878, the Salvation Army’s meetings were constantly being broken up and no adequate police protection was forthcoming. Three years later, it agreed not to hold meetings, a concession which could not continue indefinitely. But when meetings resumed so did disorder, which was by no means always trivial; the Riot Act had to be read three times in 1882/3 alone. The Army’s officers found themselves constantly brought before unsympathetic magistrates who either bound them over to keep the peace or imprisoned them on public order charges. The Army was being driven into a position in which a test case in the higher courts was nearly inevitable and the opportunity came when magistrates in Weston-super-Mare made an order banning Salvation Army processions after they had several times degenerated into violence which was, in fact, occasioned by the Skeleton Army. The police felt that they were unable to cope with this degree of disorder and the magistrates agreed. Captain Beatty, however, went into action in defiance of the order and, when the police tried to stop his march and violence occurred, was arrested and taken before the magistrates to be bound over to keep the peace. The Army decided to take the matter to the Divisional Court, questioning whether Beatty had actually committed any offence and, if not, whether the ‘binding over’ was justified. To the jubilation of the Salvationists (General Bramwell Booth is reported as saying: ‘Directly we got into the higher courts we found ourselves in a new atmosphere’ (Sandall 1950:184–5)), the court held that the meeting was not unlawful and that the order must be discharged (Beatty v. Gilbanks (1884)).8 As

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a direct consequence, the House of Lords took out of a Local Improvement Bill for Hastings, a clause which would have had the effect of permitting the local authority to do what the Divisional Court had just adjudged unlawful. The Army had learned the potential of litigation; they started to employ lawyers and fought a number of further appeals, not always so successfully (Sandall 1950:264–75). But their success in one of the most famous of all English civil liberties judgments is still remarkable, and even more remarkable in the light of the later experiences of the National Council for Civil Liberties (NCCL). Civil liberties are sometimes seen as particularly the preserve of the common law—a view which the General Warrant cases have much to do with —and it is therefore an area which ought in theory to lend itself to a test-case strategy. Probably most lawyers would accept that this is not in fact the case. This does not mean, however, that the technique has not been tried and if one name had to be picked from the many which have tried, it would have to be that of the NCCL. The NCCL has worked closely with lawyers and through litigation from its foundation, though it was not set up for this purpose nor was its founder a lawyer. It grew directly out of the ‘Hunger Marches’ of the early 1930s after Ronald Kidd, a young journalist, was deeply shocked by the use of police agents provocateurs during the first Hunger March organised by the National Unemployed Workers’ Movement (NUWM). After Kidd read an article by A.P.Herbert MP describing similar tactics, the two men agreed to take the matter up with the Commissioner of Metropolitan Police and press for an inquiry. Kidd was particularly concerned that what he had seen was part of a policy of differential policing, in which meetings and demonstrations organised by the political left were treated with great severity while Fascist meetings were left unpoliced (Hayburn 1972). Kidd realised that independent evidence, preferably from well-known public figures, was needed to bring this point home. Learning of a second Hunger March and anxious that it should not be dealt with like the first, Kidd called together to the first meeting of the NCCL in Februaiy 1934 a group of people who could act as witnesses (Scaffardi 1986:31–47). Amongst those attending early meetings were several lawyers who were to play a key role in the NCCL’s development. D.N.Pritt (a barrister already wellknown for Communist sympathies), Neil Lawson and Stafford Cripps were to give generously of their time in the early years. They also afforded a direct link with the NUWM, having appeared for NUWM officials Hannington and Elias in their celebrated retaliatory action against the police for trespass in respect of the unlawful seizure from NUWM headquarters of papers at the time of Hannington’s arrest in connection with the Hunger Marches (Pritt 1965:139–40, Elias v. Pasmore (1934)). Equally useful to the NCCL was the energetic and successful W.H. Thompson, a solicitor with a substantial trade union practice. These links with the labour movement were important because trade unions had been providing advice and rudimentary legal services for

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their members since the nineteenth century and had experimented with occasional litigation campaigns. The NUWM followed this tradition in offering legal services to its members, impelled by Elias, the NUWM Secretary, who saw a need to train the unemployed to represent themselves before the Insurance Umpires if they were to receive the welfare benefits due to them. By 1929, the National Conference had agreed to a legal department under his control. Elias was responsible both for training and for producing an advisory booklet. The Legal Department was not universally beloved—Elias was attacked by some Communist Party members for promoting ‘legalism’ — but it lasted until 1937 (Halstead et al. 1979, Croucher 1987:102–3, 113–7). Cripps, Pritt, and above all Thompson, who acted with characteristic energy as first Chairman of the General Purposes Committee, provided the organisational ability and experience for the NCCL to do something similar. It was quickly able to muster a panel of lawyers willing to undertake free defences and to travel around the country defending key cases in magistrates’ courts. In addition to the practitioners who formed the panel and contributed legal notes to the newsletter, were distinguished academics; the young Ivor Jennings served on the executive and Sir William Holdsworth, KC, Vinerian Professor of English Law, lent his weight to the campaign against the ‘Sedition Bill’. In this way, the image of respectability which Kidd hoped to promote was at least partially maintained. By 1937, the NCCL newsletter reported that the NCCL was able to offer defences to ‘persons wrongfully accused in the courts.’ In addition to handling test cases, it was advertising its strong legal panel of Barristers and Solicitors who give valuable service both with legal advice and the defence of suitable cases in the courts of law. It has defended a very large number of persons who have been prosecuted by the police for purety political offences. (Civil Liberty, Vol. 1, April 1937:81) The two first test cases fought by the Council arose directly out of the ‘Sedition Bill’ (properly the Incitement to Disaffection Act 1934) which set out to stringently regulate words designed ‘to seduce members of the armed forces from their allegiance to the Crown’. It was vehemently opposed by the NCCL both for its general chilling effect on civil liberties and because it was seen as a deliberate move against pacifism. This was the NCCL’s first major legislative campaign (Civil Liberty, vol. 1, April 1937:5). Intensive lobbying was based on the briefings and publications of NCCL lawyers, working very much as they do today: within 48 hours of its introduction into the House, every Member of Parliament was provided with a detailed legal analysis of the dangers implicit in the measure… If we couldn’t succeed in killing the Bill, it

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had to be radically altered. Our lawyers drafted amendments that were put through by sympathetic MPs. During the Committee stage, we followed up with amendments to amendments, and when the Bill went to the Lords, a rota of our lawyers took it in turn to be at hand with legal advice. (Scaffardi 1986:53) The NCCL could not prevent the Bill from reaching the statute book but all those involved in the campaign believed that it had been greatly improved. Pritt noted the importance of ‘tame’ MPs in lobbying; Labour had at this time only one lawyer whom the NCCL briefed and Pritt thought more were needed (Pritt 1965:65). The NCCL also opposed the Public Order Act 1936, largely on grounds— which demonstrate its left-wing bias at this period—that, though justified to Parliament on the ground of the disorder caused by Fascist meetings, it would actually be used by the police against pacifists, workers and unions (Kidd 1940:58–75). It is interesting to note that its lobbying methods had changed little when it was again opposing a Public Order Act in 1986. Reports of police misbehaviour at demonstrations compiled by NCCL observers were used in briefing, and amendments drafted by NCCL lawyers were put forward in Standing Committee and used not only by sympathetic individuals but also by the Labour Front Bench, by this time not short of lawyers. The first NCCL test case arose out of a mass meeting to protest against the 1934 Bill organised in South Wales by Alun Thomas. A private hall had been hired in which Thomas was to address a protest meeting and incidentally to call for the dismissal of the local Chief Constable. Several policemen insisted on entering to attend the meeting. The organisers, who firmly believed themselves to be within their legal rights,9 asked the police to leave and, when they refused, tried to eject them. After the meeting, Thomas preferred a private prosecution against a police officer for assault which was dismissed by local magistrates. Telephoned for advice, the NCCL responded by briefing Stafford Cripps KC, and Dingle Foot to appear in the Divisional Court, but to no avail. Firmly presided over by Lord Chief Justice Hewart, the court ruled in Thomas v. Sawkins (1935), a judgment which has troubled lawyers ever since, that the police had a right to enter private property, not only when (as was previously thought to be the law) a ‘breach of the peace’ was anticipated but whenever they suspected that an offence might be committed. Two years later, the NCCL was involved in an equally unsatisfactory test case in the same court, this time involving members (Duncan v. Jones (1936)). At a meeting arranged outside an unemployed training centre, Mrs Duncan of the NUWM was billed to speak with Kidd and Bing, an NCCL lawyer. As she climbed on to her box to speak, a constable ordered her to move away and her refusal was later held to amount to the offence of obstructing a policeman in the course of his duty. D.N.Pritt KC, and Dingle Foot appeared for the NCCL

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in the Divisional Court, again unsuccessfully. Bypassing the favourable precedent set by Beatty v. Gilbanks, the court dismissed the appeal, pouring scorn on the idea that the new case had any constitutional implications. It was generally agreed at the time that the two cases represented a constitutional innovation as well as a disaster for civil liberties10 and the magnitude of the defeat was brought home when D.N.Pritt, who had managed to hang a Commons debate on the tenuous peg of a motion ‘to reduce the police estimates’, failed to secure any satisfaction from the Home Secretary. He did, however, manage to make the case for codification (which did not arrive until 1984) very clearly: The very difficulty and complexity of this law means that in every case where a point has to be decided…the police stand on one side with the whole machinery of the law…and the poor man stands on the other side, often without the money with which to hire the services of a solicitor. (HC Deb, vol. 314, cols. 1547–51) Whether the NCCL was right to push these cases to the Divisional Court, thus stamping them with authority, is doubtful. Had they been left as rulings by magistrates, they would arguably have done less damage. Writing contemporaneously, however, E.C.S.Wade, a leading constitutional scholar, thought it was right, expressing surprise that it had been left to the ‘officers of a lawful, though in the opinion of most people a politically and socially misguided, association to raise these issues for decision by the Courts’ (Wade 1934:354). And writing retrospectively, Scaffardi expresses no regrets, believing that ‘it was still worth while to expose, to publicise the uncomfortable facts, to awake realistic unease’ (Scaffardi 1986:100–1). However this may be, civil libertarians cannot afford to ponder their losses and the NCCL moved on undeterred to a new and more successful campaign against film censorship. Here the objective was to end abuse by local authorities of licensing powers under the Cinematograph Act 1909. In the interests of public safety these powers extended to flammable film but were widely used to censor. The NCCL sent W.H.Thompson to defend a miners’ society charged under the Act in Jarrow police court, funds being provided partly by the British Institute of Adult Education. Thompson ‘derived grim pleasure from watching police witnesses desperately trying to set fire to “nonflam” footage with a succession of matches’ (Lilly 1984:23) but, more important, the publicity he secured forced a Home Office circular condemning misuse of licensing powers. The NCCL was moving onto the offensive, prepared to seek out test cases. It did this again in 1935 when it became alarmed by reports of systematic, anti-pacifist police action. A Cambridge don, Dr Wooster, was involved in an incident where pacifist literature was confiscated and the NCCL arranged a civil test case against the police in the local county court. Although the plaintiff won, the obvious hostility of the

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judge led to an award of nominal damages of £1. The NCCL was not greatly impressed by claims of judicial impartiality, believing magistrates to be particularly prone to ‘reverse the main principle of criminal justice in this country—the presumption of innocence’ (Anon. 1939:159–89). At about this time, the NCCL’s hard-worked legal volunteers tested a new technique. Headed by Cripps, the NCCL legal team had agreed to defend miners prosecuted after disorders during a strike at Harworth Colliery, caused—the NCCL maintained—through heavy-handed policing. Heavy sentences were handed down but the NCCL had by now acquired sufficient status to petition the Home Secretary on the grounds that the police had been allowed to influence the sentences and was successful in obtaining some remission (Kidd 1940:174–6). Dissatisfied, the secretary and a barrister from the legal panel went down to Harworth to carry out detailed inquiries which were then presented as a dossier to MPs (Civil Liberty, Vol.2, Autumn 1937:6). A similar tactic was used in the same year after a demonstration in London led to a baton charge, though the NCCL dossier did not persuade the Home Secretary to hold a public inquiry. It therefore called on some of its distinguished members to preside over an ‘unofficial commission of inquiry’ which heard witnesses cross-examined at public sessions. The report was again submitted to the Home Secretary and, on his further refusal to hold an inquiry, published (Kidd 1940: 128–30). Here the NCCL was laying down the scaffolding of a procedure which it still uses and which has led in recent years to ‘unofficial inquiries’ into the policing of demonstrations at Southall in 1979 (see Chapter 4); during the 1985 miners’ strike; and at Broadwater Farm in Tottenham in 1987. This quasi-judicial technique has provided some good theatre as well as detailed factual reports but is usually more successful in raising public consciousness than in generating official action. The objectives of the modern NCCL remain what they have always been: to police the ‘boundaries between the rights and freedoms of citizens and the limitations imposed on them by the authorities’. Inevitably the emphasis has changed from time to time—in the inter-war years from rights of assembly to censorship, and wartime internment (Eaves 1957:35–67, 69) to post-war concerns with prisoners’ rights and freedom of information. On the way, there have been disagreements over methods and objectives as well as political battles (Gostin 1988). The NCCL’s lawyers and legal strategy have survived all this, though here too there have been shifts of emphasis. Volunteer defence lawyers became less important after the inauguration of the legal aid system in 1949 and, although much voluntary work is still done by lawyers for the NCCL, an in-house legal department was set up in 1968 (Cohen and Staunton 1986). This has enabled the NCCL to move away from the reactive position of the early test cases to a more proactive strategy in certain areas. As we shall see in Chapter 6, today the NCCL has become a major actor in the European Court of Human Rights. Techniques have been refined; in essence, however, the NCCL is still following paths marked out by its first volunteer lawyers.

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CONCLUSION Three themes emerge rather clearly from our brief historical excursus. The first of these is continuity. We chose somewhat arbitrarily to commence this book in 1772 with the celebrated case of Somerset v. Slewart. It soon became obvious, however, that our subject matter stretched nearly as far into the past as into the present. The NVA, direct inheritor of the Vice Society’s sparse worldly goods, lingered on until 1973 and is perhaps still with us, personified by Mary Whitehouse. In other personifications crusaders for morality can be traced back at least as far as the Puritans (Bristow 1977). This continuity extends beyond the groups themselves to cover the activities to which we have attached the loose title of ‘pressure through law’. The model for the law enforcement activities of the Vice Society or Lord Shaftesbury’s Climbing Boys’ Society was the local prosecution society which in turn derived directly from the common law informer, the main vehicle for enforcement of the criminal law from time immemorial (Hay and Snyder 1989). Today similar techniques are being used inside the very different context of a state police and prosecution service. Yet Mary Whitehouse is following directly in the footsteps of the Vice Society in activating the moribund offences of obscenity and blasphemy (see Chapter 5). The thread of the civil law is equally persistent. True, the common law has not shown itself particularly welcoming to group litigation (one reason, no doubt, why the phenomenon has been generally discounted by the legal profession). Yet, as we have seen, not even the obstacles afforded by the doctrines of maintenance and champerty were enough to bar groups from the courts. In its campaign for the conservation of land, for example, the Commons Preservation Society drew heavily on the ancient common law rights of commoners. The self-same doctrine was used in 1991 to fight for the protection of Hazeley Heath in Hampshire, a designated Site of Special Scientific Interest, in reliance on a legal precedent from 1704. Many of the cases referred to in this chapter are legal landmarks familiar to every law student, yet, with the possible exception of Beatty v. Gilbanks (1882), their origin as sponsored test cases is overlooked or ignored. In part this is because this is not what lawyers are looking for when they read cases (Davies 1987). In part it is because cases need to be sanitised if they are to stand as precedents for future generations of lawyers and if the popular fiction of law as apolitical is to be maintained. To know too much about the actors might lessen the authority of the decision. In other words, we are uncovering a hidden dimension of the law which lawyers may prefer to leave decently covered. We can make a similar point too about legislation. Statutes might seem less sacrosanct than the doctrine of parliamentary sovereignty suggests if their origins in the caprices of cliques and interest groups were more widely recognised.

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Our second theme is that of contact and collaboration between groups or, as we might now call it, of widespread networking. To some extent this is already well known; after all, the names of Wilberforce and Shaftesbury recur in any account of nineteenth century philanthropy in the same way that the name of Edwin Chadwick dominates the Victorian administrative scene. Many of the great philanthropists are known as Quakers or were linked through evangelical religious beliefs. Other names are more unexpected. The rousing criminal defences of Thomas Erskine are celebrated but his involvement with social reform is perhaps less well known. Some links are less obvious than others. Harrison has mapped the world of Victorian moral reform to show how small it was and how close the links (Harrison 1974:290 and Fig. 1). In this chapter, Samuel Smith MP provides an obvious link of this type. Other connections are not so obvious. Octavia Hill links the moral reformers with the countryside through her interests in housing. The support of John Stewart Mill for suffragism, Josephine Butler’s abolitionist campaign and the Commons Preservation Society is more surprising. So is the presence of Canon Rawnsley of National Trust fame in the NVA. In later chapters we shall be making an identical point about the modern pressure group world. Networking is, if anything, easier and names tend to recur in similar fashion. Clearly this is one reason why, as Harrison (1974) also points out, techniques can be passed from group to group. The links of the Vice Society and NVA with the infant RSPCA and NSPCC are significant in the area of enforcement. Networking also permits a key actor to use his skills in the service of many groups, a role played to perfection by the omnipresent Sir Robert Hunter in the environmental patch. Yet a third and final theme which begins to emerge is that of diversity. Different groups use different tactics to promote their causes and achieve their ends. Some favour pressure through law, others, like Josephine Butler in her campaign for abolition of the Contagious Diseases Acts, are more reticent. Some groups are natural insiders, able to operate through friends in high places, like the Howard League for Penal Reform or the NVA in its heyday. Some groups are reactive, pushed, like the Salvation Army or anti-vaccination campaigners, into defensive legal strategies. Others are proactive, coming into existence like the Vice Society and NVA explicitly for the purpose of law enforcement. Others again use a mixture of techniques or, like the sufffragettes, adopt a proactive or reactive stance at different stages of their lifespan. We have noted this phenomenon but there are too many discordances to use it as the basis of a typology. Sometimes a test-case strategy seems to be prompted by a single ‘win’. On the other hand, a serious ‘loss’ may bring a previously successful strategy to a sudden end and even, because of its cost, pull the group down with it. A poor group may have to eschew the law game though, equally, the need to litigate may form the basis of a successful appeal for funds, as with the Barnslake case fought by the Commons Preservation Society. The judiciary shows itself notably hard to predict. ‘Forum shopping’

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may produce a kindly judge. Courts do favour some causes over others, being naturally prone to support the political authorities. Yet such preferences seem sometimes to be contingent and accidental, dependent on the personalities of particular judges in particular cases. Abolitionist judges may hand down judgment in favour of slave owners, and vice versa. The least respectable groups may snatch resounding victories from the courts. So far, no particular pattern emerges.

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2 LIBERTY THROUGH LEGALITY The United States Experience

Americans are increasingly turning to the courts for relief from a range of personal distresses and anxieties. Remedies for personal wrongs that once were considered the responsibility of institutions other than the courts are now boldly asserted as ‘legal entitlements’. The courts have been expected to fill the void created by the decline of church, family and neighbourhood unity. (Chief Justice Warren E.Burger, 1982) A COMMON LAW HERITAGE We began Chapter 1 with a myth to the effect that pressure through law was an American invention, imported in the wake of Brown v. Board of Education (1954) along with a good deal of other cultural baggage. The phenomenon was widely believed to be liberal in both origins and character; in other words, the Supreme Court was seen as a powerbase for underprivileged sectors of American society, unable to make their voices heard on any other platform. A number of other myths surround the American legal and governmental systems. It is said, for example, that American society is ‘the most legalistic and litigious in the world’ (Auerbach 1983:3) or that Americans cannot tolerate ‘more than five minutes of frustration without submitting to the temptation to sue’ (Auerbach, cited Galanter 1983:7). This is widely seen as a cultural characteristic, dating beyond de Tocqueville’s celebrated tour of the American continent and distinguishing the United States from the mother country where disputes are apparently resolved without recourse to courts. In actual fact, as Galanter (1983:56–61) points out, the per capita use of civil courts in the two countries is within the same rnedian range. Moreover, it is a moot point whether American society was at first particularly litigious even if it has become so today. In the New England states, the sense of religious community led to a view of disputes as a disruption of the social fabric which had to be resolved amicably, if necessary with the help of arbitrators or ‘common peacemakers’, while recourse to law was seen as sinful (Haskins 1960). Quakers, too, shunned the legal process, employing lay arbitrators instead. In

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states where the same sensibilities did not obtain, the problem lay more with the absence of a professional legal class. In Virginia and New York, for example, the landed gentry conducted their own legal business while South Carolina relied upon a lay magistracy. The practice of law did not become a profession until the mid-eighteenth century and even then, at a far less sophisticated level than existed contemporaneously in London (Jones 1983:31– 2). A constitutional explanation is often substituted for the cultural explanation of pressure-group litigation. According to this argument the United States possesses a written constitution which enshrines a justiciable Bill of Rights and a Supreme Court whose political role is widely supposed to be both recognised and generally accepted (Hodder Williams 1980). This is a setting in which pressure-group litigation might be expected to flourish. In contrast, Britain is often described as possessing a ‘political constitution’ in which disputes are thrashed out in the political arena (Griffith 1979). Since political litigation is unlikely to occur in this type of system, it must follow that the traffic in pressure-group litigation is purely one-way. In Chapter 1, we did something to dispel this myth by exploring the history of pressure-group litigation in this country and revealing its hidden dimension. In this chapter, we hope to explore the mythical America. We shall try not to rush from one extreme to another. We are not suggesting, for example, that American practice has not been of great influence in this country. On the contrary, we believe that it has, especially in the 1960s and 1970s, the heyday, as we shall see, of public-interest law in the United States and again in the 1980s when, we shall argue, the influence has been largely procedural in character. On the other hand, we believe that the American experience has been widely misunderstood. An ideology of American pressure through law has developed on the left, in which it is seen as a purely liberal/radical activity, rooted in civil rights campaigns. Yet, as we shall show, there is in reality a long tradition of conservative pressure through law, a hidden dimension of the American experience brilliantly exposed by Epstein in 1985. Again, and for the same reason, pressure through law is usually seen as situated in the Supreme Court. This perception is equally misleading. Few litigation strategies originate in or can be confined to the Supreme Court; they need to be fought at the same time in state and district courts and legislatures. Finally, the traffic in pressure-group litigation is not entirely one-way; if we return to origins, the reverse was probably the case. The English common law impacted on colonial society in two rather contradictory ways. On the one hand, some colonists had good reason to fear the law and shun the colonial counterparts of a judiciary remembered as repressive. The trial of Penn and Mead in 1670, when a jury which refused to convict had been imprisoned by the presiding judge, was an enduring folk memory carried to the New World by the Quakers. Yet there was a lesson here for the colonists of the safeguard provided by trial by jury and of the value of

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the common law writ of habeas corpus which had been used to vindicate the jurors.1 The colonists were also keenly aware of legal ‘victories’ in the Old World. One historian records how, on the eve of revolution, colonists understood that the existence of habeas corpus had contributed to Lord Mansfield’s decision in Somerset’s case and identified with John Wilkes’s cause (Cantor 1967:73). Lord Camden, once Mansfield’s opponent, lent active support to the American cause from his seat on the Woolsack in the House of Lords and was something of a hero in colonial America. His judgments in the General Warrant cases were avidly read as ‘political manifestos to the liberty of Britons’ (Pole 1978:17–23). The lesson was being digested. The courts and the common law were not merely instruments of oppression in the hands of the authorities but could be turned back on those same authorities. In post-revolutionary America, where the common law was no longer the primary and paramount source of rights, the ideology of the common law in these cases was an important source for the American constitutional setdement (Corwin 1981:49). But America was to prove a melting pot in the constitutional and philosophical, as well as in the racial sense. From the seeds sown by European as well as English writers was to spring something specifically American: a Constitution rooted not only in the common law constitution of Britain but in natural law (Corwin 1981:79). In this new constitutional order, ‘the law’ was the source of rights in three distinct ways. First, some rights, notably rights of property and to due process of law, formed part of the common law heritage to which Americans had always insisted that they, as British subjects, were the natural heirs. Second, some rights, conceived of as fundamental and inalienable and deriving their force from Locke’s theory of the social contract, were guaranteed by natural law. Finally, other key rights, not necessarily ‘fundamental’, were singled out for political reasons as requiring constitutional protection and guaranteed by the first ten Amendments to the Constitution. Their ratification by the first session of Congress in December, 1791, was to many an undesirable step which might end by whittling down a wider range of rights which they saw as already available and guaranteed by natural law (White 1978a). We would make three points about this precis of a complex, philosophical debate about the nature and source of rights. First, it was a source of a divergence in the common law traditions of nineteenth-century England and post-revolutionary America. While the former was to experience a formalistic period in which Bentham’s positivist philosophy provided the dominant source of legal theory and the influence of natural law waned, American legal thought, rooted at the constitutional level in natural law, was to prove less formalist and more adventurous. American courts experimented with purposive interpretation and admitted more openly to their law-making functions (Atiyah and Summers 1987). The relevance of these disparate traditions to our argument will become clearer when we come to look at their different solutions to procedural problems posed by group litigation.

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Second, whatever the origin of rights—and entrenched, perennial differences of opinion exist between ‘constructivists’, for whom the Constitution is the sole source of fundamental rights, and ‘nonconstructivists’, for whom natural law is the ultimate repository of fundamental rights2—the role of courts in guaranteeing them was self-evident and we know that it was understood by the founding fathers (Beloff 1987). The existence of a constitutionally guaranteed Supreme Court in which rights could be legally established had the effect of setting up two institutions as potential normative sources in questions involving ‘rights’. First and foremost was the Constitution, to which the Supreme Court owed its existence. To establish a claim as a constitutional right was to give it national status and assert its paramountcy not only over the State legislatures but—at the end of the day— over Congress itself. It follows that constitutional amendment was always the first objective for American protesters, to which there was no British parallel. A Supreme Court ruling, however, ran constitutional amendment a close second. Once the Court had established its authority to review the final decisions of state courts; rule on the constitutionality of state legislation; and finally, of federal legislation,3 it too could establish national norms. Moreover, the Court had in some, admittedly rare cases, gained a normative authority superior to that of Congress. Thus a group out-lobbied in a legislative forum might retrieve its position in a court, often but not invariably, the Supreme Court. Since the boundaries of state and federal power were not always clear, the Supreme Court might also allow a local defeat to be repaired by legislative intervention at the national level or vice versa. Very occasionally, the Court might even invalidate a congressional law. The Constitution thus engendered institutional pluralism of a kind which has no British equivalent. In Britain, as we saw in Chapter 1, the paramountcy established during the nineteenth century by Parliament and the doctrine of parliamentary sovereignty meant that a group out-lobbied in Parliament could only try the same road again. This is only beginning to change today with membership of the European Communities and adherence to the European Convention on Human Rights. Third, the existence of a written Constitution and of a natural law tradition of ‘inalienable’ and ‘fundamental’ rights defined the parameters of the debate about rights and, later, about the nature of equality in America (Pole 1978). As Keller (1987) puts it, in America, ‘the great ongoing contentions between individual freedom and social responsibility, between the nation and the states, and between the State and the citizen, have always been expressed in constitutional terms’. In due course, this began to encourage the formulation of ‘rights talk’ in legal terms. In Britain, in sharp contrast, ‘rights talk’ was normally political since Parliament had the last word on rights (Griffith 1979). It has been suggested that the American constitutional ideal embodies a contradiction, in that ‘rights consciousness began with a dream of autonomous identity [but] the vision of identity incorporated an ideal of community [in which] autonomous, rights-bearing individuals would live in groups and

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collectivities and participate in public life’ (Hartog 1987:10, 18–19). On the other hand, we might see the First Amendment as breathing life into this political ideal. The Amendment prohibits legislative interference with the ‘establishment’ and ‘free exercise’ of religion and abridgement of the freedom of ‘the press’. It positively establishes, too, the right of ‘the people’ to ‘assemble’ and to petition the government for a ‘redress of grievance’. The Amendment is usually viewed as epitomising individualism but it is noteworthy that all these are by their nature inherently group activities. Although the United States was ultimately to become the paradigm of pressure-group politics, group political activity at first was slow to develop. Historians have advanced a number of reasons for this, many of which seem contradictory. The interruption of the long Civil War and the geographical difficulties of communication are uncontroversial. But the view of American society as atomistic and hostile to group action seems to interlock unhappily with the emphasis on religious community. Other suggested reasons include the need to create cohesion in a diffuse and pluralist society and the religious ethos which had always promoted a pressure to resolve disputes amicably. On the other hand, it is said that the early growth in the United States of a national, two-party system inhibited the growth of local and minority parties and created a need for alternative methods to introduce new issues to the political agenda (Brabrook and Bolt 1980). Employers’ associations and craft unions did begin to emerge at the end of the eighteenth century and, during the early part of the nineteenth, farmers, who had previously operated in small communities and in family units and had not needed to organise, began to form interest groups. National farming lobbies came during the 1920s, when the Farm Bureau Federation was promoted by the federal government to propagate scientific knowledge. By then there was a national Federation of Labor (1886) and a Chamber of Commerce (1912). Social action groups often originated in churches, first missionary and Bible, later temperance societies. Anti-slavery societies were flourishing by the 1780s, especially in New England, and peaked in the 1830s. Negro self-help groups were also coming into existence; by 1849, there were more than 100 such groups in Philadelphia alone. Suffrage societies developed from the abolitionist movement (their early history is outlined below). Modern nationwide ‘attitude’ groups sprang up in the period of Reconstruction after the Civil War. It was then that Negro Rights Associations started to develop, such as the Afro-American League (1890), the National Association of Colored Women, founded in 1896 to give its members ‘a sense of their own value’, and the Niagara Movement (1905). The Indian Rights Association was founded in Philadelphia in 1882 and a year later, the Friends of the Indian (Brabrook and Bolt 1980). There are in fact clear parallels here with the British picture sketched in Chapter 1, the difference being that, in America, the Civil War seriously interrupted growth.

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In any event, the legal system was not yet ripe for political exploitation. It comes as a surprise to twentieth-century readers, to whom the rightsorientation of much constitutional litigation is axiomatic, to find that this was not at first the case. The first theme to manifest itself was—naturally enough in an infant nation uncertain whether its true character was federal or merely confederal—that of the powers of the various tiers of government (Keller 1987:676). In its first fifty years, study of the Supreme Court docket reveals only a tiny handful of cases concerned with what today we should describe as civil liberty issues. A somewhat larger group deals, often tangentially, with economic rights, including the constitutionally protected freedom of contract which was the major restraint in the nineteenth century on state economic regulation. Civil liberty issues presented themselves, until the Fourteenth Amendment was passed in 1868, largely in terms of state versus federal powers. The Amendment’s celebrated ‘due process’ clause, forbidding states to ‘deprive any person of life, liberty or property without due process of law’ was at first also used almost exclusively in connection with economic freedoms and not with those freedoms—speech, discrimination etc.—that we usually associate with the term ‘civil liberties’ today. Of the early cases, only two appear to fall within our subject area. Fletcher v. Peck (1810) concerned grants of land made by the state of Georgia impugned on the grounds that the transfers had been obtained by fraud. The Georgia legislature proceeded to revoke the grants, by which time the land had been sold to New England investment companies and individual investors. The question was whether the statutory revocation was valid and the Court held against it on the ground that the original grant was a ‘contract’ protected by the Constitution. The relevance to our theme is that the investors, known popularly as ‘Yazoo’ claimants, had been pursuing compensation claims against the state government and brought the action as a test case in the federal courts to obtain publicity for their cause, the win being an unexpected bonus (Warren 1928 vol. 1:392–9). The second set of cases is altogether more suggestive of the shape of things to come. These involved a group claim to land by the Cherokee Indians and arose out of Treaties signed in 1791 between the United States government and the Cherokee Indians granting to the latter land rights in protected territories. From about 1819, the state of Georgia started to encroach on, and sought to enforce state law inside, the protected territories. Chief Ross of the Cherokee decided to test the validity of relevant state legislation in the Supreme Court on the ground that it ran counter to the Treaties. In order for the Supreme Court to take jurisdiction, the parties to the dispute had to be either ‘states of the Union’ or a ‘foreign nation’. Despite its sympathy for the Indian cause—Chief Justice Marshall remarked that ‘if courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined’—the Supreme Court felt obliged to rule that the Cherokee failed to cross thisjurisdictional hurdle (Cherokee Nation v.

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State of Georgia (1831)). Such high feelings were aroused that Georgia refused to plead in the case and an ineffectual attempt was made by the southern states to attack the Court by amending section 25 of the Judiciary Act, from which its jurisdiction springs, to allow state courts sole power to construe the Constitution (Warren 1928 vol. 1:158–61). Yet the Court was also subjected to severe criticism by those who had hitherto been its ardent supporters, since in the North and the East the treatment of the Cherokee was felt to be ‘a moral issue almost equal to the slavery question’ (Warren 1928 vol. 1:750). A year later, the issue was resubmitted to the Court in a different manner. Georgia had now passed legislation requiring all whites in Indian territory to be registered. Worcester and Mills were missionaries working among the Cherokee with permission both of their chief and of the US President, Andrew Jackson. They duly refused to register, were arrested by the state authorities and sentenced to hard labour by a Georgia court. Their lawyers moved on a ‘writ of error’ to have the decision set aside as in breach of the Treaties. This time the Court was able to take jurisdiction and rule on the substantive issue, holding that the Treaties must be upheld and that the conviction must therefore be set aside as based on an invalid state law (Worcester v. State of Georgia (1832)). The case foreshadows many of this century’s most important legal victories in posing acute enforcement difficulties, summarised in a trenchant though possibly apocryphal aphorism from President Jackson: ‘Well, John Marshall has made his decision, now let him enforce it.’ Georgia, indignant at the Court’s alleged usurpation of state powers, was on the verge of open rebellion until the Governor, influenced by the President’s determined stand, cut the Gordian knot by issuing a pardon to the missionaries who, in return, withdrew their suit. For the Cherokee, however, the substantive ruling as to territorial rights remained largely a dead letter. Petitions to the Senate failed and removal of Indians from their traditional territories went ahead with the help of the US army (Shattuck and Norgren 1979). A DIVERSITY OF COURTS We talked above of a plurality of institutions and it is important to remember that many crucial battles about the Constitution or civil liberties have been fought in state courts, an obvious point which tends to be obscured by the commanding position secured by the Supreme Court in the literature. This is a significant factor in the history of pressure. We shall see, for example, that the first test cases concerning slavery occurred in state courts and that cases fought for the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) were—and still are —set in motion by local groups in state or federal district courts which have first instance jurisdiction in federal cases. In consequence, although these

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organisations may have moved some way towards centralisation of litigation policies, they still leave much of the work to branches and affiliates, who may operate alone in local courts or who may be supported by the national board or committee. A national organisation with skilled legal advice at its disposal can benefit from the multiplicity of jurisdictions in the United States to play the sophisticated legal game of ‘forum shopping’ (mentioned in the context of the Commons Preservation Society in Chapter 1). In the United States, there is much more scope for forum shopping than in the United Kingdom; indeed, some pressure groups from outside the States use American courts for forum shopping forays because of the superior opportunities. The outcome of cases may depend on whether federal or state courts are invoked and differences in social attitudes between, for example, southern and northern states can also affect results. Judges are often elected and their party affiliations may be known. One series of electoral reapportionment cases, for example, started successfully in the Michigan Supreme Court where the Democratic majority on the court favoured reapportionment. Later, when new electoral arrangements had to be challenged, the court no longer had a Democratic majority and the litigation coalition involved tried again, this time choosing a federal district court (Krislov 1965:38). As we shall see, American pressure groups have grown very skilful in predicting and manipulating courts’ preferences and local conditions. There is research to show also that victories won with great cost in the Supreme Court can subsequently be nullified by state courts. One useful technique is to open new legal questions after a case is returned to a state court, thus ensuring that the whole process of hearing and even appeal must be gone through again. As many as 50 per cent of the cases sent back to a state court for final decision may be lost.4 Courts have at their disposal a multiplicity of legal techniques by which appellate judgments can be disposed of without outright disobedience: precedents can be distinguished, confined to their special facts and so on. To pick one simple example by way of illustration, after the Supreme Court ruled segregation unlawful in Brown v. Board of Education (1954), one district judge in South Carolina confined its ambit to the precise area of dispute—that is, educational facilities— maintaining the previous ‘separate but equal’ rule established in an early transport case which the Supreme Court had, tacitly, but not explicitly, disapproved in Brown, for transportation (Murphy 1953). Nor are test cases always fought in civil courts. They may be fought in state criminal courts, or in federal courts which possess a criminal jurisdiction. To choose one example of a phenomenon which will recur throughout this chapter, the first efforts of the NAACP in litigation were defences of blacks charged with serious crimes in southern courts; in 1910–11 the NAACP represented four defendants on charges of murder in states as far apart as S.Carolina, New Jersey and Delaware. Occasionally, it was on the prosecution

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side; in 1929, for example, it was able to secure the conviction in Louisiana of two white men for the brutal murder of two black women, while the year after, a white police officer was successfully prosecuted in New Orleans for the murder of a black girl (NAACP 1930). One of the NAACP’s earliest litigation campaigns arose directly out of its experience of the injustices suffered by black defendants in such courts, resulting in improvements in criminal procedure. To summarise, the complexity of the American legal system tempts the outside observer to discount and underrate local activity and concentrate on the highly visible and well-documented Supreme Court. To do this is to give a lopsided picture of interest-group litigation. Local courts, state Supreme Courts, civil and criminal courts are all essential if a litigation strategy is to succeed. ‘A Supreme Court victory is not cause for too much celebration. As between the interests, Supreme Court victory for one, hardly means that the other lost the war’ (Peltason 1955:60). Groups which ignore this do so at their peril. SLAVERY: FROM SOMERSET TO DRED SCOTT It was the slavery issue which established litigation as a central theme in political activism and also inaugurated the second epoch of civil rights litigation in the Supreme Court. Whereas the state/union controversy has been seen as a silent influence on the judges in every case concerning the balance of powers in the federal system after 1819, the Marshall court was fortunate enough to avoid confronting it directly (Newmyer 1985:365–78). The slavery cases raised the issue in the particularly acute form of a moral issue on which the nation felt deeply and was deeply divided on a regional basis. Moreover, this moral issue was undeniably a legal issue, for which there was a common law precedent to hand in the celebrated Somerset case (Pole 1978: 177–213). Lord Mansfield’s judgment was widely cited as proving that only legislation (‘positive law’) could authorise slavery so that, in states without such legislation, a slave must necessarily be free. It thus directly influenced the tactics of American abolitionists, causing them simultaneously to press for state legislation which would put obstacles in the way of slave-owners and to litigate in state courts (Nadelhaft 1966:202–3). We know that at least one of these early cases was a test case brought by abolitionists. A child called Med was brought from Louisiana to Massachusetts. The Boston Female And-Slavery Society persuaded lawyers to apply for habeas corpus on Med’s behalf. When the application succeeded on the basis of Mansfield’s judgment (Commonwealth v. Aves (1836)) the Boston ladies christened the freed child ‘Maria Somersett’ (Levy 1957:62–8). Other cases have abolitionist connections—for example, in a leading New York case, People v. Lemmon (1852), John Jay, first president of New York’s Manumission Society appeared as counsel (Nadelhaft 1966:208)—hardly

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surprising when we learn that, by the 1830s, when abolitionist litigation begins to be reported, the American Anti-Slavery Society had about 2,000 branches with 200,000 members. Whether the most famous of all slavery decisions was a test case brought by abolitionists is uncertain. Essentially Dred Scott v. Sandford (1857) raised much the same point as the earlier Massachusetts case, namely the position of slaves when brought outside the slave-owning states. At the time, it was widely believed to be either a ‘dummy case’ set up by the slave-owning states —a rather unlikely contingency—or an abolitionist test case. The facts, which are extremely complex, need not concern us save to say that, at the time of the action, Scott had come into the hands of one Chaffee, a prominent abolitionist resident in New York, who was said by some to have artificially engineered a sale to him solely to ensure that the Supreme Court would have jurisdiction. In support is the fact that Chaffee freed Scott directly after the action although Scott had failed. On the other hand, Scott’s counsel denied this and Scott himself in an interview with the Washington Union apparently said that the case had cost him more than $500, had lasted more than ten years, and given him ‘a heap o’ trouble’ (Warren 1928, vol. 2:301). The verdict of modern historians seems to support this view of the case as genuine, financed by wealthy St Louis well-wishers, including the son of his original master, a certain Mr Blow (Ehrlich 1974). Contemporary evidence suggests that the Supreme Court did not anticipate the hurricane of protest from abolitionists which seriously undermined the Supreme Court (Warren 1928, vol. 2: Ch. 26). This was because Chief Justice Taney, like Mansfield before him, hoped to side-step the crucial issues by presenting the decision in narrow, jurisdictional terms. At the time when the Constitution was adopted (he reasoned) slaves were not considered to be ‘citizens’ able to implead the Court; thus the Court had no jurisdiction to hear the case. In this way, the majority was able to side-step the substantive issue of slavery. (We stress the continuity of this characteristic common law argument, replicated in suffrage cases on both sides of the Atlantic.) But Chief Justice Taney’s manoeuvre was foiled by the dissenting minority (McLean and Curtis JJ) who made it known before judgment that they would confront every issue head-on. Given that cultural traffic is so often presented as a one-way process, it is noteworthy that both sides rested their case on English precedents. The majority rested partly on Lord Stowell’s ruling in The Slave Grace to the effect that the mere crossing of a boundary was not enough automatically to free a slave, while the strong, abolitionist dissent of Justice McLean adopted the widest version of Lord Mansfield’s judgment in Somerset’s case. With Dred Scott the abolitionist campaigns of Britain and America began to diverge and move down markedly different avenues. In Britain, as we have seen, a parliamentary solution was dictated. In contrast, the federal system in the United States was a barrier to political reform (Brabrook and Bolt 1980: 44). The slow progress of American abolitionists has been blamed on the

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complexity of the American political system, more pluralist and less easily manipulated than that of Britain: English antislavery advocates, in close consultation with their friends, relatives and associates in Parliament and the government, secured a sweeping Emancipation Act in 1833 ending slavery in the British empire. A morally compelling idea, with strong support in high social circles could relatively easily work its way through a tight, elitist system of government. (Keller 1987:683) The slavery cases left blacks with little to hope for from the Supreme Court, yet equally inhibited by the federal character of the Constitution. Experience after the period of Reconstruction, when a tide of racism swept through America carrying with it many of the victories of the Civil War, confirmed their pessimism (Schmidt 1982:646). Southern states began to pass segregationist or ‘Jim Crow’ laws. In this climate, a black group in New Orleans set out to bring a test case which would circumvent the hostile state courts and legislatures before the federal courts. The case, run by a distinguished black lawyer of the day, Albion W.Tourgee, centred round an attempt by a coloured man to travel in a ‘whites only’ carriage on an inter-state railroad journey and ultimately became Plessy v. Ferguson (1896), the famous ‘separate but equal’ case, which has been described as ‘not only a legal but a moral legitimization of Jim Crow’ (Greenberg 1973:326). It was to take sixty years to get this constitutional disaster overruled and it did not stand alone. In an analysis of Supreme Court civil liberties cases between 1876 and 1930, McAdam shows that 53 cases dealt with black civil rights of which 23 (43 per cent) were successful. Between 1931 and 1955, on the other hand, 91 per cent (68 out of 75) of cases were successful. Of 604 Fourteenth Amendment cases decided between 1868 and 1911, only 28 dealt with the rights of blacks and of these 6 upheld the Amendment’s basic principles. McAdam insists that the Supreme Court was consistently on the wrong side: Between 1876 and 1930, the thrust of Supreme Court decisions in cases involving blacks had the effect of further limiting the opportunities for black political action by gradually eroding earlier constitutional provisions safeguarding civil rights. Of principal importance was the court’s progressively narrow interpretation of the constitutional principles embodied in the Fourteenth Amendment. Originally intended as a basic foundation for the constitutional protection of black rights, the Amendment’s three clauses were reinterpreted, through a series of judicial decisions, to afford only a weak safeguard against discrimination.

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(McAdam 1982:71) The record of state courts was if anything worse; it is recorded that one black convention asked for all civil and criminal cases involving blacks to be transferred to federal courts (Foner 1987:881). Blacks worked for the Thirteenth Amendment (1865) which prohibited slavery and the Fifteenth (1870) which confirmed their right to vote, only to see the latter progressively narrowed by decisions of the Supreme Court which allowed indirect electoral discrimination (US v. Reese (1876); US v. Cruikshank (1876)). They pinned their hopes on the federal government and the Civil Rights legislation which it had promised until, in 1883, this too met a setback when it was declared unconstitutional by the Supreme Court (The Civil Rights Cases (1883); Warren 1928 vol. 2:600–21). Black leaders called for direct action as conditions grew worse in the southern states during the last twenty years of the century with no sign of change. They met together at conventions, drew up petitions and resolutions and held meetings. Wherever possible they used their right to vote. Occasionally they tried direct action. They did not look to the courts for help (Meier 1967:128). WOMEN AS PERSONS Before we chart the transmutation of nineteenth-century abolitionists into the twentieth-century civil rights movement, it is important to draw the parallel with early suffragism. In colonial and post-revolutionary America, women did not normally participate in public life and politics was an activity reserved for white men. The Quakers were exceptional in admitting women to equality with men and New Jersey in conceding woman suffrage in its Constitution of 1776, an unintentional loophole closed in 1807 by the substitution of the word ‘man’ for ‘person’ (McCormick 1953: 98–100). Women participated in church groups such as Bible and missionary societies and were active in the temperance movement, regarding drunkenness as a primary cause of female hardship and oppression. The American Society for the Promotion of Temperance, with 5,000 branches in 1820 and 100,000 members by 1834, was one source of the women’s movement in America along with the doctrines of Robert Owen, imported into the American labour movement by Frances Wright (DuBois 1987:83) and the anti-slavery movement (Flexner 1975:175). Ironically, it was the exclusion of women, who had long provided the mainstay of abolition in America, from full participation in the 1840 World Anti-Slavery Convention in London which ultimately provided the stimulus for full-blown American suffragism. Lucretia Mott and Elizabeth Cady Stanton, who had travelled to London to participate only to find themselves relegated to a gallery, were angered enough by this affront to see the parallel with slavery. Resolving to devote their energies in future to the cause of women, they summoned the first Women’s Rights Convention at Seneca Falls in 1848. By

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1850 it was able to meet annually on a national basis. At first the two movements worked in harmony; trouble erupted, however, when the Republican party agreed to sponsor a constitutional amendment (ultimately the Fourteenth Amendment of 1868) which used the adjective ‘male’ in connection with the suffrage. ‘If that word “male” be inserted now as proposed, it will take us a century at least to get it out again,’ Stanton wrote (Stanton 1898:242). The woman suffrage movement finally broke old ties and split from the American Equal Rights Association (AERA) in 1869 when, at its annual convention, AERA voted to endorse the draft Fifteenth Amendment which specifically enfranchised blacks but made no reference to women. Immediately, women in New York for the convention including Stanton and Susan Anthony, met to establish a National Women’s Suffrage Association (NWSA) to fight for the passage and ratification of a Sixteenth Amendment to enfranchise women. But a more conservative section of the women’s movement under Lucy Stone set up in response as the American Woman Suffrage Association (AWSA) and the two groups disagreed on policy and tactics. AWSA preferred to concentrate its efforts at the state level and on suffrage, while NWSA was extending its interest to other women’s issues and favoured more aggressive techniques. This left the suffrage movement divided until 1890 when the two groups finally merged. Initially, then, the women’s movement directed its efforts primarily at constitutional amendment. The significance of the passage of the Fourteenth (1868) and Fifteenth (1870) Amendments was that all hope of further suffrage amendments seemed to be at an end. This was the point at which the courts were invoked. Many American suffragists, like their English counterparts, were either married to, or attempting to become lawyers (Sachs and Hoff Wilson 1978:110). Francis Minor, the lawyer husband of a Missouri suffragist, came up with an idea to render further constitutional amendment unnecessary, arguing that woman suffrage had already been achieved by the Fourteenth Amendment, which protected the ‘privileges and immunities’ of United States citizens against state infringement. Suffrage, Minor argued, was so clearly a ‘privilege’ of citizenship that women should simply claim their rights by registering as voters and, if stopped, sue the officials who tried to stop them. Anthony was persuaded, and NWSA decided to take the radical new step of a litigation strategy; AWSA, on the other hand, was emphatic in rejecting this initiative (Stanton et al. 1889:407–520). Thereafter a number of suffragists in different states tried to register as voters in state elections, sometimes successfully, sometimes not, until in 1871 Anthony and fifteen friends were arrested and prosecuted in New York. The case became a cause célèbre. It was tried before a Republican judge who was influenced both by his party’s policy (which was to stop short at black, male suffrage, the Fifteenth Amendment) and by a report of the Senate Judiciary Committee hostile to the theory of oblique enfranchisement via the Fourteenth

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Amendment’s ‘privilege’ clause. Determined to give the jury no opportunity to pronounce on the affair, Judge Hunt directed a conviction. Anthony could appeal to the Supreme Court only by means of an application for the writ of habeas corpus available if she were in custody. Judge Hunt deliberately closed this door by releasing her, against her will, on bail (US v. Anthony (1873)). Thus the case remained at state level. Meanwhile, two further test cases concerning the scope of the Fourteenth Amendment were under way. In the first, Myra Bradwell claimed the right to practise as an advocate, a ‘privilege of citizenship’ which, she argued, was covered by the Amendment; the Supreme Court ruled against her (Bradwell v. Illinois (1873)). In the second, the Minors were testing their Fourteenth Amendment argument in the Supreme Court after Virginia had tried unsuccessfully to register. In Minor v. Happersett (1875) the Supreme Court unanimously and decisively ruled against Minor’s view of the Constitution, holding (on the analogy of slavery) that woman suffrage could not be protected by the Constitution when no state admitted the principle at the time of its original enactment; in other words, the Fourteenth Amendment could add no new substantive rights to the Constitution. It has been said that the Court’s restrictive interpretation of the ‘privileges and immunities’ clause of the Fourteenth Amendment had a ripple effect extending far beyond suffrage and the women’s movement (Goldstein 1979: 61). Whether or not this is so, their depressing experiences of the legal process had a negative effect on the development of litigation strategies by suffragists who quickly understood that the route through the courts was barred at every level. Stanton personally saw the Minor decision to be as decisive a defeat for suffrage as was Dred Scott for slavery (Flexner 1975:175) and, just as Chorlton v. Lings forced English suffragists to turn to Parliament, so American suffragists were forced back to the dispiriting task of fighting simultaneously for state suffrage legislation and for their draft Sixteenth Amendment. The suffrage movement was not to try litigation again, though women were active in the National Consumers’ League (see below) fighting for protective labour legislation. And the women’s anti-suffrage movement learned from its opponent’s mistakes, leaving test cases to the American Constitutional League (ACL) and the Maryland League for State Defence, founded by a male lawyer, Everett P.Wheeler, in 1917. When ACL fought and, in its turn, lost an important test case on ratification of what had by now become the Nineteenth Amendment granting woman suffrage in 1920, it too turned its attention to defending child labour laws and attacking maternal benefits legislation, seen to undercut paternal responsibility for the family (Epstein 1985:31–4).

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JOSEPHINE GOLDMARK AND THE ‘BRANDEIS BRIEF’ The successes scored by the National Consumers’ League (NCL) present a very different picture to the suffragists’ record of failure. The NCL was a social action group founded in New York in 1890 to draw the attention of the well-to-do to the appalling working conditions which obtained in America’s large industrial cities. In 1899, it expanded into a national organisation under the dynamic leadership of Florence Kelley. Kelley, although she did not practise, had qualified as an attorney and was naturally drawn to the possibilities of test cases in her crusade for women’s protective legislation. When the chance came in 1907, she seized it with both hands. The NCL’s initial role had been purely educational but it soon became clear —as it had been earlier to Shaftesbury and his contemporaries—that legislation was necessary to enforce minimum standards of safety and welfare on employers. The NCL turned its attention to lobbying at state and federal levels with some success. First Wisconsin, then a number of states, were persuaded to pass protective legislation. But about this time employers’ groups were beginning to mobilise and the NCL very quickly found itself forced into the courts when protective legislation was challenged as unconstitutional by the employers on whom it bore. In the disastrous case of Lochner v. New York (1905), the Supreme Court drew on the ‘freedom of contract’ doctrine to rule that protective legislation was unconstitutional unless justified on the grounds of health and safety. If protective legislation was to recover from this blow, a favourable decision from the Supreme Court was needed. It is important to understand that the NCL, in attempting to defend labour legislation in the courts, was in neither an offensive nor defensive stance. It had no motive for testing in court the validity of the very legislation for which it had lobbied nor was it on the receiving end of prosecution or of an enforcement campaign. It was an outsider, albeit a passionately concerned outsider. The NCL’s first move on hearing of possible challenges was to set up a ‘Committee on Legislation and Legal Defense of Labor Laws’ to consider tactics. This Committee decided to offer assistance in the shape of additional legal counsel, advice and other assistance to those (usually state Justice Departments) who were on the receiving end of legal action. The NCL could offer distinguished counsel: Louis Brandeis and Felix Frankfurter, both later Supreme Court judges of distinction, worked and appeared for the NCL. It could assist too with preparation of pleadings and written briefs. When the state of Oregon turned to it for help in 1907 the NCL vvent further. Assistance was offered on the terms that Brandeis would conduct the defence on Oregon’s behalf—a shrewd tactical move as it gave him control over the proceedings. Brandeis used his position to make a further innovation; in his written brief to the Court, he included a bundle of sociological materials, researched by his sister-in-law, Josephine Goldmark, on behalf of NCL.

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Drawing heavily on British and continental sources, the brief gave a full account of the international experience which had led to world-wide adoption of protective legislation. It was explicitly approved by the Supreme Court in the case (Strum 1984:114), a legal innovation turned to advantage by Brandeis and Goldmark in eight more cases, seven of which succeeded. In addition, the first four briefs were published (Goldmark 1912) and used by state attorneys in further cases involving protective legislation (Vose (1957)). The importance of this innovation for the future of interest-group litigation cannot be overestimated. First, it opened the door to the admission of sociological and other contextual material not normally admissible under legal rules of evidence. This in turn encouraged American courts to take a bolder line on policy-making. Second, when combined with the so-called ‘amicus brief’—which can be filed by a person or organisation who is not a party to the suit and thus allows access to the court by third parties—it provided a convenient way for third parties to participate in court proceedings. More than one such organisation can participate, as the relatively early case of Morehead v. New York ex rel. Tipaldo (1936) shows. Here the NCL (helping the states) came into conflict with the National Women’s Party, opposing protective legislation. In this case too, the beginnings of a claim by pressure groups to be ‘representative’ can be seen; the NWP brief specifically listed sixty women’s organisations in support of its anti-protective legislation stance (O’Connor 1980:85). We shall trace the growth of the NCL’s procedural baby in later chapters. ‘CONSERVATIVES IN COURT’ In tracing the antecedents of pressure through law in Britain, we did not comment explicitly on their political stance. This was sometimes obvious but by no means always so; both the NVA and countryside movements drew support from a wide spectrum of opinion. But because the activity in America is so often depicted as primarily a left-wing, liberal, perhaps even radical enterprise, undertaken by or on behalf of under-privileged groups, it is important to make the point that this is by no means always the case. Apart from the objection that these labels are not necessarily appropriate when applied in a historical context, we can see that some of the groups so far presented do conform to this stereotype but others clearly do not. Already we can see ‘radical’ groups opposed in court by ‘conservative’ opponents: suffragists met by an anti-suffrage lobby or the NCL by rightwing employers’ groups. The American Federation of Labor was founded in 1886, the National Association of Manufacturers in 1895, and a Chamber of Commerce (1912) followed fairly soon, the latter stimulated by the federal government, which preferred to deal with a single entity representing commercial interests (Hayes 1986:140). Such groups were well placed to benefit from the contract and commerce clauses which had so far taken the pre-eminent place in the

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constitutional doctrine of the Supreme Court and they were active in fighting protective employment legislation, meeting the NCL’s social welfare brief with legal argumentation based on ‘freedom of contract’ theory. They were also naturally active in opposing the growth of trade unionism. The American Anti-Boycott Association (AABA) was set up in 1901 at the initiative of Walter Gordon Merritt ‘to fight union abuses and protect industrial liberty’. It was conceived from the outset as a litigation group, the legal arm of employers’ associations, to which they were invited to subscribe through a legal defence fund. Despite initial apathy and even opposition from manufacturing industry, Merritt was able inside a year to call a meeting of interested manufacturers to agree a litigation strategy (Merritt 1970), an idea well in advance of its time. Going to court was not so common amongst employers, who tended to avoid litigation, fearing adverse judicial decisions (Epstein 1985:19). In 1903, however, the AABA set up a legal affairs department and started to fight and win cases. Ten years later, employers throughout the United States, and other interest groups with similar interests to defend, were turning to AABA for help in fighting the unions. Like its opponent the NCL, the AABA was beginning to act like a modern ‘back-up centre’, making its legal expertise available to other, less experienced litigants. In this way it was useful to a number of conservative groups (including the National Association of Manufacturers) who after 1910 sought to challenge federal economic legislation and child labour legislation. Much of the running was made by organisations based in the southern states, particularly the anti-progressive Executive Committee of Southern Cotton Manufacturers, organised in 1915 by David Clark, a southern newspaper editor. As soon as Congress manifested its intention to intervene in the child labour question and passed the Federal Child Labor Act in 1916, Clark announced that he would test its validity in the courts. His campaign deserves a closer look for two reasons. First, this is a perfect illustration of Americanstyle pressure politics where courts are used to ‘trump’ legislation (supported in this case by the NCL), a game much harder to play in Britain. Second, Clark was one of the first to utilise sophisticated techniques of ‘touting’ for cases likely to produce a sympathetic hearing and achieve the best results. Clark and his lawyers went methodically about the business of securing the optimum result in a critical constitutional case (Hammer v. Dagenhart (1918)). Using a technique which we met within the English Commons Preservation Society, they carefully selected the court in which they had the best chance of winning. They then looked for a set of facts which would impress their chosen judge by touring the catchment area of his court (Wood 1968:92). They eventually selected a suit against the Fidelity Manufacturing Company, ideal not only because the nominal plaintiffs, the Dagenharts, were poor, respectable and co-operative but also because the employers were prepared to connive in setting up the litigation. The company first explained to its workforce what was going to happen; then, with the consent of the nominal parties

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in the bag, the Committee’s lawyers claimed an injunction against the company and Hammer, a US federal attorney, to prevent enforcement of the law (Epstein 1985:26). The real nature of the plaintiffs’ interest was exposed in a press interview which Reuben Dagenhart gave many years later. Asked what he had gained from the case, he replied: I don’t see that I got any benefit. I guess I’d been a lot better off if they hadn’t won it… [It] kept me from getting any schooling… [We] got some automobile rides when them big lawyers from the North was down here, Oh yes, and they bought both of us a coca-cola! That’s all we got out of it… John and me never was in court! Just Paw was there. John and me was just little kids in short pants. I guess we wouldn’t have looked like much in court! We were working in the mill while the case was going on… (Quoted Mendelsohn 1959:83) Clearly, Clark showed an appreciation of the art of ‘test casing’ which would be unusual even today. He had cast a poor and hardworking family in the leading role, facing them with a representative of ‘big government’ and he had selected a trial judge known to be sympathetic. Was the decision to keep the boys, whose youth might have aroused the judge’s conscience, out of sight also deliberate? Clark had control not merely over one but both the ostensible parties. The result was that, in sharp contrast to the earlier NCL cases fought by Brandeis, the US Justice Department, and with it the opposing interest groups and governmental agencies, found itself unable to get into the act until the appellate stage of the case. The strategy worked brilliantly: a spectacular win for Clark and his Committee in the Supreme Court on the dual ground that the legislation exceeded the boundaries of the federal power to regulate commerce and usurped the local jurisdiction of state legislatures. Congress tried other tactics including a constitutional amendment which was never ratified, but the case stood, blocking the federal regulation of child labour and standing in the way of Roosevelt’s ‘New Deal’ until 1941 when it was finally overruled (US v.Darby (1941)). Conservative groups were well-represented in the celebrated Supreme Court battles over the New Deal. The American Liberty League was formed in 1934 to oppose it and at once set up a National Lawyers’ Committee to prepare reports on the constitutionality of federal legislation. Their briefs were published, with the double purpose of influencing the decisions of federal courts and influencing public opinion against decisions which favoured New Deal programmes (Twiss 1942:241–53). Members, though never the organisation itself, appeared in court, the idea being at first to ‘help the poor’. As the programme evolved, however, it turned out that big corporations were mostly represented, which resulted in a charge of unethical conduct. In the end the activities were given a clean bill of health when the American Bar Association

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(ABA) described them as ‘perfectly proper, even laudable’, an opinion rendered suspect by the fact that the ABA had itself set up a Special Committee on American Citizenship to ‘struggle for constitutional traditions’, mandated to co-operate with every ‘patriotic society and organisation in an effort to stem the tide of radical attack on the Constitution, laws, courts, lawmaking bodies, executive and flag’. Although this Committee did not itself litigate, it was clear which side it was on (Rutherford 1937:18). We have said enough to show that pressure through law is not a technique reserved for radicals. In the New Deal era, economic self-interest could blend with and sometimes masquerade as constitutionalism. We shall return to the subject later, to show how conservatives have fared in court during the postwar era. THE ‘WATCHDOG OF NEGRO LIBERTIES’ We have sought in this account of early American pressure—group litigation to dispel the illusion that everything began with the National Association for the Advancement of Colored People or NAACP as it is usually called. Not only had forerunners of the NAACP experimented with standard-setting by the Supreme Court but women’s suffrage organisations had attempted a text-case strategy before the turn of the century. The first black organisation to consider a litigation strategy may have been the AfroAmerican League, founded in Chicago by journalist J.J.Fortune in 1890, in part to ‘establish the utility of test cases in the courts’ (Wootton 1985:25–6). A little later, the Niagara Movement, articulating the familiar demand for political, civil and social rights, stated its determination ‘to seek legal redress’. Both were forerunners of the NAACP, as was the Constitution League which, by agreement with NAACP, handled all litigation in the first two years of the NAACP’s existence. But if the NAACP was not the first in the field, its experience, with that of the American Civil Liberties Union (ACLU), is central to pressure-group litigation in the United States. No other organisations have made such a consistent use of the technique over so long a period. Even in its early years, NAACP was a leader in the field, shrewdly professional where others played intermittently, successful when others failed. The NAACP was founded by wealthy, white liberals prominent in social work and the anti-slavery movement, in response to shocking and violent race riots in Illinois. The opening meeting in New York on 31 May 1909 was called by Oswald Garrison Villard, who owned the New York Evening Post, and W.E.Walling, a wealthy southern socialist. But the intention was for the new organisation to be multi-racial. W.E.B.DuBois, a leading black academic and founding member, became the first paid chairman and when, in 1909, the first Boston meeting added Moorfield Storey, an experienced white constitutional lawyer, he brought with him Butler Wilson, a black attorney who regularly assisted Storey in his practice. The NAACP was to be a pressure group in

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every sense of the term, designed as ‘a watchdog of Negro liberties, [which] should allow no wrong to take place without a protest and a bringing to bear of all the pressure it could muster’ (Villard 1939:194). There is some suggestion that Villard had intended to include litigation in his armoury of pressure even before the NAACP came into existence. An exchange of letters is recorded in 1908 between Villard and Booker T. Washington, a leading black reformer and friend of Villard, though not an NAACP member. On 7 September, Washington wrote suggesting a test case in Alabama against peonage, a type of bonded agricultural labour sanctioned by the laws of some southern states, according to which an agricultural worker who had received an advance on salary from his employer could not leave his employment thereafter, and regarded by the anti-slavery movement as serfdom under another name (Schmidt 1982: 646). On 10 September, Villard responded enthusiastically saying: This is precisely the kind of case for which I want my endowed ‘Committee for the Advancement of the Negro Race’. With such a body we could instantly handle any similar discrimination against the negro, and carry the case, if necessary, to the highest court. (Kellogg 1967:19–20) Villard’s speech to the first Conference emphasised his faith in legal techniques. He stressed the need for a strong centralised legal bureau to prosecute ‘men who kill and call it law’, and to enforce the Fourteenth and Fifteenth Amendments. Given the record of the Supreme Court, Villard’s optimism was probably unjustified and it has been suggested that the predominately white middle class membership with a profound desire for respectability may have been influential in pushing the NAACP courtwards (Kellogg 1967). The need for a national ‘legal redress department’ was highlighted by the peonage case of Pink Franklin in 1910. Franklin killed a policeman sent to arrest him for breach of the peonage laws, allegedly in self-defence, but was convicted of murder in South Carolina. The Constitution League wanted a former Attorney-General to defend Franklin but his local lawyers refused to hand over the brief so that the only role left for Villard was as background campaigner to press the state governor for commutation of sentence (Kellogg 1967:57–60). In the same year, the inter-state extradition case of Steve Greene, a black who had shot his landlord in self-defence, handled by the Negro Fellowship League, brought into the NAACP Joel Spingarn, an attorney who was to become its first legal officer. The NAACP also handled its first court case, applying successfully for habeas corpus to discharge Thomas Williams from police custody on a charge of murder. At the same time, local branches were being set up to act as vigilance committees and some, like the New York branch, adopted a more proactive

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role: for example, by deliberately challenging theatres which refused to admit blacks, and by prosecuting officers guilty of police brutality. To do this, legal committees were set up and panels of volunteer lawyers compiled. There was considerable local autonomy until the lesson of the Franklin case was rammed home by an important test case on segregated transport facilities in 1914. This time, Moorfield Storey wished to come in at Supreme Court level to support William Harrison, a local black attorney who had fought the case to appeal court level but unfortunately had to withdraw when he realised that the case could not be won. Even though he went on correctly to blame their lack of technical expertise on inexperience caused by ‘the color line in the legal profession’, DuBois earned considerable hostility from fellow blacks through his bitter comment in the NAACP journal that ‘Negro lawyers appear before the courts only half-prepared’ (Crsis IX, January 1915:133). But the importance of being able to rely from an early stage on brilliant and committed lawyers had been learnt and at national level it had such men at its disposal. Despite arguments that centralisation would remove control of their own destiny from the victims of discrimination and lose the advantage of local lawyers in local courts, in 1916 the NAACP transferred responsibility for litigation to its central, in-house legal department, at first mainly run by white professionals. Local associations retained responsibility for some of the costs, which could, as always, be very heavy, but policy was decided at national level. By 1915, the NAACP had moved into position for a proactive role in civil courts, contesting a disfranchisement clause in the Oklahoma constitution. But it did this obliquely, lobbying the federal Attorney-General to make application; when he did so, Storey filed an amicus brief for the NAACP, thus saving costs (Guinn v. US (1915)). And when the NAACP published an account of its extensive and varied legal activities in 1930, these were shown to be still largely reactive (NAACP 1930). At the same time, litigation experience was being fed into political campaigns, as when the NAACP blocked the appointment of a Carolina judge to the Supreme Court on the ground that he had ‘publicly expressed opposition to [the] negro’s participation in politics’ (NAACP 1930). As we shall see, this tactic was to escalate. The NAACP also used the formal investigation techniques popular with the English NCCL to draw attention to lynchings in 1913 and 1916. Out of these came the first proper test-case strategy5 to secure ‘due process’ in criminal trials. In Frank v. Magnum (1914), a challenge to a conviction obtained after a Georgia jury had been intimidated by an armed mob outside the court-house, we find the Supreme Court once again taking refuge in proceduralism, ruling that, where a state observed the form of a trial, the federal courts had no jurisdiction to inquire into the spirit which animated it. The opportunity to attack this disastrous precedent came after riots in Arkansas led to further convictions from a mob-dominated jury in 1923. A local black lawyer, Scipio

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Jones, fought the federal district court appeals but this time Storey came in for the NAACP at Supreme Court level. Holmes J, who had dissented in Frank v. Magnum, was able to find a majority for his proposition that a verdict inspired by mob violence does breach the ‘due process of law’ requirement of the Fifth and Fourteenth Amendments. Twelve death sentences and sixty-seven lesser sentences were duly revoked (Moore v. Dempsey (1923)), a resounding victory —but one which cost the meagrely funded NAACP the large sum of $14,942. 27. Costs were a perennial problem, countered by piecemeal appeals, donations, grants and voluntary help. Twelve years later, when the NAACP joined with the Commission on Interracial Cooperation and the Association of Southern Women for the Prevention of Lynching to defend in another celebrated murder trial, funds were so scarce that Earl Leroy Brewer, counsel in the Supreme Court, had to give his services free (Cortner 1986:89– 108). The extensive, two-pronged attack on segregation which had for some time been under consideration was made possible by a grant of funds from the American Fund for Public Services6 in 1930. The first prong was to be a campaign based on the argument that the ‘separate but equal’ doctrine laid down in Plessy v. Ferguson (1896) was being ignored and misinterpreted (Groves 1951); the second, that the doctrine itself was wrong. The NAACP wanted to fund forty-five co-ordinated lawsuits at a cost of $229,000 to challenge education allocations in southern states. The request sparked off a ferocious dispute. Roger Baldwin, founder of the ACLU, opposed a litigation strategy, feeling that ‘the forces that keep the negro under subjection will find some way of accomplishing their purposes, law or no law’. On the other side were those who saw courts as the most accessible and impartial forum for establishing black rights which were, they felt, peculiarly suited to adjudication, being based on Amendments to the Constitution (Hahn 1973:391). In the end, an initial allocation of $100,000 was made, providing the fuel for the first coordinated NAACP litigation campaign (Tushnet 1987:2–20). Nathan Margold, appointed to orchestrate the campaign, favoured a ‘bypass operation’ rather than a head on collision with Plessy. By concentrating on the south, he argued, where inequality was so blatant that it could easily be proved, and on the Supreme Court rather than state courts, where NAACP’s funds and patience would soon be exhausted, rapid progress towards equalisation and standardisation could be made. In practice, however, it was left to Charles Houston, the first NAACP full-time black lawyer, and Thurgood Marshall, NAACP’s most famous counsel and later the first black Supreme Court justice, to implement the campaign, acting through the NAACP Legal Defense Fund. These two outstanding lawyers were responsible over thirty-odd years for the success of the anti-discrimination battle in American courts. Like Margold, Houston decided to target education. This was not an inevitable choice since previous NAACP campaigns had attacked segregated transport facilities (1914); residential zoning covenants (1917); and unfair

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electoral practices (the apportionment cases—1915, 1927). Segregation in the shape of ‘Jim Crow’ laws was on the increase in southern states during this period (Woodward 1974:81–95) and, while every type of discrimination promoted the inequalities which NAACP targeted, apportionment was arguably the key issue. While southern legislatures remained firmly in white hands, as they would do so long as electoral systems were weighted in favour of the rural white population, no legislative progress would be made. But the NAACP could not afford to proceed on too many fronts and Margold saw educational inequalities as (a) justiciable in federal courts and (b) easy to prove because they were so blatant (Harlan 1958); Houston and Marshall also saw education as the key to general desegregation in the sense that a literate population would be more alive to political rights. Finally, Houston saw schoolteachers as able to play a vital role in promoting the cause of desegregation and hoped to use his litigation strategy to attract their support— a not uncommon goal for pressure groups. In similar fashion, later successful NAACP challenges to segregated law schools paid dividends by feeding good lawyers back into the campaign (Tushnet 1987:129–37). A favourable Missouri decision (Missouri ex rel. Gaines v. Canada (1938)) permitted the court to examine direct evidence of resourcing. It was hoped that the expense of rectifying the inequalities, involving a political appeal to the taxpayer, would bring about desegregation without further pressure. Only when this improvement did not materialise did Marshall decide to attack the ‘separate but equal’ rule. When in 1948, the Topeka branch wanted to move, Marshall was not ready and asked them to await the result of the university cases in the Supreme Court. He was also concerned about the venue, with unsympathetic state courts (Hahn 1973:393). But pressure from below was too great and, after a meeting of NAACP attorneys in New York in 1951, it was decided to go ahead. Marshall is reported as saying, ‘We are going to insist on non-segregation in American public education from top to bottom—from law school to kindergarten’ (Brookes 1974:89). And so, at the legal level, they most successfully did. One after the other, law schools (1950); universities (1950); and state secondary schools (1954) were forced to open their doors to black students. Brown v. Board of Education of Topeka (1954) is possibly the most famous lawsuit decided this century. It has been described as ‘a revolution in constitutional law’ (Cox 1976:57), going far towards establishing the position of the Supreme Court at the centre of the American political process. Coming as it did shortly after the appointment of Earl Warren as Chief Justice, it reinforced the liberal image of his Court. Procedurally, the case is a step towards politicisation of the legal process, in that its reasoning depended on a controversial ‘Brandeis brief’ submitted by a leading educational psychologist. It is also widely seen as successful and its consequences as far-reaching. Justice Thurgood Marshall in 1969 called it the ‘turning-point’ in rendering ‘segregation and its incidents…a thing of the past’ (Marshall 1969:667).

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In reality Brown, like the Cherokee Indian cases a century earlier, proved that it is one thing to lay down the law and another to enforce it. In Arkansas, implementation necessitated the intervention of the federal National Guard (Silverman 1962:1–4). All through the South, there was a rush to introduce new segregation statutes whose provisions and wording would outflank the decision: To keep Negroes out of ‘white’ schools, state legislatures invoked the police power to protect the public health, safety, welfare and morals; ‘nullified’ the Brown decision; declared themselves immune to suits in federal courts; enacted complex pupil placement laws and fashioned labyrinthine administrative systems to delay those brash enough to try the mouse-in-maze game under the pupil placement regulations. (Birkby and Murphy 1964) Even in the courts, where victory ought to have been unequivocal, it was hardly as clear-cut as it should have been. School boards and executive authorities became enmeshed in a draining battle with opponents able and willing to exploit the latent ambiguities of the Supreme Court's judgmental phrase ‘with all deliberate speed’ (McKay 1965). Some, though by no means all, southern judges sought to minimise the effects (Peltason 1961). The resultant network of further ambiguities and contradictions took some of the gloss off the judicial image, particularly after judges, experimenting with new and flexible remedies, became associated in the public mind with unpopular policies of ‘ethnic quotas’ and of ‘bussing’ children to promote ethnic equality. NAACP officials actively sought compliance with Brown through desegregation suits until the late 1950s, when disillusion set in and frequency declined (McAdam 1982:133). On the other hand, the so-called ‘Southern Manifesto’, signed in 1956, called the school desegregation cases ‘a clear abuse of judicial power’ and proposed limitations on the Supreme Court’s jurisdiction. Pushed by conservative interest groups including the American Chamber of Commerce and NAM, the proposals were opposed by the NAACP, defending the Court. One commentator suggests that this backlash sparked off a Supreme Court retreat: after criticism peaked in the 1956 term, rejections in what he terms ‘civil liberties cases’ rose from 26 per cent to 49 per cent, a statistic confirmed by the Court’s refusal to sustain a lower court’s decision that Virginia’s anti-NAACP laws were unconstitutional (Zeigler 1964:306–7). Finally, what of the effect on the NAACP itself? The evidence is equivocal. Gerber (1963) feels that the case may have promoted more enthusiastic participation in black organisations but, if so, it was short-lived. Brookes (1974:94) records a fall in NAACP membership from a peak in 1963 of 510, 000 to 465,000 a year later and thence to 390,235 by 1971. This he attributes to a shift in black interests away from ‘rights in law’ to wider, socio-economic concerns. McAdam (1982:134) endorses this. Crediting NAACP's litigation

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strategy with ‘mobilizing efforts within the between 1955 and 1960 resorted to litigation in 45 per cent of all its cases, black community’, he notes the increasing isolation of the NAACP, which while both Church and student groups preferred direct action, litigating in 9 per cent and 2 per cent respectivety. Zeigler (1964:224) sees enforcement problems as seriously damaging NAACP prestige and serving as a catalyst for black militancy. In the words of a Black Muslim leader: Negroes cannot understand why they must spend time and money again and again to have the courts secure them privileges that all other Americans—and many resident aliens—take for granted. (Lincoln 1961:146) Moreover Brown created a backlash whose effects were felt by the NAACP when some southern states counter-attacked by charging it with breaches of professional etiquette in ‘touting’ for clients. To do this they revived the defunct offences of maintenance, champerty and ‘barratry’ or vexatious litigation, and legislated to prohibit participation in litigation by organisations with no pecuniary interest in the outcome. These manoeuvres had the effect of tying NAACP up in unwanted reactive litigation. Alabama’s attempt to intimidate NAACP members by calling for disclosure of its membership lists had to be fought to the Supreme Court, where it was held that refusal to produce the lists to the court was not after all a contempt (NAACP v. Alabama (1960)). A second victory of great significance was won when the Court established pressure-group litigation as a constitutional right under the First Amendment (freedom of opinion), describing it as: a means for achieving the lawful objectives of equality of treatment … [and] thus a form of political expression… The NAACP is not a conventional political party; but the litigation it assists makes possible the distinctive contribution of a minority group to the ideas and beliefs of our society. For such a group, association for litigation may be the most effective form of political association. (NAACP v. Button (1963)) Significant victories perhaps, but costly. They absorbed time and resources and distracted the NAACP from fund-raising and political activism as well as from its own proactive litigation strategy (Birkby and Murphy 1964:1019). In a word, NAACP had been sidelined. And Bell, in a protracted study of the role of lawyers in segregation cases, sees disadvantages in the decisions themselves, believing they provoked a different kind of backlash. ‘Touting for clients’ may bring the group into conflict with its own clientele (a possible explanation of McAdam’s findings). Not every NAACP parent had wanted Brown or found its consequences acceptable; in short, litigation by a self-

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styled ‘representative group’ may outstrip the wishes of those whom it claims to represent (Bell 1976). This problem of ‘representativeness’ resurfaces many times in pressure-group litigation. The desegregation campaign is the most extensive and best-documented litigation strategy which we possess and it is worth spending time in evaluation. Rabin agrees with Marshall in calling it successful, attributing this to methodical ‘litigation planning’ (Rabin 1976:221). Hahn also sees the campaign as successful, laying a sound basis for a responsive and flexible litigation strategy, carried on after 1956 by the NAACP’s Legal Defense Fund (Hahn 1973:397). Tushnet, in his more comprehensive study, tends to dislike the term ‘strategy’ as likely to present a false image of what is possible. [I]t seems likely that the staff had in mind little more than a general approach of attacking segregation whenever they could; any positive outcome was seen as a victory, whether or not strategic analysis suggested that the particular result would have a domino effect or make any other contribution to the accomplishment of the long-term goal. (Tushnet 1987:52) In the end, like many lawyers loath to admit that their specialism can contribute little to social action, Tushnet finds himself equivocating. Pondering the preference of DuBois, expressed long before the desegregation campaign got under way, for political, educational and economic methods, Tushnet contents himself with asking whether, in the eyes of history, DuBois may have been right (Tushnet 1987:165). It is germane to ask, however, whether there was any other way forward at that particular point in time (Kluger 1975). CIVIL LIBERTIES The work of the NAACP has no British parallel; the development of the American Civil Liberties Union, though slightly earlier, parallels that of the British NCCL. The modern ACLU’s objectives are expressed in its charter as the maintenance of ‘the rights of free press, free assemblage and other civil rights’ throughout the United States. Its origins lie with an anti-war group, the American Union against Militarism, founded in 1915 as a nucleus for pacifist activities. The founding members were predominantly influential liberals (including Oswald Garrison Villard) and social workers who preferred to work through influence and publicity. In 1917, however, Roger Baldwin, Harvard graduate and social worker, joined the national committee. Baldwin had been introduced to the struggle for civil liberties in St Louis when in 1912 he led a public meeting to protest against the refusal to allow Margaret Sanger to lecture on birth control in the city. The success of his meeting led Baldwin to take similar measures when, a few months later, a meeting of the unemployed led by ‘lndustrial Workers of the World’ was banned. Perhaps the genesis of

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the ACLU is to be found in this episode, for Baldwin used his position with the AUAM to found a ‘Bureau’ to give practical legal and financial help to conscientious objectors and IWW workers victimised in the wake of the Sedition Act 1917. There was an immediate and hostile response from the social work elementon the Union board and the upshotwas that, in late 1917, the Bureau became independent as the ‘National Civil Liberdes Bureau’. The NCCL parallel becomes closer after the war, when thousands of prosecutions were brought by the government under repressive ‘antisyndicalist’ laws. Wherever possible the Bureau contested them and, as the problems of conscientious objectors diminished, this work emerged as the new priority area. Particularly affected were aliens with left-wing or labour movement connections who were liable to deportation under the laws, and labour leaders whose First Amendment rights to freedom of speech and of association were frequently infringed (Markmann 1965:67–70). In late 1919, the Bureau emerged as the ‘American Civil Liberties Union’, a loose federation of local organisations with a large National Executive Committee and Baldwin as paid director. These early connections may help to explain the different styles of the ACLU and the NAACP. As we remarked, the social workers and Peace Movement members who had started the ACLU did not think naturally in terms of litigation because they tended both to be influential and to have access to other influential figures; overt hostility to government might have proved counter-productive. After the War, however, the Bureau came to rely more heavily on political action, a preference flowing naturally from its links with the radical Left. More important still, Baldwin, who as Director shaped the organisation’s formative years, was not at first an enthusiast for litigation. In his early years, he saw all action against political liberties in terms of a struggle between capital and labour and believed in workers’ solidarity, with strikes and economic boycotts as the main weapons (Lamson 1976:128). ACLU’s 1919 reorganisation mentioned ‘legal and informational services’ but laid more stress on a ‘campaign of service to labor’ (Johnson 1963:146). It follows that at first the ACLU was not litigation-oriented and in any case relied wholly on volunteers, two of whom, Arthur Garfield Hayes and Osmond Fraenkel, acted as general counsel. The policy was deliberate. The ACLU believed that civil liberties depended on citizen enforcement; if citizens could be coaxed into demonstrating and lobbying, why should they not volunteer their advocacy skills (Rabin 1976)? When litigation did arise and was not locally funded with volunteer labour, funds were raised by appeals. The ACLU also benefited from the ‘Garland Fund’. Sometimes too the ACLU joined with other organisations, as it did with NAACP in the notorious ‘Scotsboro cases’ in which nine blacks convicted of raping a white woman won the right to counsel in the Supreme Court (Powell v. Alabama (1932)). Generally, however, the ACLU left racism to NAACP (AR 1928:4).

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The first major ACLU trial was the Scopes affair or the so-called ‘monkey trial’ in 1925, a test case in every sense of the term. The ACLU was now heavily engaged in a battle for academic freedom (Markmann 1965: 322–46) and had planned its response to Tennessee’s new anti-evolutionist law before the ink had dried on the Governor’s signature. The ACLU ‘touted’ shamelessly, advertising in the Tennessee press for a ‘frontman’ and Scopes duly came forward to be prosecuted for disseminating Darwinism. His defence was funded by the American Association for the Advancement of Science and the ACLU provided lawyers—Clarence Darrow, Felix Frankfurter and ACLU’s honorary counsel, Arthur Garfield Hayes—who gave their services free. The ACLU wanted a Supreme Court ruling. As with the Anthony suffrage case, however, its wish was foiled by the state appeal court which managed to avoid giving grounds for appeal (Murphy 1975:56; Donohue 1985:302–4). Thus the ACLU had to wait until 1968 to see the Supreme Court strike down an Arkansas anti-evolution statute in one of its cases (Epperson v. Arkansas (1968); Larson 1985:71,98). THIRD PARTY INTERVENTION AND ACLU Unusually and expensively, the Scopes case was sponsored. ACLU generally has preferred to leave sponsorship to affiliates and outside organisations, operating through amicus briefs, a method used to great effect in the famous ‘flag salute’ cases. These were fought in the first instance by Jehovah’s Witnesses. The aggrieved parties, never popular, had found themselves in hot water during the Second World War for refusing to let their children salute the US flag or take the oath of allegiance in school assemblies. They first tested the matter in the Supreme Court in 1940 unsuccessfully; the Court ruled that the ceremonies were ‘social or political’ rather than ‘religious’ in character, hence not protected by the Constitution (Minersville School District v. Gobiti (1940)). This led to extensive persecution of Witnesses and even, on occasion, riots (Preston 1975:112). With their ‘stalwart and lonely ally’, the ACLU, the Witnesses fought on and, three years later, persuaded the Supreme Court to reverse (West Virginia State Board of Education v. Barnette (1943)). Clearly the Jehovah’s Witnesses had to fight if they were to survive and they did this to good effect, retaining their own counsel, Haydn Cooper Covington, himself a Witness. With his help the Witnesses fought fifty-five Supreme Court cases, mostly concerned with freedom of expression or association, in twenty years (1938–58), of which forty-four were won (Vose 1958:22). But a notable feature of the flag salute cases was the participation of many small interest groups before the Court. Even in the limited field of freedom of expression and conscience there has been a proliferation of groups prepared to litigate. For example, the American Jewish Congress had a Committee on Law and Social Action which already employed seven full-time lawyers by 1949 (Note 1949:589–95). These groups realise that they can often

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put someone else’s win to good use, which encourages collaboration and ‘networking’. The Jewish Congress, for example, has fought racial discrimination against blacks and in 1977, a coalition of Jewish organisations came together to fight one of the electoral reapportionment cases in New York (United Jewish Organizations v. Carey (1977)). In the flag salute cases interest lies in the use of amicus briefs. The ACLU and American Bar Association both participated through amicus briefs with a counter-brief from the American Legion (Vose 1958:27). We can see here a clear step towards the multiplicity of amicus briefs with which the Supreme Court is loaded today. Shortly after this case, the Supreme Court, disturbed by the growth in amicus briefs, sought to limit the number which could be submitted in any one case but, significantly, were forced to recant (Hakman 1966). In 1962, when the ‘school prayer case’, Engel v. Vitale (1962) was fought and won in the Supreme Court by a parents’ group, twenty states filed amicus briefs in support of communal school worship while the ACLU and Jewish organisations filed briefs against Today the amicus brief is by far the commonest way for groups to participate in adjudication and they have proliferated, the record so far coming with Bakke v. Regents of the University of California (1978), when fifty-seven amicus briefs were filed. (The ACLU was represented by a brief supporting affirmative action and educational quotas for disadvantaged groups.) The amicus brief has considerable potential for groups. It is far less costly than sponsorship. It allows penetration of litigation by third parties. It allows national groups to participate for the first time at appellate level as the NCL was able to do in Hammer v. Dagenhart. In this way, groups may be able to neutralise cases which detrimentally affect their own interest and possibly their future litigation strategies. The ACLU’s own policy guidelines empower local affiliates to enter an organisational amicus brief in any case where ‘an appropriate civil liberties question is involved’ or where ‘an amicus brief will be helpful to the court and generally advance the purposes of the ACLU’. By way of contrast, if affiliates choose to sponsor or directly represent litigants they will be much less free as ‘the judgment of the attorneys…must be governed by the client’s interest, not the organization’s, since they are acting as attorneys for the client, and not for the ACLU’ (Board Minutes, 14–15 February 1970). Of course, it must be borne in mind that by taking this road, the ACLU will lose control of the case. This choice did arise directly in the ‘Vietnam draft’ case, in which Dr Benjamin Spock and others were charged with conspiracy to counsel and abet young men to evade the draft (US v. Spock (1969). The ACLU was approached to defend but, as it is not a public interest law firm or legal aid bureau and as the Spock defence did not at first seem to fall within its policy guidelines, it refused. Later it changed position and agreed to file an amicus brief. Then it changed tack again, agreeing to handle the defence and fund counsel. We will not attempt to investigate the real reasons for these swings,

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which are said to involve political judgements and personalities; suffice it to say that the change of tactic meant that it became ACLU’s obligation to raise every possible defence, whether or not connected in any way with a ‘civil liberties issue’. Clearly this may involve a pressure group in contradictions and difficult decisions, as ACLU found when asked to represent the right of Nazis to march through Skokie. This, an issue which later split and seriously damaged the English NCCL (Gostin 1988) brings home the conflict of interest which may arise for a pressure group or public interest law firm when offering legal services directly to the public. The amicus brief can be seen as a form of ‘lobbying’, one purpose being to persuade the court that it is in or out of tune with public opinion—a controversial usage which arguably opens the courts to political pressure. For this use of the amicus brief, it can be argued that the practice provides solutions to several procedural problems: it allows large quantities of evidential material to be processed relatively quickly by a court; it permits costs to be shared amongst sponsoring groups; and it is a useful and palatable way to provide the court with contextual material necessary for efficient decision-making. Again, where group litigation is in issue, it does answer some questions about the ‘representativeness’ of the sponsoring group. Since the briefs are drafted by lawyers in legal terminology and openly presented to the court within the terms of their own, judge-made procedural rules, all this may be seen as perfectly proper. Against, it can be said that the amicus brief flies in the face of a strong and valued tradition in western political thought according to which courts are and ought to be politically neutral hence insulated from political lobbying. Any departure from this rule blurs the divide between the legal and political process and encourages courts to take on policy-making issues which are not their responsibility. As always, arguments couched in procedural terms may disguise a more profound theoretical issue. This may be one reason why the English courts have been relatively sparing in their use of amicus briefs, a point picked up in Chapter 4. AMERICAN FREEDOM IN THE POST-WAR PERIOD In 1949, with 8,000 members and correspondingly greater resources, the ACLU was beginning to be seen as litigation-oriented although, as we have already remarked, it maintained its local bases at state and district level, retaining a roster of volunteer lawyers best adapted to a policy which remained by and large defensive. The centre, which in 1949 employed one in-house lawyer, and by 1960 two, came in only at appellate level (Note 1949:576–7). McCarthyism blighted civil liberties during the 1950s and created further need for ACLU’s interventions while the advent of the Warren Court stimulated it in another way, providing a focus for civil rights litigation. It was now that the ACLU reorganised, moving from reliance on volunteers, setting up a separate fund to claim tax exemption for the cost of preparing court cases (AR 1962:7–

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8). The effect by 1974 was a membership organisation with 275,000 members in 49 states numbering amongst them 5,000 volunteer attorneys but now supplemented by a full-time staff of lawyers, 34 locally based and 18 in the national headquarters. A decade into conservative government, the ACLU was surviving relatively well: in 1986–7, membership remained at 250,000 and there were some 70 staff attorneys handling 6,000 plus cases (AR 1986/7: 17– 18). By 1989, membership was rising again and the annual budget was touching $20 million. Today only the US Justice Department handles more Supreme Court litigation than the ACLU (Dorsen 1984 and i/v 1988). Chief Justice Warren once claimed for the ACLU that it had prevented the erosion of American freedoms (AR 1977). A year earlier, however, Rabin was describing strategy as ‘essentially reactive’, defensive and unfocused, litigation being undertaken ‘in response to the stimulus of recurring but constantly varying instances of repressive state action’ (Rabin 1976:221). We could question this analysis, pointing out (as we did with the NCCL) that a general civil liberties organisation is likely to find itself involved with a more disparate pattern of litigation than one which (like the NAACP) is able to concentrate on the single issue of discrimination. The ACLU’s problem is complicated by the fact that the defendant in a criminal trial cannot be denied a defence. This undercuts ‘forum-shopping’ and ‘touting’ of the kind in which single issue groups can often indulge. In contrast, the ACLU is often faced with the awkward choice of associating itself closely with an obvious ‘loser’, intervening via an amicus brief; or leaving the civil liberties argument to go by the board.7 Potentially more serious is Halpern’s accusation (1976:164) that the ACLU concentrates on a handful of high visibility complaints which are actually atypical, neglecting the bulk of complaints which do not invoke ‘flagrant and dramatic violations’ of rights. This, Halpern argues, is to the detriment of local groups. If the accusation is true, as it may be, then the ACLU would be leaving a window of opportunity for conservative groups to seize the role of law enforcement officer in state and district courts (see pp. 105–6). ACLU’s constituency is probably less well-defined than that of the pre-war NAACP, and whenever it has identified itself closely with a particular grouping, such as the labour movement or pacifists, it has attracted accusations of political bias (Donohue 1985; Mcllhany 1976). Even then, Rabin may have overstated the differences between the two groups. Tushnet’s study of NAACP tends to show how difficult it is to co-ordinate local groups and persuade them to focus single-mindedly on a narrow target as it tried to do in the education cases. Moreover, a group does not always benefit from a focused strategy, which may alienate some clients leaving it sidelined and overtaken by more catholic competitors. And litigation strategies must take the prevailing climate into account if they are not to provoke political backlash. Those groups, including the ACLU, which made the running before the Warren Court have been pushed into a defensive posture by their opponents before the Burger and

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Rehnquist Courts whose composition increasingly reflects the conservative political context in which they now operate. PRESSURE AND PUBLIC INTEREST It is widely accepted by political scientists that support for traditional political parties in the USA declined during the 1960s to be replaced by a new loyalty towards ‘idea’ or ‘cause’ or ‘single issue’ groups. Whatever the reason—and many have been advanced—there has been an explosion in American pressure and interest groups since the Second World War and the increase has escalated since 1975. There are groups at all levels—district, state and national. Loomis and Cigler talk of a ‘participation revolution’ in which large numbers of citizens are becoming active in ‘an ever-increasing number of protest groups, citizens’ organisations, and special interest groups’. As many as can afford to do so have offices in Washington, where up to one-fifth of all groups represented are ‘single issue’ or ‘cause’ groups (Loomis and Cigler 1986:1, 9). It has been estimated that 30 per cent of these came into being since 1975, while more than 75 per cent of the citizens’ and welfare groups do not date back beyond 1960 (Schozman and Tierney 1986:76). Between 1975 and 1986 also, the number of registered professional lobbyists increased from 3,400 to 7, 200. They too operate from New York and Washington. It is not coincidental either that the number of lawyers entitled to practise in Washington increased from 10,925 in 1973 to 34,087 in 1981 (Salisbury 1990:205). Salisbury stresses both the fragmentation of interest representation, which has changed the distribution of influence, and the growing numbers of coalitions and alliances in the interest group world (Salisbury 1990:208, 219). Common Cause, founded in 1970 by John Gardner to lobby for good government and responsive, effective and accessible administration, illustrates the point to perfection. Its wide appea!—by 1984 it was spending $80 million and over the years can list 800,000 occasional contributors—reflects general dissatisfaction with the existing political system and doubts of government’s ability or will to secure improvement. Common Cause employs three lawyers whose time is spent on litigation and ‘public action’ and has made capital from lawsuits attacking corruption in the political process. As part of this campaign, Common Cause fought four lawsuits (one of which failed) to force observance of the laws limiting electoral expenditure, its most spectacular success being scored against President Nixon’s Campaign to Re-elect the President (CREEP) (Fleishman and Greenwald 1976:119). The cases enhanced the reputation and membership of the group and also formed a powerful incentive for action from Congress, where support for reform might not have been forthcoming otherwise. For Common Cause, litigation is also a publicity device, useful in drumming up and maintaining support (McFarland 1984). In recent years, many factors have combined to push pressure groups towards courts. The first and most obvious is the open invitation extended by

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the Warren Court in Brown itself which created, to borrow Scheingold’s phrase a ‘myth of rights’ (Scheingold 1974). The myth has no doubt proved important, in Britain as well as America, but we should not allow ourselves to be misled by the undue emphasis placed on the Supreme Court in American political science literature. Much of the litigation in classic civil liberties cases does, in the end, reach that august tribunal but it does not originate there and much work may be needed to ensure its safe arrival; this point is well illustrated by the experience of the women’s movement, dealt with later in this chapter. Nor should we allow ourselves to slip into thinking that constitutional law is the only fitting subject matter for a test-case strategy. Consumer issues do not normally reach the Supreme Court nor are they usually classified as civil liberty issues. Yet, as we shall see in Chapter 3, such cases may raise some of the most complex problems of group litigation, and the victim groups, such as the Agent Orange Veterans Association or Dalkon Shield Association which often lie behind mass-tort cases, are classic examples of litigation coalitions. Co-ordinated groups of specialist lawyers, like the aggressive American Trial Lawyers Association also operate in this field and know very well the meaning of the phrase ‘pressure through law’. A second reason for the growth of pressure-group litigation is undoubtedly the growth of the public interest law movement which, not coincidentally, corresponds in time with the growth of pressure groups which we have been describing. It is sufficient here to define public interest law loosely as a movement of lawyers interested in using law to achieve social reform and (at least at the outset) to benefit disadvantaged social groups (Dhavan and Partington 1986). It dates to the reformist years of the Kennedy presidency and may have something to do with the wish to replace military with social service. Led from the elite universities, for limited periods at least public interest law has attracted some of the most able graduates from American law schools into its ranks (Handler et al. 1978). Public interest lawyers diverged from the traditional orientation of the legal profession to develop a new ideal of ‘access to justice’ for the poor. They also set out to use law and legal skills to achieve social justice. Distributive rather than procedural justice was the ultimate aim, but public interest lawyers were not above using the latter to achieve the former. The Legal Services Program of the Office of Equal Opportunity set up in 1965 boosted the movement considerably by funding neighbourhood law offices, whose staff were ready and able to initiate collective legal action (Vogel 1980). It may be that, as in Britain, funding comes before and even creates demand; we know for example that, between 1964 and 1971 when funding for civil legal assistance multiplied by a factor of 30, Supreme Court lawsuits also increased by as much as 200 per cent annually. Welfare cases also reached the courts via a test-case strategy designed and implemented by Edward Sparer at the Columbia Center for Social Policy (Sparer 1966, Greenberg 1973) and the public interest law movement also fuelled the civil rights movement (Scheingold 1974, Ch. 11). Many of the groups whose work we have already

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described fit squarely within the broad definition of public interest law: the NAACP/LDF, for example, is a classic public interest law firm. It was this movement and this ethos which spread to Britain when young lawyers crossed the Atlantic in the 1970s, to give impetus to the legal work of the Child Poverty Action Group and other such organisations (Prosser 1983, Lynes 1969). At the same time, public interest law firms began to develop, either privately or supported by a foundation or a university. The Ford Foundation has given large sums to public interest law including initial funding to a number of small attorneys’ offices and funds for a Center for Law and Social Policy (Ford Foundation 1975). Another source of support was Ralph Nader’s organisation, Public Citizen. Nader’s first interest was consumer affairs but later he expanded into the environmental field. His public interest foundations differ from some others in being notably well-funded (Schuck 1977). Like pressure groups, public interest law firms engage in lobbying for law reform and often operate in Washington for this purpose, notable examples being the Center for Law and Social Policy or the Institute for Public Interest Representation of Georgetown University. In this respect they differ from neighbourhood law centres, by which they may, however, be briefed. Some public interest law firms work directly with the public and obtain many of their cases from clients, others work mainly for other public interest groups: for example, the Sierra Club Defense Fund works mainly for the Sierra Club, and the Consumers’ Union also supports a small public interest law firm. It follows that some specialise more than others. They may also tout for clients. According to Rabin (1976:232–5), a public interest law firm which identifies a critical issue ‘rarely has any difficulty in finding a client willing to pursue the matter’. Public interest law firms gravitate naturally towards litigation; Scheingold’s ‘myth of rights’ combines with the traditional, courtoriented methods of legal education to persuade young lawyers that litigation is ‘the right thing to do’. The young public interest lawyers who staffed neighbourhood law centres were ambitious and hoped to make a name for themselves; fighting a large-scale class action or important test case ‘provides strong reinforcement of the attorney’s sense of his or her abilities and professionalism’ (Bell 1976:493). Last but by no means least, for lawyers, litigation is fun! GREENING AMERICA The points which we have been making are well illustrated with reference to environmental litigation. Environmental litigation more usually concerns administrative law, being grounded in a complex series of statutes and the administrative procedures established thereby. Thus many of the leading cases on locus standi and its extension to representative groups8 were won by the environmental lobby. Nor are the leading cases on environmental law

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necessarily the causes célèbres of the Supreme Court; many start and finish in state courts. On the other hand, environmental cases do embody many of the characteristics which render group intervention necessary in the modern legal process. Environmental litigation is not to be entered into lightly. It is expensive; large sums are at stake, and the parties on the other side—nuclear power contractors, the mining industry or government agencies—are not poor. They may have a near monopoly of expertise. In the nuclear industry, for example, each component company has its own legal as well as technical staff in addition to the resources of a private, specialised bar. Environmentalists may spend years investigating the facts of major controversies. Complex technical briefs from experts are usually necessary if courts are to be persuaded to overturn development proposals or overrule powerful federal agencies (Trubek 1978). Environmental cases may also give rise to serious enforcement difficulties. If an injunction has been awarded to prevent pollution, constant monitoring may be needed to see that it is observed. In the admittedly extreme case of the trans-Alaskan ‘Alyeska Pipeline’, this entailed monitoring the pipeline over many thousands of miles. Occasionally a determined agency can prove so skilful in evading enforcement that its opponent is driven from the field. Friends of the Earth met this fate after a favourable initial ruling on pollution standards in advertising (Friends of the Earth v. Federal Communications Commission (1971)). It was simply too costly and time-consuming to get the judgment enforced. Many environmental groups are small, local affairs whose funds would be quite inadequate to this type of action. The problem is complicated by the fact that United States courts, unlike their English counterparts, do not operate a ‘cost shifting’ rule: win or lose, in general each side pays its own costs. The development of public interest law, however, led the Supreme Court in the early 1970s to experiment with a rule whereby a public interest group acting as a ‘private attorney general’ could claim costs against the losing party, at least in cases under the Civil Rights Act 1964 (Newman v. Piggie Park Enterprises Inc. (1968)). But Alyeska Pipeline Service Co. v. Wilderness Society (1975), a major environmental case in which the Court halted the construction of the trans-Alaska oil pipeline at the suit of the Wilderness Society, the Environmental Defense Fund and Friends of the Earth, brought this helpful development to an end. One motive for the Court’s regressive line was undoubtedly concern at the escalation of public interest litigation; it was claimed that the Court was ‘swamped’ by pressure-group litigation and that there was a ‘ceiling’ to the time which could be devoted to it (O’Connor and Epstein 1983). The ranning in the larger environmental suits has to be made by the larger, more expert groups, some of which are wealthy. Friends of the Earth (1969), for example, was an international operation with over 30,000 members and a large budget when it filed more than ten federal cases during the 1970s;

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similarly the National Wildlife Fund (1939), with 4.5 million members the largest environmental group in the world. The Sierra Club (1892) now has about fifty chapters across the States and in 1971 set up the well-funded Sierra Club Legal Defense Fund (SCLDF). Together with the Natural Resources Defense Council, which claims over 28,000 members, the SCLDF engages solely in environmental litigation. Nader’s interests spread from consumerism to environmentalism during the 1970s, when he gave evidence before a congressional committee against nuclear energy together with Friends of the Earth. By 1974, his anti-nuclear stand was second only to his consumerism (McFarland 1976:69), while a Nader report on pollution (Esposito 1970) and increased commitment to the anti-pollution lobby brought a welcome input of funds. Today there are also public interest law firms springing up on the other side. The Pacific Legal Foundation, the Mountain States and the National Legal Center for Public Interest all came into existence to oppose the ‘woodsy witch-doctors’. They support the nuclear industry and will act as a clearinghouse for environmental cases and enter amicus briefs (Cook 1980:15). In general, these groups oppose the escalation of environmental litigation and support the Supreme Court’s move to discourage it by refusing to shift costs (O’Connor and Epstein 1983). Some commentators feel considerable pessimism over environmental litigation. Wenner (1982) has stated that the Supreme Court prefers economic to environmental interests, and Cook maintains that the main benefit to nuclear groups lies in delay; their opponents are losing money every day while they can use the time to good effect ‘to bolster their resolve and resources, as well as to educate the public and mobilize opposition to the plants’ (Cook 1980:6). Yet there are other, less pessimistic, evaluations which show the movement as highly effective, winning more cases than their conservative counterparts (Hassler and O’Connor 1986). And ten years after Cook wrote, the advantages of delay are becoming more obvious: Three Mile Island and Chemobyl have reinforced the warnings of the environmentalists and done much to changc public attitudes. No new nuclear plant has been built in the United States in the last ten years. Today judges can not fail to be aware that a major shift has taken place in public opinion, engineered at least in part by the very same groups who have fought the main environmental cases. This will in tum infiltrate the next generation of litigation and filter down into smaller, tangential decisions dealing with related matters. In pushing this matter on to the judicial agenda and persisting long enough for this shift in opinion to occur, the environmental groups have made a substantial contribution to the political discourse of the nation.

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THE HALF-EMPTY CUPBOARD: WOMEN IN COURT AGAIN The nineteenth-century women’s movement had found the Constitution ‘an empty cupboard’; it took the liberal reputation of the Warren Court to lure the movement back to court. In practice, reputation was found to outstrip performance; the Warren Court concentrated its efforts on racial equality, leaving gender discrimination to the often maligned Burger Court, seen by many commentators as more progressive in the field of women’s rights (Ginsberg 1983). Certainly, many of the major cases date from the Burger era and a striking success by ACLU in the Supreme Court in 1971 is often seen as a starting point. The structure of American anti-discrimination legislation makes it particularly well-adapted to judicial remedy. Again, discrimination is an area in which women have sources of support and funding, such as unions, or the Equal Employment Opportunites Commission which, like its English equivalent, can and does fund action. Pressure groups with appropriate expertise were able to capitalise on this favourable ground. The Women’s Equity Action League (WEAL) for example, had a preponderance of lawyers, academics and professional women amongst its members, to whom litigation was a natural modus operandi. It has operated largely in local courts, challenging discriminatory contracts in universities (Brabrook and Bolt 1980: 220, 224), its first success being a test case to secure implementation of an anti-discrimination order by a state government (Sandler 1973). The National Organisation of Women (NOW), the ‘umbrella group’ in the field of discrimination, also monitors the operation of the legislation and operates a litigation strategy (Meehan 1985:124–9). Much useful work, which should not be discounted, has been done in testing the law over a period of years, but if the movement has not achieved all that it hoped, this is hardly surprising. Public opinion on women’s rights is very divided. The Courts have also been asked to resolve a number of highly contentious issues. As Shapiro points out, affirmative action programmes necessarily impact unfavourably on other groups, notably white males. To approve them unreservedly involves elevating racial and sexual equity to ‘trump values’ (Shapiro 1990:63). This is a step which the Supreme Court is quite naturally unwilling to take. THE ‘NEW RIGHT’ We have described the perceived radicalism of the Warren Court as a powerful magnet to liberal groups. Its magnetic attraction was, however, equally powerful in pulling into court a new wave of conservative groups motivated to offset the influence of their political opponents before the Court. These groups were equally concerned to buttress conservative politics at state

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level, where Republican governors elected on right-wing manifestos might find their legislative promises stymied by pressure-group action in the Supreme Court. The Pacific Legal Foundation (PLF), for example, was founded in 1973 in Sacramento with two attorneys and a Board of Directors appointed by the State Chamber of Commerce, specifically to support Governor Reagan’s welfare legislation which was meeting judicial opposition in the state courts. Later its activities encompassed the Governor’s law and order policies. Right-wing pressure groups are notably well-funded and the new public interest law firms often follow them in this respect. The mighty Olin, Scaife and Hearst foundations are to the New Right what the Ford Foundation was to the radical public interest law movement. They may also fund themselves through appeals or mailshots, a technique pioneered by professional fund-raiser, Richard Viguerie, who once raised $30 million for conservative causes, including ‘Right to Life’ campaigns (Viguerie 1981). Epstein (1985) has suggested that groups may shift, as their expertise and selfconfidence increases, from the amicus to sponsorship, which gives them the advantage of controlling and shaping the litigiation. O’Connor and Epstein (1983:482–3) have been able to show that this is in practice how conservative groups did at first operate: between 1969 and 1980, so-called ‘liberal’ groups sponsored 265 of the 279 cases in which they appeared while ‘conservative’ groups sponsored only 7 of their 261 cases. We can trace this process further by a look at the progression of the PLF. This Foundation started its work with a series of amicus interventions after its attorneys wanted to appear against liberal public interest groups in a case concerning the Trident submarine but were out-manoeuvred because they had no Washington office (a prerequisite for practice in Washington). PLF opened an affiliate, which also contented itself with amicus interventions, specialising in environmental cases. As it grew richer, PLF became more ambitious. It moved to Washington, attracted substantial funding from rich foundations, employed eighteen attorneys and soon had more than 100 cases to its name. Having secured court recognition, PLF began to sponsor occasional cases. It still remained essentially ‘reactive’, limiting itself to providing a counterbalance to liberal groups where the legal process had already been activated and (probably for ideological reasons) eschewing ‘proactive’ test cases. Later the Foundation branched out into the training of outstanding law graduates in its ‘College of Public Interest Law’, an interesting counter to the earlier tendency for public-spirited graduates to spend their formative years in neighbourhood law offices. Earlier we described the amicus brief as a polite form of lobbying. Although this is a usage which clearly departs from the original meaning of an amicus as a ‘friend of the court’ or neutral representative of ‘the public interest’, it does in fact reflect the use which is increasingly made of the amicus brief. Krislov makes the same point slightly differently when he describes the amicus as no

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Table 2.1 Amicus briefs from non-governmental advocates in non-commercial Supreme Court cases

Source: O’Connor and Epstein 1981:316.

longer a neutral, amorphous embodiment of justice, but an active participant in the interest group struggle (Krislov 1963:703). Ironically, this use of the amicus brief does not square very well with conservative groups’ formalist and apolitical vision of the judicial function (Epstein 1985:134, 144–5). They may in practice sometimes be able to avoid the dilemma by operating through state or federal law officers who still surpass pressure groups in the number of amicus briefs they file (Caldeira and Wright 1988). None the less, the conservative groups do file large numbers of amicus briefs in their own name. O’Connor and Epstein (1983) estimated that their interventions tripled over the period 1969–80, rising from a meagre 9 per cent in 1969. They show too that the overall number of amicus interventions has risen very sharply (Table 2.1) as has the percentage of cases in which multiple briefs are received. We know also that this is largely a group or corporate activity. In the 1982 session approximately 40 per cent of amicus briefs were filed by groups and in over one-quarter of the Supreme Court cases decided in the 1970s in which any amicus brief was filed, four or more such briefs were filed by groups (Caldeira and Wright 1988). What this suggests is that the emergence of a steady input from conservative groups is having two seemingly contradictory effects. On the one hand, it is reinforcing the formalist tendencies of the Burger and Rehnquist courts. Both, for example, tend to prefer a legalistic and academic style for amicus interventions as opposed to the ‘Brandeis brief’ or more overtly political presentation favoured by the more radical groups (Caldeira and Wright 1990: 786–8). Both tend, too, to be statist rather than federalist in their constitutional leanings. On the other hand, the intervention of conservative groups is arguably making Supreme Court proceedings more conflictual and oppositional thus hastening the politicisation of the Supreme Court which they themselves deplore. Both points emerge clearly from a study of the Supreme Court abortion cases.

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PRO-CHOICE VERSUS PRO-LIFE The abortion question has some claim to be the most politicised of any with which the Supreme Court has had to deal. The campaign for liberalisation can be traced to pre-war fights over family planning. In the post-war period, the fight was on in earnest by 1960 when the National Association for the Reform (later Repeal) of the Abortion Laws (NARAL), an umbrella group to coordinate campaigning, came into being (George 1989). NARAL sponsored litigation and later, when their court victories were under threat, worked for legislation as well. ACLU joined with Planned Parenthood to fight Poe v. Ullman (1961) in which the dissenting judgments of Douglas and Harlan JJ suggested a way to attack state anti-abortion legislation through a constitutionally protected ‘right to privacy’. It was this argument which was to succeed in the later case of Griswold v. Connecticut (1965), also sponsored by Planned Parenthood and brought to court in the name of the executive director of their Connecticut branch jointly with a physician who had been one of the plaintiffs in the Poe case (Rubin 1987:38–9). The famous case of Roe v. Wade (1973) perfectly illustrates the complex structure of litigation in modern, constitutional cases. Unusually, it was a class action, brought in the name of individuals (including a physician under prosecution) although it was actually sponsored by the ACLU’s Women’s Rights Project. Roe was opposed by seven pressure groups, with five states appearing through their Attorney-General. The suit was joined with the case of Doe v. Bolton (1973), where five clergymen and seven nurses were appended as plaintiffs. This case was supported by Planned Parenthood and the ACLU (Rubin 1987:62–3). The cases also attracted thirty-six amicus briefs from the medical profession, from women’s groups and others. Some groups appeared in several capacities: for example, Planned Parenthood sponsored the cases but its affiliates entered an amicus brief. The Supreme Court ruling in these cases, which legalised abortion in the first and partially in the second trimesters of pregnancy, had a serious whiplash effect. It split the women’s movement, seriously weakening the fight for an Equal Rights Amendment to the Constitution (Steiner 1985:58–66). NOW was pro-abortion, which led to the formation of WEAL as a splinter group, yet NOW did not support Roe. An anti-abortionist ‘right to life’ movement was also formed, working at first mainly in the political and legislative field (Rubin 1987:110–11, George 1989). In the courts their success was at first limited as the legal doctrine of precedent combined with the strength of NARAL to maintain the status quo (Francome 1980). But while pro-choice groups rested on their Supreme Court victory, the political initiative passed to the pro-life lobby. A Human Life Bill was introduced in 1982 to overrule the decision and also to remove federal jurisdiction in all cases based on state laws, though like all direct attacks on the authority of the Supreme Court to date, it failed (Jacobsohn 1986:129–36).

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Strong support from President Reagan and his law officers, who filed amicus briefs pressing the Court in the strongest terms to reconsider Roe (Dorsen 1986:25), encouraged the pro-life lobby. The appointment of Justices Scalia and O’Connor (the latter being the first woman to be appointed to the Supreme Court) had changed the balance and in 1982, Solicitor-General Rex Lee entered an amicus brief in an abortion case currently before the Court urging it ‘to bow out’ and ‘call a halt’, leaving the matter to state legislatures (Witt 1986:110–12). The pro-life lobby had the Court in its sights and was waiting to try again. Their moment came in 1989 when in Webster v. Reproductive Health Services (1989) the Rehnquist Court was persuaded to cut back the 1973 ruling by insisting that the power to regulate abortion lay with the states, though the pro-lifers were disappointed in failing to secure a direct overruling. The political campaign which accompanied this decision added a wholly new dimension to the concept of lobbying. Around 30,000 letters were received by the Court of which almost 10,000 were addressed to the single female justice, Sandra Day O’Connor (i/v Brennan J 1990).There were vigils and demonstrations on the steps of the Court. The Webster ruling had the effect of moving the abortion campaign back on to the political plane, this time at national level. The unwisdom of resting on a Supreme Court victory was realised and, as President Bush declared his support for a pro-life constitutional amendment and pro-lifers settled down to push for state legislation, the pro-choice lobby counter-attacked. NOW’s spokeswoman threatened to question ‘every candidate who stands for office in this country’ on his abortion stance. By the autumn of 1989 their insistence was beginning to take effect, with the New York Times reporting a swing back to pro-choice (13 and 15 October 1989). The pro-choice lobby was keen to reinforce its waning influence in the Court, promising to ‘return to the Supreme Court this term, and no doubt next and the one after’ to argue that Webster had decided ‘nothing at all’ (Estrich and Sullivan 1989:122). When it did so, however, it was to see Roe further diminished by a ruling against state subsidy of abortion in public hospitals (Dworkin 1991). Inevitably, the Supreme Court was pushed into the centre of the political stage. As the remaining liberal judges retired, to be replaced by Bush nominees, the President denied all knowledge of their views on abortion, though he reiterated his personal wish to see Roe overturned. The issue returned to the political agenda, surfacing in the 1992 presidential election campaign. CLEANING UP THE CRIMINAL PROCESS Another reason for the prevalence of the amicus brief is to be found in criminal cases. In contrast to England where, as we shall see in Chapter 5, the individual right to prosecute remains firmly entrenched and has survived a Royal Commission, throughout the United States the right to prosecute is

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vested solely in the state. Exactly how and why the change from private to public prosecution took place is disputed by the historians, with some favouring Holland (van Alstyne 1952), others France, as a source for the new system of publicly financed district and state attorneys (Gittler 1984:125–32). However this may be, the change was complete at state level before the end of the colonial period (Hay and Snyder 1989), while at federal level the prosecution system was remodelled under French influence after the Civil War. Prosecutors are either attached to, or supervised by, the Justice Department under the control of the federal Attorney-General and it has been held that no right of private prosecution exists in federal courts. Occasionally, a statute, technically known as a qui tam statute, which may deal with a range of subjects from tax evasion to abuses of narcotics or liquor laws (Note 1955) permits a private citizen to prosecute and, in return, keep part of the fine. The federal courts show no particular willingness to extend qui tam procedure where it is not clearly provided for nor will they allow the state monopoly in prosecution to be outflanked by the mechanism of a citizen suit for damages (Connecticut Action Now Inc. v. Roberts Plating Co. (1972)). Indeed, it has been argued that to permit this would be unconstitutional (Caminker 1989). So what are groups locked out of the criminal process to do? This is where the amicus brief comes into its own. A group can intervene in a criminal case at appellate level through an amicus brief when it would otherwise be excluded by the bipolar and adversarial character of the criminal process. A second and highly effective avenue of approach is through lobbying. District and state attorneys in the United States are normally elected and this gives American groups much greater latitude in lobbying and much greater leverage than they so far possess in Britain. With these contrasting contexts in mind, it is interesting to compare the strategy of the English National Viewers’ and Listeners’ Association, described in some detail in Chapter 5, with that of its American equivalent, Citizens for Decency through Law (CDL). CDL was the brainchild of a lawyer, Charles H.Keating, distressed at the low level of police enforcement of obscenity laws in Cincinnati. Keating’s main motive was to see the law enforced: in his own words, ‘We have a law, and we have enforcement officials. Let’s let them know we’re behind them.’ CDL therefore operated at state and district level. By 1962, however, CDL was receiving so many requests for help that Keating converted it into a national organisation and two years later it had 300 affiliates operating along similar lines. CDL was now able to act as a ‘back-up centre’, advertising its ability to assist local prosecutors through its own expert witnesses and lawyers to secure convictions under the existing law. A salaried attorney—significantly a recruit from the Los Angeles District Attorney’s office—was added to its staff. Only when CDL was effective at state level did Keating move into the Supreme Court. CDL did not appear in the leading case on obscenity, Roth v. United States (1957). However, the confused and complex definitions derived

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from the judgments and expanded in later cases formed an obstacle to its operations. CDL therefore set out to narrow the Roth tests and to counterbalance the appearances of liberal groups striving for extension. Preeminent amongst these was the ACLU, whose views ‘structured the doctrinal debate’ and which participated in 39.1 per cent of obscenity cases after Roth before its interests and policy changed around 1973 (Kobylka 1987). CDL was able to contribute to the crucial ACLU case of Memoirs v. Massachusetts (1966) in two ways: it provided expert psychiatric evidence at the trial through its national vice-president and, on appeal, filed an amicus brief. It has been said that the ‘highly emotional’ and ‘unprofessional tenor’ of this brief was counterproductive, pushing the court further to liberalise the Roth test (Epstein 1985:84). As a result of media attention, Keating was appointed by President Nixon to the Federal Commission on Obscenity and Pornography though he had eventually to file a dissenting report. This lack of success worried him, as he foresaw that successful local CDL campaigns would be neutralised by liberal successes, both political and legal, at federal level. Keating therefore set up a national headquarters at Phoenix, Arizona, raised $2.3 million from an appeal for funds, and increased the legal staff. Amicus briefs continued to be filed but with a change of style; they were now concise, unemotional and legalistic, a change which enabled them to be incorporated verbatim into Supreme Court judgments (Epstein 1985:87). CDL was also able to deflect the rule of state prosecution by accepting prosecution briefs: in 1981, for example, it was invited by the state of Ohio to prosecute on its behalf, justifying this circumvention of the rules by arguing that Taylor, the CDL lawyer, had handled the case while previously working as state attorney in Cleveland. Taylor won this case in the Supreme Court (Flynt v. Ohio (1981)). As the Burger Court gradually whittled down the liberal judgments of the Warren Court with negative outcomes in 67 per cent of all obscenity cases (Kobylka 1987:1075), CDL’s successes mounted. Of nine cases fought in the Warren Court, CDL won none; of eighteen decided by the Burger Court, 55 per cent were won (Epstein 1985:116, Table 1). Further into the mainstream of criminal law and procedure is Americans for Effective Law Enforcement (AELE), a group set up in 1967 by a professor of criminal procedure, Fred Inbau, as a direct response to the success of the ACLU in Miranda v. Arizona (1966)—the celebrated case which accords a right to legal advice at the police station—and other liberal, criminal procedure decisions of the Warren Court. AELE set out deliberately to neutralise the submissions of liberal groups acting for defendants in criminal cases, listing the ACLU, NAACP and Mexican-American Legal Defense and Educational Fund as ‘regularly support[ing] defendants in criminal cases, or citizens who sue the police’ (Ivers and O’Connor 1987:164–5). Its first brief was submitted in Terry v. Ohio (1968), a right to search case. Although Inbau described his fledgeling as ‘very much a hip-pocket operation’, AELE was able to capitalise

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on the high calibre of its academic membership by citing their scholarly law review articles in its successful first brief. This formed the basis of Chief Justice Warren’s opinion in the case. President Nixon’s election in 1968 brought substantial government support for AELE, together with important funding from supporters of the Republican Party. By now it had a legally qualified director in Frank Carrington and was increasing its litigation input into Supreme Court cases through amicus briefs. Significantly, AELE has close links with state prosecutors and police forces and often acts at their behest. It has a high success rate; in thirty-five cases between 1969 and 1981 in which it filed amicus briefs before the Burger Court, AELE was on the winning side in twenty-seven (77.2 per cent). For comparison, in the same period, the ACLU participated in sixty-six cases and ‘won’ only twenty-five (37.9 per cent). We should not read cause and effect into this crude statistic; clearly the Court’s own predilections are important to an evaluation and the same study tells us that the Burger Court decided for the prosecution in 63.6 per cent (260/409) of its criminal decisions (Ivers and O’Connor 1987:167–9). CRUEL AND UNUSUAL? DEATH AS THE TARGET Nowhere does the battle of foes before the Supreme Court emerge more starkly than in a series of cases which involve the right of states to impose the death penalty. On the liberal side, the ACLU and the Legal Defense Fund of the NAACP (LDF) have made most of the running, having targeted the area as a potential subject for a test-case strategy in the later days of the Warren Court (Meltsner 1973). But the anti-death penalty case has the support of a broad coalition of ‘respectable’ groups, including religious and welfare groups as well as Amnesty International, which leads an international campaign for abolition and has entered amicus briefs in the Supreme Court (Stanford v. Kentucky, Wilkins v. Missouri (1989)). The groups which lie behind the cases on the other side are less easy to identify. They may be camouflaged by state justice departments which prosecute, respond on appeal, and may even enter amicus briefs on their own account. It is known that the Associations of Chiefs of Police and District Attorneys support capital punishment as does Frank Carrington, who gave evidence on behalf of AELE before the House Judiciary Committee in 1972 (Bedau 1987:306). In 1972 the LDF scored a significant Supreme Court victory with Furman v. Georgia (1972) which they sponsored. Here the Court invalidated state legislation which left wide discretion to the judge in capital cases on the ground that the results were ‘arbitrary and freakish’ in their operation. Predictably, however, many states merely redrafted their legislation to establish sentencing guidelines and so comply with the judgment. States continued to impose the death sentence (there were 2,000 cases in fifteen years) but the LDF did not attempt to operate in state courts, leaving it to local

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groups (New Jersey Citizens Against the Death Penalty or the Death Penalty Task Force) to provide defences with the help of an LDF educational pack grimly dubbed the ‘Last Aid Kit’ (Meltsner 1973:1115). The LDF won a second victory in 1977 when the Court ruled against the death penalty in rape cases (Coker v. Georgia, (1977)), but after that things started to go wrong. The political climate was changing, the law and order and victims’ lobbies were gaining strength and President Reagan’s appointments to the Supreme Court were changing the balance. The NAACP fought on, accumulating statistics which showed not only that blacks were more likely to suffer capital punishment at the hands of predominantly white juries than were white defendants but that the death sentence was less often imposed when the victim was black. This evidence (published as Death Row USA (1986)) enabled the LDF in McCleskey v. Kemp (1987) to argue that capricious application of the death sentence amounted to ‘cruel and unusual punishment’ contrary to the Eighth Amendment (Kennedy 1988). The loss of this case was a severe shock to the liberals but encouraged right-wing groups who moved in to roll Furman back. The liberals held the line with Thompson v. Oklahoma (1988) which prohibited the execution of a 15-year-old child. But in 1989, when the political complexion of the Supreme Court had changed substantially, the question of capital punishment for 16- and 17-year-olds was referred to the Court again. This time Justice Scalia, who had previously been in a dissenting minority, found himself writing the majority judgment. In a 5/4 majority, the Court held that states could impose the death penalty in such cases, dismissing nearly thirty amicus briefs from religious and welfare groups. A brief on international practice from Amnesty International led the Court to split on the central question of what factors should be taken into consideration in assessing the constitutionality of capital punishment. Liberals argued vigorously for an international standard, where the United States fell below the line in many respects, but could not persuade the majority, which ruled that American standards of decency were to prevail. In her hinge judgment, O’Connor J observed that there was no national consensus on the question; the matter must therefore be left to state legislatures. Only the four dissenting justices recognised the practice of foreign countries as relevant to the American situation. Citing Amnesty’s brief, they pointed out that a majority of countries retaining the death penalty exempt minors, while three international treaties ratified by the US explicitly forbid capital punishment for juveniles. Moreover, since 1979 there had been only eight executions, three in the United States, increasingly isolated in a world community where the death penalty for juveniles ‘appears to be overwhelmingly disapproved’ (Stanford v. Kentucky, Wilkins v. Missouri (1989) (Brennan J dissenting)). It is hardly fanciful to see in these cases a reflection of the Supreme Court’s dilemma in the Dred Scott affair. Once again the Court is squeezed in a double pincer: it is at one and the same time being asked to ‘trump’ the decisions of

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popularly elected legislatures from its ‘unrepresentative’ judicial power base and being used as a centralising force in a federal political system. Further complicating factors are added by the fact that the states under attack are largely southern states in which the liberal political power base is weak and that the NAACP/LDF brief reveals a significant racial undercurrent to the capital punishment issue. A further dimension is added by the growing weight of international public opinion. As we shall see, this series of death penalty cases has implications for the United States at the international level. THE VICTIMS’ LOBBY The ‘law and order’ groups stand at the edge of a powerful new victims’ lobby which gained ground steadily during the Reagan years. Confined in the 1960s to pressing for compensation schemes for the victims of violent crime, this lobby has now moved into the mainstream of American criminal process by claiming ‘rights’ to participate in public prosecution. The Victims’ Assistance Legal Organisation (VALOR) was initially affiliated with AELE through its director, Frank Carrington, who left AELE to set it up, but later VALOR became independent. Carrington and VALOR were well-connected with Ed Meese, President Reagan’s Attorney-General and Carrington served on the President’s task force on crime (Epstein 1985:111). It is important to stress, however, that the victims’ movement is not specifically a right-wing lobby. The Program Directory for the National Organization for Victims’ Assistance (NOVA), the movement’s information clearing house, lists over 1,500 affiliated organisations and includes groups working on behalf of ethnic minorities and gays which are ‘not… likely to invite enthusiastic commitment from the political right’ (Mawby and Gill 1987:131). In 1984, Carrington and Nicholson, calling the victims’ rights movement ‘an idea whose time has come’ were able to point to a burgeoning of victim support groups, numerous successes at state legislative level and the imprimatur of President Reagan via a Task Force on Victims of Crime (1982) and a federal Omnibus Victim and Witness Protection Act in 1982. The movement had also persuaded several states to make constitutional amendments providing for victims’ rights (Carrington and Nicholson 1984). Five years later the same protagonists were able to call the movement an idea which had matured (Carrington and Nicholson 1989). NOVA had been joined nationwide by the National Victim Center (1985) which almost immediately had spawned the Crime Victims’ Litigation Project—a resource centre intended to elevate redress for injury into a new tort on a par with medical malpractice—and was instrumental in establishing ‘Victims’ CAN’ (Victims’ Constitutional Amendment Network) which campaigns at state level. A majority of states now have ‘victims’ bills of rights’ to include provision for victim notification of the time, place and outcome of proceedings, victim impact statements, introduced prior to sentencing to inform the court on the

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harm suffered, and for consultation over plea-bargaining and parole. Thus, the criminal process has been made more permeable by those within the victims’ lobby who seek a more retributive slant to criminal justice. So far, in tackling the difficulty of which right is to prevail when the ‘rights’ of victims clash with those of the accused, the Supreme Court has proceeded with caution. In Booth v. Maryland (1987) the victims’ lobby was to suffer an unfortunate setback at the hands of liberal groups positioned to argue that conventional trial process best served the ends of justice (Roland 1989:52). A Maryland court had allowed a victim impact statement, which contained much emotive and distressing material, to be read to the jury at the sentencing stage of a capital charge. By a 5/4 majority the Supreme Court overturned the ruling. This Supreme Court emphasis on ‘due process’ counted lightly, though, when weighed against the mounting tide of positive achievement at state level and increasingly in the Congress. Measuring Booth’s impact, the movement’s progenitor argued that this would be minimal as the body of victim-oriented cases decided in the lower courts would leave the Supreme Court stranded or, alternatively, force it to ‘take a fairer and more realistic attitude towards victims’ rights’ (Carrington and Nicholson 1989:13). Whether this prediction will prove to be true remains to be seen. CONCLUSION It is no part of our purpose in this chapter to add to the enormous literature on the Supreme Court’s contribution to the protection of civil liberties, or its role in the American governmental process. These tasks are best left to the many American commentators who have shown themselves ready enough to undertake them. Our brief survey does enable us, however, to point to certain differences and certain similarities in the tradition of pressure through law in the two countries. In both, the phenomenon has a long history, evolving slowly during the nineteenth century when America came most strongly under the influence of this country. In both countries too, we can see remarkable continuity: from the National Vigilance Association to Mary Whitehouse, from Anthony Comstock’s New York Society for the Suppression of Vice, noted for its vindictive pursuit of obscenity (Bristow 1977:49, 118) to AELE. Both countries have also seen an explosion of pressure-group activity since the Second World War, bringing a surge of new litigation. In this period, the cultural traffic has largely flowed in the opposite direction. On the other hand, there are differences. American society and culture is more pluralist and less homogeneous than Britain’s. It provides a setting in which interest and pressure groups have multiplied and, to generalise again, are more numerous, better organised and infinitely better funded than those of Britain. It is not surprising that such groups have learned to seize every opportunity, legal and political, available to press their interests and causes. The Supreme Court stands too on the interface between the legal and political

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process, a fact of which both public and judiciary are very conscious (Cox 1987). American judges, whether elected, or appointed by politicians in a maelstrom of political lobbying, are used to being seen and seeing themselves as political actors. American legal procedure fits naturally into and reflects these truths. The amicus brief, a peculiarly American institution, is (especially in documentary form) a concise and relatively inexpensive way to allow penetration of the typically bipolar and adversarial common law legal process by interested nonparties. Its cousin, the Brandeis brief, performs the same function for nonlegal materials. American legal procedure is innovative and the judges willing to experiment with procedural devices which cater for groups. Finally the American Supreme Court stands at the apex of a complicated and diffused judicial system, elements of which can be played off one against the other in a variety of ways ranging from forum shopping to the blocking of appeals. The separate legal systems of Northern Ireland and Scotland afford some room for manoeuvre in the United Kingdom, but by and large, such games are hard to play. Moreover the English judiciary is conservative and less inclined to experiment procedurally. To the authors, the lesson of the Reagan era is particularly instructive. One might have expected, as the pendulum of public opinion swung to conservatism, to find a resurgence of legal formalism with a consequential drop in group participation and interest representation. Such has not been the case. It would indeed hardly have been possible for liberals to abandon the space which they had come to occupy before the Supreme Court; as the postWebster commentators imply, for reformists the Supreme Court is a short cut to political reform, imposing a national solution on variant state provisions. Neither Congress nor a Constitutional Amendment can equal the convenience of a Supreme Court ruling in this respect. While this remains so, conservative groupings, who in many states possess a decided political and legislative advantage, cannot afford to abandon this favourable territory to their liberal opponents. Skilfully deploying a combination of state legislation and litigation in state courts to buttress their campaigns, they have flocked to the Court to counter liberal arguments. Some commentators see them as having the edge on their liberal rivals and, from the funding point of view, this is undoubtedly true. But what the liberal groups lack in funds or political clout they make up in temerity and commitment and they have won some extraordinary victories, sometimes with poor material and primitive tools. Since neither side is easily able to withdraw, pressure through law is here to stay. This is neither as novel nor as alarming as some suggest. Tocqueville in his classic Democracy in America observed that the political power entrusted by Americans to their judiciary was immense but conceded that it formed one of the most powerful barriers yet devised against the tyranny of political assemblies. To put this somewhat differently, the American Constitution is one in which liberty is founded on the twin pillars of legalism and rights. In such a

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constitution, close connections between law, rights, politics and adjudication are inevitable. Everything points to the fact that Americans understand and accept the connection and that this national perception is not likely to be quickly changed.

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Pressure without reason may be irresponsible, but reason without pressure is ineffectual. Alan Borovoy, general counsel of the Canadian Civil Liberties Association INTRODUCTION In Chapter 1, we set out to dispel the myth that pressure through law is a recent phenomenon and to emphasise the continuity of our indigenous tradition of campaigning litigation. However, we would not want to push this argument too far and pretend that nothing has changed. In the last two decades, all so-called First World societies have experienced a process of rapid change, one effect of which has been to bring the nations together in a societal as well as a geographical sense. On the one hand, we possess the common advantages of relative wealth, access to consumer goods, education and information; on the other, we share common problems of (post-) industrialisation, intensifying urbanisation, poverty and pollution. Moreover, we share capitalist economies which operate in the context of an international capitalism in vvhich the nation state often plays second fiddle to multinational corporations. Inevitably, the effect has been to create new pressure points and, since common problems are more likely than not to produce common solutions, the responses are often not too far apart. The lesson of Chapter 2 was divergence within similarity. Constitutional and governmental arrangements, bureaucratic and rule-dominated, are more alike in Britain and America than we would sometimes care to admit. Again, however, the authors would not wish to push the argument too far. There are marked divergencies inside the framework of similarity which may help to explain differences of approach. Moreover, apparent resemblances sometimes conceal significant differences which, on closer examination, dictate different approaches. The common Anglo-American linguistic and cultural heritage contains many such false friends.

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Nowhere is this misleading pattern of like and unlike more evident than in our legal systems. The common law involves a mode of argument based on case law rather than the legislative codifications which form the basis of the civilian systems of our continental neighbours. With variations, a common law system is part of the shared cultural heritage of the anglophone world. Inevitably, such systems have much in common. Indeed, the preva- lence of the model through the common law world has led to much conscious borrowing. In common with distinguished comparativists (Kahn-Freund 1973, Markesinis 1990), we believe the comparative method should be used with care. In the next two chapters we shall argue that legal transplants between the variant common law systems are not always a good thing. Common law systems are ‘adversarial’ rather than ‘inquisitorial’ in character, by which is meant that the lawsuit is envisaged as a battle between opponents who retain control of the proceedings, with the judge filling the umpire’s place (Shapiro 1981). To put this differently, the judge in an adversarial system stands as a neutral arbiter between the two parties and does not participate as a protagonist in the proceedings. The constitutional concomitant of the common law approach is a strong tradition of judicial impartiality and independence. Campaigning litigation may put pressure on this tradition of independence, a tension which we examine more fully in Chapter 4. The adversarial model is often described as ‘bipolar’ and, because one party wins and the other loses, as a ‘winner-takes-all’ struggle leaving little room for negotiated compromise or mediation. This is of added significance in that English law is generally viewed as remedy-oriented; in other words, rights tend to be formulated in terms of the possibility of redress in courts. (Later we shall see that this may be part of the courts’ attraction—see pp. 158–9.) Again, the model is sometimes described as a ‘private law’ or ‘individualist’ model of adjudication in that the parties are nominally individuals (a disguise behind which we often find giant corporations masquerading). Critics see this model as reflecting a sturdy Victorian vision of society and as fundamentally unsuited to the task imposed on the courts by late twentieth-century societies (Chayes 1976). The model is not designed for the purposeful use of law by groups and in many ways is hostile to it. In real life, the model is heavily modified, if less so in England than in America, and the extent to which it is still in being is itself a disputed point (Damaska 1986). Today the criticism is not that the model obtains in all its rigour but that a perception or image of the model as a guiding sense of practice is still the presumed objective of many lawyers and policy-makers. We should not underestimate the model’s attractions; nor should we anticipate momentous change out of tune with the cautious, incremental approach of the common law. What is important to say is that group litigation functions partly to make law accessible to individuals, partly as a counterbalance to corporate

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weight. The crucial question for us is how far the legal system is prepared to go in acknowledging this and in making room for groups. Although we have made this key question the organising category for Chapter 3, the chapter’s underlying theme is representativeness and representation. These are twin issues which lawyers tend to side-step, pushing them inside the boundaries of political science. We have approached them from three separate angles: funding, multi-party litigation and representative proceedings—an approach heavily slanted towards entry to the court. If this limited focus were questioned, we would defend our choice on two main grounds. The first concerns continuity. The existing English rules on group actions are undergoing a process of incremental change, a good example of the continuity of the common law. The second involves legal transplants. Several of the procedural models advocated by reformers are conscious borrowings from the United States. The amicus brief is one which is central to the theme of representation: it is a prime example of an attempt to introduce American practice and (as we said in Chapter 2) it has become the commonest way there for groups to participate in test cases. (Because of its obvious relationship with lobbying, we deal with this topic in Chapter 4.) The first section of this chapter is given over to finance and access to funds. We highlight the fact that the legal aid system is antithetical to the use of courts for campaigning purposes, and can be said to reflect and reinforce the image of the private law model of adjudication. The second section is devoted to multi-party litigation, an area in which American patterns have in the authors’ view been widely misunderstood in England. The third is devoted to the place of groups in public law proceedings, a subject which the authors see as possessing implications for the legal process which lawyers have tended to ignore. The case-studies in this chapter involve a variety of groups: from broadbased national groups to local amenity groups or neighbourhood groups served by community lawyers. To describe one type of group which lies behind some of our cases, however, we have used the phrase ‘litigation coalition’. By this we mean a group of individuals who come together to complain of a common grievance. There are many variants on the litigation coalition, not all of them operating inside the framework of civil law. Shareholders challenging the board of directors, travellers stranded by the failure of an airline, depositors affected by fraudulent banking practices, all fall within our definition and all may turn to the law in a search for redress. We shall move from amenity groups seeking to halt planned closure of a branch line or development of a site of exceptional cultural interest to a parents’ support group, seeking priority treatment for desperately sick children. In Chapter 5, we shall find that criminal as well as civil law may be used to secure a group’s objectives; here, that they may equally be best served by an application for, or the public law remedy of, judicial review. We have chosen, however, to treat one type of litigation coalition in fgreater detail—namely, that which is associated with so-called ‘mass-torts’. A mass-

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tort involves a civil action in damages brought, for example, by the victims of a mass transport accident like that at Zeebrugge or of the side effects of a pharmaceutical product such as Thalidomide. There are several reasons for our choice. The groups have appeared only recently but are developing very fast. The scale of the action may present courts with procedural problems. Clashes of interest inside the coalition often call in question its representativeness and may threaten its effectiveness and very existence. Such coalitions have mixed motives and use a mixture of techniques, political and legal. As we shall see in Chapter 4, this may be an explosive combination bringing courts and campaigners into conflict. COSTS AND FUNDING Let us begin where a pressure group must begin, with money. It comes as no surprise to learn that access to finance is a major factor influencing the pattern of pressure through law. Here too we find important differences between Britain and America. As yet there is in Britain no equivalent of the large-scale funding by charitable foundations or of the mass mailing techniques of American public interest law (see pp. 96, 100). On the other hand, Britain has a well-established legal aid scheme; in America, only the very poorest can expect to receive legal aid (Hughes 1987). Further, the two legal systems employ different costs rules, and different ways of paying lawyers. In this country costs generally ‘follow the event’, meaning that whichever side loses must pay its own legal costs and those of the winner. As we saw in Chapter 1, the ‘contingency fee’ (whereby the client pays nothing for legal services if there is no recovery and the lawyer takes an agreed percentage if there is recovery) was champertous. Although legal liability for maintenance and champerty is abolished, an agreement for a contingency fee is held still to be unlawful as contrary to public policy (Wallersteiner v. Moir (No. 2) (1975)), and it is banned by the solicitors’ code of professional conduct. What is now authorised is the ‘speculative’ or ‘conditional fee’, whereby the lawyer is paid nothing if there is no recovery and his normal fees and a small premium if there is recovery (Courts and Legal Services Act 1990, s.58). Introduced from Scotland by the Lord Chancellor, the nearest we in England have come to the contingency fee, it hardly gives the same incentive! There has been fierce resistance in England to every attempt to introduce the contingency fee. One worry is the possible conflict of interest between clients and the lawyer seeking to maximise percentages. It is said also that the contingency fee encourages unnecessary and unmeritorious litigation, so harrying defendants into paying the nuisance value of claims. Thus, in a country where litigation is traditionally seen as undesirable and a remedy of last resort, the contingency fee is seen as making access to the courts too easy (Youngwood 1965, White 1978b, Leggatt and Wickerson 1985). One

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objection to this argument is that large corporations are anyway well able to use litigation as a delaying tactic or to pressurise opponents1 and this only accentuates advantages which they already possess. An alternative criticism of the contingency fee is that good claims may be assessed as too risky and unlikely to make a profit for the lawyer; that is, that it does not always do what it is often claimed to do, namely to provide access to the courts especially for the impecunious (Law Society 1989). In Britain, where legal aid at least until recently has been relatively generous, the obvious ploy for a group is to set up a ‘frontman’ eligible for full legal aid, effectively transferring much of the financial risk of litigation to the state. However, the philosophy behind the legal aid scheme is individualist (Seton Pollock 1975) and it has not encouraged group litigation. Previously run by the Law Society, in 1989 the scheme (which dates from 1949) became the responsibility of the Legal Aid Board, government appointed. A concoction of statute, regulation and guideline, it has been likened to an ‘impenetrable maze’ (Hansen 1989:1). The essential elements of the scheme are as follows. First, civil legal aid is a means-tested benefit. The means test on income allows the unemployed and low-paid to qualify; those of modest means may qualify but are required to make contributions. In 1991 the upper limit on disposable capital was £6,310 (£8,000 in personal injuries cases) with discretion for pensioners of modest means following the Opren case (see pp. 130–5). Second, there is a merits test aimed to ensure that legal aid is given only for cases which warrant the use of public money. There must be reasonable prospects of success. Another factor is whether the costs are disproportionate to the likely benefit: the so-called ‘paying client test’—would the costs be considered justified by a person with the means to pay? These tests continue to apply throughout the lifetime of a case: the Legal Aid Board can withdraw support and is liable to do so if a reasonable settlement is refused. Very relevant is the relationship between the cost rules and legal aid. To repeat, the winning party is normally entitled to costs from the other side: the catch is that the loser rarely pays them in full. The ‘statutory charge’ gives the legal aid fund first call on any damages award and reflects the difference between the actual expenses which the fund incurs and ‘taxed costs’, those which the losing side is required by the court to meet. On the other hand, the major exception to the rule that costs follow the event is where a legally aided plaintiff loses a case. Almost always the winning defendant must bear his own legal costs and has no claim on the legal aid fund. As Lord Donaldson explained in the Opren case, ‘Legal aid helps those who lose cases, not those who win them. Legal aid makes “out and out” grants to those who lose cases. It only makes loans to those who win them’ (Davies (Joseph Owen) v. Eli Lilly & Co. (1987)). It is important to add that eligibility for legal aid on income grounds fell sharply during the 1980s, from 70 per cent of the population in 1980 to below 50 per cent in 1989 (Glasser 1988, Murphy 1989). Presently, the Lord

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Chancellor has in hand a number of reforms, notably the imposition of downpayments, criticised in many quarters as liable to further erode access to justice (Smith 1991). The previous criteria apply generally, but sometimes with a cruel twist in complex multi-party cases as we shall see. Many forms of proceeding which are relevant to group action do not attract any legal aid. Most administrative tribunals fall into this category, including the industrial and welfare tribunals which are the setting for much campaigning. We would single out also the planning inquiry and the coroner’s inquest, and in public law matters the special ‘relator action’ (see p. 145). Other aspects of the scheme strike at group action more directly. A question the solicitor must answer when completing the legal aid form is ‘does any other person or organisation stand to benefit from the proceedings (e.g. other members of [a] tenants’ association)?’ The regulations deal with membership groups by allowing refusal where the applicant has ‘a reasonable expectation of obtaining financial or other help from a body of which he is a member’ (Civil Legal Aid (General) Regulations 1989, reg. 30). The ‘paying client test’ is firmly individualist in character: the measure the value of the benefit sought for the particular applicant (Note for Guidance 9). Clearly at risk are ‘diffuse’ interests —we would instance interests in consumer protection or, environmentalists might argue, in lead-free air—where the common interest is spread thinly among large numbers of persons and the benefit to any one individual in remedying an infringement is too small an inducement for separate legal action. Very relevant is regulation 32, which deals with cases where ‘numerous persons have the same interest’—for example, parents opposed to a school closure. If it is considered reasonable to require the others to contribute to the costs, the assisted person will be required to pay these contributions in addition to any of his own. In effect, the applicant is left to bear the contributions payable by others or to collect them, potentially an odious task. Aimed at the ‘frontman’ but crudely so, regulation 32 frequently causes applications to be abandoned. The argument must not be pressed too far. Some aspects of the scheme relevant to groups are discretionary in character. In 1979 the Royal Commission on Legal Services noted laconically that on occasion legal aid was made available for groups ‘but the principles on which this can be done are not defined and there is no settled practice’ (Benson 1979: para. 12.57). Ten years later, the Legal Aid Board was noting that ‘different area offices are applying the regulation [32] in different ways, and that practitioners are uncertain about its effect’. There is some scope within the scheme to make it more accommodating to group actions. The ‘paying client test’ can be disapplied, and has to be for complex pharmaceutical litigation to take place (Gordon 1991). According to the Board, regulation 32 should not ‘normally’ be applied in cases where the applicant stands to gain ‘significant benefit’

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(Legal Aid Board 1989:2–3). Later on, we shall see a special sub-scheme emerging for multi-party actions in personal injuries cases. Without getting further bogged down in the details of legal aid administration, let us consider some practical examples. The first concerns a tenants’ group which, with the support of the local law centre, wanted to take the council to court for failing to consult on a major change of housing management as required by s. 43(1) of the Housing Act 1980. The action never got off the ground. Legal aid was refused, apparently because the tenant actually named in the action stood to gain so little personally. If consultation was so important, it was reasoned, then tenants should club together and pay for the litigation themselves (62 Community Action (1983) 3). Yet the litigation was predicted to cost £7,000. Contrariwise, when Brent council decided to close three schools, parents formed PASS, Parents’ Action to Save Schools in Brent, and, with the support of the local law centre, sought judicial review. The local area office granted the parents legal aid on condition that they would not claim all their costs. According to the law centre workers this was a turning point, providing an essential protection if the parents lost. PASS went on to have the council’s decision quashed (R. v. Brent LBC ex p. Gunning (1985)). The campaigners later reported that PASS was now able to have a significant input into educational decision-making in Brent (Grace and Morgan 1985). Richard Thomas, formerly legal officer at the National Consumer Council, gives a good illustration of the scheme’s restrictive operation in the field of consumer affairs. Counsel gave an opinion that a tariff increase proposed by the London Electricity Board, estimated to cost consumers £70 million, was ultra vires. But a consumer was denied legal aid because the amount at stake for her personally was too small; since others would gain by her successful action they should contribute to the costs (Thomas 1986:322). It could be argued that this is fair. If groups wish to use the courts and benefit from the legal aid scheme in circumstances where an individual would not be permitted to sue then they should be asked to contribute. However, for many groups this may be beyond their means. In 1979, for example, a group of Burnley dog-owners took to the courts to challenge the validity of a council decision barring their dogs from public parks on health grounds. The case was certainly an arguable one but it was lost. Bankruptcy loomed when a bill for £13,500 was received on top of their own costs of £10,000; a public appeal proved to be the only way out (Burnley Express, 17 December 1979). On the one hand we could argue that the absence of legal aid funding in such cases is calculated to handicap the celebrated ‘little man’. On the other hand, one can argue that a court is no place to sort out disputes of this kind and it is wise to keep costs as a deterrent. This is an argument about the function of courts on which there are very different viewpoints. There are ways other than legal aid in which public money is channelled into private advocacy. These do not entail the same problems over collective

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action: rather the reverse. A number of public agencies, notably the Commission for Racial Equality and the Equal Opportunities Commission, are empowered to provide legal advice and support litigation. Evidence that a given case involves diffuse interests or is otherwise of importance to a wider class would be likely to encourage rather than discourage the agency in funding. The EOC uses these powers quite widely. In 1990, the agency received 272 formal applications and granted legal assistance in 188 cases, of which 156 were industrial tribunal cases (AR 1990:34). These points arose directly in the well-known case of Gill v. El Vino Co. Ltd. (1983). A group of professional women wanted to challenge the refusal of a fashionable wine bar to serve women at the bar. A ‘front woman’ could not obtain legal aid: the EOC agreed to grant legal assistance. However, the agency then received counsel’s opinion that this was not a case which the agency ought to fund: on the grounds that it was unlikely to succeed, that it raised no important question of principle, and that it might provoke public criticism of the EOC (LAG Bulletin 1982, December, 3). In the event, the agency proceeded, and in a wide-ranging judgment the Court of Appeal held that there was unlawful discrimination. Central government regularly makes grants to voluntary organisations. Some organisations, like the RSPCA, decline the invitation and make independence from government a virtue when they appeal for funds. By contrast, the CPAG, for example, is prepared to accept grants from the government. Of course a group in this position may hesitate before opposing in court the grant-making body. The CPAG most certainly does not but the dilemma is well known in law centre circles. On more than one occasion, a law centre which has taken action against the local council has found its grant from the council suddenly at risk. Just occasionally central government lends a hand directly. Pleas for assistance to groups appearing at planning inquiries of national importance usually fall on deaf ears, but for the Butler-Sloss inquiry into the handling in Cleveland of cases of alleged child abuse (Cm 412 (1988)) the parents’ action group received considerable support. Government may also subsidise group litigation by choosing not to seek costs. The Attorney-General occasionally does this in cases where he considers the litigation to be of great public interest: a century apart, Chorlton v. Lings and Gouriet’s case (see pp. 23, 146) are examples. Even then, Gouriet’s case did not come cheap; the Freedom Association’s own costs in fighting the case to the House of Lords were £90, 857 (The Times, 18 February 1978). Local authorities possess a number of powers under which grants can be made to voluntary bodies. This money too can find its way into lawyers’ pockets. Naturally, much depends on the enthusiasms of the council and the identity of the group. Later on we shall see the Greater London Council support the CPAG in an important case on social security, and in another case the CPAG involved in a complex set of arrangements, standing as a

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representative plaintiff alongside the National Association of Citizens’ Advice Bureaux and two local authorities, with other councils providing additional financial support. The CPAG has some experience of building funding coalitions. It entered into a similar arrangement with the National Union of Mineworkers to fight R. v. Chief Adjudication Officer, ex p. Bland (1985), a case in which the union had an obvious interest because it concerned the legality of deductions made from supplementary benefit payable to striking miners. Another area where we could anticipate local authority funding is action against private landlords. A.G.Securities v. Vaughan (1990) is a leading case on the meaning of a tenancy as opposed to a licence. It concerned the residents of a block of flats, not all of whom were eligible for legal aid, and was partly funded by Haringey council with monies raised under s.137 of the Local Government Act 1972, the so-called ‘twopenny rate’. Another London Labour council, Camden, established guidelines for funding litigation, comprising: (i) test cases, (ii) cases of benefit to local groups, and (iii) cases which complement council action. Mira v. Aylmer Square Investments Ltd. (1990) involved a residents’ association in three blocks of flats in Belsize Park. The freeholders put extra flats in the roof: the flats underneath suffered from water penetration, noise and dust and inadequate insulation. In default of legal aid, Camden agreed to pay the costs of the tenants in suing for compensation and to indemnify them against any order for costs made against them, no minor commitment (i/v Nic Madge, solicitor, 1988). Herein lies the rub. Council funding for group action in the community is inevitably sporadic, and cannot be immune from the retrenchment of local government expenditure, which was such a feature of the 1980s. DISASTER GROUPS, DISASTER LAWYERS Disasters are as old as recorded history but the capacity to harm large numbers of people has undoubtedly increased in direct proportion to the spread of industrialisation, the growth of mass markets, and the development of modern transport systems. In its usual leisurely fashion, the legal system started to respond to the phenomenon during the nineteenth century and with increasing vigour during the period leading up to the Second World War (Cornish and Clark 1989). In the post-war period, however, the development, on the one hand, of state systems of accident compensation for industrial and other injuries (Atiyah 1989) and, on the other, of a national consumer movement, came together to foster an altogether new expectation of compensation in such cases. Latterly in England we would single out the role of a new breed of specialist ‘disaster lawyer’. The distinction is usefully made between the ‘instant’ disaster claim, which typically arises out of a mass transport accident, and the so-called ‘creeping’ disaster case, for example pharmaceutical litigation, where the scale of the

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problem only emerges as individual members of the class come forward, perhaps in response to a press campaign or an action which is already under way. One target is the state, to be manipulated through political action into providing compensation; the second, the manufacturer or other wrongdoer through a civil action for damages. The state may of course be cast in the dual role of wrongdoer and benevolent source of funds as, for example, in a recent campaign by ex-servicemen in respect of harm from atomic tests carried out in the Pacific after the Second World War (Pearce v. Secretary of State for Defence (1988), Boyd 1989). Only on the surface does such an action resemble the traditional lawsuit in which inter-party negotiations take place in the framework of litigation. Disaster actions remind us that a litigation coalition need not be ephemeral, nor aimed solely at litigation. Many litigation coalitions are short-lived; in mass-tort cases, and especially in product liability cases against powerful corporations, a coalition may wish to be short-lived but find itself instead embroiled in years of struggle. The other variant is the premium placed on the court as the forum in which to seek redress. At the same time as through its advisers the coalition prepares for trial, it may actively campaign to avoid having to go to trial. These aspects are well illustrated by the Association of Parents of Vaccine Damaged Children. Founded in 1974, the group has struggled ever since to win compensation for children said to be brain-damaged by whooping cough vaccine. A complicating factor in the campaign has been division of responsibility. The vaccine was manufactured by private pharmaceutical firms but administered by agents of the NHS as part of an official drive against whooping cough. Furthermore, there was no statutory duty to vaccinate one’s child on which to rest a claim for compensation and the government, although eventually forced to recognise a moral claim, was only too glad to stand on its legal rights. From the outset the Association had to reckon on an uphill struggle to establish legal liability. Proving negligence either in the manufacture or administration of the vaccine was no easy task. Causation was another major legal hurdle: many young babies suffer spontaneously from the fits which are a major symptom of vaccine damage. The biggest hurdle of all, however, lay in the Association’s main opponent, the Wellcome Foundation, a multinational drug manufacturer, willing and able to incur legal costs later estimated to exceed £1 million (Dyer 1987) to defend the vaccine’s safety record. So the Association tried to skirt these obstacles. It hit on the idea of complaining to the Parliamentary Commissioner,2 whose dual function as Health Service Commissioner gave him access to the records of the DHSS, regional practitioners and health visitors. In his report (HC 571 (1976/7)), Sir Idwal Pugh was critical of the information which the Department had made available to doctors and parents concerning adverse reaction. However, in the four test cases put up by the Association he drew back from a specific finding

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of maladministration which might have resulted in ex gratia compensation. So with the help of Jack Ashley MP, probably the most experienced campaigner for the disabled, the Association fought on to achieve the Vaccine Damage Payments Act 1979, which provided for compensatory payments of £10,000 (later £20,000) to any severely disabled person who, on the balance of probabilities, had suffered vaccine damage. But the scheme was to prove a severe disappointment to the Association. In the first three years only 13 per cent of claims succeeded initially and of those which failed only a quarter succeeded on appeal (Dworkin 1979). Worse still the government declined either to implement the recommendations of the Pearson Commission on Civil Liability which would have provided a new legal remedy based on strict liability,3 or to uprate the compensation payable under the statutory scheme. Further articles appeared in the Press, a debate was raised in the House of Lords, but the government held firm. The group now had little option other than the courts and, as we shall see, the result was to prove disastrous. We can pursue the matter in several ways. Held over to Chapter 4 are the campaign techniques which in recent years have become part and parcel of mass-tort litigation. A not unconnected aspect is the rise of the disaster lawyer. A number of solicitors’ firms now specialise in disaster litigation, of which the best known is Pannone Napier (Berlins and Dyer 1986). ‘lnstead of going for a writ, he goes for a press release’ is one newspaper’s description of senior partner Rodger Pannone (The Observer, 28 April 1991). As group litigation goes, disaster lawyers play an exceptionally creative role. They are ‘repeat players’, able to camouflage the fact that as a litigation coalition the plaintiffs are ‘one-shotters’. Mass-tort litigation generates huge numbers of documents and requires a very high degree of co-ordination. Making use of the new information technology and beginning with the Manchester Airport fire in 1985, Pannone Napier pioneered a multiple claims strategy in personal injuries actions, uniting individual plaintiffs to fight wealthy corporations or the government. Briefly, plaintiff solicitors pool their resources and share the fees. As perfected in later cases, local solicitors deal with individual clients while a steering com mittee containing disaster lawyers conducts the litigation: one of them becomes the lead solicitor and the channel of communication with the local or ‘satellite’ lawyers (McBryde and Barker 1991). In short, in mass-tort cases we are really thinking in terms of two groups: a group of lawyers and the victims in a ‘disaster group’. The disaster group may already exist; if not, the disaster lawyers will take steps to encourage its formation. Prompted by the Consumers’ Association, the Law Society too has developed a networking role. Its ‘disaster co-ordination service’ first swung into operation following the Zeebrugge Ferry disaster in 1987. After the initial press release come fact-sheets for solicitors, victims and their families. The solicitors are encouraged to register cases with the service, which compiles a

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central register and initiates a meeting at which a steering committee is elected: the disaster lawyers take over (Bowsher 1991:10, 44–5). We would single out two other organisations. First, AVMA, Action for Victims of Medical Accidents (1982), a pressure group whose main focus is medical malpractice, but which has an interest in pharmaceutical litigation. The group has played an important and ongoing networking role, providing an education and advisory service for lawyers (Simanowitz 1990:97–100). Second, APIL, the Association of Personal Injury Lawyers, formed in 1990. Designed primarily for plaintiffs’ lawyers, and modelled on the American Trial Lawyers Association (ATLA), the group intends to develop an information exchange and special litigation groups for its members (Melville Williams 1991). All this is a far cry from the letters column of the Law Society Gazette, the conventional way in which solicitors seek out other solicitors with like cases—a hit and miss affair! Multi-party litigation makes technical demands on the legal system which the latter is not always equipped to meet. Frustration with what are seen as outmoded procedures inside the courtroom fuels campaigning outside it. On the other hand, in the pragmatic way of the common law new procedures are developing, procedures which require disaster lawyers to operate them, and procedures which we shall see disaster lawyers play a key role in developing. The authors see disaster groups and disaster lawyers as a main driving force in the recent development of pressure through law. The techniques we have been describing are being taken up elsewhere. Commercial lawyers have been busy organising a steering committee on behalf of depositors in the Bank of Credit and Commerce International. Earlier they encouraged the formation of the investors’ action group in the Barlow Clowes affair (The Independent, 6 July 1991). Again, the technical problems thrown up by multi-party litigation are highlighted by, but are by no means confined to, disaster litigation; arguably, the original development was in commercial cases. WESTERN PROMISE: THE CLASS ACTION The ‘class action’ is a prime example of an American concept exerting a considerable pull in England; and an American concept which is often misunderstood and even idealised in England. The term is often used generically, signalling no more than an action brought by or in the name of a group of people. More correctly, it refers to a form of action which does not exist in England. The class action is authorised by the US Federal Rules of Civil Procedure and is also recognised in individual states of the Union. Paraphrased, rule 23 of the Federal Rules authorises a class action to be brought by representative members of a class where (a) the class is so numerous that joinder is impossible; (b) there are common questions of law or fact; and (c) the representatives will ‘fairly and adequately protect’ the interests of the class. In addition, the rule provides that the court shall certify a

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class action only where it is ‘superior to other available methods for the fair and efficient adjudication of the controversy’. In a noted article which recounts the historical development of the American class action, Yeazell (1980) identifies two competing themes: first, judicial economy, the view of multi-party litigation as a kind of ‘judicial vacuum cleaner’ which collects up identical lawsuits and so tidies the courts’ caseload; and, second, access to justice, the view of the class action as a vehicle for groups of claimants who might otherwise find it difficult to pursue their interests in court. Yeazell believes that the framers of the original rule 23 saw it in 1938 in terms of judicial economy, and that the action then developed and the emphasis changed under insistent pressure from liberal groups, especially when in 1966 amendments were made to rule 23 which relaxed the procedural requirements (Kaplan 1967). It is not surprising to find campaigners in this country calling for the class action to be introduced. The class action has obvious attractions. It has been described as a device for securing the benefits of scale without the outlay for organisation (Galanter 1976:240). All that is required to initiate action is a lawyer and one or more individuals to represent the class members. Special rules allow an action to continue even if the claims of the named plaintiffs are bought off, or otherwise rendered ‘moot’ (Cappelletti and Garth 1983). The form of class action most frequently filed is one seeking injunctive relief. Familiar in the area of civil rights, it has been used to force compliance with various public laws (Fiss 1989). The great value of these suits is that they often involve diffuse interests: the cost of the litigation would be prohibitive in the absence of the class action. Most enticing is the class damage action. Not only may class members claim damages, it is possible for a court to award ‘global damages’—that is, an award to cover the claims of the entire class including those whose identity is unknown. The class action has inhabited a more hospitable legal environment than obtains in England. The more innovative attitudes of the American courts, especially those associated with the era of the Warren Court, have led them to experiment with collective remedies. The example of ‘bussing’ in the wake of Brown is well known (and its problems have already been mentioned). The class damage action reflects the idea of the deterrent function of civil liability which is taken far more seriously in the United States (Fleming 1988:214–24) than in England where the general principle is that the purpose of an award of damages is to compensate the plaintiff, not to punish the defendant. The method of financing such litigation by contingency fees is more favourable; jury trial for civil actions is prevalent; and in some areas of the law, notably anti-trust or competition law, there is statutory provision for triple damages. It is, of course, the more daring of American experiments which attract attention in foreign parts, rather than the run of conventional decisions. An example is Daar v. Yellow Cab Co. (1967) in which the plaintiff sued a taxi cab company on behalf of himself and others on the ground that their charges

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had been excessive. The $1.4 million settlement involved the court in ordering a prospective reduction in the company’s charges until the excess profits had been disgorged. Here the class action became a means of preventing unjust enrichment and ‘a tool for the deterrence of unlawful, socially destructive conduct’ (Weinstein 1973:304). Consistent with the shifts in legal and political scenery outlined in Chapter 2, the class action has come under increasing attack in America. Concern expressed among the business community about overkill has been reflected on the bench. In Reiter v. Sonotone Corporation (1979) for example, a class action was brought on behalf of purchasers of the corporation’s hearing aids, alleging illegally high prices. Commenting on the view that triple damages took on a new significance in the light of class actions, Justice Rehnquist observed tartly that this was a miracle of understatement. In the Agent Orange litigation, disputes broke out between the class members and the lawyers (Schuck 1986). These are unsavoury aspects of the class action which may help to explain a growing disenchantment in the United States. In 1975, some 3,000 class actions were started in the federal courts; by 1986/7, the number had fallen to 610 (Hughes 1988). Some tough conditions have been imposed; in the federal courts, each class member to have a claim worth at least $10,000, and the representative to absorb the cost of notifying class members individually (Zahn v. International Paper Co. (1973), Eisen v. Carlisle and Jacquelin (1974)). In the last few years, attempts to expand muki-party litigation in the United States have been concentrated in mass-tort cases (Kane 1990). Traditionally, this is an area for individual actions. The class damage suit, it is said, is inappropriate in mass disaster cases because of likely variations between class members’ claims. Perhaps more important, plaintiffs’ lawyers operating on a contingency fee basis have the incentive to seek punitive damages in individual actions and so avoid the administrative problems of the class action (Coffee 1987). To put this differently, classaction procedure is rarely used to prove liability. Strong cases are fought individually, so allowing several tries. Once liability is established, a class action may be used to hoover up the lesser claims. This is what happened in the American version of the Opren litigation. A new theme has begun to emerge, which in England has an unfamiliar ring, namely the class damage suit as a defensive tool. Many demands to allow class actions in mass-tort cases come from defendants confronted by multiple claims in multiple forums of the plaintiffs’ choice. They wish to force plaintiffs into a single forum where, at most, a single punitive award may be assessed.4 Although defence arguments have so far met with limited success, the unprecedented volume of individual actions causes great pressure to facilitate multi-party litigation in mass-tort cases. The American Law Institute proposes new powers to transfer and consolidate related civil actions in state and federal courts (Kane 1990).

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These points are worth bearing in mind when we look at recent developments in England. A similar phenomenon appears, a novel form of multi-party litigation in mass-tort cases, the ‘co-ordinated scheme’. In both countries there is demand for judicial economy. But in England much of the pressure for change comes from plaintiffs’ lawyers and pro-plaintiff organisations like the Consumers’ Association and the National Consumer Council. Individual claims are seen to be uneconomic, multi-party litigation being the only viable means of vindicating plaintiffs’ rights. A great deal of co-ordinated activity takes place in mass-tort litigation in America. Among plaintiffs’ lawyers strict co-ordination by means of the class action is replaced by informal networks for information sharing and technical assistance. The activity is traceable to the early 1960s and a group of lawyers acting in connection with an anti-cholesterol drug MER/29. The lawyers came together through the products liability exchange maintained by ATLA, the meeting place for many plaintiffs’ groups. The group’s committee operated as a clearing house, negotiated the process of discovery and produced packets of documents for members of the group (Rheingold 1968). We can see in this the seeds of the multiple claims strategy of the British disaster lawyers. Two points may be made. First, the profession in this country was slow to latch on to this aspect of American practice. APIL, the Association of Personal Injury Lawyers, came into being only recently. Second, the financial pressure on plaintiffs in England points to closer co-ordination among groups of plaintiffs’ lawyers than is the case in America. Later on, we will see this producing tensions of its own (see pp. 132–5). POOR RELATION: THE REPRESENTATIVE ACTION The American class action has its roots in the English representative action (Yeazell 1980) but in England, with its stricter adherence to the narrow and individualist model of the lawsuit, the representative action never took off. It is provided for in the Rules of the Supreme Court (Order 15, rule 12): where numerous persons have the same interest in any proceedings…the proceedings may be begun, and, unless the court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. The representative action is a blunt instrument. The leave of the court is not required to begin an action, and it is possible for an individual to do so without having to notify the other persons whose interests he claims to represent. The proceedings are ‘unsupervised’ which means that the court does not check the propriety of any settlement agreed to by the representative plaintiff, and, although some limited relief comes from a proviso that a judgment cannot be

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enforced against a non-party without leave of the court, a judgment made in a representative action is binding on all the persons represented, whether or not they were party to the proceedings. Clearly, this form of proceeding raises the problem of adequacy of representation; individual members of the class may go unrepresented or be misrepresented in point of fact. We could summarise the history of the English representative action by saying that it was available where it was likely to have least effect. At the end of the 1970s, our leading authority on civil procedure could observe that the courts had construed the rule so strictly that very few actions ‘are or can be brought’ (Jacob 1978:470). It had been held that class members must share a ‘common interest’ and ‘common grievance’ and that the relief claimed must be beneficial to all. Of itself this was unexceptional; as with class actions, it is of the essence of the representative action that the class can be delineated. But the formula came to function so as to remove even the possibility of a representative action in many cases. It was not available in consumer cases because, although each class member’s claim arose out of an identical or ‘standard form’ contract with the same company, in strict legal terms each contract was separate or personal to the parties. Most tort actions were excluded because ‘common interest’ was thought to be lacking at the very point where the American class action bites most deeply: damages. It was thought that damages, being personal to the circumstances of each individual, had to be separately proved by that individual.5 One very interesting case fought by a litigation coalition highlights the problem of adequacy of representation, which no doubt helps to explain the hostility of the court to the representative action. The case, which dates from the 1950s, involved a scheme put forward by Cardiff Corporation to balance its housing budget by increasing council tenants’ rents on a means-tested basis. This entailed a cross-subsidy from 8,000 higher-income tenants to 5,000 low-income tenants. The scheme, to be administered through a detailed questionnaire to tenants about their personal circumstances, caused a storm of protest. A tenants’ protection society was formed which decided to go to court. In a representative action, four tenants sought a declaration that the scheme was ultra vires and an injunction ‘on behalf of themselves and all other tenants of houses provided by the defendants’. Nine thousand tenants signed a petition put before the court expressing support. The Court of Appeal disallowed the representative action, holding that the relief claimed would not prove beneficial to all and that the council’s tenants did not share a ‘common grievance’. Lord Evershed pointed to the existence of two classes of tenant ‘whose interests are not only not identical but are in conflict, namely, the subsidisers and the subsidised’. He went on to stress the ‘ordinary individual’s liberty’ not to be represented in proceedings ‘whether [he] liked it or not’. The Court also took the point that a representative action provided no distinct advantage over an individual action; given the local uproar, a single successful claim would have wrecked the Corporation’s scheme. In the event, the

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applicants’ writ was amended into individual claims: the case was later lost (Smith v. Cardiff Corporation (1954), (No.2) (1955)). It seems that our courts may belatedly be adopting a more open approach to the representative action. In Prudential Assurance v. Newman Industries (1980) minority shareholders in a company wished to contest a takeover recommended by the directors on the ground that a circular issued to shareholders was misleading and fraudulent.6 To the surprise of many lawyers (Uff 1986) the judge said that the representative action could be utilised in a damages claim. But here his generosity stopped; he awarded a declaration that all members of the class were entitled to damages but left them to come forward separately to prove their damage. More recently, in Irish Shipping Ltd. v. Commercial Union Assurance Co. plc (1990), it was held that a representative action could lie against a number of insurance companies, all subject to separate but identical contracts, even where they were each liable for a different proportion of the damages claimed. This case has been described as finally removing the obstacle in the way of the flexible development of the representative action created by the restrictive application of the common interest rule (Supreme Court Practice 1991, vol. 1:218). Different views exist, but clearly there is material here for development, which previously was thought not to be the case (Jolowicz 1983). In the meantime however, the representative action has been overtaken by an alternative procedure, the ‘lead action’, where flexibility is the order of the day. MUDDLING THROUGH? THE LEAD ACTION Although virtually useless, the representative action was the formal procedure in the Supreme Court Rules for dealing with multiple claims. However, under Order 4, rule 9(1), a court which believes that separate actions raise ‘some common questions of law or fact’ can order any of them to be stayed until after any of the others has been determined. Turning this round, from multiple suits the judge is empowered to choose one or more specimen ‘lead actions’. A litigation coalition can at least concentrate resources; the court and defendants save time and resources. Into this device is dovetailed the multiple claims strategy of the disaster lawyers. For the device to operate efficiently, much coordination is required: the strategy supplies co-ordination. The ‘steering committee’ handles the lead actions: the ‘satellite’ solicitors handle cases in the wings. The ‘co-ordinated scheme’ is England’s answer to the class action. The technique has two further characteristics commonly associated with the English. Lead action procedure is a compromise, an amalgam of individual and collective approaches to legal form; approaches, we shall see, which the parties seek to emphasise at different times. Second, in the pragmatic spirit of the common law, here taken to extremes, the actors make up the rules as they go along. On a case-by-case basis, or more accurately on the basis of preliminary or interlocutory hearings and practice notes, the new procedure is

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built up, virtually from nothing. Much of the innovation has taken place outside the formal Supreme Court Rules, by agreement of the parties and the judge (Mildred and Pannone 1990:236). It is important to stress the speed of change in the last five or six years, and the process is not complete. A further characteristic not commonly associated with the English legal system is the ‘managerial judge’; co-ordinated schemes call for a more ‘hands-on’ approach to litigation than is customary in our adversarial system. A series of problems arose in the vaccine damage litigation. We mentioned that when eventually the parents of the children went to court the result was disastrous. Claims were failing under the statutory compensation scheme because causation could not be proved: the courts required the same standard of proof. The first case to reach the courts in Scotland failed in 1985 because the Court of Session was not satisfied on the causation point. In England meanwhile, many of the potential plaintiffs applied for and were granted legal aid. Some 200 separate actions were pending when a single judge was nominated to take control of the litigation. Seventeen-year-old Johnie Kinnear was legally aided and his claim was chosen as the lead action. However, the common or generic issue of causation—whether the vaccine was ever capable of causing brain damage—was not separated from the particular issue: whether Johnie himself had been injured by it. Five weeks were spent arguing the generic causation issue before the court moved on to consider the circumstances surrounding Johnie’s claim. In evidence his mother promptly contradicted the medical records. The legal aid authorities withdrew support and the individual claim collapsed, bringing down with it all the evidence on the generic issue of causation which was never determined. The failure fully to recognise the collective dimension of the case had caused several hundred thousand pounds of legal aid monies to be wasted; the whole question would have to be relitigated. The immediate lesson was digested. In the case of Susan Loveday, the lead action nominated as replacement, the trial did not go into the merits of the particular case, concentrating on the generic issue of causation. Susan Loveday was also legally aided, and the legal aid system posed a problem. It was estimated that with four counsel, a dozen expert witnesses and a trial likely to last three months, Susan Loveday’s costs in litigating the common causation issue would exceed £1 million (Dyer 1987). If she won, it seemed as if she would have to make up from her damages the shortfall in the costs actually received (‘taxed costs’), whereas other claimants would take the benefit of the ruling free of charge. The point was not resolved because the Loveday action failed. The judge concluded that the plaintiff had failed to establish on the balance of probabilities that the vaccine would cause brain damage in young children (Loveday v. Renton and Wellcome Foundation Ltd. (1990)). However, the 300 page judgment was couched in ambiguous terms. This raised awkward questions about the effect on cases in a co-ordinated scheme of the main

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determination. In strict law a decision of fact in a lead action is not binding on other parties in other actions unless they have agreed to the contrary or there is a court order to that effect. Other claimants on legal aid were ready to step into Susan Loveday’s shoes. New medical evidence was gathered and counsel’s opinion obtained that the causation point could now be resolved in the plaintiffs’ favour. The legal aid committee was not convinced and withdrew certificates, whereupon the plaintiffs applied successfully for judicial review of the unfavourable decision (R. v. Legal Aid Area No. 8 (Northern) Appeal Committee ex p. Angell (1990)). The show was on the road again. We now turn from vaccine damage to focus on the Opren litigation. This is significant as epitomising the difficulties which a litigation coalition may experience in practice. It served to highlight the limitations of the legal aid scheme in multi-party cases. It sparked in consequence, first, an especially vigorous campaign to win compensation for the claimants, and, second, a campaign to bring about reform (see Chapter 4). Finally, the terms of the settlement raise important questions about the relationship of a coalition and its lawyers in this kind of case. Opren was an anti-arthritic drug produced by an American multinational, Eli Lilly. Available in Britain in the early 1980s, it was withdrawn after many reports of adverse reaction, most frequently of photosensitivity. The Opren Action Group (OAG) was formed as a support and counselling group by Kathleen Grasham, whose mother had been an Opren victim. Its case was negligence on the part of Eli Lilly in the testing and marketing of the drug, and of the Department of Health in licensing the drug. Initially, the lawyers tried to take advantage of American tort law by suing Eli Lilly in its home state of Indiana. But the judge ruled that the American courts were not open to British Opren victims as there was a perfectly good legal system in the UK which could guarantee access and relatively speedy adjudication (Dehn 1989:400). The reader may care to bear this ruling in mind! Eli Lilly was to pay out millions of dollars to American Opren victims, including punitive damages of some $5 million in one case alone (The Guardian, 16 December 1987). Work began in earnest on the co-ordinated ‘Opren scheme’ in 1985. The steering committee brought together six firms of solicitors acting for members of the OAG; between them they represented most of the claimants. From the outset, the judge put in charge of the litigation acted more like an American than an English judge; far from being a passive umpire, Hirst J, with the cooperation of the parties, carefully moulded the process of litigation. The court veered in the direction of a collective litigation model. A master statement of claim with individual annexes was used, together with a single process of discovery. The scheme was advertised in the legal press so that isolated claims could be gathered in (83 Law Society Gazette (1986) 2389). Originally, the cut-off date for participating in the scheme was October 1986, but as more claims came forward an extension was agreed to January 1987. (Claimants became known as ‘group A’ and ‘group B’ plaintiffs

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respectively.) National press coverage was considerable and at this stage decidedly upbeat. The Sunday Times (27 July 1987) talked in terms of ‘immense sums of money’ and of claimants joining in ‘for just a few hundred pounds’; misleadingly, it described the scheme as Britain’s first ‘class action’. In the event, some 1,500 plaintiffs participated in the scheme; besides the steering committee, there were some 275 ‘satellite’ lawyers. Opren was the largest piece of personal injuries litigation yet seen in England. Because of the variety of side-effects and the time at which Eli Lilly should have been aware of particular problems, the case was a very difficult one. So much so, that in order to determine the key issues on behalf of all the plaintiffs some twenty lead actions became necessary (Mildred and Pannone 1990:237). To compound matters, these were predominandy elderly plaintiffs. On the one hand, because of short life-expectancy and the nature of the harm alleged, few claims were estimated to be worth more than £10,000. On the other hand, approximately one-third of the group were ineligible for legal aid, mostly on grounds of capital; others would have to make a substantial contribution. The legal aid scheme now became central to the struggle, and remained so. Both sides resorted to litigation tactics constructed around the scheme; it proved to be tilted against the plaintiffs and so the defendants gained the advantage. We described setting up a ‘frontman’ on full legal aid as the obvious ploy for a group. In previous mass-tort cases, including the vaccine damage litigation and Thalidomide, the coalition had, in the choice of lead actions, got clean away with this, as the Law Society as guardian of the fund looked the other way (Lockley 1989). But when in the Opren case the tactic was tried, Treasury Counsel, representing here both the public purse and the Department of Health as defendants, objected. The novel order made by Hirst J reflected these objections: he ruled that all plaintiffs in the co-ordinated scheme should contribute rateably on a per capita basis to costs incurred in fighting the lead actions. This ruling was upheld by the Court of Appeal, clearly concerned on the one hand that plaintiffs without legal aid should not obtain a ‘free ride’ at the taxpayers’ expense and on the other that Eli Lilly would recover from the legal aid fund none of its estimated costs of £2 million if the lead actions were treated separately and successfully defended (Davies (Joseph Owen) v. Eli Lilly & Co. (1987)). This decision recognised the collective nature of the litigation; and it seemed likely to wreck the litigation. Under threat of heavy legal costs, it appeared that nearly all of the self-financing plaintiffs would have to withdraw. The rest would be prejudiced in turn because of the working of the legal aid scheme. The less ‘economic’ a claim, the more likely that support would be withdrawn; alternatively, the statutory charge would eat up more of any winnings. In the words of the judge, ‘a fairy godparent’ now appeared in the shape of Geoffrey Bradman, a property millionaire. Bradman agreed to under-write the

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costs of the non-legally aided plaintiffs in the sum of £2 million (The Daily Telegraph, 1 July 1987). Perhaps the intervention was not so surprising. Bradman is co-founder, with the well-known campaigner Des Wilson, of Citizen Action, which operates as an umbrella organisation for single-issue campaigns. (Progeny include the Campaign for Lead-Free Air (CLEAR), the Citizen Action Compensation Campaign (Citcom) and the Campaign for Freedom of Information. Other groups to benefit include Shelter and Friends of the Earth (Witcomb 1990).) As Bradman moved to save the Opren litigation financially, so Wilson moved against Eli Lilly (see pp. 187–8). Soon, the lawyers were moving towards a settlement. REPRESENTATIVES IN CONFLICT The settlement agreed by the lawyers was eventually announced five months later (Davies v. Eli Lilly & Co. (1987a). Despite Messrs Bradman and Wilson, the plaintiffs’ lawyers must have been awkwardly placed in the negotiation. If the Legal Aid Board considered an offer reasonable its support would be withdrawn; in other words, once the offer equalled the plaintiffs’ costs and a realistic sum of compensation, the lawyers would find it hard to refuse. Also, Eli Lilly was making clever use of the ‘payment into court’, a sum paid in satisfaction of a claim, which, if the plaintiff refuses and subsequently recovers less, makes him liable for the subsequent costs. Despite the collective aspect of the litigation, there was nothing to stop Eli Lilly from working to undermine the group by buying out the strongest cases and the most vocal in the OAG (Mildred and Pannone 1990:233). Hirst J confirmed that lawyers must advise such a plaintiff in that plaintiff s individual interest rather than in the interest of the group (Davies (Joseph Owen) v. Eli Lilly & Co. (No.2) (1987)). As so often in England, the financial terms were confidential, but the press soon reported compensation of £2.25 million, on average £1,800 per plaintiff. By the standard of English awards, as discounted for a settlement, the plaintiffs’ counsel was able to describe this as ‘very fair’: the campaigners called it ‘despicable and insulting yet totally legal’ (Kathleen Grasham) and ‘miserable and miserly’ (Des Wilson). No doubt resentment was fuelled by the revelation that Eli Lilly agreed to pay some £4 million in legal costs (The Daily Telegraph, 10 December 1987). Further, it was a condition of acceptance that the individual stop campaigning. Kathleen Grasham only ‘beat the drug firm’s gag’ by accepting with alacrity a payment into court free of the condition (The Guardian, 17 December 1987). The argument was about more than money. Plaintiff Anna Drury did not want a settlement and tried to organise a campaign against acceptance. She wanted the company ‘brought to justice, for justice’s sake’. Further (a purpose of litigation we discuss in Chapter 4), she saw the case as a means of obtaining the truth about Opren, a window on to the company’s files, a window the

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settlement slammed firmly shut. Responding, Eli Lilly’s solicitor put his faith in ‘common sense’ (The Times, 10 December 1987; The Independent, 13 December 1987). The campaign never got off the ground. Announcing the settlement, the judge said that each plaintiff should be able to consider it free from outside pressures: he also said that it would collapse unless the vast majority accepted it, and that those on legal aid who rejected it would likely lose support. Six months later, the refuseniks had dwindled to thirty or so: most had legal aid withdrawn, although in one case this was challenged successfully by means of judicial review ((New Law Journal 138 (1988) 451, R. v. Legal Aid Area No. 10 (East Midlands) ex p. McKenna (1990)). The argument was about more than the plaintiffs. The Opren case demonstrates the special problems which the legal system has in coping with ‘creeping disasters’. We saw that with Eli Lilly’s consent, the cut-off date was extended to January 1987; thus ‘group A’ and ‘group B’ plaintiffs were included in the settlement. But the intervention of Messrs Bradman and Wilson did not merely save the litigation: it produced an influx as people previously unaware of a claim or disconcerted by the financial risk now contacted the OAG for help. The collectivity represented by the lawyers who negotiated the settlement was not the same as the collectivity represented by Kathleen Grasham. A new co-ordinated scheme became necessary: ‘group C’, some 350 strong, who took action before May 1988. Although Hirst J warned that this had to be the last opportunity to participate in a scheme, ‘group D’ later had to be constituted, comprised of all those who took action thereafter (Beal v. Eli Lilly (1988), Ainslie v. Eli Lilly (1989)). Eli Lilly stood on its legal rights and refused to have the settlement expanded. And the settlement included another term: that every solicitor whose client accepted the offer had to undertake not to act for any prospective claimant outside the settlement. Potentially, the 280 firms of solicitors in the scheme were banned, including nearly all those with experience of large drug cases. There was now a falling-out among representatives. Kathleen Grasham had the Law Society consider whether the condition broke the solicitors’ code of professional conduct, compromising a client’s freedom to instruct a solicitor of his choice. A group of ‘satellite’ lawyers, who by now had clients inside and outside the settlement, was also incensed, inquiring which clients they were supposed to abandon? (The Guardian, 14 December 1987; 13 January 1988). There were even suggestions that the terms of the settlement might be unlawful as contrary to public policy (the legal aid fund having to pay other solicitors to work from scratch), or in contravention of article 10 of the European Convention of Human Rights (freedom of expression) (Levin 1988)). Hirst J, however, could find no fault with the lead solicitors; the judge stressed their professional obligation to keep confidential information disclosed by Eli Lilly in the first case, and the potential conflict with a duty to new clients to give them information (Davies v. Eli Lilly & Co. (1988)). Subsequently, the courts had to deal with the issue

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of limitation: whether ‘group C’ was time-barred for having claimed after the three-year period normally allowed in personal injuries cases. It was Eli Lilly’s turn to play on the collective aspect, urging that it had accommodated the original scheme and should now enjoy finality. The judge ruled that the ordinary principles of limitation should apply; nevertheless, specimen actions were held to be time-barred (Nash v. Eli Lilly (1991)). The settlement in Opren and the conflict it produced highlight the twin issues of representation and representativeness in multi-party cases. Discussing litigation coalitions in disaster cases, so far we have been content to adopt the narrow, legalistic view of them as a means to a legal remedy or compensation. The Opren case illustrates that a coalition will likely involve much more: a mixture of roles, including a welfare role and a campaigning role, and a mixture of motives, among them accountability. The lawyers may lose credibility for a variety of reasons. Disaster cases require exceptionally sensitive handling; too-high expectations may result from campaign statements designed to drum-up support or generate pressure for a settlement. The Opren case reminds us that professional responsibility to the court and legal aid fund may mean that the lawyers have to be less accommodating to the group than they would wish. The multiple claims strategy helps to redress the balance of advantage between the parties; on the other hand, the dominant role assigned to the disaster lawyers makes for conflict with other lawyers and between lawyers and the coalition. A TECHNICAL QUESTION? The disaster cases multiply. A ‘creeping disaster’ case presently before the courts, the Benzodiazepine or tranquilliser addiction case, threatens to dwarf the litigation in Opren. The continuing technical difficulties and the judicial response to them are indicated by the ‘Myodil’ case. The action is against the manufacturer of a dye used in X-rays alleged to cause severe disability. A single writ had been issued, and 700 or so claims were in the pipeline, 75 per cent of which were legally aided, when the judge was asked for a ruling on costs. Preliminary medical research needed to be done: the ‘lead’ plaintiff was concerned that the expense would all fall on her claim. Steyn J made a novel order whereby the cost was shared equally between all potential plaintiffs whether or not they were legally aided. The judge went on to observe that the system would break down entirely were it not for the ‘broad and flexible’ power of the courts to devise new procedure. This, the judge stressed, was not a satisfactory state of affairs: the procedures for multi-party litigation should at least be prescribed in outline. Steyn J noted the absence in England of anything like the Manual for Complex Litigation, the American practitioner’s guide. The judge advised a structured though gradualist approach to reform. The Practice Direction, which could easily be amended, was preferable to a

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rush into the ‘strait-jacket’ of primary or secondary legislation (Chrzanowska v. Glaxo Laboratories Ltd. (1990)). Critics of the system had been arguing for some time that special rules were needed for multi-party cases (National Consumer Council 1989). Opren catapulted matters high up the political agenda. The Law Society and the National Consumer Council suggested appropriate amendments to a new Legal Aid Bill conveniently before the House of Lords (HL Deb., vol. 429, col. 90). Although they were not accepted, the Lord Chancellor did amend the legislation to give the new Legal Aid Board powers to finance groups of plaintiffs. The Legal Aid Act 1988 enables the Board to dispense with means tests, alter the statutory charge and contract with a firm or firms of solicitors to undertake the litigation on behalf of all members of the group. Ever since, the Board has been considering what to do with these powers. At the time of writing, its proposals are back with the Lord Chancellor for consideration (AR 1990–1:28). The proposals will solve some problems and not others, create some problems and highlight others. The proposals build on previous initiatives and formalise arrangements, in particular the multiple-claims strategy of the disaster lawyers. The Board will determine when the ‘special arrangements’ come into play: it must be satisfied that a number of claims involve common issues of law or fact and involve ‘significant complexity’. The generic work will go to a single firm or steering committee; the remainder to local solicitors. A criterion of selection will be experience and expertise in the ‘public relations aspects’ of multi-party litigation. The Board will develop a networking role, taking steps to inform the public and the profession about a scheme. At the time of writing, it is not known if more or all members of the group will benefit from legal aid: the key issues of eligibility and contribution remain to be determined. However, free-riding is not in fashion and the statutory charge is not to be relaxed. Individual plaintiffs must acquiesce in the Board’s decisions: once an action is designated, legal aid will not be available outside a scheme. The action may exhaust the cause: the Board proving unwilling to resource another try. Lastly, the Board states that initially the ‘special arrangements’ will be limited to personal injuries cases (AR 1990–1: 125–8). Official responses to multi-party action remain disjointed. The procedural as distinct from the financial issues have been referred to the Law Commission. Meanwhile, the profession forges ahead. In 1986, Hirst J could describe the coordinated scheme in Opren as ‘a most unusual procedure’; five years on, it is well on the way to becoming a commonplace—so much so, that a how-to-doit guide is now available to practitioners; a slimline version of the American Manual produced by the Supreme Court Procedure Committee, co-authored by Rodger Pannone. The guide clearly anticipates multi-party litigation developing in different areas of the law. Among the ‘situations giving rise to the need for this sort of action’ the guide lists defective goods and services,

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race and sex discrimination, and environmental pollution: not exactly what the Legal Aid Board appears to have in mind! On the other hand, a narrow view is taken of the role of ‘the lay interest group’ outside the courtroom; we read only of the welfare role, help to deal with the stress of the tragedy and the strain of the litigation (Bowsher 1991). The mass-tort claim causes considerable problems at the technical level. Conversely, the process of change is dominated by the profession and technical questions tend to squeeze others out. Disaster groups are about more than making the civil process more accessible, or about support and counselling services important though they be. To put this differently, the litigation coalition has a life of its own; what are no doubt embarrassing questions about representation and representativeness are pushed to one side; these questions become more urgent as technical solutions are found. COLLECTIVE INJURIES, COLLECTIVE REMEDIES The classic remedies of English public law were once compared in a celebrated simile to ‘the pick and shovel…no longer suitable for the winning of coal’ (Denning 1949:126). It could be said that, forty years later, the courts have not advanced beyond the mechanical digger. The attitude of English judges to the deterrent or regulatory function of damages presents a decided contrast to the attitude of American courts, a judgement which holds true for other remedies. Rather more flair is shown in situations where collective action is seen by the courts as intimidatory and oppressive. In the area of the labour dispute we could single out the so-called ‘labour injunction’ and sequestration order aimed at union funds (Wedderburn 1991, O’Regan 1991). In the 1970s, at the height of the squatters’ movement, courts developed the ‘collective injunction’ which issued against unnamed individuals to meet the case. Ten years later, similar action was taken when anti-fur campaigners targeted a furrier’s shop for direct action. The furrier obtained an injunction against an individual as representative of Animal Aid. Even though the group denied its participation, the Court of Appeal was prepared to uphold the injunction on the ground that: The courts should be able to afford effective protection to the victims of illegal, or threatened illegal action by members of associations whose declared aims are in line with or calculated to promote such illegal action… It is common experience in recent times that if identifiable members of activist associations are restrained or removed by process of law, others of a like mind readily take their place to continue the aggression. (M. Michaels (Furriers) Ltd. v. Askew (1983))

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To repeat, these examples are purely negative in the sense that they show interest or pressure groups on the receiving end of mandatory orders. What is lacking in the English courts is the evidence of willingness to tailor collective remedies to collective injuries. This aspect can be illustrated by reference to a series of campaigns designed to force local authorities to carry out repairs of council housing. HOUSING CASES AND COMMUNITY LAWYERS Housing law is the province of the community lawyer or housing advice worker. Poorly paid, often to be found in a law centre, theirs is a world far removed from the bright lights of mass-tort litigation. Community lawyers and law centres play a key role in pressure through law at grassroots level (Stephens 1990). First, many combine with their casework function a research and campaigning element. Second, they act as a focal point for networks operating, on the one hand, as a cutting edge for community groups, and, on the other, to facilitate, promote or even invent litigation coalitions. These aspects are also illustrated by the repair campaigns. Birmingham City DC v. McMahon (1987) was a nuisance action brought under s.99 of the Public Health Act 1936 in the names of (to borrow the statutory formula) ‘persons aggrieved’. It was planned and orchestrated by a local resource centre, the Birmingham Council Estates Project. The Project had on its management committee five tenants and a representative from Shelter and, according to solicitor Phil Shiner, ‘was established for political action [using] the law merely as a weapon’ (7 Housing Law Practitioners’ Association Newsletter (1987) 1). The Project decided to target the problem of condensation and mould growth in tower blocks and set about constructing a single composite case covering a whole block of flats. ‘Beale House’ was chosen precisely because the council claimed that it was one of their better blocks and so a ‘win’ might have far-reaching results. A tenant was encouraged to call a meeting at which the ‘Beale House Action Group’ was brought into being. Sixteen out of fiftytwo flats were inspected by sympathetic experts and the Project contributed a study of associated health problems. The magistrate made a novel order requiring new underfloor heating, improved insulation, and monitoring. The campaign now attracted the attention of the local, but not the national, press— Shiner suggests because it took place outside London. On appeal the council conceded that the state of the sixteen flats was typical but argued that no individual tenant could claim to be aggrieved by the condition of the block as a whole. The court agreed, saying that for each tenant the nuisance was a different nuisance even though the evidence suggested that all of the nuisances were attributable to the same cause. The court’s main concern was with resources. Because collective action was seen as a more potent form of litigation the court rejected it. Kennedy J described

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the effect of individual actions on council finances as ‘likely to be negligible. But the making of an order in relation to an entire block could heavily strain a local authority’s finances and disrupt its housing department’s programme for years to come.’ The defeat did not bring the campaign to an end but it made legal action more onerous. By now the campaign had been extended to two more blocks by means of an umbrella organisation, the Cawdor Crescent Action Group (75 Community Action (1986) 12). The Project had to change tactics in favour of multiple individual cases. It did however have sufficient resources to cope with the extra paperwork involved, and summonses were issued simultaneously on behalf of tenants in all three blocks. At this point, rather than defend all the actions, the council agreed to do extensive repairs (Legal Action (October 1987) 4). Thus a collective remedy denied by the courts was in the event secured by the threat of multiple individual claims. The ‘blitz’ campaign, whereby campaigners target an area, collect up grievances and then try to pressurise those responsible by swamping them with legal claims, is a tactic well known to community lawyers. But a ‘blitz’ campaign undertaken by a community lawyer in Southwark shows how legal action, even if successful, can misfire and rebound on the campaigners. On a dilapidated estate, a record number of nuisance actions on behalf of individuals was brought in local magistrates’ courts and resulted in extensive repair orders to individual houses. Southwark Council’s response was to move in and repair houses around tenants, who had either to sit out the ensuing chaos or move into rented accommodation at their own expense. (Courts could not ameliorate their situation because they possessed no statutory power to order temporary rehousing.) The result was both to discourage further individuals from coming forward and to tie the community lawyer up in protracted claims for compensation which had to be individually negotiated. An alternative response by the council was to offer to rehouse an individual who had succeeded or seemed likely to succeed in a court case. On the face of it more satisfactory for the individual concerned, such offers were particularly damaging to the community, as the vacant houses were boarded up and marked ‘closed due to legal action’ (Bartram 1988). Here we have a clear instance of successful individual action undercutting a collective solution for the whole community. A ‘blitz’ campaign in Wales shows, on the one hand, legal action in the locality at its most developed, and, on the other, existing legal remedies to be ill-equipped to secure lasting change, more especially the generation of fresh resources. Welsh Housing Aid, now Shelter Wales, has as aims the prevention and alleviation of homelessness and bad housing conditions by means of advice and help to individuals and groups, and through campaigning. Previously, the group’s resources were spread thinly and requests to councils for repairs seemed to make little headway. In conjunction with the local housing solicitors’ group it was decided to concentrate resources on one area,

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and the Afan Valley was chosen. A depressed ex-mining area with poor quality housing stock, the valley was remote and as a result, the group felt, was largely ignored by the local council; the nearest housing office was almost ten miles away. The group set as objectives a change in council policy towards repairs, a change in council attitudes to the Afan Valley, and a housing office in the valley. For a week advisers toured around the villages on a bus fitted out as a mobile community centre and invited in anyone with housing repair problems to discuss them; some eighty people responded. A survey of their grievances was published and the recommendations put to the council (Burroughs 1986). Meanwhile, the lawyers and experts followed up the worst cases and sought compensation for damage to property and health. In the short-term, the organisers had reason to be pleased. Common problems were identified; tenants began to receive replies when they complained to the council; and councillors agreed to meet with the newly formed tenants’ association (7 Housing Law Practitioners’ Association Newsletter (1987) 4– 5). The council settled forty or so compensation claims out of court: the estimate was that the campaign cost the council £100,000. However, as time went on, the group found it hard to sustain the pressure. No housing office materialised and repair became delayed. According to one of the organisers, old attitudes to the valley began to resurface and some tenants felt let down after the initial wave of activity (i/v Will O’Kelly, Shelter Wales, 1988). Also, the money had to come from somewhere; uninsured against the legal claims, the council had to meet them out of its revenue budget. A threat was made to raise council rents and blame the campaigners, though nothing came of this. In the event, the deficit was largely made up by a transfer of resources from another estate. Thus the campaign failed to generate extra resources and instead chased scarce resources around an administrative system, a discouraging event familiar to welfare lawyers and sometimes referred to as ‘the gordian knot’ (Sparer 1981). PUBLIC AND PRIVATE LAW: ACCESS TO COURT Let us turn our attention to collective action in what is now the separate territory of ‘public law’. Until recently in England, the choice of court in which litigation would be instituted was made by the plaintiff and depended on the remedy sought. Damages, the usual remedy in contract and tort, could be claimed, according to the amount in issue, in the High Court or the cheaper and more convenient county courts. So too could the declaration and injunction. By contrast, the so-called ‘public law’ remedies, the prerogative orders of certiorari, mandamus and prohibition, had to be obtained from the Divisional Court7 in London. When in 1977 a new umbrella procedure or ‘application for judicial review’ was introduced as Order 53 of the Rules of the Supreme Court, the House of Lords seized the opportunity to discipline and restrain access to the courts

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(Blom-Cooper 1982). O’Reilly v. Mackman (1982) introduced a jurisdictional dichotomy into English law. A prison Board of Visitors had ordered that O’Reilly lose remission for involvement in a riot. Two years later, after another case (R. v. Hull Prison Board of Visitors ex p. St. Germain (1979)) had established that decisions of Boards of Visitors could be reviewed by the courts, O’Reilly issued a writ seeking a declaration that the Board’s determination was null and void because of procedural irregularities at the hearing. The claim was struck out as an abuse of court process on the ground that a distinction existed between ‘private’ and ‘public’ law: where ‘private’ rights were concerned, action was to be taken in the ordinary way by a writ or summons in the High Court or county court; where ‘public’ rights were in issue, only an application for judicial review was available, made to one of a group of High Court judges considered specialists in administrative law. To the non-lawyer, this may sound dry and technical but as ‘public rights’ were defined expansively, legal action in the community was undercut. A practice had developed of enforcing local authorities’ statutory duties to house the homeless by means of an action for damages in the county court, easily accessible to the community lawyers who so often advise the homeless. In Cocks v. Thanet DC (1982) the law lords called a halt to this practice, holding that the decision whether or not to house a homeless person could be challenged only by means of an application for judicial review. Only after a positive decision to rehouse him had been made did the recipient acquire a private right maintainable by ordinary action. Thus a group such as Shelter Wales could no longer challenge the majority of homelessness decisions locally in the county court; cases would require a trip to the Divisional Court in London at substantially greater expense. Even so, with the help of legal aid, some community lawyers were able to take the law lords at their word. A modest number of judicial review cases resulted, sixty-six in 1985. In R. v. Hillingdon LBC ex p. Puhlhofer (1986) the law lords called a second halt, drastically curtailing the grounds for judicial review in homelessness cases. Lord Brightman said that he was troubled by ‘the prolific use’ of judicial review in homelessness cases. The law lords were heavily criticised for channelling cases into Order 53 procedure, and then stopping up the channel, so depriving most homeless people of a legal remedy (Sunkin 1987:447–50). A mass of complex case law quickly developed on where the line was to be drawn between public and private law. Fortunately for the reader, only two further points are relevant here.8 First, applicants required to use Order 53 procedure may be procedurally disadvantaged. Prior to the trial on the merits of the case, the applicant has to obtain the court’s permission or ‘leave’ to make an application for review, a useful shield for public authorities against frivolous or awkward claims. In an ordinary action the respondents must defend themselves at least by making an application to the court to strike out the claim. Again, limitation periods differ. The reason why O’Reilly wanted to proceed by writ was because he was well outside the short time-limit of three months

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(extendable only by permission) for judicial review but inside the ‘private law’ limitation periods of three to six years. Second, we should note that ‘collateral review’—a technique whereby a point which would normally be raised in Order 53 proceedings is raised instead in a High Court action for damages—is curbed by the new rules. But the courts have hesitated in extending the restriction to defences,9 more especially defences in criminal cases. This leaves a direct action group charged with breaking the law with an opportunity to argue that it is not the law. Thus we find women entering the airbase at Greenham Common and defending themselves against criminal charges by arguing that by-laws under which the charges were laid were ultra vires and invalid—a ‘public law’ defence. Briefly, the argument was that the by-laws offended a special provision in the Military Lands Act 1892, protecting commoners’ rights (Cohen 1988).10 In R. v. Reading Crown Court ex p. Hutchinson (1988) the Crown Prosecution Service contended that the issue of validity had to be raised by the women in separate Order 53 proceedings. The Divisional Court held that the women were entitled to defend themselves in the criminal prosecution and the magistrates hearing the case were bound to rule on the validity of the by-laws. Three months later peace campaigners had confirmed the worst fears of the Crown Prosecution Service. Scores of defendants charged under by-laws protecting military bases were defending themselves on the basis that the by-laws were illegal (The Guardian, 17 November 1987). After the Greenham women won their case in the Crown Court, it was reported that further incursions were taking place (The Guardian, 26 February 1988). The Crown Court decision was upheld by the House of Lords: the by-laws were ruled invalid and the Greenham women were allowed to take advantage of this despite not being commoners—a remarkable victory! (DPP v. Hutchinson and Smith (1990)). The ministry finally won when it took legal steps to extinguish commoners’ rights over the base at Greenham (The Guardian, 10 February 1990). STANDING TO SUE: PLANNING CASES When campaigners try to pursue public law proceedings difficulties may arise over their standing to sue (locus standi). Classically someone who wished to apply for judicial review had to demonstrate some particular interest over and above that of the public at large. This had generally to be both substantial and material in character; sometimes a legally enforceable right was required.11 Restrictive attitudes like this struck at group action in the courts when amenity or environmental groups found themselves outside the charmed circle of interests which the courts were willing to protect. Even where there was a protectable interest, they might need to manoeuvre within the rules, putting up local ‘frontmen’ (as the Commons Preservation Society had tried to do). Fortunately for group action and largely under the influence of Lord Denning,

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then presiding over the Court of Appeal, liberalising tendencies set in during the 1970s. The first groups to make headway were environmental groups seeking to intervene and challenge planning decisions. A key decision was Turner v. Secretary of State for the Environment (1973) fought by the wellheeled Petersham Amenity Society to protect the celebrated view over Richmond Hill. The society had no statutory right to appear at the inquiry but, as is often the case these days, the inspector allowed its chairman to give evidence. When the society, in the chairman’s name, later mounted a legal challenge to the inspector’s report, the issue of standing arose. It was held that once the society had been allowed to participate there was no going back; from then on it was, in the terms of the statutory formula, a ‘person aggrieved’ by the inspector’s decision. Later planning cases confirm the standing to sue of amenity groups while at the same time illustrating the way in which solutions to one aspect of the problem of access can introduce a further problem with costs. As a precondition of granting an interim injunction to preserve matters ahead of the full trial, the court can require an applicant to give an undertaking to pay damages in respect of the financial loss incurred by stopping the work if the application eventually fails. Applied vigorously this would be devastating in planning cases, since the costs of delay are frequently so large that no individual or group could give such an undertaking or carry it out (Anand and Scott 1982). The case law has so far not been too severe. In Covent Garden Community Association Ltd. v. Greater London Council (1981) the association had been formed to fight plans to turn much of Covent Garden into offices (Christensen 1979, Anson 1981).12 Comprised mainly of residents, the association had incorporated itself as a limited company. It wished to challenge a particular grant of planning permission for offices, in effect by the GLC to itself. Although the application for certiorari failed, Woolf J showed understanding of the difficulties of community groups of this kind. He granted standing to apply, reasoning that otherwise the association would have to try for a relator action (see p. 145); that the Attorney-General would require an indemnity against costs which the company, with its limited assets, could not give; and that it could not obtain an interim injunction because it could not give the necessary undertaking in damages. The flavour of our second planning case is given by its name: ‘People Before Profit’. This community group started life as an unincorporated association and appeared as an objector at a planning inquiry involving a redevelopment scheme on a valuable site at Hammersmith Broadway. The inspector made recommendations broadly favourable to the group’s suggestions. When the council decided to press on with the scheme regardless, People Before Profit incorporated itself into a limited company with the aim of applying for an injunction. The council, which estimated the cost of delaying the development at £1 million per month, contested the manoeuvre fiercely. The judge was not persuaded that People Before Profit had an arguable case,

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but said that he would have allowed the company to proceed without requiring an undertaking in damages solely on condition that it put up £5,000 as security for costs (R. v. Hammersmith and Fulham LBC ex p. People Before Profit Ltd. (1982)). The last in our trilogy of planning cases is the difficult case of the Rose Theatre Trust. It arose out of the discovery under the foundations of a projected car park of the remains of the Elizabethan Rose Theatre in which first performances of Marlowe’s and Shakespeare’s plays were given. Pressure was immediately on for the minister to schedule the site under the Ancient Monuments and Archaeological Areas Act 1979 as he had statutory power to do (Redman 1990). When he refused to budge, archaeologists joined with actors and actresses, the MP and local residents in a litigation coalition. The Rose Theatre Trust Company was formed, and the company applied for judicial review. In considering the position of a group in this kind of case, a judge effectively has three options. He could decide that a group’s interest to sue should be more strictly scrutinised than that of individuals. Confronted by a limited company having no significant assets,13 counsel for the developers argued this in the Rose Theatre case. Second, the judge could, as was done in the Federation of Self-Employed case (see pp. 147–8), equate the collectivity with its members, holding that the whole has no greater right to sue than the parts. Finally he could hold that the agglomeration has a greater right to sue than its individual members. The third of our options was not properly tested in the Rose Theatre case because counsel for the applicants conceded that it was not good law. The judge also managed to avoid ruling on the first option. This was because the second option, which in effect requires the judge to test the standing of a member of the group, was deemed sufficient to dispose of the matter. The judge held that the decision not to schedule ‘was one of those governmental decisions in respect of which the ordinary citizen did not have a sufficient interest’ to entitle him to apply for judicial review. Although the effect was to create an unchallengeable ministerial discretion, the judge said that this could not be helped. It was not the function of the courts ‘to be there for every individual who was interested in having the legality of an administrative action litigated’ (R. v. Secretary of State for the Environment, ex p. Rose Theatre Trust Co. (1990)). If this is so, then a gap is left which could appropriately be filled by group representative status. THE ATTORNEY-GENERAL AND THE PUBLIC INTEREST Before we tackle this thorny question, however, we ought to consider the classic English response to the constraints imposed by the rules of locus standi. In the common law world, it is the Attorney-General who represents

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the ‘public interest’ before the courts and possesses public advocacy functions, having automatic standing to initiate or intervene in litigation (Edwards 1984). His existence has been used as a reason why private advocates could vindicate only personal, material interests. The public interest, so this argument goes, has been entrusted by the electorate to the government to look after and is therefore properly represented in the courts by the chief Law Officer of the Crown who is directly account- able to Parliament (Mercer 1979). The argument was most forcefully expressed in the case of Gouriet v. Union of Post Office Workers (1977) where Lord Wilberforce asserted that: It [is] a fundamental principle of English law that private rights can be asserted by individuals, but that public rights can only be asserted by the Attorney-General as representing the public. In terms of constitutional law, the rights of the public are vested in the Crown, and the AttorneyGeneral enforces them as an officer of the Crown. Conversely, the office of the Attorney-General could operate as a useful vehicle for groups campaigning through civil courts. Anyone can complain or make a ‘reference’ to the Attorney, asking him to take action in his own capacity. A relevant case is A-G v. Harris (1961) in which the Attorney obtained injunctions to supplement the inadequate deterrents of the Sunday trading laws. However, such cases are few and far between; traditionally, the office has exercised considerable caution (Feldman 1979). Alternatively, private advocates can ask the Attorney to lend them his gown—that is, his consent to a ‘relator action’ whereby the private advocate sues in the Attorney’s name but controls the conduct of the case. For example, although its usual tactic was to set up a ‘frontman’, we saw the Commons Preservation Society using the relator action in the fight for Stonehenge in A-G v. Antrobus (1905). While standing tests remained strict, the great value of the relator action was that it confers standing automatically. There is, of course, latent conflict in this coupling of private with public advocacy. Pressure groups often exist precisely because members do not share official views of the ‘public interest’. Lord Diplock observed sourly in the Federation of Self-Employed case (see pp. 147–8) that the Attorney-General never takes action against the central government departments of his Cabinet colleagues. The Attorney may also seek to bar access to the courts by refusing his consent to relator proceedings. The Freedom Association sought to challenge him in Gouriet’s case, probably its most celebrated if not its most successful case.

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AGAINST THE UNIONS: THE FREEDOM ASSOCIATION The case is rooted in the ideology of the group. The Freedom Association (NAF)14 was founded on the initiative of Norris and Ross McWhirter in 1976 to challenge the threat posed by collectivism (Rogaly 1977, Nugent 1979). Chairman Norris McWhirter was described to us as very legally minded (i/v Gerald Hartup, Director, 1990), one explanation of the group’s court orientation. More important is the pre-eminence given by its charter to maintaining the rule of law. This in turn helps to explain why trade unions are the group’s main target. Not only are unions seen as monopolist and corporatist in character but their immunities from legal process have often been presented in terms of a lacuna in the rule of law. In contrast to many of its rivals the organisation has no in-house lawyer and its director told us that it can seldom afford to pay legal fees out of its small income. Yet the group can point to several successful test cases and it has run a very successful litigation strategy against the ‘closed shop’ Costs have not in fact been a real obstacle. The group kept up pressure on the unions by supporting closed shop wrongful dismissal claims in the industrial tribunals. By 1981, it was budgeting almost £150,000 a year for this purpose and reckoned on recovering more than 50 per cent in costs (Free Nation, August 1982). The association likes to give the impression that it will go all the way, and it is not afraid to do so, as Young, James and Webster v. UnitedKingdom (1981), its showpiece case on the closed shop, won in the European Court of Human Rights, demonstrates. That case cost the NAF £100,000, although this was ultimately recovered from the government. At the end of the day, funds can usually be raised from a membership appeal. This is what happened in Gouriet’s case, the group’s costs of £90,857 being raised in a matter of weeks. The position in Gouriet v. Union of Post Office Workers (1977) was that the group wanted to stop a one-week boycott of South African mail declared by the union in protest at apartheid, which appeared to be contrary to the criminal law under the Post Office Act 1953. The then Labour Government’s AttorneyGeneral, Mr Silkin, was asked to consent to relator proceedings for an injunction but he refused and, as is customary, did not disclose his reasons. So the NAF took legal action in the name of its secretary.John Gouriet. Consistent with the ideology of the group, Gouriet asserted as his interest the interest of every citizen in obedience to the law. The technical explanation is that both the union and the Post Office enjoyed wide immunity from actions in tort; had Gouriet claimed ‘special damage’ in the shape of interference with specific business in South Africa, he could have been met by a plea of immunity from process. Gouriet called in aid a statement made by Lord Denning in an earlier case (brought by Ross McWhirter against the Independent Broadcasting Authority) that he, Lord Denning, would favour hearing a private advocate if the Attorney-General ever refused his consent ‘in

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a proper case’.15 But a majority of the Court of Appeal now rejected this suggestion and it was also held that Gouriet had no standing to seek a permanent injunction—though he was said to have standing to seek a declaration plus an interim injunction to stay the boycott. On appeal to the House of Lords this door too was bolted by Lord Wilberforce, making a strict dichotomy between ‘private’ rights, which could be asserted by individuals, and ‘public’ rights as created by the criminal law which could only be asserted by the Attorney-General (see p. 145). Only when a litigant could show that an infringement of public rights would cause him ‘special damage’, as defined restrictively in earlier cases, would he have standing to obtain an injunction or declaration. This ruling seemed a major block on group action in the courts. For the time being, and as regards preventive action to reinforce the criminal law, the House of Lords had rejected a more pluralist model of law enforcement. In their judgments the law lords stressed two points: first, that it was up to the Attorney to determine whether anticipatory prevention of a breach of law was liable to be effective, futile or even to inflame matters; and, second, that in such decisions he was accountable to Parliament alone. In so doing, they reiterated the quietest or non-creative conception of the judicial role classically associated with the private law model of adjudi-cation (Cane 1980). OPENING UP STANDING Inspiration for change came from the United States where the Supreme Court, under Earl Warren, had opened the judicial system up to a broad spectrum of interests and had gone some way to recognising direct standing for groups. Although in the leading case of Sierra Club v. Morton (1972) the Court was to draw back from recognising ideological interests when the Club chose deliberately to stand on its special interest in conservation, ignoring its members’ material interests, the requirement of material interest was on occasion pitched so low that with ingenuity even environmental groups could usually meet it (Stewart 1975). It should be added that although the Burger and Rehnquist courts slowed the process and on occasion backtracked, much of the opening-up has remained in place, often because of Congressional action to provide statutory standing in areas like discrimination and environmental law. When in 1977 the English reform of judicial review procedure imported the American standing test of ‘sufficient interest’ in the matter to which the application relates, the House of Lords took its cue to consolidate and lower standing requirements. The leading case is R. v. Inland Revenue Commissioners ex p. National Federation of Self-Employed and Small Businesses Ltd. (1982). Then some 50,000 strong, in political science terminology the Federation is a classic ‘interest group’ dedicated to protecting its members’ interests. However, on this occasion the Federation wanted to challenge a tax amnesty negotiated between the Revenue and interested trade

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unions and granted to certain part-time workers in the newspaper industry. The group expressed the view that these people were being given preferential treatment over other taxpayers because the print unions could threaten industrial action. It was contended that the Federation lacked standing to launch the litigation. The House of Lords, however, disagreed and recommended a relaxed approach to questions of standing. Approbating that action, Lord Diplock said that: It would…be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public spirited taxpayer, were prevented by outdated technical rules of [standing] from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. Even though the application failed because the Revenue was held to have acted lawfully, the court’s reasoning marks a shift away from an individualist or private law model of judicial review towards the idea that judicial review may exist for the righting of public wrongs. The Federation case was unusual in that a group was for once litigating in its own name rather than acting through a ‘frontman’. However nothing turned on the representative status of the group. The Federation did not stand on its representative character or contend that the fact that it represented a substantial body of taxpayers placed it in a better position to obtain access to court than any individual taxpayer. Counsel conceded in court that if the group was found to have sufficient interest then so must each individual member, and Lords Wilberforce and Fraser both approved the concession, observing that ‘an aggregate of individuals each of whom has no interest cannot of itself have an interest’. To put this differently, the Federation was an associational plaintiff, claiming to take action on behalf of its members. TOWARDS REPRESENTATIVE PROCEEDINGS? THE CPAG A danger for a group is that a ‘frontman’ set up either to challenge entrenched administrative practice or win financial recompense for large groups of claimants will be bought off at the door of the court. An experienced repeat player like a government department is often happy to concede an isolated case to avoid an adverse ruling on liability. Hence, at the time the court is asked to rule, the issue has become ‘moot’ or hypothetical. English courts never have been and are not today enthusiastic to decide hypothetical issues. Judges see themselves as adjudicating disputes and not laying down rules whenever some individual or group thinks it appropriate. Thus Order 15, rule 16 of the Rules of the Supreme Court requires that in an action for a

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declaration, the applicant must show that ‘a real and not a fictitious or academic question is involved and is in being between the parties’. Legal proceedings are notoriously dilatory. Unsettled actions for damages in the High Court take up to three years and a difficult case like Opren would take even longer. Unless they are given precedence judicial review proceedings may take between 9 and 18 months (Sunkin 1987, Woolf 1990). Without a strong personal commitment, the frontman may simply disappear or lose interest. This is a particular difficulty for law centres handling homelessness cases or for a group like the Child Poverty Action Group whose clientele is drawn from the most disadvantaged groups in society (Hodge 1979: 262). Claimants like this cannot, and ought not to be expected to, wait around for the wheels of the legal process to grind out a legal precedent. In R. v. Secretary of State for Social Services ex p. CPAG and GLC (1985), research by the Department’s inspectorate had revealed a serious error in assessing deductions from supplementary benefit claimants who were ‘voluntarily unemployed’. The Department was prepared to review the files of existing claimants to see if they were entitled to a back payment but not unnaturally refused to reopen some 15 million files of claimants who had ceased to claim. These were estimated to include some 16,000 cases where on average £25 had been wrongfully deducted, totalling some £440,000. The Department claimed that a search could cost some £4.8 million and would seriously disrupt the administration of benefit to current claimants but it did run two advertising campaigns to encourage affected claimants to come forward. Predictably, few did, and the CPAG, believing that this was not good enough, moved with the Greater London Council to obtain a declaration from the court that there was a continuing duty to identify those claimants who had suffered a legal wrong. The case illustrates both the logic of group action in the legal process and the constraints which that process may impose on group action. A large unidentified class of persons were unaware of their legal rights. Had the CPAG identified an individual with standing to sue, the Department, willing to pay any properly substantiated claims, could have bought the claimant off, so killing the action. As in the Federation case, where the beneficiaries of the tax amnesty were hardly likely to challenge it, strict adherence to the classic principles of interest and standing would have conferred effective immunity from suit. In these circumstances the CPAG asked for representative status and Woolf J agreed to allow the group standing. It was, he said: very much a body designed to represent the interests of the unidentified claimants who stand to be deprived by the decision taken by the Secretary of State… The Child Poverty Action Group, being the organisation designed to serve their interests in matters of this sort, has sufficient interest.

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On the other hand, he refused to grant standing to the GLC which sued in reliance on its statutory power under s.221 (a) of the Local Government Act 1972. This allows local authorities to take legal action in the interests of their inhabitants—in this case, that section of its community who were social security claimants and who might unknowingly have been deprived of benefit. The suit was in fact a loss-leader. According to its solicitor, Roger Smith, the CPAG persuaded the GLC to join, calculating that it would be harder to deny both applicants standing (Smith 1986:279). Had the argument been accepted, however, the way would have been open to a new, mixed form of private and public advocacy involving sympathetic local authorities prepared—unlike the Attorney-General—to take action against central government. As matters stand, these are restricted to support through funding of those entitled to sue. Although this case was lost on its merits in the Court of Appeal it is worth pausing to ask how useful a ‘win’ would have proved in practice. The most obvious legal remedy, a declaration stating that the decision not to pay was unlawful, has the disadvantage that it leaves the real outcome in ministerial hands. The usual response to such an invitation is to legislate the inconvenient court order into the waste paper bin. One writer argued for a more proactive ‘Yellow Cab’ style solution: that the court should order a trust to be set up for the benefit of those entitled; CPAG as trustee would then take over the duty of finding and paying them (Yahuda 1984). Such a solution would surely have been sufficient to frighten CPAG out of court. By undertaking such a task, it would have tied down its limited resources in administration and imperilled its campaigning capacity—hardly a result at which the case was aimed. Moreover, it would have posed a serious problem for the court over monitoring. As we shall see in the next chapter, courts in England lack machinery for monitoring the implementation of their judgments and for this reason are extremely wary of issuing injunctions in this type of case. It is not clear how far the judges will go in conferring representative status. In a second CPAG case, an action was brought in the name of a broad coalition including the National Association of Citizens’ Advice Bureaux. Briefly, the applicants’ case was that the Department and its adjudication officers were in breach of statutory duty owing to delays experienced by many people in the handling of supplementary benefit claims. But the issue of standing was never directly resolved; the Department did not question the applicants’ right to come to court, perhaps because they positively welcomed a judgment on the merits, perhaps because government lawyers do not like to be seen to stand on procedural technicalities (Schiemann 1990). The judge acquiesced and decided the case against the applicants without deciding whether he had jurisdiction. The Court of Appeal disapproved this way of proceeding, without themselves ruling decisively on the point (R. v. Secretary of State for Social Services ex p. CPAG (1990)).

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One approach would be for the courts to admit that in certain circumstances a group may have a greater right to sue than its individual members.16 However the CPAG cases are very different from the Federation case (and for that matter the Rose Theatre case). The CPAG cases involve a ‘surrogate plaintiff’, a group which claims to represent the interests of other people. CPAG claims to speak on behalf of the poor: although it is a membership group it is not representative in the sense of being comprised of those whom it represents. The circumstances in the CPAG cases may be thought compelling; in other circumstances we could anticipate anxious scrutiny of a claim of this kind to representative status. The CPAG itself was founded in 1965 largely at the behest of Quakers. The group’s objectives were at first educational; it was ‘to increase public awareness of poverty and to draw up a programme of action which would prevent and reveal it’. Its membership permitted it to draw on excellent research and to produce informed critiques of government policies. These it has used to brief parliamentary supporters. It has also operated as an ‘insider group’, lobbying government departments directly (Field 1982), though this has proved easier under Labour than recent Conservative governments. Its representative qualities have frequently been called in question. One study relates its ‘lack of sustained influence’ on official policy-making directly to its unrepresentative nature and the lack of wide support for its goals among the poor (McCarthy 1983). Another study cites a civil servant as saying that the CPAG ‘doesn’t really talk for anyone’, adding cynically that ‘there is no really representative group in the social security field’. It is interesting that the same civil servant dismissed the Claimants’ Union as ‘probably the least representative of all’ (Whiteley and Winyard 1983:191). In one sense the Claimants’ Union is genuinely representative, being composed of a loose network of social security claimants who advise and represent fellow claimants in social security tribunals (Rose 1973). In describing the CPAG as representative, Woolf J was probably thinking of a legal representative in the sense of an advocate or mouthpiece. Yet the group does not precisely fill this bill either. Its in-house legal department was set up in 1968, intended as a specialised advice bureau rather like an American backup centre which would assist claimants’ advisors rather than litigate directly. Very soon, however, the organisers saw that legal casework could be a useful adjunct to the group’s campaigning activities. Under the direction of Henry Hodge, the group’s solicitor, a policy of taking test cases was initiated with the free advisory service to provide an inexhaustible pool of potential ‘frontmen’ for the cases which the lawyers identified and wished to bring (Hodge 1979). Thus the CPAG is an initiator and promoter of litigation rather than merely an advocate for aggrieved individuals. Nor does it aptly fill the classical role of the amicus curiae, with the function of informing and assisting the court (see pp. 194–5). One description of the CPAG would be not of a representative but

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as a sort of private attorney-general—not a role, as the Gouriet case demonstrates, traditionally encouraged by our courts. CONCLUSION Group access to courts is a prerequisite of their effective use for campaigning purposes. In this chapter we have approached access problems from several angles. As it would in real life, funding comes first. Litigation is an expensive way to campaign, and the higher a case is taken in search of an authoritative precedent the more expensive it becomes. In Britain, the cost-shifting rule adds to the risks of losing and there is no contingency fee to help fund group actions. As we saw in Chapter 1, historically the input of group resources was threatened by the torts of maintenance and champerty. In post-war Britain, a comparatively generous legal aid scheme has helped to extend individual access to the courts. Some groups have derived benefit, although the scheme is biased against pressure-group action. In the last twenty years or so, pressure has mounted to open the doors to group action in the courtroom. Although innovation has resulted, it has been sporadic and piecemeal in character. The severe public law doctrines of standing to sue have been eroded and the outlines of a representative proceeding are now discernible (whether or not the authors see this as progress, we shall consider more fully in Chapter 7). On the other hand, the mandatory switch to Order 53 procedure contained in O’Reilly v. Mackman (1982) represents a step in the wrong direction for community lawyers. As our housing case-studies show, it is cheaper and more convenient to sue in the locality. On the legal aid front, eligibility has shrunk and the scheme has not been extended, as was once hoped, to forums like welfare tribunals where much campaigning takes place. Yet the new arrangements for multi-party litigation represent an important breakthrough, acknowledging and establishing a hitherto absent right of direct support for group action. True it is presently confined to personal injuries cases but, with the Supreme Court Procedure Committee talking of group actions in areas such as consumer and environmental law, the battle for extension is already signalled. It is in the area of multi-party litigation that the greatest procedural impact has been made. Behind the facade of the lead action, the changes have been truly remarkable. In the Opren case we heard the controlling judge describe the coordinated scheme as exceptional; only five years later an official guide was made available in the expectation that such Htigation would become commonplace. Yet these developments could prove to be a Trojan Horse. In mass-tort litigation in the United States, multiple individual actions replace a class-action procedure which has been finding favour among defendants. Some of the reasons—forum shopping or the award of punitive damages— derive from and are relevant only to the American system. But the threat of multiple actions can have its uses in bringing pressure to bear on government

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or corporate defendants. Wide use of its new powers by the Legal Aid Board to designate classes in multi-party litigation might threaten guerrilla warfare tactics or blitz campaigns against powerful enemies. This development, together with the choices which the Board makes for plaintiffs, are matters which campaigners will want to watch. The individualist model of the legal process downplays issues of representation and representativeness. Lawyers in England have in the main neglected such issues. In public law proceedings they were in any case subsumed in the related question of interest or standing. Lawyers represented an individual client who vindicated interests which were personal and material in character. As rights of group action are conceded and the practice of group action becomes more common, problems inevitably begin to surface. Disputes arise between members of the class (or classes). Conflicts of interest may also develop between lawyers or between managerial lawyers and their clients. Collective procedures such as class or representative actions necessarily raise questions concerning the adequacy of representation. Similar questions, familiar to political scientists, can be posed to groups claiming representative status in public law proceedings. To lawyers, this chapter may seem to embody a conventional divide between ‘public’ and ‘private’ law. We have chosen this arrangement for the purposes of exposition. The authors do not accept that pressure through public and private law denotes radically different purposes: on the one hand, welfare groups seeking to enforce or unpick decisions, on the other, interest groups seeking compensation in the form of damages. The distinction simplifies group motives, constraining them inside a framework designed by and for lawyers. In the Opren litigation, for example, it was tacitly assumed that compensation was the single objective for the coalition. The main constraint on the lawyer was to settle on the best possible terms. For a class within the class, however, information and accountability were the main aims. Groups often have mixed motives for their actions, which may lead them to ask of the legal system remedies which it is ill-equipped to provide. Money awards, the standard court fare, may be wholly unsuited to collective grievances, or they may cause conflict within a class, being acceptable to some but not others. As we explore these tensions more fully in the next two chapters, we shall see groups using a mixture of means to achieve their ends, not always chosen to please those in authority. Lawsuits may be used in conjunction with, or as a substitute for, political campaigning, as with the blitz campaigns in housing cases. In disaster cases, the litigation coalition is a variant of the victims’ groups whose other activities we shall follow in the next two chapters. To put this differently, the tort claim in a disaster action is only one facet of the group’s activities. In addition to its welfare and counselling functions, the group may be campaigning in the political arena. It may join a wider coalition to fight for law reform. It may seek accountability at an inquest or inquiry. It

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may in frustration turn to the criminal courts. The totality of these activities adds up to pressure through law.

4 COURTS, CAMPAIGNS AND LOBBYISTS

Perhaps those who are presently most vociferous in their criticism of the judiciary should look more closely at the dangers inherent in urging judges to decide not on the facts presented to them but on a reflection of public opinion—no matter how strongly that public opinion is expressed. The Lord Chancellor, Lord Mackay (The Guardian, 25 April 1990) SEPARATE IDENTITY Epitomised in the phrase ‘independence of the judiciary’ is a widely held belief that the judicial function should be separate from the governmental function and that the judiciary should not be subject to governmental control. Neither precise analysis nor extended discussion of an idea which is central to western political thought and which has been elaborated and scrutinised in countless philosophical treatises, is in order here. It is sufficient for our purposes that the idea carries with it some concept of a division between law and politics and that, although there may be a tendency to invoke the doctrine with reference to state or government, independence should mean independence from all political actors—indeed, from all actors. As Vile puts it: The argument for the independence of the judge is that in performing his function of rule-interpretation he should not be subject to pressure that would cause him to vary the meaning of the rules to suit the views of the persons affected by them, and that in ascertaining ‘facts’ he will not be influenced by considerations of expediency. (Vile 1967:329) The ideology of independence is powerful, especially amongst lawyers, and nowhere more so than in Britain where the survival of an independent Bar from which senior judicial appointments are made crystallised the

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tradition. Whether British judges see themselves as political actors is a moot point since, with rare exceptions (Paterson 1982) judges are not very forthcoming about their views. In public they tend to endorse the official line. Lord Hailsham, a Lord Chancellor who once aspired to leadership of the Conservative Party, was in office an unwavering partisan of judicial independence (Hailsham 1983). The judicial career of the present Master of the Rolls, Lord Donaldson, was nearly stifled after a Conservative government appointed him as President of the new industrial relations court in 1972. When, ten years later, Mrs Thatcher recommended his present appointment, the move was widely seen as a reward for loyalty and ‘a strongly political appointment’ (Griffith 1991:30, 87–93). Yet in public Lord Donaldson insists that politics can be left at the door of the court-room. From the bench, he promotes the metaphor of the impartial and disinterested umpire or referee who will not presume to criticise the players, let alone join them (R. v. Secretary of State for the Environment ex p. Hammersmith and Fulham LBC (1990)). Judicial procedures are seen as set apart from the normal rough-and-tumble of the political process. Adjudication is formal and has been described as ‘conflict under carefully defined rules’ (Zeigler 1964). And, an important difference from politicians, judges should not seek to mirror public opinion too closely; as Lord Mackay has emphasised, they must arrive at their decisions in the light of the facts. An impossible ideal of ‘rational’ or ‘reasoned’ decisionmaking (Fuller 1978:364) perhaps, but none the less one worth aspiring to. Once again there is a strong contrast with the political process where an industry of public relations experts, professional lobbyists and fundraisers has grown up. Equally, it is the right of the citizen to go to law but the professionals whom he hires to assist him know better than to lobby too overtly. They must operate within the framework of legal procedure and contempt laws and the Codes of Professional Conduct which bind them play an important part in shoring up the concept of separateness of courts. Article 9 of the Bill of Rights 1688 protects free speech in Parliament by providing that ‘debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’. The provision effectively gives each House jurisdiction over its own proceedings and, at the personal level, shields Members from the threat of civil or criminal proceedings including contempt of court (Griffith and Ryle 1989:86–104). Both Houses none the less acknowledge the tradition of separateness of courts and operate a self-denying ordinance in respect of it. At the constituency level, Members are wary of handling complaints concerning the administration of justice. At best they will pass them on to the Lord Chancellor’s Department and may even turn them away (Rawlings 1990:157). Nor can they be sent to the Parliamentary Commissioner as he has no jurisdiction in the matter and successive Lord Chancellors have held him firmly to the line (HC 284 (1986/ 7), p. 5 (Lord Hailsham); HC 159 (1988/9), p. 2 (Lord Mackay)). Most important, the sub judice rule of the House protects matters under or awaiting

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trial or set down for civil hearing from being questioned in any motion, debate or question in the House (HC Deb. vol. 681, col. 1417). Justice is nominally open and court proceedings public but in practice these may be limited concepts. In contrast to the United States, where one state Chief Justice recently said that his court would be ‘derelict in its responsibility’ if it did not provide maximum access to the courtroom through the media (Sturgess and Chubb 1988:33), legislation actually forbids photography in British courts (Dockray 1990). Arrangements are only just under way to experiment with televising court proceedings (140 New Law Journal (1990): 194). English judges do not court publicity; indeed, until Lord Mackay relaxed the so-called ‘Kilmuir Rules’, permission was required from the Lord Chancellor’s Department before judges made press statements or gave interviews (Griffith 1991:58–61). Their reticence is sometimes used as a justification for muted criticism; it is unfair to attack someone who cannot (or more probably does not want to) answer back. Enough was said in Chapter 1, however, to show that in the English polity criticism of judges has always been a strong and competing tradition. Today, that criticism is considerable, encapsulated in, and much engendered by, cases of miscarriage of justice such as that of the ‘Birmingham 6’ (see pp. 182–4). The reality of the autonomy of courts is a matter of interminable debate, so too the seeming ambiguity of their role: governance and yet not governance, authority and forum of challenge. None the less, no campaigner can ignore the jumble of laws, customs and beliefs which go to make up what the authors call the ‘separate identity’ of courts. The radical who questions the substance of the separation is apt to suffer most. In this chapter we consider the special relation of separate identity and pressure through law. We begin by distinguishing different types of campaign. It is important to say that some campaigns can easily be accommodated within the legal process; to put this differently, there is consonance or what we call ‘good fit’ with the legal process. On other occasions this is not so. The lobbying tactics learned in the political arena which sometimes accompany pressure group litigation threaten the concept of separate identity: when attempts to blur the boundary are too blatant, judges tend to react with alarm and even hostility. The authors identify three factors as going to make up good (or bad) fit: subject-matter, means and objectives. Next we consider the ways in which the concept of separate identity is asserted. Particularly relevant are the doctrines of contempt of court and its parliamentary cousin, the sub judice rule. We suggest that powerful as such instruments of control are, their existence also serves to obscure the lobbying of courts which does in fact take place. If by American standards the scale of the activity is in England still limited, we detect movement in this direction, once again partly under American tutelage. Finally, we distinguish various techniques of lobbying: the punishing of the strident still leaves room for the polite or respectable. And we have always to bear in mind the willingness of

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certain campaigners to test the parameters and their resourcefulness in finding loopholes. In other words, there is considerable interplay. The authors believe that the threat to separate identity is not one to be taken lightly. GOOD FIT: THE ACA If we were confined to a single illustration of a group which has managed to conduct its campaigns within the traditional framework of the common law, we would probably pick the small but active Anglers’ Cooperative Association (ACA). The ACA fits our pattern almost too neatly. Its subject-matter is rights in land, always strongly protected by the common law. It could be said indeed that the group owes its existence to this fact. It was founded in 1948 by john Eastwood, barrister and magistrate, specifically to capitalise on the common law which he saw as infinitely more effective than ‘Parliamentary laws’ or statute. Just as the Commons Preservation Society worked through landowners and commoners, preferably well-to-do, so Eastwood’s scheme depended on finding a group of landowners with fishing rights (‘riparian owners’) to enforce their ancient common law rights. The common law entitled them to the use of the river for fishing and hence to unpolluted water; in technical terms, pollution of a river is a common law ‘nuisance’. Eastwood structured the ACA to act in this way through riparian owners and local angling groups to avoid problems over interest to sue. At no time has the ACA resorted to direct action or other tactics which would imperil its relations with the courts. In the early days it did have trouble with the law of maintenance and champerty (see pp. 49–50), but deliberately structured its operations so that good fit would not be impaired. The ACA is not a classic membership group but rather a ‘back-up’ group to local membership groups (angling clubs) which exists to advise and help them. Costs in the event of failure were always, and still are, guaranteed by the ACA, which normally also ensures continuity by instructing its own legal advisers. The clubs make donations from their costs and damages in successful actions (i/v Allen Edwards, Director ACA, 1988). Two years after its foundation, the ACA trust fund approached £10,000 (ACA Quarterly Review 1950(2): 41); today the annual legal bill approximates to £30,000. Within a year of foundation and with a minute fighting fund of £200, the ACA fought its first case, winning an injunction suspended to allow action to be taken by the defendant conservancy board. It was the first of a long line; eleven cases were undertaken in the first two years. The paradigm ACA action remains that fought nearly forty years ago over pollution of the River Derwent. This was brought by a coalition of angling clubs which joined the Earl of Harrington as riparian owner to fight polluters, who included Derby Corporation as sewage authority, the British Electricity Authority and British Celanese. Their industrial discharges were colourfully described by counsel as a ‘hellsbrew’ which made the river so hot that ‘even tropical fish could not

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have survived in it’. Perhaps surprisingly, as judges are inclined to fight shy of imposing substantial burdens on public funds, the court brushed aside the defendants’ objections concerning the cost and feasibility of ending the discharges and, in a famous legal victory, imposed injunctions, confirmed by the Court of Appeal (Pride of Derby and Derbyshire Angling Association v. British Celanese (1953)). Two years later, the ACA was able to report that £1, 800,000 had been spent on a new sewage works and a further £180,000 on an electricity cooling system (ACA Review, summer 1955:24–5). If this victory could be repeated, as it subsequently was, Eastwood’s strategy would amply have justified itself. The ‘good fit’ achieved by the ACA has resulted in a line of successful cases. The ACA is interested in ‘success’; its objective is to win cases, one attraction being the powerful mandatory remedy of the injunction. The ACA has made conscious use of the injunction as a central feature in its strategy. (It was not at first particularly interested in damages, though today it tends to add a claim for damages to allow restocking a river.) At this point, however, we find the concepts of ‘good fit’, ‘success’ and ‘effectiveness’ diverging. The problems experienced by the ACA start at the level of enforcement. This is a widespread problem for environmental groups which frequently turn to courts in despair at the inertia of the administrative authorities who have the prime responsibility for law enforcement (Hawkins and Thomas 1984). A test case seems to signal a successftil end to their campaign but it rarely signals the end of the story. The group wakes up to the fact that courts of law employ no pollution police and rely on the parties to report breaches of court orders. The groups are returned to the administrative process and even once again to the courtroom. RADICAL CHALLENGE: PROFESSIONAL RESTRAINT We can now begin to talk in terms of a spectrum of campaign cases, in which subject matter, means and objectives are all key elements. The ACA is firmly at one end of the spectrum; at the other end, we find a class of case (extensively debated by lawyers under the rubric of justiciability (Cane 1980)) in which the subject matter of the case weighs heavily against campaigners. For example, a simple version of separation of powers theory to which judges seem implicitly to subscribe, casts government and executive agencies as the policy-makers and Parliament as the lawmaker. The effect is to create a number of embargoes which the authors have else-where named ‘no go areas’ (Harlow 1986b:102). Failure of the various Peace Movement cases described in this book is explicable on the ground that they involve the ‘no go area’ of defence policy. To take jurisdiction in such a case would be directly to challenge the authority of an elected government in a central area of its powers. This is something which judges are understandably reluctant to do.

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Similarly, they tend to steer clear of complex issues of policy and resource allocation, described in the literature as ‘polycentric decisions’ (Harlow and Rawlings 1984:62–4). A similar analysis can be applied to ‘means’, under which we have grouped the tactics by which campaign cases are fought. ‘Respectable’ groups usually play the lawgame according to the rules; in other words, they do not seek to transgress the procedural code of conduct which in part exists to protect separate identity. By contrast, radical groups may deliberately take a course of action which disrupts or offends the court. Technically, this is described as ‘scandalising the court’ and brings the group within the law of contempt of court.1 For example, the Welsh Language Society has proved one of the most effective of direct-action groups and has shown itself adept at seizing the opportunity for publicity created by court proceedings to press demands for use of the Welsh language. At the height of its campaign during the 1970s, two of its members were charged with refusal to pay for TV licences, the argument being that there were insufficient programmes in Welsh. Disturbances took place despite the magistrates’ agreement to hold the trial in Welsh. When in 1974 the same defendants were tried again, the magistrates proceeded in English and, because of the size of the court, only a few supporters were able to sit inside. Again the proceedings were disrupted and the supporters evicted. This time the defendants appealed (unsuccessfully) on the ground that the proceedings had not been ‘open’ (R. v. Denbigh Justices ex p. Williams and Evans (1974)). The best-known of these cases, however, occurred in 1970 when a group of students interrupted a case in the High Court by shouting slogans and singing in Welsh. The judge sentenced them on the spot to three months’ imprisonment for contempt; the Court of Appeal, fielding a Welshspeaking Lord Justice, substituted a binding-over order (Morris v. Crown Ofjice (1970)). In a later case where supporters disrupted a criminal trial by shouting demands for justice in the Welsh language from the public gallery, two young women who refused to be bound over were sent to prison for three months (The Times, 4 May 1971). One commentator has suggested that widespread sympathy from the magistracy encouraged these defendants to overcome their ‘courtroom inhibitions’ (Dashwood 1972:30). It may help also to explain the relatively lenient attitude of the judges. Furthermore, ‘respectability’ is an important attribute in good fit (and also, we shall argue later, in success). In United Kingdom Nirex Ltd. v. Barton (1986), protesters demonstrated against testdrilling by Nirex, which was investigating sites for storing nuclear waste. When Nirex sought injunctions to end the demonstrations, a local clergyman went to court to explain the ‘vigils’ and the injunctions were discharged. The demonstrators used their respectability to persuade the court that theirs was legitimate political protest.

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A feature of protest within the black community in recent years is the formation of ad hoc groups or ‘defence campaigns’ which have as their focus a criminal trial or deportation. Examples are the case of the ‘Bradford 12’ in 1982 (alleged conspiracy to manufacture explosives), the Southall Defence Committee (see p. 178), and the contemporaneous Trevor Monerville campaign (alleged police harassment in Hackney). An important role-model is the ‘Mangrove’ trial (The Times, 17 December 1971), which was rooted in, and made the vehicle of, black protest against the police. Briefly, the charges against the defendants of riotous assembly and affray resulted from violence at a march organised by the ‘Action Committee for the Defence of the Mangrove’ to protest against alleged police harassment at the Mangrove Restaurant in Notting Hill. One of the defendants, Darcus Howe, talks in terms of ‘open rebellion against the British state’, calling the prosecution ‘the whip of the counter revolution’ (Howe 1988:47–8). In this charged atmosphere the first task of the defence was to organise and then to elevate the trial into a ‘defence campaign’. In cases of this kind involving radical groups a main objective is to promote the politics of the action. Subsidiary aims are to provide practical support to minimise stress and through collective case-preparation to lend cohesion to the individualist criminal process. Of special relevance is the role and reladon of protester and lawyer. The defendants, explains Darcus Howe, ‘were having none of the deals …the give and take between defence and prosecution… which had plagued black defendants to date’. They would listen to legal advice but would decide the trial tactics themselves ‘in tune with the mood of our political constituency’. The defence was certainly robust The demand was put for an all-black jury and there were many accusations of police malpractice and brutality. After fifty-five days at the Old Bailey, the jury returned ‘not guilty’ verdicts on all the main charges, later hailed ‘as a victory for black consciousness’ (Chase 1972:39). This raises an important point about means. Counsel who conduct the case are subject in addition to contempt proceedings, to the Code of Conduct of the Bar which makes a barrister ‘personally responsible for the conduct and presentation of his case’ (para.610 (a)). The Code also provides that a barrister shall not engage in conduct ‘prejudicial to the administration of justice’ or ‘likely to diminish public confidence in the legal profession or the administration of justice’ (para.201(a) (ii) and (iii)), an open-ended commitment open to a variety of interpretations. There are further rules against ‘scandalous statements’, ‘vilification’ and ‘character assassination’, the justification being that statements made in the course of legal proceedings receive ‘absolute privilege’ and cannot be the subject of an action for defamation. These rules may sometimes put counsel in a difficult position and counsel may well respond by threatening withdrawal from the case, thereby pressurising the client to withdraw unorthodox instructions in favour of more conventional courtroom tactics. The rules can even be used to harass lawyers

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who depart too far from the narrow path of conventional manners. In the Mangrove case, counsel Ian MacDonald held valiantly to his instructions and did not flinch in sharp exchanges with the judge. Even so, an observer, Louis Chase, felt that such defendants were better off with briefings from a good solicitor than with counsel duty-bound to observe ‘the rules of the game’ (Chase 1972:39). POLITICAL DEFENCES AND THE PEACE MOVEMENT We touch here on another competing tradition in the English polity: cell, dock and martyrdom for a cause. D.N.Pritt once defined the object of a ‘political defence’ as not to ‘win’ the case but ‘to maintain and propagate the client’s view’ (Pritt 1971:39). The purposeful nature of this type of defence work distinguishes it from the mass of cases which seem to the authors to fall outside our remit of pressure through law. This is not to suggest that the boundaries are clearly drawn. Even Pritt conceded that winning cases ‘is very welcome and useful’; and naturally when in the dock campaigners may pursue both sets of goals. Alternatively, a political defence may only be tried because legally the defence is weak. In Chapter 1, we illustrated the link with protest of radical persuasion by reference to the suffragettes. In recent times, the most sustained challenge to legal authority has come from the Peace Movement. Peace Movement cases which have come to court demonstrate different approaches to promoting the politics of an action, which range from conventional behaviour and challenging legal argument to challenging by unconventional behaviour the traditional model of the criminal trial. Obviously, the cases differ from many in this book in being ‘reactive’ in the sense that the authorities commence proceedings. Some at least of the campaigners would deny trying to argue through the courts in the manner to which we are accustomed. Unorthodox means, participation in trial process as protest, may be one more part of a decision to break the law, conscientious civil disobedience, and is also one way radical defendants have of seeking to win back the initiative.2 The most celebrated Peace Movement case is undoubtedly Chandler v. DPP (1964). Six members of the movement’s radical wing, the Committee of 100, were charged with conspiracy to break section 1 of the Official Secrets Act 1911, namely to enter a ‘prohibited place’ ‘for a purpose prejudicial to the safety or interests of the state’. The charge arose from a plan to stage mass demonstrations at air bases throughout the country, beginning at Wethersfield. Simply stated, the defence was that, in seeking to immobilise the base, the protesters’ purpose was beneficial not prejudicial to the state because it was not in the interests of the state to possess nuclear bombers. Immediately beforehand a pacifist journal said that the case was ‘likely to be the most significant confrontation there has been between authority

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maintaining war preparations and people resisting them’, possibly ‘a key point… leading to a new phase of wider support and intensified activity’ (Peace News, 19 January 1962:4). Judicial control of trial process ensured othenvise. Counsel was not permitted to call on the small galaxy of experts (including Linus Pauling and Bertrand Russell) assembled by the Committee for the purpose of showing that disposing of nuclear arms would be beneficial, nor to cross-examine Crown experts to this effect, and when Patrick Pottle, the single defendant representing himself, persisted, the witness was instructed not to answer. Thus, although the case was left to the jury, the Crown evidence that the base was vital went virtually unchallenged. Among the reasons for dismissing the appeal—the male defendants were given 18 months’ imprisonment, the only woman a year—the House of Lords gave two which are very relevant. The judge, it was said, had rightly distinguished between the immediate purpose (immobilisation) and the longterm purpose (abandonment of nuclear weapons) so stripping the protest of political meaning. If the protest itself was ‘prejudicial’ the offence had been committed; the campaign goal was essentially a matter of motive and so irrelevant to criminal liability. Second, the disposition and use of the armed forces under the prerogative could not be questioned in the courts. Whether current policy was in the national interest was not only a ‘political’ question, it depended on an ‘infinity of considerations’ and so was irreducible to ‘triable form’. Legally speaking, it was a ‘no-go’ area. From a governmental viewpoint the case was a great success; it has been suggested that the impetus of the entire 1960s Peace Movement was destroyed by the crushing of its radical wing in the courts in 1962 (Vogler 1986:112). Also, inside the legal system, Chandler is a vital precedent to this day. Let us take these aspects in reverse order. There are circumstances recognised by common law in which acts which would otherwise be unlawful are justified or excused by the need to prevent injury or a greater wrong. For radical groups wishing moral and political arguments to be heard, to show that they and not the authorities are in the right, this type of defence is an obvious courtroom tactic (Bannister and Milovanovic 1990). Conversely, judges are unenthusiastic.3 Measured in terms of ‘winning’ this kind of defence usually ‘fails’. There are, however, exceptions. Advice published by the Campaign for Nuclear Disarmament explains that with a jury in the Crown Court the outcome could be affected; in magistrates’ courts the defence will be mainly for the benefit of the media (Shelley and Jeffries 1984). Chandler’s continuing relevance is shown by the Upper Heyford cases in 1983 which resulted from a mass blockade of the American nuclear bomber base after which 750 demonstrators were charged with obstruction of the highway. As in Chandler the statute in point appeared to open a window of opportunity: the charge reads ‘wilful obstruction of the highway without lawful authority or excuse’. Section 3 of the Criminal Law Act 1967, which states that

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such force can be used as is reasonable to prevent a crime, was pleaded. Citing the Genocide Act 1969 and a number of international conventions, the protesters claimed ‘lawful excuse’ on the grounds that the use of nuclear weapons and their presence at Upper Heyford was criminal. But the magistrate would not allow evidence concerning Britain’s defences and the Crown Court judge who heard the appeal complained that its real purpose was to obtain publicity. Judge Mynett said that he would have rejected the argument of crime at Upper Heyford, but that in any case Chandler showed that he had no jurisdiction to enquire into nuclear weapons (Delf 1985:98–101). The Peace Movement has a first-rate legal network and the lessons of such cases are not forgotten. The ‘Legal Advice Pack for Nuclear Disarmers’, published in twelve parts by CND in association with Lawyers for Nuclear Disarmament, covers all aspects of campaigning. Yet prominent warnings against appealing what is from the campaign viewpoint a ‘bad’ case, show the tension between the collectivity and individual. Conflict arose over the Upper Heyford cases. Defence counsel Owen Davies, secretary of Lawyers for Nuclear Disarmament, advised his clients not to contest Judge Mynett’s ruling for fear of a negative precedent, advice termed ‘defeatist’ by one enthusiast (Delf 1985:102). Behind the Chandler case lay mass civil disobedience: on a scale unknown in post-war Britain thousands courted arrest in sit-down demon-strations in Whitehall and Trafalgar Square. Bertrand Russell, a leading participant, urged that so long as only constitutional methods were employed it was very difficult to put the facts across owing to a hostile media; by contrast, the demonstrations attracted wide press coverage including statements of the protesters’ case (Minnion and Bolsover 1983:21). With hindsight the secretary of the Committee of 100, Michael Randle, criticised as naive the belief that an elected government could be physically coerced by mass demonstrations into changing the whole basis of its defence and foreign policy. Clogging up the legal process was a strategy which the Committee would like to have fulfilled —hence its protest cry ‘Fill the Jails!’—but never succeeded in doing (Randle 1987:144). At first the authorities did seem to play into the protesters’ hands. Statements from the dock and prison cell were clearly the order of the day when several dozen of the most prominent campaigners for peace were bound over to keep it—by not sitting down. As a propaganda gift the jailing of Bertrand Russell, then aged 89, for refusal to comply, could hardly be bettered. ‘Elephantine’ is the word chosen by an academic commentator to describe these early prosecutions (Marshall 1967:11). The Chandler case, then, was not fought on ground of the Committee’s choosing. It signifies a change in official tactics, armalite in place of blunderbuss. In strict legal terms, the defence was the best the Committee of 100 could do, once the decision was taken to single out and throw the statute book at key activists. To put this differently, the prosecution was designed to intimidate a radical movement by making an example of leaders. In this it was

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very successful. The criminal process worked to isolate individuals from the collectivity, to recast the action in the language of legal relevance and ultimately to discredit it with the label ‘crime’. Case-selection, the who, what and where of legal proceedings, so crucial to pressure through law, was here in opposition hands. DEFENCE CAMPAIGNS AND THE ‘BWNIC CASE’ A different sort of peace campaign gives further insight into ‘defence campaigns’. In 1973, intent on ending British military involvement in the province, a group of pacifists formed the British Withdrawal from Northern Ireland Campaign. The group set about leafleting soldiers to inform them of ways of leaving the army and soon ran up against the very same Incitement to Disaffection Act which the new-born ‘Council for Civil Liberties’ strove so hard to prevent in 1934 (see p. 56). After veteran activist Pat Arrowsmith was convicted (R. v. Arrowsmith (1975)) the group made its leaflet a less ‘seductive’ document and redoubled its efforts. The scene was set for the trial at Old Bailey in 1975 of fourteen activists for conspiracy. The defendants had carefully to consider the role of lawyers. ‘When it is my deepest beliefs vvhich are on trial, no barrister, however brilliant, can properly represent me,’ said defendant Gwynneth Williams (Young 1976: 89). The true radical fears that the mind-set of even the most sympathetic counsel is inimical to an alternative vision (Kirchheimer 1961:243). Counsel may be able to present a legal defence in a political way; counsel cannot make purely poiitical speeches. A defendant can choose to present his own case which gives him a certain latitude.4 Collective cases of this kind give a further option. A ‘mixed defence’ can be organised, whereby some defendants have counsel and others do not and attempt to express the politics of the action. Ideally, if the evidence against them all is similar, the legal input helps everyone. The Mangrove trial provides us with a yardstick by which to measure the input of counsel: the three defendants representing themselves seemed freer to give the jury a view of colonial history (Humphry 1972:164). But it is of the essence of the ‘mixed defence’ that defence work be assessed organically. In the BWNIC case several defendants exploited the leeway the court gives to the unrepresented. Much was made of the ‘political character’ of the charges—some defendants even refused to plead on the grounds that the charges contravened human rights. Emphasis was put on the pacifist tradition in English society and the personal commitment and principle of the defendants. Steps were taken to promote the politics of the action beyond the courtroom door. By British standards the ‘BWNIC Defence Group’ was extremely vigorous. To express solidarity, 500 activists signed ‘a statement of complicity’; others openly distributed the offending leaflet. The court was picketed—a visual focus for the media—and leafleted: a judge was depicted gagging someone. In

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a television programme screened during the trial, the NCCL attacked the 1934 Act as a bar on freedom of speech. Moreover, the defence group went unpunished. Further charges under the Act were later dropped and the judge did not make good his threats to punish for contempt of court. The case shows very well, first, the tactics of political campaigning as an accompaniment to litigation, especially street protest; and, second, the discretionary nature of the role of contempt in protecting separate identity. Determined campaigners observe the law of contempt less than most, but it does not follow that the law is always enforced strictly against them. It is even possible that radical protest will obtain more scope than is generally acknowledged as a judge decides that discretion is the better part of confrontation. Eventually the jury found the defendants not guilty, a verdict which made headlines in the national press and which the NCCL claimed vindicated its campaign against the 1934 Act (Young 1976:90). A more rounded assessment in Peace News (19 December 1975) pointed to the limited benefit and the attendant costs, personal and collective. This type of ‘win’ does not create a legal precedent: a disincentive to prosecute perhaps, but the sweep of the law is unchanged. Key activists were worn down and scarce campaigning resources had been diverted into litigation, which Peter Hain identifies as official advantages of staging ‘political trials’ (Hain 1984:283). After the BWNIC trial the tempo of the campaign subsided. POLITICAL THEATRE IN NEWBURY The contemporary Peace Movement has tended to find itself confined to magistrates’ courts. Even the upsurge in activity in the early 1980s was apparently insufficient to provoke the response of twenty years before. Actual (not planned) incursions into bases were met with summary proceedings, not trials on indictment. Containment at a low level has obvious implications for those who want to use courts as a sounding-board. In Chandler, the Committee of 100 got more than they bargained for; some recent activists have complained of getting less. Stipendiaries have been drafted in to process cases of mass arrest at a rate of knots (at Newbury in January 1984, one every two minutes); cases where the horror and alleged illegality of nuclear warfare could be raised have been dropped or the charges lowered to remove the right to jury trial (Clapp 1984:26). Christabel Pankhurst herself might have said: The authorities, by not pressing charges or by charging women with relatively minor offences, are trying to deny that there is any threat from the [Greenham] women’s actions. This tactic is a way of trying to incorporate and neutralise their effect. (Cook and Kirk 1983:115)

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Even so, the trials in 1982–4 of ‘Greenham Women’ represent the most serious attempt in modern Britain to create a ‘political theatre’ in which the court case is seen as a continuation of ‘the action’, by which here is meant ongoing civil disobedience which the presence of the ‘peace camp’ at the base came to symbolise. Newbury Magistrates Court was the scene of the first major encounter in November 1982. Eighteen women faced charges of breach of the peace for occupying a sentry box. Witnesses, including the Bishop of Salisbury and historian E.P.Thompson, were called to testify that the women were engaged in keeping the peace. As in the later Upper Heyford cases, the Genocide Act 1969 was invoked to suggest that the action was reasonable to prevent a crime but, on this occasion, the plea also served as a vehicle to bring into court symbols of peace protest, namely song, poetry and flowers. Early on the decision was taken to use women lawyers and only women lawyers who would ‘participate as equals’, feel ‘personally and politically involved’, and share this view of trials as a continuation of action (Johnson 1986:163). The role of the lawyer was to enable—not mediate—conflict. Solicitor Jane Hickman describes creating as a framework a series of legal arguments designed to maximise the women’s chances of expressing in a personal way their knowledge and experience of the nuclear issue (Cook and Kirk 1983:117). February 1983 saw Newbury magistrates again hearing charges of breach of the peace: for dancing on missile silos on New Year’s Day. The defence was a true mix. Women scientists were called to expand on the genocide argument; some women represented themselves and persisted in questioning witnesses like the commander of the base despite being told to stop for irrelevance; each woman then used the opportunity of the right of a plea in mitigation to illustrate in personal style why her dancing should go unpunished. Jane Hickman affects not to have believed ‘that the magistrates would not simply step down from their table and join us’ (Cook and Kirk 1983:118); in fact, they showed considerable forbearance but—a big but—they sentenced the women to imprisonment. On other occasions, magistrates were more assertive and met the verbal disruption with contempt charges sending those responsible to the cells. Women would then refuse the opportunity to apologise and opt for punishment (Johnson 1986:169) turning the official means of controlling proceedings into a further means of ‘action’. The third major encounter, at Reading Crown Court in July 1984, followed a mass cut of perimeter wire. The case illustrates both the potential of, and obstacles to, this kind of protest in a jury trial. The defence pleaded intention to prevent ‘war crimes’ and the ‘necessity’ of non-violent direct action. Repeatedly the judge sent the jury out as he lambasted the legal argument. Women reasserted matters of conscience from the witness box and dismissed barristers so that more of them could appeal directly to the jury. The upshot was a running battle, as women persisted in the protest and the judge persisted

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in interrupting. Twelve women were convicted of criminal damage and fined, while four received suspended sentences. For their part, the women had learned fast and gained confidence. They had gone so far as to rehearse the role-play of ‘talking through’ in level voices, singing and shouting, to quitting the box unless permitted to speak ‘the whole truth’. Yet despite all this, so far as ‘seizing’ and turning ‘upside down’ the legal system is concerned, as certain radical academics have urged (Bankowski and Mungham 1976:113), activist Rebecca Johnson would later concede: ‘we have a long way to go’ (Johnson 1986:176–7). Centuries of experience show the resilience of the legal system! We have learned too that the defence may be doing the best it can in the circumstances. The ground is often distinctly unpromising; defeat in court can do much to undermine a campaign and even a ‘win’ may insufficiently recompense for diversion of resources. Underlying this is a structural antithesis between the legal system and any radical cause which threatens prevailing forms of state authority (Vogler 1986). Yet, recently, more optimistic elements of the Peace Movement have brushed the point aside and have tried to initiate the criminal process themselves. We consider their efforts in Chapter 5. TRESPASS AS A CAMPAIGN TOOL The focus so far has been on the two ends of our spectrum of campaign cases. Many more groups which go to law fall somewhere in the middle range. Subject matter, means and objectives, the criteria which we identify as relevant to ‘fit’, may pull in opposite directions. Turning to objectives, by which we mean the purposes for which litigation is fought, we know already that ‘winning’ cases is not the sole object of every campaigner who goes to court. Depending on what the other objectives are, pressure groups may find themselves in conflict with the courts which object to being used, as they see it, for extraneous purposes. Of course, few groups are actually averse to ‘winning’ and for some it is the only objective, although again the objectives of ‘winning’ may be variable: compensation or precedent, law enforcement, punishment, etc. To illustrate, let us look at a litigation campaign based on the ancient tort of trespass to land organised by the League Against Cruel Sports (LACS). Historically, the tort has had an ambiguous role, a useful weapon in defence of civil liberty, as in the ‘general warrant’ cases (see pp. 17–18), and for landowners against those groups of demonstrators wishing to assert their political rights (Harlow 1987:76–7). Later we shall find it invoked against environmentalists and animal rights activists who seek evidence of wrongdoing in the factory or laboratory. Generally, the League Against Cruel Sports is proactive; it leaves direct action to the Hunt Saboteurs Association and

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sponsors actions for trespass against the hunts. Political work remains the first priority but litigation has become a major plank of the League’s campaign. The League operates in several ways. First, it sets out to persuade landowners to prohibit hunting (achieved on over 500,000 acres of land). Second, it operates as a back-up group akin to the ACA. Country-dwellers who become members are promised a high priority for financial assistance to pursue litigation. The League makes available its expertise and distributes a leaflet ‘Troubled by the hunt?’ which explains how to bring a case. Third, the League acquires as ‘sanctuaries’ parcels of land in the path of hunts—in the West Country alone covering some 2,500 acres—on which the League can sue in its own name as landowner. Altogether, it is involved in fifty or so cases each year. Most do not come to judgment. The League pursues a low-risk strategy and accepts an undertaking that the Master will use his ‘best endeavours’ plus a ‘payment into court’. If no damage is done the payment may be as low as £25, but it means that the hunt bears both sides’ legal costs, often in the region of £2,000 to £3,000. A high ‘success’ rate means that the cost to the League is correspondingly small. In 1987 LACS recovered all its costs save for staff time in some 90 per cent of cases (i/v John Bryant, wildlife officer, 1988). Obviously, the well-heeled hunt will not be driven out of business, least of all by a single case. The campaign is about continual pressure by means of law, the proverbial drip on the stone. The League considers trespass actions a useful deterrent, which hem the hunts in and drive up the insurance premiums which they pay against legal action (AR 1987:5). Trespass actions generate publicity in the locality and can encourage local opposition to take further action: the cause can only benefit. Surely this is a good reminder not to undervalue pressure through law by too narrow a focus on appeal cases and too high an expectation. Occasionally, in strong cases of clear and persistent trespass, the League will chance its arm and seek an injunction. The first case in which it succeeded involved one of its own ‘sanctuaries’. League Against Cruel Sports Ltd. v. Scott (1985) was an important test case argued in the High Court on whether entry by hounds alone constitutes trespass. Park J held that it could, but only if (as in this case) the Master was at fault. The hunt argued that nevertheless the League should be refused an injunction on the ground of ‘unconscionable conduct’ in acquiring land with the aim of disrupting hunts. The judge would have none of it, saying that whatever the League’s motive it was entitled to enjoy its land free from trespass; in other words, he would not enquire into the underlying reasons for bringing the case. To rephrase this in terms of ‘fit’, the judge gave precedence to the question of subject-matter (property rights, traditionally well-protected by the common law), leaving out of account the question of objectives, which might have revealed a less good ‘fit’ with the legal process. It is worth adding that the League has fared less well in county courts, which usually hear such cases. Injunctions have been refused despite

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careful case preparation and selection, and in cases of entry by hounds courts have declined to find ‘fault’. The League blames ‘prejudiced’ judges who ‘find a loophole to support their “country friends”’ (Wildlife Guardian 1986(3):6). OBJECTIVE: PUBLICITY Publicity is a powerful objective nearly always present in the minds of campaigners and the question how this is best achieved comes high on their agenda. Let us look more closely at two examples of going to court in order to highlight an issue and attract media attention. First, the ‘Social Fund’ case brought recently by the Child Poverty Action Group (CPAG). Briefly, the Social Fund was set up by government as a way of limiting expenditure to people in need of social assistance. It is a cashlimited loans scheme with a fixed budget for every regional and local office. Whereas previous schemes had provided for appeal to social security tribunals, the Social Fund was intended to be discretionary and unreviewable. In R. v. Social Fund lnspector ex p. Stitt and Others (1990) CPAG set out to challenge the new machinery. In an application for judicial review, CPAG argued that the budgetary allocations were unlawful. The prime consideration for a Social Fund officer was whether a person was in need; the Act did not permit the Minister to ‘direct’ officers to keep inside fixed budgetary limits. This case raises a number of points relevant to the assessment of test-case strategy in the area of welfare law. First we should note that the problem presented to the court for resolution was typically polycentric: to unpick the system of fixed budgetary allocations would either necessitate a considerable input of new resources or alternatively involve reallocation of funds. In either case, court intrusion on a typical executive function might cause resentment. Thus the case was not on the face of things likely to succeed. CPAG read the case more as an occasion to keep the Fund on the political agenda by raising ‘interest and concern in an issue which has apparently disappeared from view’ (96 Welfare Rights Bulletin. (1990):5). Again, the structure of the governing legislation, designed to curtail judicial review, was a serious hurdle and merely to establish that the Social Fund was not entirely beyond the reach of the High Court was something of a triumph. That the case was, despite these obstacles, won, was surprising (and says something no doubt about the inherently unscientific nature of any prediction as to the probable outcome of any given case). It was unusual, too, in that it did actually produce new resources when the Minister announced an additional expenditure of £10 million on the Social Fund. Against this, however, have to be set two long-term effects. First, and characteristic of the government (Smith 1988), power was immediately taken in amending legislation to do precisely those things which the judgment had prohibited. Second, new legislation reflected rather more strongly departmental annoyance at test cases. Provisions inserted at the last stage of debate in a

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remote schedule of the Social Security Act 1990 limit the effect of successful test cases by providing that legal rulings shall not apply to other, similar, claims in the pipeline prior to the definitive decision (Rowland 1990). CPAG seems to have lost more than it won. For good measure, when in a later case CPAG challenged the Fund again, the court refused to intervene (R. v. Social Fund Inspectar ex p. Healey (1991)). The second case illustrates the objective of publicity even more clearly. It was brought by a Birmingham group called ‘Young at Heart’ made up of parents whose babies were affected by the postponement of crucial operations due to NHS staff shortages. Baby Collier had been at the top of the urgent list for a bypass operation which was postponed three times in as many months, when his parents applied for judicial review (R. v. Central Birmingham Health Authority ex p. Collier (1988)). His parents must have known his case was nearly hopeless; two months earlier, a similar application made by baby Walker against the same health authority had failed. But on the day after the first hearing, the Prime Minister had intervened to assure the House of Commons that the operation would take place very soon; and it did. At once the Young at Heart group met to consider what to do next. The chance of ever winning was slender but legal action had shown itself as ‘a way to get things done’. The group decided to continue litigating as and when an opportunity presented itself (The Observer, 29 November 1987). Nobody was very surprised when the Collier case failed. Its resource implications alone were sufficient to sink it. But the publicity was what mattered and thus at least temporarily it was highly effective. It is possible for a court to strike out an action as an ‘abuse of process’ but this is an extreme course, not to be undertaken lightly. Alternatively, a judge, as we shall see, can impose reporting restrictions but this too is unusual. The courts can only go so far to prevent the use of the legal process for publicity purposes. Indeed, to anticipate an argument in Chapter 7, in judicial review cases it could be said that the courts, by easing access and yet restricting remedies, have unwittingly advertised as a publicity vehicle. On the other hand, campaigners who go to law may too easily assume a good press. A review for CPAG makes the point that readers of different newspapers may have ‘little but their prejudices confirmed’ (Smith 1986:284). SECRECY AND DISCOVERY In the previous cases, litigation was being used to generate publicity about matters already in the public domain. When campaigners litigate for publication in the further sense of bringing into the public domain confidential information they are liable to come into conflict with the courts. In this country, a wall of silence blocks public access to information. Britain is almost alone in the western world in possessing neither Freedom of Information legislation nor a general right of access to data held in official

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files (Marsh 1987, Birkinshaw 1988). In place of article 1 of the US Bill of Rights, which gives pride of place to freedom of opinion and of the press, Britain has a century of repressive Official Secrets Acts (1889–1989) and there is no common law right of privacy (Younger 1972). In these circumstances, it is hardly astonishing if official secrecy is a starred item on the agenda of civil liberties campaigners. Several groups are involved. The Campaign for Freedom of Information, a further outpost of the Wilson/ Bradman campaigning empire (see p. 132), has over the years spearheaded a sustained campaign for legislation, temporarily quiescent after the Official Secrets Act 1989. A coalition of major pressure groups campaigned for statutory recognition of a ‘public interest’ defence in the Bill when spirited opposition to the legislation was co-ordinated by the NCCL. Minor legislation, to extend that already granting rights of access to local government or personal files, is still a worthwhile subject for lobbyists (Wilson 1984), and ‘Charter 88’ seeks a more fundamental solution via fundamental constitutional change including an entrenched Bill of Rights. Court protection for secrets is not automatic—as the Cabinet Secretary found to his cost in the ‘Spycatcher’ litigation5—but English courts are not in general great supporters of a ‘public right to know’. Groups obtain some of their best material through leaks; CPAG, for example, once found confidential departmental documents regulating discretionary welfare payments in two bulky parcels on its doorstep. And ‘moles’ do not tunnel only through government files. The disaffected employees of commercial concerns (such as Karen Silkwood, the American anti-nuclear activist, or Stanley Adams, the industrialist who, greatly to his detriment, exposed Hoffman-LaRoche’s ‘dumping’ practices) are an equally valuable source (Silkwood v. Kerr-McGee Corp. (1984), Adams 1984, Hunnings 1987). But those who seek to use such information place themselves in a vulnerable position. In addition to facing prosecution under the Official Secrets Acts they could find themselves on the receiving end of a civil application for an injunction. British courts are distinctly hostile to moles, whistleblowers (Cripps 1983), and hoarders of leaked information. They have recently constructed a novel duty of confidence which they are rapidly extending through public and private sectors (Wilson 1990b) and which can be used to stop the whistleblower in his tracks. Campaigners are vulnerable to the new rules and not even journalists can protect their sources, so narrowly have the courts construed section 10 of the Contempt of Court Act 1981 which was designed to give them protection (Secretary of State for Defence v. Guardian Newspapers Ltd. (1985), X Ltd. v. Morgan-Grampian (Publishers) Ltd. (1990)). In such cases, campaigning through courts is easily translated into campaigning against courts; when judicial attitudes come to be seen as restrictive of a ‘public right to know’, they themselves come under pressure. Nevertheless, courts provide campaigners with a window of opportunity. Temporarily blocked in the political arena, one way forward for the civil

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liberties groups is the enforcement of transnational standards under the European Convention on Human Rights. Article 10, which protects freedom of opinion and expression, can be used as a partial substitute for a domestic Bill of Rights, and some of the most important cases brought against the United Kingdom under the Convention rely on this article (see Chapter 6). Furthermore, legal procedure permits access to confidential information for the limited purposes of litigation. Briefly, section 33 of the Supreme Court Act 1981 and Order 24 of the Rules of the Supreme Court provide for ‘inspection’ of papers and pro perty and for ‘discovery’, whereby the court orders one party to litigation to provide the other party with access to evidence relevant to the proceedings. (There are exceptions to the rule that discovery cannot be ordered against third parties but they are not relevant here.) An order can cover oral evidence as well as documents. But a request for discovery can be barred by a claim of ‘immunity’ or ‘privilege’. Legal privilege exists for many of the communications which stem from the lawyer/client relationship while ‘public interest immunity’ exists where disclosure of documents by a public authority would, in the opinion of the court, be contrary to ‘the public interest’.6 We can illustrate the way in which these doctrines lock up together by reference to a leading case which unusually casts a ‘respectable’ pressure group in the role of defendant. The bare facts were as follows. A complaint of child abuse had been made to an NSPCC inspector who, acting under powers granted by the Children and Young Persons Act 1969, followed up the complaint by a visit which showed it to be unfounded. The mother, allegedly in a state of shock, issued a writ against the NSPCC for negligence in failing to investigate the complaint properly; at the same time she asked for discovery of the informant’s name. The NSPCC refused to disclose the name, arguing in court that anonymity was necessary to protect informants who only came forward on the basis of confidentiality. They therefore claimed immunity from an order for discovery. The House of Lords agreed that confidentiality was essential and upheld the NSPCC claim on the ground of public interest (D v. NSPCC (1977)). From our specialised viewpoint, this case recalls and confirms the point made in Chapter 1 about the special ‘insider’ status of the NSPCC. But the ruling had a wider importance because it seemed to extend both the class of case in which discovery would not be ordered (from ‘Crown privilege’ to ‘the public interest’—a notoriously flexible concept) and the scope of judicial discretion to allow non-disclosure. In arriving at this decision some of the judges took into account the plaintiff s motives, concluding that her primary objective was not to sue the NSPCC but to discover the complainant’s name, possibly with a view to litigation. For campaigners, this was significant because it tended to suggest that objectives were important; information could be obtained through the court process only if required for the sole purpose of the litigation under way. In other words, the case takes a restrictive attitude to

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the use of courts for information-gathering and campaigning purposes, a door shut more tightly by the Harman case (see below). Central government claims to immunity from discovery often seem oppressive, as government lawyers take the view that public interest privilege cannot be waived. This point was established in a mass-tort action by the Haemophilia Society on behalf of 962 members who had been infected by contaminated blood. The blood, supplied by the NHS, contained a clotting agent, ‘Factor 8’, infected with HIV virus and many haemophiliacs had contracted AIDS. When discovery was required of the Health Service records needed to fight the action, Crown lawyers claimed immunity. One potential way round the obstacle was blocked off when the Health Services Commissioner, asked by Alf Morris MP to investigate possible maladministration, turned down the request (as he is entitled to do) on the ground that this office cannot be used as an alternative to the courts (The Independent, 31 August 1990). The Court of Appeal, however, paved the way for an action in damages by ordering discovery of most of the files (Re HIV Haemophiliac Litigation (1990)). Kenneth Clarke, the Health Secretary, declared his willingness to fight on, but soon the government felt unable to resist the groundswell of hostile public opinion, whipped up as we shall see by a well-orchestrated press campaign. Applicants for discovery cannot expect carte blanche to rifle through their opponents’ documents. They must first satisfy the court, as the haemophiliacs were able to do, that they have a genuine cause of action and then be specific as to what documentation is needed. This may sometimes involve a ‘Catch 22’ dilemma: without the evidence the case cannot be won; without a case the evidence cannot be secured. Campaigners are then forced back into the political arena where their chances are again impaired by their lack of success in court as they find that without the information the campaign cannot succeed. This is what happened to the East Sussex Travellers Association, a local amenity group which wanted review of British Rail’s decision to close a local branch line. Arguing that the Board’s analysis of the costs involved in closure was flawed and rendered its decision unreasonable, the group asked for discovery of all relevant financial information on which the decision had been based. But the court held that discovery was not necessary; the essential facts were already contained in affidavits from the parties, and the legal arguments as to the validity of the decision could be foundea on material already before the court. Clearly the judge suspected a ‘fishing expedition’, saying that he could not allow ‘a trawl, vigorous or otherwise, through the public authority’s documents [to see if] something can be found to support some allegation, otherwise not supported by anything, that there has been a breach of public duty’ (R. v. Secretary of State for Transport ex p. Bracken (1985)). Here the group’s inability to see the actual calculations which underlay the contested decision made it impossible to challenge in any real sense.

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PROFESSIONAL FOUL? We have said enough to show that courts show discretion in ordering discovery, viewing it in terms of an incursion into private property rights for which justification must be made. For the same reason, documents obtained through discovery can be used only for the purpose for which discovery was ordered, a restriction which makes it hard to use discovery orders for campaigning. Campaigners who try to do this are taking a risk, and may find courts prepared to protect their procedures by a finding of contempt of court— a lesson rammed home by the well-known case of Home Office v. Harman (1983). At the time of the proceedings, Harriet Harman, a solicitor, was the in-house legal officer of the National Council for Civil Liberties (NCCL). She was acting for Michael Williams, a prisoner who had been subjected to solitary confinement in a special control unit and was now suing the Home Office for false imprisonment to question the legality of his detention (Williams v. Home Office (No. 1) (1981)). On the face of it, this was simply an action for damages but the context suggests that the NCCL may have had secondary objectives. Prisoners’ rights groups were greatly exercised by special control units which had been set up and were being operated in a secretive fashion and there was something of a common front against them (Ryan 1983:48, 84, 115). In the course of the action, discovery of a great number of documents relating to the establishment of the units was demanded, and although the Home Office claimed public interest immunity, an order for discovery was finally made. Extracts from the documents were read in open court and, at the end of the day’s hearing, Harman was approached by David Leigh, a Guardian journalist preparing an article on prison reform, to whom she lent the documents for purposes of verification. Leigh used the documents as the basis of a story of ‘internal bureaucratic intrigue and ministerial attempts to prevent disclosure’ and squarely attributed credit for exposing a‘major Whitehall blunder’ to the NCCL (The Guardian, 8 April 1980). We now rnove onto the delicate ground of conflicting motives and obligations. As a reporter, Leigh was entitled to report what he heard or took down in open court. Harman was in a different position. As a solicitor, she was an officer of the court with a duty to respect its procedures and subject—like counsel in the Mangrove trial—to the disciplinary rules of her profession. Perhaps this difference explains why the Home Office decided to proceed against Harman for contempt of court, and why, by a majority, the House of Lords found Harman guilty (Home Office v. Harman (1983)). If we analyse Lord Diplock’s majority judgment in terms of our ‘good fit’ concept we might say that he read the dispute in terms of objectives. For him, Harman’s action amounted to an improper attempt to use legal procedures for campaign purposes, thus implicitly imperilling the concept of separate identity. He described Harman as acting for ‘some collateral or ulterior

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purpose of her own or of the civil rights group’ by which she was employed. For Lord Diplock, there was a triangular conflict of interest: Harman’s twin professional duties to client and to the court had been overlaid by the interests of her employer. There was, however, a different approach. Dissenting, Lord Scarman, a long-standing and ardent Bill of Rights man (Scarman 1974) and now a patron of ‘Charter 88’, saw the dispute in terms of conflicting rights. On the one hand, there were public rights to a free press and to open justice. On the other hand stood an individual’s private right (in Lord Diplock’s phrase) to keep his own documents to himself. For Lord Scarman the private right of confidence had to give way. Because Lord Scarman’s line of reasoning adopts the conceptual vocabulary of the European Convention, article 10 of which protects freedom of speech, it would probably have recommended itself to the European Court of Human Rights (Eagles 1984). We cannot be certain because, after the Commission held Harman’s application admissible, a friendly settlement was reached in which the UK government promised to amend the law and to pay Harman’s costs of £30,000, met up to this point by a public appeal (Cohen and Staunton 1986:297). Nearly six years after the original action, the law was amended by an addition to the Rules of the Supreme Court which makes the minimum change compatible with the government’s Strasbourg promises. Order 24, rule 14A provides that any undertaking not to use documents other than for the purpose for which they were discovered ends after the document has been read or referred to in court. In a case which falls outside the ambit of our subject (Bibby Bulk Carriers Ltd. v. Cansulex Ltd. (1988)) this provision too has been narrowly construed. BLAIR PEACH AND RACISM One campaign which helps to pull all these threads together and nicely illustrates the interplay of political, parliamentary and legal techniques is that which followed the death of Blair Peach, a schoolteacher killed during a violent demonstration in 1979 outside Southall Town Hall in circumstances suggesting police malpractice. The demonstration had been called with the permission of local police by the largely Asian community of Southall to protest at the use of public facilities by the National Front. Many spectators who later gave evidence to the NCCL inquiry believed that the violence was due to the tactics of the Special Patrol Group of the Metropolitan Police, ordered in to police the demonstration. Many injuries, of which Blair Peach’s death was the most serious, resulted. Questions were asked in Parliament but the Home Secretary refused a public inquiry (HC Deb., vol. 985 WA, cols. 722, 869). To keep up the pressure, the NCCL set up an unofficial inquiry vvhose findings were necessarily inconclusive in the absence of police cooperation (NCCL 1980).

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Blocked at the political level, protesters turned to the law. Immediately after the death, a complaint had been made by Peach’s friend, Celia Stubbs, which had been treated by the Metropolitan Police as a formal complaint under the Police Act 1964. This necessitated an investigation, carried out by Commander Cass but never published. Although several officers subsequently left the force, the DPP refused to prosecute on the ground that no single culprit could be clearly identified. Indeed, the only prosecutions to follow the affair were of demonstrators. Relatives of Blair Peach now tried to use the coroner’s inquest to gain access to the Cass Report. The coroner refused access, ruling it to be a confidential, internal police document, a decision upheld by the Divisional Court (R. v. HM Coroner at Hammersmith ex p. Peach (1980)). After a verdict of death by misadventure, it seemed once more that official action was unlikely. The relatives decided to pursue the case personally through a civil action for damages. They demanded discovery of the Cass Report together with more than 2,000 relevant documents in police possession. Again the police refused, this time claiming public interest immunity. Rather surprisingly, discovery was ordered by the Court of Appeal (Peach v. Commissioner of Police of the Metropolis (1986)). But the plaintiffs never saw the Cass Report after all; coincidentally or otherwise, the Metropolitan Police suddenly decided to settle an action they had been resisting for seven years with an offer of compensation too generous to resist. The Blair Peach affair acted as a catalyst for discontent with inquest procedures. In 1981 Celia Stubbs came together with other concerned people to form ‘lnquest’. Originally financed from the GLC, now by London boroughs, Inquest’s function is to advise people, particularly relatives, who are involved in inquests but for whom representation and legal aid are not available. It is not solely a casework group; its two full-time workers find time to campaign for changes in inquest procedure. Today Inquest maintains close links with ethnic communities and participates in anti-racist campaigns (Grosskurth 1990)—a fitting reminder of its Southall origins. More serious were allegations that magistrates’ courts were manipulated by police and prosecution to secure the convictions of those charged with public order offences. These originated with the Southall Defence Committee which had been set up to co-ordinate defences but secured endorsement from the NCCL inquiry. They were then taken up by the Legal Action Group (LAG), a cause group working in the field of legal services. LAG referred a complaint to the Lord Chancellor who replied in terms of ‘separate identity’: it would be improper, wrote Lord Hailsham, for a Minister of the Crown to intervene in the judicial process (Harlow 1980). How should one assess the operation of the legal system in this case? Traditionalists would say it had functioned properly to protect individual interests and secure compensation for the loss suffered by an individual. The

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campaigner would say that pressure through law had failed; the Cass Report which lay at the heart of the protracted litigation was never made public; the truth about Blair Peach’s death never emerged at the inquest; the cover-up, if there was one, was complete. Linden once compared a lawsuit to an ombudsman in that it could open windows on to bureau and boardroom, exposing the hidden recesses of filing cabinets and floppy disks (Linden 1973). In the case of Blair Peach, the expectation was not fulfilled. IN TANDEM? COURTS AND COMMONS Operating in parallel with contempt of court is the parliamentary sub judice rule. It too is designed to insulate the legal process and has a freezing effect, making it more difficult to integrate political with legal campaigns. But MPs have a campaign role and some Members feel less inhibited by the selfdenying ordinance of the House in legal matters. To put this differently, the sub judice rule is widely respected and enforced by the Speaker; nevertheless, crusading MPs, like determined campaigners in the face of the court, may be undeterred and happy to see how far they can go in stretching a point. Three of our cases show this tug-of-war process in operation. The first case can be loosely linked to the Peace Movement and arose out of powers contained in the Official Secrets Acts to hold trials in camera and impose reporting restrictions. A witness had been allowed to give evidence anonymously as ‘Colonel B’ but answers which included details of his career made the witness easy to identify and both Peace Neius and The Leveller reported these details as part of a campaign of protest. The Attomey-General reacted sharply, bringing proceedings for contempt of court. The courts, however, were more relaxed; the House of Lords ruled that the magistrates had given insufficient notice both of the intended effect of the ruling and of the risk of contempt proceedings (A-G v. Leveller Magazine (1979)). With the aim of circumventing the original court order and bringing Colonel B’s name into the open, four MPs who supported the campaign set down a Parliamentary Question, deliberately naming Colonel B (HC Deb., vol. 948, col. 672). This was widely felt to be an abuse of privilege and the Speaker agreed, ruling that it was indeed a breach of the sub judice rule. The Speaker’s ruling was subsequently upheld by the Committee of Privileges to which the case had been referred (HC 222 (1978/9)). The sub judice rule arose again in another case in which questions of access to information merge interestingly with questions of publicity. The case concerned the family jurisdiction of the High Court and its statutory powers to authorise the hearing of certain cases involving children in private, a divergence from the principle of open justice usually justified on the basis that the child’s interests may be adversely affected by publicity. Baby C was so severely handicapped that her parents did not wish her life to be artiflcially prolonged. They applied to make the baby a ward of court so as

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to obtain court authorisation for the care and treatment to be afforded to her. As part of his order allowing the medical staff discretion as to care and treatment, the judge imposed a wide-ranging injunction prohibiting publication of any names or personal details which would allow the child to be identified. Ironically, the stringent terms of this order attracted the attention of the press which reported its terms, though not the facts which lay behind it, widely. The reports in turn attracted the attention of LIFE. LIFE is a group which, as its name suggests, campaigns on the basis of the sanctity of human life and opposes both euthanasia and abortion (see pp. 218–20). LIFE wished to intervene in the case of Baby C to question the judicial order on the ground that to facilitate death could never be in a child’s best interests. Thanks to the court order, however, all that was known about the case was that it took place ‘somewhere in Yorkshire’; in LIFE’s own phrase, the media ‘had been gagged’ (Life News no. 20, Spring/Summer 1989). LIFE demanded police action, only to be told that the police were also helpless before the blackout imposed by the judge. Unexpectedly (in LIFE’s phrase ‘pro-life outcry had forced his hand’) the Official Solicitor appealed the order, taking the view that issues of public interest arose which demanded his intervention. None the less the judgment was upheld on appeal (Re C (a minor) (1989)) and on the same day the Court of Appeal refused an application by Mail Newspapers to lift or vary the reporting restrictions. Lord Donaldson’s attitude to the idea of campaigners gaining entry to this litigation was hostile and his attitude to witnesses and parties protective. ‘In this particular case,’ Lord Donaldson said, ‘the carers are likely to be approached not only by the media, but also by pressure groups who may not display even the consideration and sense of responsibility which one always hopes for in representatives of the media’ (Re C (a minor) (No. 2) (1989)). The campaigners had one card left up their sleeves: to trump the Court of Appeal order with the ace of parliamentary privilege. A Parliamentary Question was set down in the House of Commons by Ann Winterton, secretary of the parliamentary Pro-Life Group, demanding an inquiry. It was duly sidestepped by the Attorney-General. A few days later, Nicholas Winterton tried a more subtle approach by asking the Attorney to seek permission from the Court of Appeal to place the medical evidence from the case in the Commons Library. Had the court agreed, the parties could undoubtedly have been identified but again the Attorney refused (HC Deb., vol. 151 WA, cols. 309, 559). The end of the road had been reached. The case provides a variant on the ‘Catch 22’ syndrome. Intervention is not possible without information; access to information will not be forth-coming without a legal right of intervention. The third case in this series involves an attempt to use Parliament to bring pressure on the prosecuting authorities, an illustration of tactics described further in Chapter 5. We also see it as a pressure-group case. Geoffrey Dickens MP is a member of the All-Party Group on Child and Family Protection. He

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had been working at the time this case arose with Mary Whitehouse and Charles Oxley on a Private Members’ Bill to curb paedophilia (Whitehouse 1985:113–4). Charles Oxley was Secretary of the Campaign for Law and Order (CLO), which describes itself as working ‘by lawful and democratic means for the restoration of law and order by effective punishment including capital and corporal punishment’. It uses the techniques of the American Moral Majority, inviting its members to write an occasional ‘short sharp letter’ to newspapers expressing their views about ‘some particular crime or sentence’. Dickens has been described as a ‘strong and loyal supporter’ of the Campaign (CLO Bulletin., no.6, January 1987). In May 1986, CLO claimed credit for the successful prosecution of a Hull vicar for sexual offences against children, attributing the prosecution to pressure brought on the authorities by Geoffrey Dickens who ‘broke the deadlock by raising the matter in the House of Commons’ (CLO Bulletin., no. 5, May 1986). The Dickens affair grew out of allegations of rape of a small girl made against a doctor. After a police investigation, the case was referred to the DPP, who declined to prosecute. Simultaneously, the allegations were taken up by two newspapers: the Star, which, without naming the doctor, published the facts and stated that the mother was considering a private prosecution; and the Sun, which was considering funding the private prosecution. The Sun now published the doctor’s name and an article headed ‘Rape Case Doc: Sun Acts’, together with stories which would clearly have been inadmissible in criminal proceedings. Now Geoffrey Dickens tried to force the issue, using a Parliamentary Question calling on the Attorney-General to prosecute as an excuse to name the doctor in the House. Mr Michael Clark, the constituency MP, raised a Point of Order charging Mr Dickens with breach of parliamentary privilege. By naming the doctor, he was ‘denying justice’, submitting someone to trial by ‘parliamentary privilege and newspaper headlines’ and forcing that person to ‘struggle to prove his innocence’, which was ‘quite contrary to English law’. Kevin McNamara, MP for Hull, also rose to accuse Mr Dickens of naming one of his constituents without consulting him first, a clear breach of House rules of etiquette. Endorsing the feeling of unease, the Speaker ruled that in future cases Members should supply names privately to Ministers. Reminded that this course of action would not carry the absolute privilege accorded to ‘proceedings in Parliament’ by Article 9 of the Bill of Rights, but only ‘qualified privilege’ which can be defeated by proof of malice, the Speaker merely agreed without further comment (HC Deb., vol. 94, cols 23–6). The leading authorities on media law ascribe British contempt rules to ‘an abiding British fear of “trial by newspaper” of the sort which often disfigures major trials in America, where the First Amendment permits the press to comment directly on litigation’ (Robertson and Nicol 1984:161). This case makes the point rather nicely. A subsequent private prosecution initiated with the support of the Sun ended in acquittal. At once, the Attorney-General

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moved for contempt in respect of the original Sun articles, and although these had been published too long before the trial to come within the statutory strict liability of the Contempt of Court Act 1981, the Sun was held to be in contempt at common law and the serious nature of its contempt was marked by a fine of £75,000 (A-G v. News Group Newspapers plc (1988)). One other recent case is notable for the importance which the court attaches to the concept of separate identity. This is the case of the ‘Winchester 3’, alleged IRA terrorists tried for conspiracy to murder Tom King, the Northern Ireland Secretary. During the trial, Mr King made a Commons statement declaring his intention of curbing the accused’s ‘right of silence’ because too many guilty people were being acquitted; the statement was later amplified in news bulletins. The ‘Winchester 3’ were relying on the right of silence. Six months later their convictions were overturned by the Court of Appeal on the ground that the jury had been subject to pressure: The coincidence that the remarks should have been made when the trial of the applicants had reached such a critical stage, and should have been made by the minister who was alleged to be the victim of the proposed conspiracy, would not enhance the perception that justice was seen to be done. (R. v. Cullen and Others (1991)) AFTERWORD: CAMPAIGNS AGAINST MISCARRIAGE OF JUSTICE The strong line taken by the Court of Appeal in the case of the ‘Winchester 3’ could be attributed by the cynical to the fact that it came at the end of a line of cases involving grave miscarriage of justice which were to bring the judiciary into the centre of the political stage. Known colloquially as the cases of the ‘Maguire 7’, ‘Guildford 4’ and ‘Birmingham 6’, all arose out of convictions for IRA bombing during the 1970s and in each allegations of gross police malpractice and malfunctioning of the government forensic service were involved (Morris 1990, 1991). Two types of campaign focus on the criminal justice system and campaigns tend broadly speaking to involve two types of group. The first is a general campaign for law reform and may include professional interest groups, such as the Law Society, Bar Council, or Criminal Bar Association. Cause groups, like the Legal Action Group, which campaigned to save the right of silence at issue in the ‘Winchester 3’ trial (Black 1989) may also become involved. The second type of campaign sets out to right a particular case of injustice. These are usually run by ad hoc support groups like the Free George Davis Campaign which hit the headlines when it damaged a test match wicket. These categories should not be seen as exclusive. The NCCL takes on casework while demands for law reform may grow out of individual cases as in the Confait case handled

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by Chris Price MP which led to an inquiry and, ultimately, to a Royal Commission in 1979. One organisation is unusual in regularly engaging in both types of campaign. JUSTICE is a pressure group composed mainly of lawyers which campaigns generally on legal issues but is able also to offer a limited casework service, providing volunteer counsel for some criminal appeals. As the British branch of the International Commission of Jurists it is active in human rights, and in Chapter 6 we shall find it beginning to take European Convention cases in the Commission and Court of Human Rights. As befits an elite organisation composed mainly of lawyers, JUSTICE prefers to work behind the scenes—in the words of former Director, Leah Levin, ‘addressing the quarters in the manner that we think will be most effective’. Sir William Goodhart, QC, Chairman of the Executive Committee, talks with pride of the group’s ‘politically neutral stance’ (Grosskurth 1989). A‘sweetheart’ relationship with government is likely to prove attractive to a group composed mainly of senior lawyers; to acquire a name for campaigning and crusading would imperil their self-image and be divisive. This is not to say that JUSTICE campaigns are not hard-hitting, but it prefers to let the NCCL or Amnesty make the political running. Or it might shelter behind the media, as it has done so successfully in co-operating with the BBC over the programme Rough Justice. This has secured new trials in several dubious cases, created public understanding of a subject too often swept under the table, and done much to create an atmosphere in which JUSTICE’s own measured proposals for reform—the other side of its campaigning work—can be discussed. JUSTICE has published two reports on miscarriage of justice (JUSTICE 1982, 1989) and will no doubt be giving evidence to the Royal Commission (see below). Ad hoc support groups operate differently. Some twenty years ago, a study of campaigns against miscarriages of justice (Brandon and Davies 1973: 161– 204) described them as characteristically organised around a family, usually with the help of a notable public figure. Robert Kee, a respected investigative journalist was active in the Birmingham and Guildford cases (Kee 1986), and dedicated lawyers and parish priests able to enlist the support of the Catholic hierarchy also played a key part in their campaigns. It is important to stress, too, that miscarriage campaigns can be carried on in Parliament; contempt laws and the sub judice rule lose their freezing effect with the end of the trial. After the release of the ‘Birmingham 6’ so extreme was the hostility felt to Lord Lane, the Lord Chief Justice, that 100 MPs signed an early day motion requesting his resignation. Lord Mackay, the Lord Chancellor, stepped in at once with a laudatory statement (The Guardian, 25 April 1990). However Chris Mullin MP, a leading figure in the campaign, was to test the limits of parliamentary privilege when a motion set down by him deploring the conduct of the judiciary was disallowed by the Speaker as infringing the rules of the

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House on opprobrious language and character attacks (Griffith and Ryle 1989: 210). These campaigns did not end with release from prison and promises of compensation. They continued on into the public inquiry set up to consider the cases, chaired by Sir John May, a former appeal court judge. Whether more general effects will be produced remains to be seen. As a Royal Commission was announced by the government to consider reform of the criminal process, the NCCL expressed a campaigner’s perennial concern. Announcing an umbrella group to see other miscarriages righted, NCCL’s Director urged immediate action: ‘There is a public mood which must be built on or it will dissipate’ (Legal Action, May 1991:4). Publicity is the lifeblood of campaigning if not of the law. Campaigners cannot afford to ignore this truth. A WATERSHED: THE THALIDOMIDE AFFAIR In Chapter 3 we remarked on the rapid rise of the litigation coalition in masstort cases. In its wake has come the campaigning which today increasingly accompanies negotiations for compensation, and which is probably traceable to the frustration engendered by the Thalidomide affair as it dragged through the courts for two decades. As we saw, the collective dimension of mass-tort cases compounds normal problems of proof by creating procedural problems inside the courtroom which judges find difficult to handle. Frustrated inside the legal process, the groups involved tum to political campaigning to solve their difficulties. But, as we have already indicated, to run a political campaign alongside litigation may prove equally frustrating. The Thalidomide parents formed a support group only at a late stage of the affair, nor did they set out to use the courts for publicity or campaigning purposes. Their action was a genuine attempt to secure damages for their children and it was disenchantment with the performance of lawyers and the legal system which forced their hand and led to press and parliamentary campaigns. Sunday Times journalists who were involved in the campaign confirm this evolution, attributing the way in which the campaign developed to two causes: first, the influence of Lady Hoare, chairman of the public appeal fund, very concerned that the fight for compensation would distract parents from their ‘caring’ role; second, their trust in the legal system which, when it failed them, stifled legitimate protest about the failure (Sunday Times Insight Team 1979:191–2). It could also be argued that the highly professional Sunday Times ‘Insight Team’ supplied the place of a pressure group. The writ in the UK thalidomide cases was issued in August 1962. Up to this point Distillers, the UK manufacturers, had been using press articles to good effect in the propaganda war; afterwards, they were able to use the law of contempt equally effectively. Campaigning was also made difficult by an instruction from the parents’ legal advisers ‘not to talk to outsiders and especially not to the press’ (Sunday Times Insight Team 1979:190). But

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matters dragged on, partly because of the inequality of the parties, partly, in the view of The Sunday Times team, due to the inexperience and ‘negative attitude’ of the parents’ main lawyers. By 1970 some 300 cases were in the pipeline, settlements were being reached at very low levels, and considerable pressure was being put on parents to accept a final settlement of the action. The refusal of some of the parents to agree to a settlement, followed by unsuccessful attempts to have them removed as guardians of their own children (Re Taylor’s Application (1972)), sparked off a media campaign. In September 1972, The Sunday Times published an article describing law as ‘not always the same as justice’ and asking Distillers to reconsider their offer. The Attorney-General decided to bring proceedings for contempt of court, a decision which was to land The Sunday Times in a seemingly interminable fight for press freedom. In July 1973, the contempt case reached the House of Lords where the paper argued that there was no serious risk of prejudice to the litigation, which was effectively in abeyance. The House ruled that the paper was none the less in contempt as it was seeking to pressurise a litigant into foregoing his legal rights and further, that the published material risked public ‘prejudgment’ of the defendants’ case (A-G v. Times Newspapers (1974), Teff and Munro 1976). While The Sunday Times kept up the pressure, side-stepping contempt laws by publishing a series of articles on the plight of individual Thalidomide families, Jack Ashley MP, a prominent supporter of the disabled (and a recent Chairman of the All-Party Group on Disablement) attempted to move the matter into the House of Commons. The government refused a debate on the basis of the sub judice rule. The Speaker, however, retains a final discretion over matters technically sub judice which he exercises on the basis of ‘real risk of prejudice’. Late in 1972 Jack Ashley was permitted to set down several Parliamentary Questions which he followed by a Motion in Opposition time asking for legislation and for a public trust fund to be set up. He also called on Distillers ‘to face up to their moral responsibilities’, more or less as The Sunday Times had done. The government countered with an amendment expressing concern about the delay and blaming its failure to act on the sub judice rule. For the Opposition, Barbara Castle described the pressure exerted on parents by the defendant company through the courts and legal aid system— pressure which, she alleged, had only been resisted because one of the parents was rich enough to fund legal action without legal aid. Counter—pressure was the only possibility: ‘the very threat of a House of Commons debate had forced [Distillers] to increase its offer from £3.25 to £5 million and the House should now intervene to insulate the parents from pressures which were leading to unjust settlements’ (HC Deb., vol. 847, cols. 433–64). Only a campaign in the form of threats of an international boycott from Ralph Nader, plus substantial pressure from a group of Distillers’ shareholders headed by Tony Lynes of CPAG, made Distillers agree a settlement in the Thalidomide cases (Sunday Times Insight Team 1979:255–69). The

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campaign’s effects are starkly revealed by the figures. In 1972, the High Court had been prepared to sanction individual settlements averaging £7,500; in 1973, after the campaign, the average cash settlement was £54,000. The crusade was over except for The Sunday Times, still enmeshed with the law of contempt at Strasbourg (The Sunday Times v. United Kingdom (1979)). The grounds for complaint were twofold. First, the House of Lords judgment was thought to extend the previous law by substituting for a ‘substantial risk of prejudice’ test a new and more stringent test of ‘pre-judgment of the issue’; second, the injunction granted to the Attorney-General went so far as to prevent the paper from passing on its research to official bodies or MPs. It seemed that there had been an infringement of article 10 (right of free speech) too wide to be protected by the proviso to the article, which permits such exceptions as are ‘necessary in a democratic society’. The European Court of Human Rights ruled that contempt laws were in principle permissible for the legitimate purpose of protecting the independence of the judiciary. This might have ended the matter; in the previous Handyside case (1976), the Court had ruled that it fell to states to decide on the measures appropriate in their respective democratic societies. Now the majority resiled, holding that UK contempt laws infringed article 10 and were too wide to fall within the exception. On the face of it, The Sunday Times had won a significant victory. But was the long drawn out victory Pyrrhic? The Committee of Ministers was persuaded that the UK had complied with the judgment by paying the paper’s costs and promising legislation. But the Committee never saw the final text of the Contempt of Court Act 1981 which some commentators believed to be defective in making no specific mention of the impugned ‘prejudgment’ test (Lowe 1983:335–44). Only after the Lonrho case (see pp. 192–3) in 1989 was the crucial point settled when the House of Lords ruled that the Act must be read as intended to implement UK obligations under the ECHR, with the consequence that the ‘prejudgment’ test must have been abolished. OPREN AND AFTER Lessons learned in Thalidomide were put to good use in the Opren campaign. The lawyers who planned the Opren litigation were more experienced in mass personal injuries litigation than those who, a decade or more earlier, had been presented with the problems posed by Thalidomide. Essentially, however, they were faced with the same evidentiary problems. When they realised the scale both of the documentation and of the problems of proof, they were fortunate to find Charles Medawar, a writer with extensive scientific and medical knowledge, who was prepared to devote several years to the analysis of the case. Medawar was an experienced campaigner in the field. He had started his career in the United States with Ralph Nader and later founded ‘Social Audit’, a small group in whose name he researches and reports on industrial malpractice, pollution and so on. But Medawar had specialised in the activities

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of pharmaceutical companies. He had published with the Consumers’ Association a book described as influential in persuading government to ban the prescription of certain drugs by the NHS and was deeply involved with exposing the practice of multinationals in Third World countries (The Guardian, 23 January 1987). He was clearly a godsend to the Opren solicitors who promptly commissioned him to act as research assistant, a role later described by Lord Donaldson as ‘pivotal to the preparation of the case’. Two years later, when the plaintiffs finally obtained an order for discovery and inspection, Eli Lilly objected to Medawar seeing the documents on the ground that he was not (as Harriet Harman was) an officer of the court with an obligation to observe confidentiality but an ‘investigative journalist’ who might, intentionally or otherwise, use the documents for campaigning purposes. Hirst J upheld this contention, describing Medawar as a campaigner whose ‘main life’s work…has been a powerful and public crusade against practices in the [pharmaceutical] industry of which he so strongly disapproves’. It would be difficult for Medawar, or so the judge thought, to dismiss these matters from his mind. The judge’s order was reversed by the Court of Appeal, which instead accepted a personal undertaking by Medawar that he would not use disclosed materials for purposes outside the litigation (Davies v. Eli Lilly & Co. (1987b)), a solution remniscent of the Harman case. The means that were eventually used to encourage Eli Lilly to settle the compensation claims also hark back to Thalidomide. As we know, the Opren litigation was saved from collapse by the financial muscle of property millionaire Geoffrey Bradman (see p. 132), co-founder with Des Wilson of Citizen Action. Immediately, Wilson joined with Kathleen Grasham and the Opren Action Group to supply the campaign muscle (Dehn 1989:406). Wilson, the most professional of campaigners, naturally imported into the campaign high-profile techniques of pressure. Ralph Nader raised the possibility of an international boycott of Eli Lilly. Jack Ashley called in an Adjournment Debate for an NHS boycott (the government responding in terms of the sub judice rule) (HC Deb., vol. 120, cols. 183–8). As a way out, a proposal was floated for a trust fund with no admission of liability. And on 1 July 1987, just as the first offers of compensation were under negotiation, a full-page advertisement appeared simultaneously in The Times and the Wall Street Journal under the names of Wilson and Grasham entitled ‘An appeal to the conscience of Eli Lilly and Co.’ It appealed for support from readers; what sort of support was not specified but the names and addresses of Eli Lilly directors were published. This brought the campaigners into conflict with the courts. The advertisement went very near the borders of contempt, if it did not cross them, and later in the month HirstJ took the opportunity to warn that such conduct was unacceptable (Davies (Joseph Owen) v. Eli Lilly & Co. (No. 2) (1987)). The campaigners desisted, but by then the point was made and they went unpunished as the judge did not invite contempt proceedings.

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Elsewhere in this book, group and class actions have several times been described in terms of a necessary counterweight to the presence in the legal system of well-funded corporate actors able to play lawgames with a skill and tenacity unmatched by ‘one-shotters’. Not only do such players have access to the most expert legal advice but the legal system itself puts obstacles in the way of litigants faced with this type of opponent. The most recent mass-tort claims demonstrate with painful clarity that legal campaigns of such magnitude may make demands which are quite beyond the capacity of a litigation coalition, essentially an ad hoc grouping of victims and their relatives, underfunded and heavily reliant on volunteers. Even with the specialist disaster lawyers, it is often only the presence of determined individuals like Kathleen Grasham (Opren), Marlene Winfield (Dalkon Shield) or Jim Swire (Lockerbie) that keeps the show on the road. Geographical diversity compounds the problem. Passengers from many countries died in the Pan Am aircrash at Lockerbie. The dubious distinction of a world record of claims against a single product is held by an intra-uterine contraceptive device, the ‘Dalkon Shield’. More than 14,000 women scattered across the United States filed suit against the American manufacturers, A.H.Robins. As part of a $1.4 billion settlement, a claimants’ trust was set up to process over 200,000 claims world-wide. Through the ‘Dalkon Shield Association’, some 3,000 British women were able to benefit, but many thousands of women in the Third World who could not provide proof of use received next to nothing (Mintz 1985; The Guardian, 12 March 1990). Yet, to repeat, the litigation coalition in mass-tort cases is a main driving force in the recent development of pressure through law. Out of adversity has come innovation. As the coalitions have grown in number, so too have they opened out beyond the courtroom. Out of Opren by way of Citizen Action came Citcom (the Citizen Action Compensation Campaign), a group which aims at reform of the tort system. In 1988, under the auspices of Lord Scarman, Citcom launched a campaign for better personal injury compensation (Citizen Action, no. 2, Winter 1988–9). Many of Citcom’s leading supporters appear in this book. Solicitor Rodger Pannone and his partner Mark Mildred, who helped to draft the National Consumer Council policy paper on multiparty litigation (NCC 1989), are both on the advisory committee, as are Kathleen Grasham, Marlene Winfield and Charles Medawar. AVMA (see p. 123) is represented, and amongst the parliamentary patrons we find the name of Jack Ashley. The American adviser is none other than Ralph Nader while Tony Venables, formerly of BEUC and now ECAS (see pp. 271, 273) is the European representative. Although in 1989 Citcom failed with a Citizens’ Compensation Bill for an advisory board to make recommendations on the level of awards, it continues to campaign on various aspects of personal injury compensation (Witcomb 1990). The coalitions themselves are beginning to respond by networking. Formed by representatives from disaster groups in the UK, Disaster Action was

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launched in 1991 as a lobbying and support group which hopes to pool experience and build up campaigning expertise (The Guardian, 8 October 1990). Priorities include defining and establishing corporate responsibility and accountability (see pp. 228–31). Transnational networks are becoming commoner. The Bhopal case involved a chemical explosion in an Indian factory owned by Union Carbide. The first suits were filed by American lawyers, acting on a contingency fee basis in the US courts where damages would be higher, a skilful piece of forum shopping (Muchlinski 1987). The Indian government stepped in and accepted a settlement in 1989 of $470 million. But there were demonstrations in front of the Supreme Court in Delhi, and anger at exploitation of a poor community by a rich American multinational prepared to go into liquidation rather than meet claims engendered support for groups working outside India for better compensation. These were co-ordinated from London by the Transnationals Information Centre, a resource centre providing information on the activities of multinationals and linked to the London Hazards Centre (Bhopal Action Group 1989). Finally, a claim which started life in a litigation coalition stoked by self-interested lawyers moved via a network which focuses on industrial injury into the centre of environmentalism, as it fuelled pressure for a ‘Green Revolution’ in India (Abraham and Abraham 1991). To deal with mass-tort litigation, a new breed of specialist lawyer combining the attributes of advocate and public relations expert is coming into being. It would not be unduly cynical to see this media package as a standard component in the disaster kit of specialist lawyers such as Pannone Napier. So predictable is the package that it has sparked a reaction. Recalling his personal experience of defending in the Vaccine Damage, Opren, and Piper Alpha Oil Rig Disaster cases, City solicitor David Mclntosh recently advertised his firm’s defence-oriented Disaster Procedures Manual. The Manual advises the retention of ‘media trained personnel’ and the establishment of ‘procedures for communicating with the media’ as well as controlled ‘contact points with the action group representatives’ (note the assumption that an action group will have been formed) (McIntosh 1990). Media campaigning techniques developed in the course of these campaigns are now beginning to feed themselves back into the legal process. It is standard practice in the United States, for example, to provide ‘day-in-the-life’ videos recording the impact of the catastrophe on the victim’s everyday life. These are beginning to be used in English courts. Such practices are modelled on those of the American Trial Lawyers Association (ATLA). It is not without significance that leading disaster lawyers in this country are members of ATLA’s international branch. The Association can fairly be described as a pressure group, whose ideology incorporates ‘an intensely individualistic perspective of private citizens wronged by corporate forces’ including big business and government (Fleming 1988:145–63). ATLA is concerned to present its members as guardian angels,

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solely motivated to wreak restitution on the guilty, but an alternative view would be of an interest group concerned to line its pockets with fat contingency fees. The interests of these lawyers, as well as those of their clients, may clash inside the multi-party action. In the Dalkon Shield litigation and the ‘Agent Orange’ litigation brought by Vietnam veterans, disputes between the lawyers over the management of the case added to the litigants’ problems (Mintz 1985, Schuck 1986). The example of Judge Lord, who handled the Dalkon Shield litigation, shows how ATLA’s tactics may result in pressure on the judge. If the plaintiffs and their lawyers came to see Judge Lord as their only friend at court (Englemayer and Wagner 1985), the same was emphatically not true of A.H.Robins which lodged a formal accusation of ‘gross abuse of judicial discretion and power’ against him. This could be dismissed as an harassing tactic. The fact remains, however, that judges of his circuit, in disciplinary proceedings, expunged one of Lord’s speeches from the record of the trial and warned of the danger of judges becoming, or being seen as ‘advocate [s] for private causes’ (Gardiner v. A.H.Robins & Co. (1984)). Clearly, the managerial role demanded of judges by the class or multi-party action has drawbacks. Judges who descend from the podium into the arena may all too easily find themselves the targets of charges of bias (Resnik 1982). In Opren it was several times suggested from the bench that the parties agree compensation without the need to prove negligence (Dehn 1989: 400). On his own admission, the judge went much further in the HIV Haemophiliac case (see pp. 174–5). During private hearings Otton J had lawyers convey to clients his view, first, that the law could not be left to run its course when so many victims were dying, and, second, that the government was in a different position from a commercial organisation, owing a moral as well as a legal duty to those in its care. Otton J accepted that he was raising a political issue but justified this by a wish to protect the reputation of the law. All this was leaked to The Sunday Times, spearheading a campaign for compensation, and appeared under the headline: ‘Pay blood victims now, says judge’ (30 September 1990). Otton J now publicly deplored the conduct of the paper and warned of the law of contempt. Editor Andrew Neil retorted that publication was in the public interest and that to further the campaign ‘anything which can be done must be done’ (The Times, 3 October 1990). Ironically, a judge seemed here to be pressurising a litigant to forgo his legal rights, the charge made by judges in the Thalidomide affair against The Sunday Times! The Minister, still maintaining that the NHS was not at fault, at first held out, accusing the judge of taking’ the easy option’ (The Independent, 8 October 1990).But the campaign ultimately proved irresistible; two months later, in one of his first acts as Prime Minister, Mr Major announced an out-of-court settlement of £42 million (The Guardian, 12 December 1990).

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LOBBYING THE COURTS The term ‘lobbying’ is common enough in politics and especially in legislative politics. The activity itself is widely regarded as a perfectly acceptable form of political behaviour, nay, an essential ingredient of liberal democracy. As we have seen, seasoned campaigners have at their disposal a wide variety of lobbying techniques, ranging from media campaigns and mailshots to petitions, demonstrations and direct action. They can also employ professional advisers: advertising agents, public relations experts, parliamentary agents and professional fundraisers—all can be called on for help with campaigning. Parliament itself exerts little control over these activities. There are a few rules of parliamentary privilege designed to prevent pressure on Members (Griffith and Ryle 1989:92–4) but, subject to these, it is not seen as improper to retain an MP as parliamentary spokesman and many have such positions. MPs may also be retained by parliamentary consultants and lobbyists to advise on parliamentary tactics or to gain access to ministerial colleagues. To quote from a report of the House of Commons Select Committee on Members’ Interests, ‘It is the right of any citizen to lobby his MP and if he considers that his case can be better advanced with professional assistance he has every right to avail himself of that assistance’ (HC 408 (1984/5), p.iii). Regulation and even registration of lobbyists is lacking7 (Doig 1986, Miller 1991). Retainers, directorships and other pecuniary inducements offered to Members have formally to be registered on the Register of Members’ Interests, but the controls are relatively ineffective (Rush 1990, Hollings-worth 1991). Membership of pressure groups does not even have to be registered. Pressure groups often employ staff to co-ordinate links with MPs and some of their time may be used in servicing All-Party Parliamentary Groups. Some of these groups figure in other chapters of this book: RADAR, the main disability lobby, services the All-Party Disablement Group; NACRO that on Penal Reform; and the RSPCA, performing the same role here as in the European Parliament, looks after the Animal Welfare Group. Although the term ‘lobbying’ is not normally applied to the judicial process, the author of an influential American article reminds us that it could be (Hakman 1966). Hakman uses the term in two distinct senses. It is in the first sense of the techniques of persuasion which we have just been describing as common in the political process that lobbying is seen as inappropriate. Direct contact with judges, pecuniary inducements, demonstrations, etc., are all discouraged even when they do not fall squarely within the rules of contempt. In the second, procedural sense of litigation tactics and strategies as formulated by Hakman, much judicial lobbying does in fact take place. A firm exponent of separate identity and judicial neutrality, Hakman is prepared to bring multiparty actions, test cases and support from non-parties within the definition of lobbying for the purpose of investigating and playing down its significance.

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Today in England, in cases like Opren, the media can and do go a long way in support of campaigns. Exactly how far they can go is an open question—the Sun was held to overstep the mark in the ‘Dickens affair’ (rightly so in the authors’ opinion). To put this differently, milder or less strident forms of outside pressure are now conceded to be permissible; one of the law lords said to us that judges, and especially senior judges, have just to put up with it. An important case involves a commercial company, Lonrho plc. Briefly the Lonrho case arose from protracted litigation involving the sale of Harrods to the Fayed brothers. A confidential report on the brothers had been prepared by the Department of Trade and Industry for the Minister. When a leaked copy came into Lonrho’s hands, Managing Director ‘Tiny’ Rowland, also owner of The Observer, arranged for a special issue to publish the gist of the report with hostile editorial comment. The Minister moved for an in-junction but too late; the issue had already gone out in a mailshot to a list of the ‘great and good’ whose support Lonrho had been seeking through a costly and highly professional public relations exercise over a period of years. The list included, with all Members of Parliament, the law lords. By an oversight (or so Lonrho later assured the House), four law lords involved in the hearing of Lonrho’s case were on the list and received the mailshot. As one would expect, the reaction of the law lords was vigorous. They halted the hearing, accused Lonrho of trying improperly to influence the court, and preferred contempt charges. In the end, a new panel of three law lords who had not been involved in Lonrho litigation heard the charges. In view of the prevailing judicial attitude to leaks and whistleblowers, what happened next is worthy of note. The mailshot dropped out of the picture when the panel agreed that failure to remove the law lords’ names had been unintentional, but the panel went on to lay down important principles on this type of contempt. First, it was held that contempt proceedings will not usually be extended to appellate courts, whose judges can be expected to resist outside influences; second, that The Observer’s editorial comment, despite what Lord Bridge called the ‘intemperate language in which it was expressed’, was within bounds; finally, that publication of the leaked report, even where it had effectively pre-empted the result of a lawsuit, could be a legitimate form of self-help and did not amount to contempt (Re Lonrho plc and Others (1989)). In short, the tone of the judgment is altogether more permissive and more in line with ECHR provisions than earlier judgments. Let us develop the argument. To punish the outlandish is not to punish the polite. And the natural tendency to focus on punishment or pathology helps to divert attention from forms of lobbying which do in fact go on. Hakman’s second definition of lobbying can be said to be too wide and, conversely, too narrowly focused on the individualist character of the common law action. But some of the items on Hakman’s list of tactics, such as amicus interventions, forum shopping, and research and publication do seem to the authors to come well within the definition of lobbying, the interesting thing being that, to

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lawyers, much of this activity seems so wholly respectable as to pass without comment. Even Lord Diplock’s restrictive Harman judgment exempts professional commentators from his strictures, and notes in legal periodicals can be used to influence judicial decision-making—though whether judges actually read legal commentary is a moot point; Paterson (1982), the only formal British source, found in his study of the law lords that they read little periodical literature. English judges do not, like their American brethren, employ clerks to do their research nor can we think that they subscribe to press cutting agencies, but carefully placed articles in professional weeklies such as the Law Society Gazette or New Law journal or in certain newspapers, particularly The Times (traditionally the lawyers’ paper) do probably penetrate the judicial mind. Lord Bridge was once quoted as saying: ‘If we do not maintain the fiction that Law Lords never read the newspapers, we all know that Zamir has come in for a good deal of criticism.’ Zamir, to which he refers, was a most important immigration case eventually taken on to Strasbourg by the Joint Council for the Welfare of Immigrants (Zamir v. Secretary of State for the Home Department (1980)). Because the House of Lords imposed a duty of candour on immigrants to reveal all facts potentially relevant to their immigration status and discouraged the High Court from checking the immigration officer’s story, the decision outraged immigration practitioners to the point that it was described as ‘the death of habeas corpus’ (Blake 1980). Only two years later, the House of Lords overruled the case after prompting argument from counsel that it was wrong—a truly exceptional course of action. On the day of the hearing, an article by an anonymous immigration practitioner appeared in The Times (25 October 1982) quoting Lord Bridge. It called on the law lords to spare a thought for those who, as a result of their rulings, would have awaited their turn in the immigration queue with apprehension. Surely this was a form of lobbying—and one which a close perusal of Lord Scarman’s judgment suggests was not ineffective.8 Today, in England, we can say that by American standards the scale of courtroom lobbying is limited; that we detect considerable pressure and some movement in this direction; and that an American influence is visible behind the pressure. We know that in the United States the amicus brief has become the commonest way for a pressure group to participate in Supreme Court litigation. Such briefs obviously serve a lobbying function. Much care may go into the choice of amicus submissions, the aim being to present ‘a balanced ticket’ and suggest that the views expressed reflect the attitudes of a wide segment of public opinion. Like their American counterparts, English courts have power to grant leave to a person not otherwise involved in proceedings to act in the capacity of amicus curiae or friend of the court and advise on legal points that might otherwise be overlooked. The Attorney-General sometimes appears as amicus and the Official Solicitor and the Queen’s Proctor (licensed snooper in the murkier days of divorce courts) are other officials who have

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traditionally appeared as friends of the court. There are other exceptions, but it is correct to say that the English courts have traditionally not been generous in allowing third party interventions and access has normally been restricted to those able to demonstrate an intimate financial or proprietary interest in the case. Obviously, written amicus or ‘Brandeis briefs’ are more difficult to transplant into a jurisdiction with a strong tradition of oral argument. Thus, although written ‘skeleton arguments’ are now compulsory in most civil cases going to the Court of Appeal, Sir John Donaldson has stated that they should only identify the issues (Supreme Court Practice 1991, vol. 1:936). The ice has begun to crack a little. The Equal Opportunities Commission has acted as amicus to instruct the Court of Appeal on Community law (see p. 285). The House of Lords followed suit by admitting a joint brief from the EOC and Commission for Racial Equality to argue the question whether the plaintiff in a discrimination suit could obtain discovery of confidential reports on other employees or job applicants, an issue of obvious concern to both agencies (Science Research Council v. Nassé, Leyland Cars v. Vyas (1979)). More recently, the United Nations High Commissioner for Refugees was allowed to intervene in an important case concerning the interpretation of the International Convention Relating to the Status of Refugees, a permission considered by lawyers to break new ground since the Commission is not a British government agency (R v. Secretary of State for the Home Department ex p. Sivakumaran (1988)). Again, in a case concerning the validity of insurance policies issued by unauthorised insurers, the House of Lords expressed willingness to accept a brief about possible impact on the insurance market, offered by the three main UK insurers (Law Magazine, 8 January 1988; Phoenix General Insurance Co. of Greece v. Administratia Asigurarilor de Stat (1988)). This submission presents a closer parallel to American practice. But although the new cases are significant as suggesting a means whereby parties interested in the out-come of proceedings can be heard by the court, they do not in any way reflect the more overt lobbying uses of the amicus brief in the United States. A second American tactic designed to influence courts by suggesting ‘representativeness’ is the practice known as ‘plaintiff stacking’, whereby multiple organisational plaintiffs are set up to front an action and demon-strate to the court a wide spectrum of public support for the litigation. In Chapter 2 we saw ‘plaintiff stacking’ used by American campaigners in abortion cases; here it has been used by the Child Poverty Action Group (CPAG) in its ‘delays case’ (see p. 150). In setting up the case, CPAG chose the proponents with extreme care, first entering into negotiations with the National Association of Citizens’ Advice Bureaux (NACAB), which was concerned that its own local offices were being swamped by complaints of delay in social security payments. CPAG was able to capitalise on the inside knowledge of its lawyer Jan Luba, previously with the radical London branch of the CAB service. According to Luba, CPAG saw the advantage of joining with the more

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‘respectable’ National Association which was well-placed to persuade the court of the seriousness of the problem and to engage its sympathy. CPAG then set about enlisting support from local authorities, quickly lining up Hackney and Islington, Labour councils which were making grants to claimants whose payments were delayed. But this provoked a dispute within the National Association, a body with a reputation for political impartiality to protect (Lovelock 1984), and NACAB’s leadership decided not to participate. The London branch was able, however, to have the decision reversed (Law Magazine, l0 July 1987). Through the good offices of the National Association the coalition then secured financial support from several councils of various political persuasions (which do not appear formally as parties to the case). CPAG also played with the idea of bringing in the staff unions and the local authority Associations, though this idea was later abandoned (i/v Jan Luba, 1988). A very similar technique was used by CPAG to build the coalition of highly respectable disability groups which campaigned around the Drake case on invalid carers described in Chapter 6. Once again, the English version of ‘plaintiffstacking’ is a pale reflection of the American practice. Just as the Moral Majority aims to demonstrate overwhelming support for its position by its letter-writing campaigns, so those who indulge in ‘plaintiff stacking’ hope to persuade the court through the intervention of large membership groups. The groups should also be prestigious, the implication being that courts may be swayed by the identity as well as numbers. Whether courts are in fact influenced it is hard to say. Olson, in an American study, finds the evidence inconclusive. The point is that organisers believe that they will be; Olson quotes one organiser as saying: You know, you can’t sit up there and say you’re going to make multimillion dollar modifications to this system and you’re going to cost the taxpayers all that money just because three people say it’s their legal and civil rights. To my mind it probably should be done if you can prove the legal and civil rights are at issue of those people. But the point is, in reality… (Olson 1981:249) GILLICK AMONG THE PRESSURE GROUPS The campaign which most closely resembles a big Supreme Court case with all its political razzmatazz is that of Victoria Gillick whose action against the Norfolk Area Health Authority and the Department of Health was to challenge the legality of departmental guidance to doctors concerning the prescription of contraception to children under the age of 16 without parental consent (Gillick v. West Norfolh and Wisbech Area Health Authority (1985)). It has been suggested (Campbell 1987:184) that the Salvation Army sparked off the Gillick case by drawing Gillick’s attention to Josephine Butler’s

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campaign against the Contagious Diseases Acts in which the Army had been concerned. Two smaller groups probably had more to do with it. The first was ‘Parents-in-Suffolk’, of which Victoria Gillick had been an active member prior to a move to Norfolk. This group had been formed to contest Suffolk Health Authority’s policy on contraception for young people and Gillick was, in her own words, its ‘media spokesman’ or ‘mouthpiece’, largely, she suggests, because she and her husband were ‘free agents, beholden to no one and in no danger of being sacked for our outspoken and very public views’ (Gillick 1989:163). Solo or not, by the time she started litigation, Gillick was a seasoned campaigner with experience of petitioning and fund-raising as well as of the media. This had also brought her into contact with the second group: Family and Youth Concern (FYC). FYC, organised by social worker Valerie Riches, seeks to advance public awareness on matters of family welfare and other matters of social concern, including abortion. For some years before Gillick acted, FYC had been actively campaigning for withdrawal of the DHSS circular which she attacked (The Times, 10 November 1977; Daily Telegraph, 23 July 1979) and in 1978 Gillick had appeared on local radio with Riches, whose expert knowledge greatly impressed her (Riches 1989, Gillick 1989:148). But there were no formal links, though FYC later used the case to campaign actively for legal change. In her autobiography, Victoria Gillick attributes the genesis of her lawsuit to a chance social encounter with an enthusiastic young lawyer (Gillick 1989: 211) and she has confirmed in letters to us that it was indeed a solo venture. After an unfavourable High Court ruling in July 1983 however, some groups came out strongly in her support. The Salvation Army threw its weight behind a mammoth petition presented to the Commons by MPs on a constituency basis. (Some 112 MPs signed a motion for Gillick, 130 or more a countermotion.) Other groups whose support might have been expected did not come forward; The Mothers’ Union, for example, was so divided that it took no position, women’s groups within the Conservative Party came out in opposition (Campbell 1987:193), and Cardinal Hume refused the support of the Roman Catholic Church (The Times, 5 April 1984). Nor did the campaign gain much support from ‘New Right’ organisations such as the Salisbury Group which might have been expected to champion the cause of family and morals (Durham 1985). The British Medical Association and General Medical Council, on the other hand, were behind the circular (despite a petition of 2,000 practitioners to the Council demanding clinical freedom) and took on the task of stiffening the attitude of the DHSS, the nominal defendants; on the day of the hearing, the BMA announced that it would ‘demand’ a further appeal to the Lords if Gillick won (as she did) before the Court of Appeal (The Times, 19 November 1984). Gillick herself saw her main opponents as being the Family Planning Association and Brook Advisory Services, organisations whose semi-official relationship with Area Health Authorities gives them insider status, although

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they have been described by Gillick, very much to their annoyance, as ‘just a pressure group’ (Gillick 1989:167–9). The anti-Gillick lobby had good press contacts and, after the Court of Appeal hearing, managed to insert articles into many leading newspapers and women’s journals bewailing the decline in attendance at family planning clinics by teenage girls and predicting rises in abortion statistics. Brook also supported and publicised the case of a 15-year-old girl who had been made a ward of court in order to secure authorisation for an abortion and contraceptive advice after her mother had refused consent (The Guardian, 21 May 1985). A campaign for changes in the law was centred round these stories and the BMA called for legislation if the DHSS were to lose in the Lords (The Times, 15 October 1985). On the sidelines, twenty ‘agony aunts’ wrote to Mrs Thatcher, while a feminist lawyer persuaded ‘Mothers against Mrs Gillick’ to pay for a full-page advertisement in The Guardian. When eventually the House of Lords ruled against Mrs Gillick, these groups joined in praise of the court while the churches also professed themselves broadly satisfied. It was left to Gillick and the FYC, with the help of Ann Winterton MP and other members of the Commons All-Party Pro-Life Group, to fight on for changes in the law (The Times, 18 July 1986)—a campaign which is active if temporarily quiescent. The Gillick litigation reached new heights of campaigning through and around courts in England. Nevertheless, had this been an American action the campaigning would have run along different lines. There would undoubtedly have been lobbying of an overt kind. In contrast to the 30,000 letters said to have reached the Supreme Court before the Webster abortion decision, one of the law lords involved in Gillick admitted to twelve, all congratulatory and all received after the event. Second, amicus briefs would have been admitted. In Gillick, the Children’s Legal Centre, a ‘public interest law firm’ set up to offer advice to and represent the interests of children, did try to intervene. It offered: (i) to lodge a case and make oral submissions (in effect to be recognised as a party to the suit); (ii) to act as official amicus curiae to the House; or (iii) to lodge a written, American-style brief. Not unnaturally, Mrs Gillick’s counsel objected strenuously. Whether or not the law lords read the compendious application for leave to intervene we cannot of course know, but they rejected it without a hearing (Levin 1985). While the Department was prepared to bring in affidavit evidence from insider organisations like Brook, the campaigners were clearly dissatisfied. In a case described by former law lord, Lord Devlin, as ‘socially the most important to come before the courts in this decade’ (The Times, 11 November 1983), the social and medical context had to be filled in by a haphazard press campaign. CONCLUSION Any lingering illusion that today in England the campaigner and court are strangers can be dispelled. The embrace is not a warm embrace. Pressure

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through law, especially in areas of ‘good fit’ is one thing; lobbying and pressure on law quite another. These threaten the concept of separate identity and through this, the constitutional paradigm acceptable to the judiciary. Conversely, the outworks of separate identity help to restrain and even suppress pressure through law. The authors see friction as inevitable, though we stress that some campaigns more than others will generate friction. On the face of it, the balance of advantage seems to lie with the judiciary, who can call upon powerful weaponry to defend the concept of separate identity. Yet the authors believe that the efficacy of these weapons can be overstated; moreover, to assume from their existence that no real lobbying of courts does in fact occur is nalve. Only the most strident forms of lobbying are liable to punishment and the polite means used by respectable groups pass unremarked. There are signs, too, that English courts are becoming a little more liberal in this respect. Groups may find further scope for interventions and more latitude for publicity campaigns. Whether they will be allowed to use court procedures to open shuttered windows onto boardroom and administration is another matter altogether. As yet, campaigns for procedural change are more common than mail-shots, ‘Moral Majority’ letter campaigns, or the aggressive public relations techniques which now beset American judges. But there is an American influence behind the pressure for reform. Procedural reforms like the amicus intervention or the American class action currently urged upon our courts are direct borrowings. The tactics of the new specialist disaster lawyers, akin to those of public relations experts and press officers, also originate in America. The danger of these borrowings lies in the fact that they can be plausibly presented in terms of demystification and reshaping of an antiquated, outmoded and elitist legal system. To put this differently, they are sold to the public as making law more accessible, less costly, more comprehensible and user-friendly. So they may, but there is another side to the coin. The practices we have described are borrowed from a tradition very different from our own in which courts play a more open political role. They represent a step away from our existing governmental system in which legal actors are to a considerable extent insulated from outside pressure. There is a danger that the courtroom door may be opened to the prejudiced and self-interested behaviour endemic in the political systems of both our societies. But there is a more subtle danger, which touches on the legitimacy of our legal system, encapsulated in and buttressed by the concept of separate identity. To leave the last word with American federal judge George S.Merritt, who believes that the ‘old icon’ of ‘disinterested justice’ is cracking: Our authority comes from the common law tradition of disinterested justice… Over time, managerial judges and bureaucratic justice could become a pressing problem, or even a fatal illness, for the judicial branch.

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5 THE STRONG ARM OF THE LAW

When Bad Men Combine, Good Men Must Associate. Motto of the Society for the Suppression of Vice INTRODUCTION The substance and procedure of criminal law in England is the very stuff of pressure-group politics. Struggle inside and outside Parliament for and against hanging, for and against abortion, for and against public order legislation, is a tediously familiar feature of the contemporary landscape. Nor is there reason to suppose that the campaigners of today are any less aware than their predecessors that the statute-book is not self-executing, that judges do not ‘self-start’, and neither, in many instances, do the police or prosecuting authorities. Furthermore, severity of sanction and the opprobrium attached to the label ‘crime’, sources of the peculiar strength of criminal law (Fiss 1989), would appear to render the criminal prosecution a most attractive vehicle for pressure through law. In the discussion of campaigning in our civil courts, we highlighted the great influence in modern times of the American experience of campaigning litigation. It is important to stress, therefore, the historical divergence between the English and American models of prosecution. Drawn from the civilian tradition, in the United States the right of prosecution is a public one vested in the state (see p. 104). This is not to imply that the American prosecutorial process is devoid of lobbyists; quite the reverse! But the private prosecution is a distinctively English technique; a technique, it is worth observing, which some American commentators would like to see transplanted (Gittler 1984). The plain fact is, however, that little is known about the use of the criminal prosecution as a campaign vehicle in England.1 One reason may be the identity of many of the groups prominent in the field. Just as, in the United States, liberal group litigants have attracted a disproportionate share of academic attention so, in England, have the social action groups like NCCL, MIND and the CPAG. A second reason stems from the impression, much engendered by the Philips Commission on Criminal Procedure which reported in 1981, that

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today in England the right of private prosecution is only a residual one or, to look at this from the opposite angle, that the right of criminal prosecution is now a ‘public’ right and, further, a ‘public’ right shorn of American peculiarities like attorney elections and amicus briefs which facilitate pressure. Of course it is true to say that gradually, over two centuries, the common form of our criminal prosecution has mutated from ‘private’ to ‘public’ (Devlin 1960: 20–1), but in this chapter we show that, as a pressure-group phenomenon, the change has been overstated. To repeat, the practical significance of campaigning litigation cannot be measured by reference to the statistical use made of court process—on which we see Philips as relying. Our own researches indicate that, as a group activity, the private prosecution is alive and kicking; indeed our impression is that in the decade since Philips reported the technique has in the hands of groups regained some of its lost vigour. Nor should we confuse replacement of criminal prosecution centred on private initiative with private initiative in a broader process of criminal law enforcement. The work, for example, of the National Vigilance Association at the turn of the century suggests ways in which campaigners may aid or encourage official action. One aim of the chapter is to signpost this set of indirect techniques (‘pressure through influence through law’) as a significant form of pressure-group activity. It is worth adding that its peculiarities not only make the American criminal process permeable to pressure but make that pressure more visible than is the case over here. The fact of group involvement at the level of law enforcement leads us in two directions. First, identifiable constraints which Philips saw as crippling private initiative are seen in a fresh light. Certainly it is true—we instance this —that thereby certain group litigation is suppressed. But we should never underestimate campaigners, especially repeat players. This chapter shows some groups to be very resourceful and charts the circumnavigation of constraints. In other words, the constraints serve not to eradicate but to structure campaigning litigation. Second, precisely because criminal law is ‘the strong arm of the law’ and culminates in punishment, stakes are high and the question of the propriety of using courts as a surrogate political process is brought sharply into focus. As a vehicle of pressure the criminal prosecution is by no means receptive to all the demands placed on it and considerable friction is generated when campaigners are seen to press too far. But what from their viewpoint is a problem of ‘fit’, is ultimately a question about legitimacy when the legal process is subjected to pressures of this kind. Running through this chapter, which ends with cases in which courts reject attempts to prosecute as outrageous, is an issue of constitutional principle, whether, and if so in what circumstances, ‘private advocates-general’ should be permitted to exercise prosecutorial power.

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A CONSTITUTIONAL RIGHT? PHILIPS AND PRIVATE PROSECUTION Perhaps the experience of being on the receiving end of crusading litigation in the 1970s helps to explain why, in evidence to the Philips Commission, several prominent ‘liberal’ groups called for the right of private prosecution to be ended. Both the Legal Action Group and NCCL wanted an efficient, unitary, independent and democratically accountable system of public prosecution in which private prosecutions would be ‘non-sensical’. The likes of Mary Whitehouse—whose remarkable record of campaigning is outlined on pp. 215–8—should only be able to request action (with a right of appeal to a special tribunal against a decision not to proceed). Yet one of NCCL’s first and most famous cases was itself a private prosecution (Thomas v. Sawkins— see p. 57). It was, however, an action against the police—virtually the only type of private prosecution mentioned in the group’s paperback guide to civil liberty (Hurwitt and Thornton 1989). The controversy was a watered-down version of the great nineteenthcentury debates in which replacement of the characteristically individualist or ‘open’ system of criminal prosecution in England by the ‘closed’ system or state right familiar on the continent, in the United States and also in Scotland,2 was for so long and hotly contested (see pp. 32–4). Abolition of private right was very much the minority view, even on the left, on the ground that a fail-safe was necessary against official inaction. Social historian Douglas Hay sees in this an attachment to the right as part of the constitution among much of the English public (Hay 1933:183). The campaigning groups were more prosaic. They wanted more liberty to invoke the law in their own area. In their evidence, constraints on private action got short shrift. The Open Spaces Society, for example, argued that private prosecution of obstrucdon of rights of way must continue and should extend to ploughing because the police ‘do not consider this type of crime to be of sufficient importance to warrant their attention’. Philips had commissioned a valuable guide to the practice of law enforcement by central and local authorities, regulatoiy agencies, etc., which correctly saw that prosecution is used for different purposes, and variably with other enforcement measures (Lidstone et al. 1980). An agency which conceives of its role as securing compliance with legislation through educadon, persuasion and negotiation is liable to prosecute infrequently.3 Also relevant is the way in which such agencies may view offences not as ‘real’ crime and so not appropriate for automatic prosecudon. Calls for private action may be prompted from Parliament or from those directly affected. Groups giving evidence to Philips were often more interested in private prosecution as a spur to action by agencies than as a means of bringing individuals to book. In its report, the Philips Commission gave the impression that the private right of prosecution really was residual. A close look at the evidence to Philips

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—especially of the groups—shows this to be a mistake. The Commission went out of its way to stress the public character of criminal process. It talked of criminal sanctions being imposed for the benefit of society as a whole and of guarding against the risk of malicious, vexatious and utterly unreasonable prosecutions. It stated as fact that private prosecutions were very rare, cases of assault and shop-lifting aside. Thus the Commission portrayed its recommendations, which would have completed the transformation from private into public right, as unremarkable. The recommendations were complex, involving an elaborate ladder of complaints and appeals coupled with a proposal that all criminal prosecutions should be paid for out of public funds. THE PRIVATE RIGHT TO PROSECUTE: APPARENT OR REAL? For its part the government was dismissive, seeing no sufficient reason to end the private right of prosecution nor any reason why public funds should be available to vindicate it. The only change was a court power to halt vexatious litigants so narrowly drawn as to be virtually useless (Cmnd 9074 (1983); Prosecution of Offences Act 1985, s.24). A pragmatic response to an awkward problem is one interpretation (Rozenberg 1987:177). Why upset the constitutional apple-cart when the abusive or inconvenient prosecution is already constrained? Included in the statutes which established police forces and, latterly, public prosecuting arrangements, were provisions specifically protecting the private right to prosecute. The convention continues in the Prosecution of Offences Act 19854 which established the Crown Prosecution Service. However, the practice gradually emerged in Victorian legislation of inserting into criminal statutes provisions that offences may only be prosecuted by an official agency or with its fiat (familiarly called ‘consent provisions’). In the terminology of the Attorney-General’s office, the complainant must either make a reference to the relevant authority—that is, draw its attention to the matter and lobby for action—or an application for permission to proceed. Formerly a steady trickle, the number of restrictions increased markedly after 1945; in the period 1959–68, 51 of the 191 statutes passed imposing criminal liability constrained the private right to prosecute (Dickens 1973:3). Or perhaps we should say that the right failed to keep pace with the marked expansion of the criminal law, especially of regulatory offences or into what is sometimes called ‘new’ or ‘quasi’ crime (in order to differentiate it from the older-established crimes protecting life, limb and property). The official preference was often for administrative law-enforcement. The offence of incitement to racial hatred, for example, was created by the Race Relations Act 1965 after extensive lobbying by NCCL and the Campaign Against Racial Discrimination (CARD) (Lester and Bindman 1972). Attached

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was a consent provision, which was retained when the offence was later remodelled. The original explanation was that the offence was designed to act selectively against ringleaders and not the man in the street; later it was said that an acquittal is harmful to racial harmony (Dickey 1968). The result has been a conservative prosecuting policy. A prominent pressure group in the area, the Joint Council for the Welfare of Immigrants (JCWI), told us that asking the Attorney-General to prosecute ‘is not something we do regularly because it is very difficult to get him to act’, exemplifying his refusal to permit proceedings suggested by GLARE (Greater London Action for Racial Equality) over a cartoon in the Sun newspaper in 1986 (letter, JCWI, 1988). The Commission for Racial Equality (CRE), the official agency, has been very willing to refer complaints of incitement and has devoted considerable resources to reviewing cases sent in by groups and individuals to filter unmeritorious complaints before passing them on. Even so, in the five years 1983–7 only thirteen prosecutions were instituted (of which seven resulted in conviction) in response to fifty-eight complaints. The CRE believes that the number of complaints of incitement has been artificially held back by this as people have become disheartened (AR 1983:12). In the leading exposition from government of the why and wherefore of consent provisions Manningham-Buller, then Attorney, found it impossible (security considerations apart) to deduce any intelligible principle. The list of restrictions was ‘full of anomalies and even absurdities’ (HC 123–1 (1957/8): 23). We would stress that many restrictions are in areas where otherwise we might anticipate campaigning litigation to be more apparent than it is. Much legislation on obscenity and pornography contains consent provisions. Reviewing the Theatres Act 1968, the Williams Committee on Obscenity concluded that but for the restriction, more para.2.23). Only one (Crown) prosecution had taken place in ten years (R. private prosecutions would have happened (Cmnd 7772 (1979): v. Brownson (1971)). The Director of Public Prosecutions (DPP) had only had twenty-eight referrals and thought this an indicator of no great problem in the field. But he was challenged in the evidence to Philips by the Nationwide Festival of Light, a moral crusading organisation which sprang briefly to prominence in the 1970s, on the ground of a knock-on effect: Once [the] Attorney-General has determined that genital display, simulated masturbation and copulation and obscene dialogue shall be shielded from the due process of law, it is scarcely surprising if the public becomes confused, cynically hardened or dispirited, and the Attorney-General’s Department is not inundated with complaints. Another relevant area is environmental crime; later on we see private prosecution as a campaign goal of ‘green’ lobbyists. In evidence to Philips, Friends of the Earth (FOE) explained that consent provisions deprive a group

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of the ‘oxygen of publicity’. The group stressed the knock-on effects for a regulatory regime, arguing that the authorities would prove more co-operative if FOE had the right of private prosecution. The criminals were likely to be big business or public authorities and FOE lacked confidence in fair decisions from a member of the government. Intemperate perhaps, but FOE got to the heart of the matter, preaching the credo of pluralism in law-enforcement, of pressure groups against officialdom. As well as the prospective control of the consent provision a private prosecution can be halted at any time by executive fiat. The ancient prerogative of the Attorney-General to enter a nolle prosequi is best-treated as a reserve power. For all practical purposes it has been superseded by a statutory power, vested now in the Crown Prosecution Service, to take over and run a private prosecution which permits a case to be killed by offering no evidence. So far the threat to mainstream campaigning is more apparent than real; only one or two cases a year are suppressed in this way (HC Deb., vol. 84, col. 295 WA). The conventional view is that to intervene to stop a private prosecution is an abuse of discretion save in an exceptional case and that protection from unjustified prosecution must rest with the courts (Hetherington 1989:159). The issue is a topical one, arising in the case of the Marchioness pleasure boat disaster on the Thames (see pp. 228–31). The DPP, Sir Allan Green, decided not to bring manslaughter charges and later threatened to take over and discontinue a private prosecution for manslaughter brought by a member of the Marchioness Action Group unless he was given sight of the evidence ahead of the committal proceedings. The campaigners stood their ground and there was even talk of an application for judicial review of the DPP (The Independent, 3 August 1991). In the event, Sir Allan relented and the case was allowed to go to committal proceedings. Like the relator action, the private prosecution is outside the scope of the legal aid scheme. The principle that ‘costs follow the event’ means that the prosecutor stands in peril of paying twice, though the prosecutor of indictable (serious) offences can ask, win or lose, for an award of costs from public funds (Stafford 1989:275–9). Any recovery of costs is retrospective and, as in civil cases, the calculation parsimonious. A good illustration is the successful prosecution for conspiracy of anti-apartheid campaigner Peter Hain after matches involving South African sportsmen were disrupted. The prosecutor, Francis Bennion, a barrister, calculated his costs at £40,000. He and his support group, the Society for Individual Freedom (a forerunner of NAF), had to make good the shortfall when on taxation the order was for half that amount (Re Central Funds Costs Order (1975)). Groups campaigning to breathe life into laws which traditionally courts take less seriously stand to be hard hit, as in environmental crime. When the Anglers’ Cooperative Association turned to the criminal law in 1987, Thames Water was fined £6,000; although this was the first prosecution of a water authority under the Control of Pollution Act

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1974 and a test case, the magistrates awarded only £800 of ACA’s £2,400 expenditure (i/v Allen Edwards, Director ACA, 1989). In short, financial discipline is stricter than in civil matters. Much will depend on the subject-matter and complexity of a case, and the likelihood of an appeal, and on the campaign priorities of the group and resources. Some disadvantaged groups will find the going too rough. In the 1970s the Legal Action Group was singling-out legal aid in prosecution of councils for nonenforcement of public health laws as essential if access to court by tenants’ associations was to become a reality (LAG Bulletin, January 1976:6). In the 1980s it was largely the work of law centres in support of local community groups which kept prosecution for low wages alive as the beleaguered wages inspectorate retreated (The Independent, 22 May 1990). The need for adequate case-preparation is a major factor influencing the pattern of private prosecution. It must be remembered that the criminal standard of proof is ‘beyond reasonable doubt’. Absent police powers of entry, search and seizure, to detain and question, administer samples and so on, it may be impossible to attain. At one extreme, in a constitution with a predilection for official secrecy, concerned groups fail even to learn of wrongdoing which authority chooses to ignore. At the other extreme, campaigners are occasionally handed cases on a plate, as in the prosecution of Peter Hain, already mentioned. Francis Bennion originally had to give up for lack of evidence. Requests for information from the police met blank refusals and reporters at the scene refused to testify. Subpoena was possible but would have left Bennion with no proofs of evidence and his witnesses hostile. Prosecution only became possible with the publication of Hain’s book Don’t Play with Apartheid (1971). At trial Hain’s exposition of the demonstrators’ tactics lay at the heart of the charge of conspiracy (Humphry 1975). Clearly it is impossible to speak of private prosecution today as an actio popularis. A formidable array of constraints suppresses and dampens down much action. None the less, and this is the trap into which the authors believe Philips fell, it is vital not to deduce too much from the constraints. Enough has been said already to show the importance of the particular context. Some groups more than others have reason to fear consent provisions and reserve powers, case-preparation and lack of finance (one reason, we suggest, why ‘conservative’ groups are well to the fore). And, as we shall see, the avoidance of constraint is one way in which campaigners exhibit their determination. ANIMAL WELFARE AND ANIMAL RIGHTS By volume the most important area of private prosecution by groups is the animal world. By volume, too, the RSPCA dominates. In a statistical leaguetable of non-police prosecutions prepared for Philips, RSPCA was the only private organisation to feature (Lidstone et al. 1980:15). Table 5.1 indicates

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the scale of inspectorate operations5 and also a sharp increase since Philips reported in 1981. The nomenclature in Table 5.1 is a clue to the style of work. The RSPCA inspectorate operates as a casework or routine enforcement agency which, of all cause groups, most closely resembles a surrogate police force. A disciplined body, the 250 or so inspectors are uniformed and undergo an intensive training programme (including a law examination). Most of their cases involve neglect or cruelty to dogs, cats and horses (in that order). In 1977 the Society established an elite squad, the ‘Special Investigations and Operations Department’. Working sometimes undercover and in close cooperation with the authorities, the squad has targeted (inter alia) dog-fighting, a ‘sport’ which the RSPCA believes to be on the increase and against which the squad has scored several notable successes (AR 1988:12–13). A measure of centralisation is provided by superintendents at headquarters who vet prosecutions and by a small in-house legal department. However, the work of the department, consistent with the ethos of casework, is demand-led. The Society’s policy is to prosecute where there is sufficient evidence to go to court. Table 5.1 Work of RSPCA inspectorate, 1981–8

Experience has taught [the department] that the size and diversity of the organisation will inevitably generate a steady supply of problems which absorb the resources and time available. Against this background the opportunity for innovative action is limited. (AR 1986:23) Most scope for creativity comes in drafting bills or amendments for the RSPCA’s other role as parliamentary lobbyist.

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Police work is expensive: the inspectorate costs the Society in excess of £6 million a year and in 1987 irrecoverable costs in successful prosecutions alone amounted to almost £180,000. As befits a royal society the RSPCA is wealthy: annual income is over £15 million, mostly from legacies (Society Accounts, 1988). In matters of day-to-day enforcement the respect accorded to the RSPCA as ‘the agency’ means a degree of autonomy unrivalled among groups; there is also active assistance from the police in complex cases. There is a catch in the absence of special powers; the uniform helps but the gathering of evidence of illegal practices going on behind closed doors remains one of the inspectorate’s major problems (AR 1987:15) and the Home Office has resisted RSPCA pleas for rights of entry (which NSPCC inspectors enjoy) on the ground that, however respectable, they are self-appointed ‘guardian angels’ (i/ v Katherine Muriel, RSPCA legal department, 1989). The style of enforcement of the Royal Society for the Protection of Birds is different. The traditional stance of the Society’s Council is against taking on routine enforcement and instead to advise, assist and motivate the police. But this presents real problems, described by Nature Conservancy: Offences must often occur in unfrequented places… Many offences can be detected or dealt with only by officers with highly specialist knowledge and training; and some offences are committed by exceptionally active, mobile persons. Where all three factors are combined, an all-purpose, conventional police force, burdened with more pressing claims, is at a great disadvantage. (Memorandum to Royal Commission on the Police, Cmnd 1728, 1962) In fact, from no real involvement in private prosecution twenty years ago, a strategic approach to enforcement has now been arrived at by the RSPB investigations unit. Case-handling could hardly be more sophisticated. At headquarters, at Sandy in Bedfordshire, information pours in from members, the public, and police and is evaluated according to priorities set by species. In the field, across the country, surveillance is carried on using the latest electronic gadgetry. Co-operation from the police is said to be generally good; the unit includes ex-policemen and much effort goes into developing personal contacts, the special wildlife liaison officer which most forces now have being helpful here. Twenty-five or so cases a year end up as RSPB prosecutions and it is deeply involved in a similar number, though strictly the authorities’ cases. Spectacular successes include the smashing of numerous egg-collecting rings (Robinson 1982). Several notable ‘wins’ in test cases make offences easier to prove.6 There are no lawyers on the staff but members of the investigations unit are very knowledgeable about the law and work in tandem with a firm of solicitors which the RSPB has employed for many years.

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An overall assessment is more difficult. The royal societies are engaged in a struggle which can never be finally won. Senior investigator Peter Robinson told us that the RSPB investigations unit was more of a deterrent than ‘all the police put together’. The police were inclined to investigate the more obvious offences such as urban finch trapping, and not the ornithologically more significant offences which attract organised crime. Robinson was not complacent and cites loopholes in the law as frustrating effective action (Robinson 1989). For its part, the new Crown Prosecution Service was considered slow (prosecutions become time-barred), unhelpful (paltry reasons for no action) and inexpert (no action over a Red Kite, a rare species which the RSPB has gone to considerable lengths to protect) (i/v Peter Robinson, RSPB, 1988). Respectable means well-behaved, and the history of the RSPCA is littered with splinter groups seeking freedom to campaign more vociferously and on controversial issues against vested interests. The League Against Cruel Sports (see p. 169), for example, was born in 1924 of the frustration felt by Henry Amos and Ernest Bell at the RSPCA’s apparent lack of action on bloodsports. Council members were accused of selling out to their more conservative and wealthy patrons (similar allegations were heard in the early 1970s when this simmering dispute boiled over again (Brown 1974:83–6)). Eventually the two men fell out over whether the League should remain aloof or try to change the RSPCA from within (Cruel Sports 1932:73–5). One target of the League’s complaints was the RSPCA policy, first, of only prosecuting in cases involving wild animals if they were killed in the home or garden, and, second, of using the laws protecting domestic animals to do so. The League accounted this half-hearted attitude doomed to failure (Windeatt 1982:25) as in fact proved to be the case: White v. Fox and Dawes (1932). This type of criticism persists. Katherine Muriel of the RSPCA’s legal department observed to us that the Society tends not to take ‘political cases’ and that the League (which actually does few private prosecutions) tends to chance its arm far more than the RSPCA. John Beggs, vice-chair of the British Union for the Abolition of Vivisection (BUAV), complained to us that RSPCA legal action was too individualised and not targeted at commercial abuse. In his view, the Society’s lawyers paid insufficient attention to publicity and opening up issues, and too much attention to whether a case would ‘win’ (i/v John Beggs, 1989). Gertainly, Table 5.1 shows that RSPCA prosecutions nearly always succeed. We touch here on the theology of ‘animal liberation’ and ‘animal rights’, an attack on ‘speciesism’ and the assumption that man is justified in overriding the interests of ‘lower’ creatures (Ryder 1983, Singer 1990). The aims and largely left-wing orientation are quite distinct from the efforts of the more traditional organisations like the RSPCA to stop people from treating animals cruelly. One consequence has been fragmentation: monolithic the so-called ‘animals movement’ certainly is not! Single issue and ginger groups abound

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(Hall 1984: 286–8) and every means is on display, from education to parliamentary persuasion, from non-violent direct action to terrorism. It is fair to say that use of the courts is low on the list and that commonly the law is invoked against activists. Nevertheless, ginger groups are responsible for two important cases which illustrate the potential for, and limits to, the use of prosecution to vindicate ‘animal rights’. Compassion in World Farming was founded in 1967 with the aim of progressively reducing man’s dependence on farm animals. In the shortterm, the group campaigns for the abolition of factory farming. In Roberts v. Ruggiero (1985) the group hoped to extend the law against cruelty beyond neglect and brutal treatment of individual animals to systems of husbandry (here the keeping of calves in ‘veal crates’) which cause deprivation of natural behaviour (for example, exercise and contact). The action fell when the courts ruled that governmental codes of practice had insufficient force of law for contravention to be an offence (a real obstacle in consumer and related laws where this is a preferred technique of regulation). Also the judges made clear that their function was to adjudicate speciflc charges and not compare various forms of intensive farming; criminal prosecution was an inappropriate method for testing the legality of a system of husbandry. The moral was not lost on LYNX, the anti-fur trade group, which is very cautious about using the law against fur factory farming (letter, LYNX, 1988). Arguably the action shows ‘one-shotters’ overreaching themselves and vindicates the RSPCA’s cautious approach. Or does it? Roberts v. Ruggiero generated considerable publicity and the government has since banned veal crates, for which Compassion in World Farming claims credit (CIWF ‘Aims and Ambitions’, 1989). Generally speaking, the RSPCA does not fund or run cases jointly with other groups for fear of loss of control. However, policy was against veal crates and this was an important test case. The RSPCA was awkwardly placed when Compassion in World Farming, having incurred and unsuccessfully challenged magistrates’ court costs of £12,000 (R. v. Steyning Justices ex p. Roberts (1985)), called on the Society to bale it out and underwrite the costs of the appeal. The RSPCA ended up financing a case which its legal department would not have started and for a specific reason: the farm being owned by a priory and kept immaculately, it was thought to be a very bad case to take (i/v Katherine Muriel). The British Union for the Abolition of Vivisection, founded in 1898, campaigns to end animal testing and experiments altogether. Its recent history is chequered. From 1980–5 the group was involved in direct action; then an internal coup d’état ushered in more respectable modes of lobbying, including a resort to law. Several charges were laid against the Royal College of Surgeons for causing ‘unnecessary suffering’ to animals at a research centre and one, involving a dehydrated monkey, was upheld by magistrates and on appeal before being quashed for judicial error (Liberator 1986 (3):1). The case had got off the ground when Animal Liberation, a direct action group, secured

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documentary evidence during a break-in, for which veteran animal rights campaigner Michael Huskisson was later sentenced to eighteen months’ imprisonment. The BUAV did not expect to win the case, the motive being publicity, with the fact that the action lay at the heart of the establishment clearly a bonus (i/v John Beggs). The case attracted considerable attention in the press, including the scientific journals which were much in favour of the College. When the College appealed, the group had to choose between control of the case and financial risk. The BUAV is the largest antivivisection group in the country with an income in 1988 of £800,000. Nevertheless, other calls on resources were judged more important. The DPP was approached to take over and run the case and did so on the principle that an appeal against conviction should not go by default. Arguably, the group made a tactical error since it later complained that Crown counsel was half-hearted and legalistic (Liberator 1986 (5):4). The BUAV case arose during the passage of the Animals (Scientific Procedures) Act 1986 which extended the regulation of testing. Powerful insider groups including the British Veterinary Association lobbied for a consent provision which now governs the legislation. Ministers clearly saw this as a quid pro quo for enhanced conditions and penalties and as a way of excluding the likes of BUAV who want to ban, not regulate, animal testing (HL Deb., vol. 469, cols. 789–90). Although disclosure of confidential information was made an offence carrying up to two years’ imprisonment (s. 24), the ‘whistleblower’ can never be discounted, and the BUAV claims to place ‘moles’ in laboratory jobs to gain information (The Guardian, 1 August 1989). Freed from prison, Michael Huskisson now runs an undercover group, the Animal Cruelty Investigation Unit, which has exposed breaches of licence (The Independent, 9 May 1990). Powerless to prevent the legislation, these most committed of campaigners resort to guerrilla tactics. This also highlights the constraints on respectable groups concerned to stay within the law. Even a ready co-operation from police cannot always compensate for unconventional action such as Huskisson’s. The BUAV case points to interplay—even informal networking—between groups prepared to break the law and those which are not. Groups publicly opposed to violence, such as Compassion in World Farming and Animal Aid, have stated that they will use information gained from laboratory break-ins, precisely because they are unable to obtain it by legal means. Even the RSPCA has acknowledged a role for the militants (The Guardian, 1 August 1989). We could deduce that the fragmentation of the ‘animals movement’ is not as damaging as at first sight it appears.

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OBJECTIVE AND OPPORTUNITY: AN EXAMPLE FROM ENVIRONMENTAL CRIME In environmental matters too, the dictates of science can easily combine with a lack of access to proper investigative machinery to frustrate action. Environmental campaigners know too well the problems of evidence and proof. They need to develop and pool their technical skills, as groups like Greenpeace and Friends of the Earth are in a position to do. Again, different organisations take different attitudes to using law. Some groups litigate, others as we saw with the National Trust suspect legal campaigning as unnecessarily conflictual. A vital difference here may be that government is a likely defendant, a dilemma which the equally respectable RSPB is able to avoid by prosecution rather than resort to judicial review.7 All these points are reflected in attempts at private prosecution in respect of water pollution. The Anglers’ Cooperative Association has been observed hard at work in civil courts and when in 1987 it completed the first prosecution of a water authority for river pollution, the questions of objective and opportunity were important. This was a first attempt by a loose coalition of groups campaigning over the terms of water privatisation to supplement more familiar modes of political lobbying by resort to law. The ACA wanted to take prelegislative action to counter the argument that a regulatory watchdog would need few teeth, warn investors that there was no blank cheque and deny ministers any argument for abolishing private prosecution on the ground that it never happened (i/v Allen Edwards, Director, 1988). Such a prosecution only became technically feasible in 1985, after the Control of Pollution Act 1974 had removed a consent requirement and had become fully operational so that registers of licences and samples kept by water authorities were opened to the public. Greenpeace, too, was considering a private prosecution against a chemicals factory about this time. Greenpeace had stood in the dock on several occasions, notably for disrupting discharges from the nuclear reprocessing plant at Sellafield,8 and there was now a feeling inside the organisation in favour of being seen to use the law. However, the campaigners knew too well that sampling by water authorities was irregular and the published data often incomplete; that only the authorities had a right of access and any samples which Greenpeace took downstream were liable to prove inconclusive (i/v Tim Birch, Greenpeace, 1988). In the event, Greenpeace was to take the first private prosecution against a chemicals factory under the Water Act 1989. The new regime had been made the subject of ongoing campaigns by Greenpeace and Friends of the Earth, the National Rivers Authority (NRA) being described by the FOE as ‘the victim of a system devised by the Government to protect the polluter at the expense of the environment’ (The Observer, 9 September 1990). The privatised water companies had been given major concessions in the form of relaxed standards

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and a last-minute amendment to the Bill imposed a virtual moratorium on prosecutions for 12 months (Macrory 1990). The campaigners also learned that the NRA had fallen foul of the complicated sampling arrangements required for prosecution, so that although the agency had evidence of widespread breaches of the law it could bring few prosecutions. The FOE kept up the pressure with a survey showing that in the first year of operations some 400 sewage works had exceeded the permitted levels of pollution (AR 1990:2). In this context, we can see that Greenpeace had as an objective in taking the first prosecution to ginger up the regulatory regime. The chemicals firm of Albright and Wilson was given the maximum fine of £2,000 for pollution involving heavy metals and ordered to pay Greenpeace’s costs of some £20, 000. Immediately, Greenpeace announced that it would move for judicial review against the National Rivers Authority to force the agency to monitor discharges from the plant and consider prosecution (press release, 6 September 1991). PRESSURE FOR PROSECUTION: THE BLACKBURN CASES The Philips Commission recorded solemnly that policies on the disposition of police officers and the priorities of their investigative activity could critically affect what offences are prosecuted (1981: para.5.50). It would be strange indeed if campaigners were not to realise this and to try to pressurise those aptly called the ‘gatekeepers’ of the criminal process (Ashworth 1984:66). For obvious reasons, little is known about this. Much, it has been said, depends on personal contact, respectability and how serious an offence is perceived to be (Lidstone et al. 1980:92). Lawyers like to cite a famous series of cases against the Metropolitan Police Commissioner in which Raymond Blackburn, lawyer and solo campaigner, first pressed for police action and then resorted to the civil law remedy of mandamus to compel a change of tack. Blackburn’s first target was a policy instruction confining police involvement in enforcing gaming laws because of uncertainty in the law. The Commissioner, he asserted, was responsible to no political authority and so, constitutionally, it was vital that he be made responsible to the law—that is, the courts. The Court of Appeal held that the Commissioner owed a duty to enforce the law and was answerable to the courts alone. In many fields where chief officers have discretion to pursue enquiries or allocate resources, the courts would not intervene. A policy of non-prosecution was more difficult but in an extreme case the judges would interfere. Meanwhile the Commissioner had taken the hint and withdrawn the instruction so that formally the application could be dismissed (R. v. Metropolitan Police Commissioner ex p. Blackburn (1968)). In 1973, Blackburn attacked enforcement practices on pornography, confronting the Court of Appeal with offending items obtained by him in Soho. ‘Where do the police look?’ was the

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not-so-gentle enquiry. Although critical of police methods, the judges said that it was no part of their duty to tell the Commissioner how to conduct his affairs (R. v. Metropolitan Police Commissioner ex p. Blackburn (No. 3) (1973)). When, some years on, Blackburn tried again, he was unlucky again. This time Lawton LJ said that only if a chief officer made no attempt at all to enforce the law would the courts intervene (R. v. Metropolitan Police Commissioner ex p. Blackburn (No.4) (1980)). The Blackburn cases need careful assessment. The judges thought the first two useful, and credited Blackburn with victory in the first. Changes were forced on the police. In a rare accolade, a campaigner was complimented on using the trial process to highlight public anxiety. This sentiment found tangible expression when Blackburn escaped liability for costs. However, a judicial ‘no-go’ area was fixed9 and with hindsight Blackburn’s clever brief in the first case was counter-productive; today the case is cited as setting a seal on a doctrine of constabulary independence (Lustgarten 1986:66). The accountability to law which Blackburn invoked in practice means virtual autonomy for chief officers and Blackburn has himself bewailed the long-term effect of his intervention (The Guardian, 25 February 1984). One effect of these rulings may be to force groups back into private prosecution. But a legal ruling that the police are free to say ‘no’ does not mean that they never say ‘yes’ and, equally, it does not exclude lobbying. A second effect may be to encourage informal techniques of pressure. Both sets of techniques have been used by Mary Whitehouse and her organisation, the National Viewers’ and Listeners’ Association (NVALA). ‘MIGHTIER THAN THE SWORD’ The NVALA is an organisation set up to complain and to encourage viewers and listeners to complain. As its name implies, the main target is broadcasting but the group also deals with film, theatre and the written word. Mary Whitehouse is a seasoned campaigner, using techniques ranging from chatshows to Royal Commissions, from million-strong petitions to Private Members’ Bills, the last a speciality which she made her own—her personal presence at the Members’ ballot shows how seriously she has taken it. Whitehouse has taken care to cultivate sympathetic senior policemen and to channel individual complaints accordingly (Whitehouse 1982:233). She has not been averse to lobbying the Attorney-General and the DPP, both said to exercise ‘quasi-judicial’ functions. It could be argued that her recourse to law is partly explained by disappointment at the response. In 1972, five years before the start of R. v. Lemon (the famous Gay News case which resuscitated the offence of blasphemy), we find Whitehouse complaining about the comedy show Till Death Us Do Part to the DPP who refused her request to charge the BBC with blasphemy. Later, we find her writing: ‘One has seen how, in the whole field of pornography, the effectiveness of the law has been destroyed by

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the failure of prosecuting authorities to take action’ (Tracey and Morrison 1979:12). A court ‘win’ is a valuable basis for further complaints. In 1972 the DPP called the offence of blasphemy dormant, save perhaps where a threat to public order was created; this position could not be sustained after Lemon. This can of course work in reverse. In the early 1970s, with a view to having legal controls on broadcasting tightened, NVALA adopted a strategy of repeated complaints to the DPP. This variant on the ‘blitz campaign’ failed when just as persistently the Director responded that he would only take action on evidence of a conspiracy to corrupt public morals, in practice a remote possibility (Tracey and Morrison 1979:112–13, 144–5). Subsequendy, in R. v. Independent Broadcasting Authority ex p. Whitehouse (1985), Mrs Whitehouse was provoked by the film Scum to test the position by means of judicial review. She lost, and thereafter found the decision cited back to her when she complained. The NVALA had then to campaign for new legislation (NVALA 1987). A campaign against sex shops illustrates NVALA’s understanding of the importance of networking and of follow-through. After a considerable lobbying effort, a system of licensing was brought in by the Local Government (Miscellaneous Provisions) Act 1982. The grassroots had then to be made aware of the new-found right to object; NVALA’s newspaper was used, with a practical guide by Charles Oxley, a long-time associate of Mary Whitehouse and founder of the Campaign for Law and Order (see pp. 180–1). Across the country, local groups started to take action and in many places sex shops were ordered to be closed (Whitehouse 1985:73–8). This campaign ended in the European Court of Justice, where the propri—etor of a sex shop closed under the new legislation argued unsuccessfully that the Act ran counter to Community law (Quietlynn Ltd. v. Southend-on-Sea BC (1990)). When Michael Bogdanov directed the play Romans in Britain at the National Theatre complete with a scene portraying homosexual rape, Whitehouse turned it into a different kind of theatre. Committed Christian lawyers chosen by Whitehouse for her legal team researched the possibility of legal action but, despite a lengthy submission from John Smyth, QC, the Attorney-General refused to proceed under the Theatres Act or to grant his fiat, believing that there was no chance of a successful prosecution. So a summons for gross indecency was applied for and obtained. No consent was required, nor was there a ‘public good’ defence as under the Theatres Act. At the time the action was described as a brilliant legal manoeuvre (Daily Mail, 30 June 1981) and certainly it illustrates the importance to campaigners of first-rate technicians. It could even be argued—a typically American scenario—that Whitehouse trumped the legislature; the Theatres Act was clearly designed as a liberal measure removing at a time of great experimentation in the arts the historical censorship of the Lord Chamberlain (Robertson 1979:246–57). Yet the idea was not unique. Just previously

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Raymond Blackburn, by charging gross indecency, had succeeded against film exhibitors where other prosecutions using the Obscene Publications Act 1959 —a law notoriously difficult to satisfy—had failed (The Times, 6 June 1975; Daily Telegraph, 12 August 1977). Both campaigners inherit a common law tradition stretching back through the National Vigilance Association and the Vice Society, which courts feel comfortable in using. The ‘Romans’ case, however, illustrates a problem of ‘fit’ when the criminal process is used for campaigning purposes. For the campaigners, the case was effectively over once it was ruled that theatrical performance was subject to common law as well as statute. Now the aim of the prosecution—to establish the point, not to punish Bogdanov—clashed with the conventional model of criminal process. The parties agreed to withdraw; the judge believed that the court should proceed to the evidence (The Times, 20 March 1982). The Attorney-General, to his displeasure, had his hand forced, since it was thought oppressive to put Bogdanov in jeopardy once told his ordeal was ended (HC Deb., vol. 20, cols. 237–8). As the case was too far advanced to be taken over a nolle prosequi had to be entered, the one notable use of this device in recent times. Even a brief chronology conveys the intensity of the courtroom struggle in R. v. Lemon (1979). Gay News had published a poem, ‘The Love That Dares To Speak Its Name’, which purports to describe homosexual relations between a Roman centurion and Jesus Christ. With her legal team, Mary Whitehouse summoned up the common law crime of blasphemy, assumed by many lawyers to be obsolete. Round 1 took place before a judge, whose consent to prosecution was required; round 2, the trial, saw Lemon convicted and given a nine months’ suspended prison sentence and a £500 fine. Then Lemon appealed, on the alternative grounds that the offence was obsolete or that he lacked the necessary criminal intent. By a majority, the House of Lords upheld the conviction. Biographers of Whitehouse portray the action as pre-planned. They state that NVALA was looking to run a charge of blasphemy and that Lemon stumbled into the searchlight at the wrong moment (Tracey and Morrison 1979:3–21). Certainly legal opinion had been commissioned which advised careful case selection. Since any trial would attract massive publicity it was said to be essential to choose a grossly offensive item. Mary Whitehouse told us that the action was more spontaneous. She could not possibly have ignored the poem. Yet Whitehouse clearly had an eye for risk and effect. Later she wrote that a ‘loss’ could have opened the floodgates to ‘the utterly and unbelievably blasphemous’ but that if the poem had been allowed to pass what would have happened next? (Whitehouse 1982:167; i/v Mary Whitehouse, 1988). Mary Whitehouse has always litigated in the belief that God will provide. The decision to prosecute Gay News was taken ‘in faith, having no idea where the money would come from’. Her earthly biographers tell us that the money certainly did appear, and always does, mainly because White-house has an

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important social base within the community. So when early on the DPP offered to take over and run the case, he was spurned. Counsel’s opinion beforehand was emphatic on this point: In public prosecution NVALA would have no control over the choice of prosecuting witnesses nor the choice of prosecuting Counsel. If they were unsympathetic, unconvincing or apathetic, and in the case of witnesses unimpressive under cross-examination, the jury clearly would not be so favourably disposed… The publicity value of witnesses who speak with authority…will not have escaped NVALA. As for its wider aims, how are we to evaluate the achievement? NVALA tried to broaden the base of the campaign by involving the established church. This could be read as a clever legal tactic designed to stop John Mortimer, QC, counsel for Lemon, from saying to the jury that if there was blasphemy, surely the leaders of the church would have something to say! The bishops stood aloof, to the disgust of Whitehouse who accused the church of cowardice. Indeed her biographers suggest that the prosecution was partly designed to force church leaders into a response to the increasing secularisation of British society (Tracey and Morrison 1979:11–14). Although the action succeeded in reviving an offence not prosecuted in England for fifty years, opponents contend that the offence does not work. Nicolas Walter of the Rationalist Press Association claims that, since Lemon, the ‘free speech movement’ has distributed thousands of copies of the poem. One effect of Lemon was to rally the opposition. The ‘Gay News Defence Committee’ sprang into being and quickly raised £20,000 towards costs. Marches, petitions and so on supplemented the court struggle before and after the verdict, and representatives of the humanist organisations formed the Committee Against Blasphemy Law which seeks to overturn the court reverse by legislation (Walter 1990). One man’s crusading heroine is another’s vexatious busybody and ‘improving’ litigation designed to uplift the nation’s morals is peculiarly susceptible to the clash of arms. But Lemon did more for its supporters than merely to relegate ‘filth’ to the underground. Like the Gillick case, it provided a valuable focus for a moral crusade. Ten years on John Mortimer would lament: The pendulum started to swing…in the Gay News trial…public life in England, which had been moving steadily towards a greater tolerance for minority opinions, did a quick about-turn and started the long march backwards. At the end of the decade it was believers in Islam, in the shape of the Action Committee for Islamic Affairs, who were attempting to prosecute for blasphemy—one small part of the international campaign against the author

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Salman Rushdie and his book The Satanic Verses. Enough has been said already to show religion as a deep spring of pressure through law and in Britain that tradition is essentially a Christian one. The case shows very well how this binds with common law. The court held first, that the offence of blasphemy only protects Christianity; and, second, that where the law is clear it is for Parliament and not the courts to extend—a check on the use of criminal process to campaign (R. v. Chief Metropolitan Stipendiary Magistrate ex p. Choudhury (1990)). LIFE, ABORTION AND THE CROWN PROSECUTION SERVICE A group which complains but never prosecutes, LIFE, the largest antiabortion lobby in the country, exemplifies the hidden dimension of private initiative. Since 1977, LIFE has forwarded three or four cases a year for investigation, usually late abortion or neo-natal ‘killing’. National administrator Nuala Scarisbrick gives a simple explanation for the choice of tactic: first, that the police response is positive; second, the astronomical cost of staging a murder trial (i/v Nuala Scarisbrick, 1989). The work is a subsidiary part of LIFE’s activities. LIFE is a casework organisation which offers practical help and counselling and a campaign group which follows the parliamentary road, chiefly through Private Members’ Bill procedure. Technical machination and group conflict characterise the parliamentary struggle and so far assaults on the Abortion Act 1967 show prolifers being out-manoeuvred. The way in which court-related action can be integrated into a parliamentary campaign is, though, well understood by LIFE. First, the group acts to stop the boundaries being pushed further out; in Nuala Scarisbrick’s view, the law is so liberal that it should not have to be broken. Second, LIFE calculates that: More people are shocked by neo-natal than by pre-natal killing. If they reject the former, we can go on to ask, ‘Why is it any less wrong to kill a few weeks earlier?’ In other words, we can use these cases to help people to perceive the enormity of abortionism. (LIFE 1988:6) A complaint typically includes a chronology of events (with brief technical explanations where necessary) and an exposition of the law which, given the speciality of the field, LIFE believes the police are glad to have. LIFE also undertakes not to reveal the identity of any informant. We saw in Chapter 1 how the vice societies—which relied heavily on the ‘common informer’— were dogged by accusations of spying and prejudice. Today LIFE meets similar accusations of undermining trust within medical teams and the patient/ doctor relationship. Advertisements which the group placed in nursing

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journals inviting information were stopped after protests. LIFE urges that the end justifies the means; that ‘murder’ must be stopped for which purpose the ‘whistleblower’ must be protected (LIFE 1988:5). In this way, LIFE began a famous case. Consultant Leonard Arthur was prosecuted for murder (later attempted murder) after prescribing ‘nursing care only’ (that is, no food and an appetite suppressant) for a new-born child with Down’s syndrome. After a three week trial held in a blaze of publicity, Dr Arthur was acquitted when fellow paediatricians gave evidence that he had acted within current medical practice. The case inevitably raises the propriety of using the criminal law in this fashion. According to Nuala Scarisbrick LIFE was not really looking for a victim. We must reiterate that LIFE only complained; the prosecution was an official prosecution following on a police investigation. Sir Thomas Hetherington, then DPP, has characterised the decision to prosecute as his most difficult and, with hindsight, indicates that he was perhaps mistaken (Edwards 1984:421–2). On the other hand, doctors who deliberately end life early are not and should not be above the law. Would a better way forward have been via the Attorney-General’s special power to refer a point of law to the judges? This, the test action insulated from trial process, might have produced a different result. The Arthur case has been said to show how difFicult it is to persuade a jury to convict in a case raising an emotive issue of this kind (Rozenberg 1987:73). LIFE was sorely disappointed and condemned the judge for showing such deference to defence medical witnesses that current medical practice seemed eventually to have become the criterion of what is legal (LIFE 1981:2). On the face of things, a challenge to general standards had served to validate them. Yet in retrospect, Nuala Scarisbrick believes the case to have had a considerable impact on paediatric practice; it had increased public awareness and exposed a split in the profession. LIFE was also critical of the prosecution’s performance in the case, especially the failure to call a paediatrician to challenge the defence evidence. This illustrates the loss of control when campaigning by complaint instead of private prosecution. Nowadays, with the advent of the Crown Prosecution Service, the DPP publishes a code of guidance to prosecutors on how and when to proceed. It is not, nor has it ever been, the official view that a sufficiency of evidence alone warrants prosecution. The ‘public interest’ must be considered, a phrase magnetic to campaigners and importing into the decision-making process moral, managerial, and social judgements (Ashworth 1987).10 Even a cursory look shows the guidance to be open-ended, open to interpretation and open to different emphasis. A set of rules it emphatically is not, nor is it intended to be. The lobbyist as well as the prosecutor has considerable room for manoeuvre. Now that the Service has moved centre-stage it is possible that campaigners’ energies will be redirected accordingly. The locus of pressure

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through law is responsive to institutional change as we saw with the National Vigilance Association. A senior Crown Prosecutor to whom we spoke remarked on the large number of ‘private applicant files’, requests for action from groups as well as individuals. The possibility that lobbying by groups pays off was readily conceded: ‘It may make you reappraise your stance or make you more careful about the decisions you make’—a point of real significance in a service as hard-pressed as the Crown Prosecution Service.11 LIFE was singled out as the most troublesome group: ‘they don’t go away’ (i/ v, unattributable, 1989). Naturally the DPP wants to make clear that he is an independent arbiter, and campaign groups are kept at arm’s length. (Confidentiality in handling individual cases is as valuable to the participants as it is unhelpful to the researcher.) The paltry reasons for inaction of which the Royal Society for the Protection of Birds complains are in fact standard, as LIFE knows only too well. Several cases have been designed to test the authorities’ response to experimentation at the frontiers of medical science. One target was Professor Craft from London for his work on ‘selective reduction’ of multiple implantations in the womb. The complaint resulted in a police investigation but LIFE got back a one-sentence letter saying that no action would be taken and, after another try, a paragraph on the long-standing principle against the disclosure of papers (Correspondence LIFE/DPP: 5, 14, 19 December 1988). VICTIMS’ RIGHTS AND VICTIM SUPPORT A measure of the change from ‘private’ to ‘public’ is the role of the victim in criminal process. Two hundred years ago in England the victim or his agent prosecuted most indictable crime and in doing so chose the charges, selected the witnesses, had a considerable say in the way the case was run and (especially in capital cases) in whether or not the man was pardoned (Hay 1983:167–70). The primacy of private initiative was encapsulated in its natural consequence, the rise of the mutual aid group or Association for the Prosecution of Felons described in Chapter 1. Today, in a legal system still wedded to the adversarial, bipolar model, but in which state prosecution has become the norm, the contrast is very great. The Philips Commission, detailed to examine possible prosecution systems, omitted even to consider whether victims should have a right to be consulted; and this despite the commonplace that most crime is solved by information from members of the public, and Philips’ own view that arrangements for investigation should reflect the dependence on public support of police success (Philips 1981:20). In Chapter 2 we noted how the idea of the victim as ‘forgotten man’ of the criminal justice system has struck a powerful chord in America over the last twenty years. In England the conditions which have been associated with this phenomenon are not entirely absent, namely increased crime rates especially of violent crime, a greater awareness of the distress suffered by the victim, a

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swing to conservatism and a withering of faith in rehabilitation as a goal of the system (Erez 1990, Maguire 1991). In Britain, too, a reaction is under way, but the tone has been different. The evangelism and vigilantism of more vocal elements in America have so far been less to the fore. This is mainly due to the charity Victim Support (formerly the National Association of Victims’ Support Schemes). One of the fastest growing organisations in the voluntary sector, Victim Support occupies space which other more aggressive groups might have seized. Spreading from a single outpost in Bristol in 1974, Victim Support can now boast 10,000 volunteers in 350 schemes covering 95 per cent of the population. The intention is to offer a comprehensive service to all victims of crime, and to work with other agencies to that end (AR 1989/90). In style, Victim Support has operated as a casework agency which offers clients comfort and practical support in the community, being heavily dependent in its work on referrals from police (Maguire and Corbett 1987:24). Over half a million referrals are now handled every year. Victim Support is very much a grassroots development and only recently has the Home Office given tangible support, though ministers are now making up lost time: a grant of £4.5 million for 1991 represents a 200 per cent increase in four years. Today, despite its youth, Victim Support has become a model insider group, enjoying the accolade of the Princess Royal as Patron. Victim Support is no clamorous campaigning group. Early on the policy was adopted of no comment on sensitive issues like sentencing policy (AR 1981:3). Partly this reflects the organisation’s roots in NACRO, the National Association for the Care and Resettlement of Offenders, and the background in probation work of Helen Reeves, its long-serving Director. Prompted by brushes with avidly retributive groups, like Charles Oxley’s Campaign for Law and Order, which also claim to represent victims, standards of entry and performance were set that attempted to control ‘undesirable traits’ (Rock 1988, 1991). Today, the organisation’s code of practice enjoins representatives from comment on sentencing and from expressing party political views. Again, a low profile reflects the desire to establish a close rapport with the police, magistracy and probation service, as Helen Reeves explains: It is no small task to put a new issue on the agenda of social concern. Many people in the established agencies of criminal justice were suspicious of the new developments, regarding them as unnecessary, or as potentially disruptive. Their confidence had to be won by careful negotiation and good practice. (36 Victim Support Newsletter 1989:10) But Victim Support is continuing to evolve and in ways which move it closer to the activities described in this book. It is becoming more publicity conscious. Lobbying has intensified, as with growing experience and professionalism the organisation has moved beyond volunteer service in the

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community to an ever-closer concern with the experience of the victim in the criminal process itself (Shapland et al. 1985:1–2). The Victim in Court, published in 1988, called for better notification requirements and more sympathetic treatment in the courtroom, as well as for proper court facilities for witnesses. This approach is now being complemented by action research in the shape of a ‘Victim Witness Court Project’. Victim Support can already claim considerable success, notably in enhanced compensation provisions, and culminating on ‘European Victims’ Day’, 22 February 1990, in the appearance of Victim’s Charter, a Home Office publication which commits the government to many of the group’s goals. Victim Support strives not to impinge on the rights of the defendant, though certain reforms which it has supported—such as the use of closed-circuit television in child-abuse cases— inevitably raise issues of due process, and recently the organisation came out against the idea floated in the Victim’s Charter of victim impact statements, on the ground that they might impose unwanted responsibility on the victim and increase fear and vulnerability—a far cry from the likes of VALOR and Frank Carrington in America! Whether Victim Support will continue to hold the line, or whether ginger groups will be spawned to campaign more aggressively for ‘rights’, we can only speculate. THE VICTIM AS SURVIVOR: FEMINIST CHALLENGE So far we have not considered the types of group comprised under the rubric of ‘victims’ lobby’. In America, the term includes associational groups of victims and their relatives and also the surrogate groups which claim to work or campaign on their behalf. Clearly Victim Support is a surrogate group and, further, a surrogate which claims to serve the class of victims as a whole, though in practice we find that burglary victims are over-represented and predominate (Maguire and Corbett 1987:26). To put this slighdy differently, Victim Support has concentrated on conventional crime; once again, we could say, the safe option. Although it has come to dominate the scene in Britain, Victim Support could scarcely claim a monopoly. Pressure for change comes from associational groups or from single issue, surrogate groups, which challenge official perceptions of criminality and expose to public view hidden areas of victimisation. Women’s groups have been well to the fore. In the early 1970s, for example, domestic violence was transformed from a personal trouble into a public issue (Miller 1975) largely as a result of pressure from women such as Erin Pizzey, author of Scream Quietly or the Neighbours Will Hear (1974) and originator, in Chiswick Women’s Aid, of the movement for refuges for battered women. This movement, which quickly caught on and led eventually to the National Federation of Women’s Aid, has itself been described as political and educational as well as service-oriented, the common theme being

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a feminist analysis of violence against women (Pahl 1978). Rape is another area in which women liberationists have been effective in raising consciousness. Inevitably, the way in which police and courts reflect and reinforce norms of male domination has proved a major focus of concern. Modelled on American experiments, Britain’s first rape crisis centre, the Rape Counselling and Research Project (RCRP), opened in London in 1976. Its modus operandi resembled that of the refuge movement: casework with a political and educational design (RCRP 1984:123). The word ‘victim’ was deemed too passive and replaced by the terminology of ‘survivor’ and ‘fighting back’ (AR 1977:1). Research led on to media work and to a programme of talks to highly respectable organisations like the Women’s Institute. Almost immediately, the hostility of the police was aroused; nondirective counselling meant that women were to decide for themselves and the centre was ostracised for not pointing women to Scotland Yard (AR 1978:24– 7). Matters were compounded when the RCRP drew on casework to paint a damning picture of police procedure. Early on the RCRP also criticised rape trials for exposing vulnerable women witnesses to the worst excesses of crossexamination. Today, forty or so centres struggle on—local units with no collective voice and strapped for cash (‘T’ 1988:63). In this context, government backing for Victim Support could be seen as seizing space occupied by more aggressive groups. Thus, at its annual conference in 1985, Victim Support was urged by police to extend the range of schemes and develop the specialism of counselling the victims of sexual and violent crime (Corbett and Hobdell 1988: 50). With government support, a series of working parties was established, and by 1988 the project on rape and sexual assault had produced a training manual. Rape crisis centres still handle many more cases, but, from a minor involvement in 1984, half of the cases recorded officially are now referred by police to Victim Support (AR 1989/90:16). Women Against Rape (WAR), founded in 1976, has as its goal the elimination of sexual violence. Radical feminist in ideology, the group prioritises as the main cause of rape the economic dependence of women. Thus its commitment is to the empowerment of women as the way of ending rape, and not heavier sentencing, and the group disputes with law and order campaigners who are seen to use rape as a lever for a more repressive approach to crime in general (Glasman 1990:6). The group can point to two well-known publications, Ask Any Woman (1985), a survey which reveals the low reporting, prosecution and conviction rates, and The Rapist Who Pays the Rent (1981), published as part of the group’s long campaign to make rape in marriage a crime. Although doing a modicum of casework, WAR remains close to its roots in campaigning of a very public kind designed to reach out through the media to women. One tactic is to ‘scandalise’ the court to highlight judicial failings: for example, after a notorious case in which a guardsman escaped a custodial sentence, the Court of Appeal was invaded.

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The group has calculated that in such cases the courts would hesitate to invoke the law of contempt (Hall 1978:2, 27–8). Of the original demands made by the RCRP, several items have been implemented: for example the Metropolitan Police now has regular training courses, a computerised sexual assault index and special interview suites. Custodial sentences have increased markedly as the Lord Chief Justice has issued tougher guidelines (R. v. Billam (1986)). The Law Commission (Working Paper No. 116, 1990) favours legislating to make rape in marriage a crime and the courts have anticipated the legislators (R. v. R. (1991)). Yet critics point out that the basic phallocentric assumptions of the rape trial remain (Smart 1989:49) and that in comparison with certain American and continental jurisdictions the reforms are limited. This has been related to the absence of a cohesive and powerful women’s lobby—as opposed to a radical fringe—and to a general absence of women in the corridors of power (Temkin 1986). Recently, a senior policeman, speculating on the influence of activist, feminist groups, noted a natural tendency on the part of the police to label and then dismiss as politically motivated the work of this kind of organisation, even if soundly based (Bourlet 1990:69). High profile is no test of influence and the RCRP and WAR, publicly the most visible groups, have seemingly been invisible in the official policy-making process (Rock 1988: 57–8). On the other hand, they could fairly claim to have prepared the ground and sowed the seeds of concern (i/v Sara Callaway, WAR, 1991). It is worth contrasting an elite insider group, the Women’s National Commission (1969), made up of fifty representatives of leading national, voluntary, professional and political organisations. Virtually unknown outside the government offices from which it operates, the Commission is charged to ensure that the informed opinion of women is given due weight in official circles. Its recommendations on treatment of complainants, Violence Against Women (1985), led to a Home Office circular the next year, and, it is said, to change by a number of chief constables (Bourlet 1990:64). One other course of action recently encouraged by WAR is a novelty in England and very relevant to our concerns. The idea is literally to make the rapist pay, by a civil claim for damages. Civil action against the violent offender, or against pecunious third parties said to be responsible for victim safety, is familiar enough in America. Awards reflect the deterrent function of American tort law and we drew attention to the role of networking within the victims’ movement in facilitating and stimulating such action. In England, victims have since 1964 been able to claim from the state Criminal Injuries Compensation Board (CICB), their compensation supposedly to reflect civil damages. But dissatisfaction with relevant decisions has been vocal, and came to a head in the case of Christopher Meah, convicted of raping two women, who won £45,000 damages for changed personality after a car crash allegedly led him to commit sexual assaults. When the victims got £3,600 and £1,000

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from the CICB, they sued Meah and won £10,000 and £7,000 respectively, awards which women’s groups criticised as still too low (Meah v. McCreamer (No. 1) (1985), W v. Meah (1986)). The next step was to test whether civil proceedings could be promoted as an alternative to criminal process where the man was either not prosecuted or acquitted, the advantages being that the woman would have a degree more control as plaintiff than witness, with a lower standard of proof and damages probably higher than a CICB award. In the first case to be reported, an action against a physiotherapist, the Crown Prosecution Service refused to prosecute on the ground of insufficient evidence. The complainant sued and won £25, 000, which was hailed by WAR as a wonderful victory (The Times, 16 November 1988). Triumph turned to recrimination when the Court of Appeal quashed the verdict saying that, when in a civil case the allegation is extremely serious, a higher degree of certainty is required than usual, and that psychologically disturbed women’s evidence may have to be discounted (Miles v. Cain (1989)). The case was now characterised by WAR as a major blow to women (The Independent, 15 December 1989). The Court of Appeal ruling can be seen to cut back a potential growth area of court action, though not to close it off. Several women have won damages even though unsupported by a criminal conviction (The Guardian, 13 September 1990). Meanwhile the first civil claim against someone accused of murder has gone through the courts (Halford v. Brookes (1991)) and the idea is emerging of suits on behalf of children who are sexually abused (Major 1990). Should these prove harbingers of change, then classes of victim seeking vindication—and groups like WAR encouraging them—would have a means of outflanking the Crown Prosecution Service as well as avoiding the rigours of the criminal trial. PRESSURE VERSUS HATE-CRIME In 1986 the Select Committee on Home Affairs described racial attacks and harassment as the most shameful and dispiriting aspect of race relations in the United Kingdom (HC 409 (1985/6): para.1). Official recognition was belated. Community groups have laboured long and hard to focus attention on this area of victimisation. Campaigning is twin-tracked: on the one hand, it protests against under-policing of black victimisation, on the other against overpolicing of suspected black offences (Reiner 1985:152), and it may incorporate complaints of racism against the police. Protest was to swell in the 1970s as a series of reports catalogued police shortcomings; the Institute of Race Relations (IRR), for example, drew attention to delay and unwillingness to investigate racial attacks; ‘no-criming’; victim-blaming and denial of a racial element (IRR 1979:18–26). In few such cases was private prosecution a suitable alternative, yet the police frequently referred to the right of private prosecution to justify or excuse inaction (CRE 1987:24).

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This is an area of victimisation where group involvement is diverse. Occasional interventions come from the standing organisations of the minorities like the Board of Deputies of British jews. The Commission for Racial Equality (CRE) plays an important networking role, as do the Institute of Race Relations, a resource centre with good contacts among the black communities, and the charitable Runnymede Trust, via a monthly bulletin Race and Immigration. The main impetus is at local level, however, where unofficial police monitoring groups campaign to make the police more accountable and responsive. Concentrated in the inner cities, and promoted hard in London by the GLC in the early 1980s, they operate by providing ‘alternative accounts’ of police operations (Scraton 1985:169–76). Ad hoc and ginger groups also abound, often small and focused around a single incident or person. Police frequently question the representativeness of such groups, preferring to see ‘political activists’ or surrogate groups rather than local groups with genuine grievances.12 An illustration of this as an area fraught with tensions is the report of the Inter-Departmental Racial Attacks Group (IRAG) in 1989 which expressed the view that minority community groups had a key role to play in setting priorities and a legitimate role in putting pressure on the police to act in particular cases. The report was hard-pressed to find examples of effective liaison and the Metropolitan Police gave a prominent warning that mutual trust was needed. The report had to concede that in some areas some people may be reluctant to become too involved in working with the police (IRAG 1989: paras. 34, 72, 178, 206). There certainly are examples, especially in the East End of London, of people from minority communities combining to use force against attack. In the 1930s Jewish youths trained in wrestling and boxing; in the 1970s and 1980s various groups, especially of Asians, took action from time to time (Silvanandan and Bourne 1979, Gordon 1986:28–31). Born of frustration with law, such groups are in fact relevant to our concerns. Liable to be criminalised, they are natural candidates for the political defence campaigns described in Chapter 4. The case of the ‘Bradford 12’ (alleged conspiracy to manufacture petrol bombs) resulted from preparations to withstand a racist attack (Hain 1984:278–80). Again, designedly or not, resort to self-help can be seen as another informal means of pressure on police to act. That it may help concentrate the official mind has been recognised by the CRE (1987:21). Reporting in 1990, the Select Committee on Home Affairs noted progress towards providing an effective response to racial attacks. Some forces now prioritise this type of crime; police training and the monitoring of incidents are improved. The Committee also drew attention to harder investigative and prosecutorial policies though it was not so naive as to assume an easy correlation between policy and practice.Junior ranks in the police and prosecution service were prone to continue as before (HC 17 (1989/90): paras. 16, 17, 24). This is one area of victimisation where campaigners have learned some hard lessons about follow-through and implementation. A case in point

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is a strategy introduced by the Legal Action Group to educate local authorities into mounting legal proceedings, including test cases, against tenants who perpetrated racial violence. Three years later, councils were found still to be moving victims, one cause being professional misunderstanding and mistrust between housing and legal departments (Legal Action Group 1990:4–6). UNHEARD: THE GAY LONDON POLICING GROUP The Gay London Policing Group (GALOP) was founded in 1982 as part of the campaign for ‘gay rights’. The group was at first a legal defence organisation called the Gay London Police Monitoring Group which concentrated its energies on police treatment of gays as criminals. Out of casework came several campaigns against police tactics, including the alleged use of agents provocateurs (AR 1984:5, 13). In 1985, the group also started to function as a victim group, calling for improved police response to crime against gays. It believes that ‘queer bashing’ is on the rise, with fear of AIDS bringing increased homophobia. Today, almost a third of casework is victim support; help given includes intermediaries to assist in reporting crime and complaints of police inaction (AR 1988:14, 27). The group concentrates on police discretion; willingness to investigate reported crime (considered patchy); and on treatment of victims (considered, as in rape, to contribute to endemic under-repordng) (Capital Gay, 31 May 1985). A key demand is for separate recording of ‘anti-gay crime’, allowing it to be monitored. Monitoring does not change attitudes or a police culture which the group has complained is antithetical to homosexuals, but it is a first step towards consistency and, to establish the vulnerability of a class, is a way of bringing pressure to bear for extra resources (AR 1988:17–19). The group exemplifies the outsider group which despite much work makes little headway. Complaints persist of an unsympathetic, even hostile, police response. Scotland Yard has delayed the introduction of monitoring on the grounds that it is impractical and unwarranted (The Independent, 18 December 1990). The group has not given up, recently commissioning an independent study of the problem. But the field is left open for a more militant group like OutRage to practise publicity stunts and to threaten self-help in the shape of vigilante patrols (Time Out, 5 September 1990). CRIMINALISING DISASTER The disaster case and the disaster group were identified in earlier chapters as most important in the recent development of pressure through law. So far, we have concentrated on cases of product liability and on the civil law dimension. All too familiar is a catalogue of ‘instant’ disasters which includes the capsize of the Herald of Free Enterprise off Zeebrugge (1987); the underground fire at King’s Cross Station (1987); the train derailment at Clapham (1988); the

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crush at the Hillsborough football stadium (1989); and the sinking on the Thames of the pleasure boat Marchioness (1989). Each tragedy was to bring an associational group made up of victims and their relatives. A novel sight is of litigation coalitions moving beyond civil liability to demand criminal sanctions. The official inquiry into the Zeebrugge disaster found that ‘From top to bottom the body corporate was infected with the disease of sloppiness’,13 almost certainly sufficient for a finding of civil liability for negligence. But where civil liability is ‘vicarious’ in character, that is, an organisation can be made to pay damages in respect of its employees’ negligence, the same is not generally true of serious crime, where individual liability obtains (Leigh 1977). Here again we could point to a contrast with the United States, where some states recognise the crime of corporate manslaughter. In the ‘Ford Pinto’ case for example, the Ford motor company was prosecuted—though unsuccessfully— for reckless homicide after marketing a fuel system known to be unsafe (Cullen et al. 1987). Again, workplace accidents have been treated leniently in Britain (Carson 1970, 1982); to visit severe penal sanctions on the relevant company executives has been considered unfair and inappropriate. If, as often happens, a tragedy results from a systems failure or omission it is more difficult to hold a specific individual to account (Ashworth 1989). The official preference is for administrative forms of law enforcement, and such crime is marginalised in the sense that prosecutions tend to be for regulatory offences, triable in magistrates’ courts (Wells 1988). This helps to explain the reactions of the Herald Families’ Association (HFA), first to press for manslaughter charges in order to bring home that the tragedy should be treated as ‘real’ crime; and, second, to push liability up the corporate ladder by having the charges laid against the company and the executives responsible for safety. The HFA went to court to challenge the coroner’s ruling at the inquest that corporate manslaughter was an offence unknown to English law, and obtained a tentative ruling to the contrary (R v. HM Coroner for East Kent ex p. Spooner (1989)). This success sparked interest in similar charges in respect of the other disasters, showing the importance of networking between the coalitions and the lawyers. One of the lawyers involved in the Hillsborough case explained: ‘since the Zeebrugge matter…everybody has manslaughter in their minds’ (The Guardian, 15 July 1989). The next step was to lobby the Crown Prosecution Service to bring charges of manslaughter. The right of private prosecution can be used as a bargaining chip. At various stages, the Herald, Hillsborough and King’s Cross groups were each reported in the press as prepared to proceed if the DPP did not. This possibility is not mentioned in the DPP’s official code of guidance which requires the decision as to sufficiency of evidence to be separate from, and prior to, the question of ‘public interest’. Yet a circular to police on cautioning does suggest that if a victim seems likely to prosecute, then ‘the need to avoid

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an undesirable situation’ may swing the public interest in favour of proceedings (Home Office Circular No. 14 of 1985: para. 10). The senior Crown Prosecutor to whom we spoke commented that this was bound to be a relevant calculation. The risk of not proceeding was a loss of control and of being ‘bounced’ into taking over a case started by private parties. Indeed, the Service has stated publicly that it prefers to be in charge in serious cases, rather than someone whose interest in the case may be ‘inconsistent with the degree of detachment appropriate on the part of the prosecutor’ (AR 1987/8: para. 5.14). Nevertheless, in respect of King’s Cross, Clapham and Hillsborough, the Service decided not to institute criminal proceedings on the ground of insufficient evidence—greatly to the dismay of the groups. In contrast, the DPP announced that in respect of Zeebrugge he was prepared to use a combination of corporate and individual liability, bringing manslaughter charges against four seafarers, three executives and the company. The HFA had worked hard to create a favourable climate for such a prosecution. The group latched on to public and parliamentary concern about safety, while behind the scenes bombarding the DPP with letters from HFA lawyers enquiring about progress. Crucial to sustaining the momentum was the sequence of events: the damning picture painted by the public inquiry; the verdict of the Coroner’s jury, moved to disobey directions and bringing in ‘unlawful killing’; the police investigation; then, finally, the decision by the DPP. This has not happened in other cases, as in respect of King’s Cross where, fortuitously or not, the sequence was reversed. In that case, only after the Crown Prosecution Service decided that the evidence was insufficient and the inquest returned verdicts of ‘accidental death’, was the report of the fivemonth-long public inquiry, a catalogue of management failure to secure proper levels of safety, published.14 The families’ group requested the DPP to reconsider but to no avail (The Guardian, 18 November 1988). It was reduced to making a public appeal for funds to finance private proceedings which appear unlikely ever to come to court. This helps to explain the legal tussle which developed in the Marchioness case. The complaint here was the choice of charge. The DPP decided only to prosecute the master of the other vessel involved in the collision and to prosecute him under the Merchant Shipping Acts for ‘endangering life by failure to keep a proper lookout’. With criminal proceedings pending, the coroner’s inquest was adjourned and the report of the marine accident inquiry—set up by the minister in place of a full public inquiry—held over. In these circumstances, the Marchioness Action Group tried by means of judicial review to force the DPP to bring further charges against the master and against the owners of the two vessels, including charges of manslaughter. The case highlights the concern of such groups for information and accountability. Counsel stressed that the application was made out of a concern that unless wider charges were brought, the full circumstances of the tragedy would never

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be publicly explored. Among the grounds for challenge were that the DPP had failed to take account of public concern about safety and the absence of an independent public inquiry. But the attempt to use the criminal law as ombudsman was doomed to fail. The judge emphasised that it was not the role of the courts to intervene save in the most exceptional case and the group was unable to go behind the brief or ‘boilerplate’ reasons given by the Crown Prosecution Service for refusal of prosecution (R. v. DPP ex p. LanglandsPearse (1990)). In the event, the master was formally acquitted of the single charge after two separate trials at which the jury failed to agree (The Independent, 1 August 1991). The group was left to struggle on with a private prosecution for corporate manslaughter which, as we saw, the DPP threatened to have discontinued although it was allowed to go to committal proceedings. Meanwhile, the Zeebrugge case had come to trial. In June 1990, Turner J ruled that corporate manslaughter was indeed an offence known to English law but that it operated within narrow limits. There was no question of making a company liable by aggregating the acts of individuals whose actions were not themselves reckless. A ‘controlling mind’ of the company must have ignored a ‘serious and obvious risk’. Four months later, the judge directed the jury to acquit the company and its executives of the manslaughter charges. The Herald had sailed with its bow doors open and the prosecution was unable to prove that there was a ‘serious and obvious risk’ of this happening and therefore of the Herald sinking (R. v. Stanley and Others (1990)). This whole area is a major battleground in the current development of pressure through law. The collapse of the Zeebrugge case came as a severe blow both to the HFA and to other groups. Maurice de Rohan, chairman of the HFA, said that he was ‘gravely disappointed and singularly unimpressed’ by the Crown’s presentation of the case (The Times, 20 October 1990). The legal ruling appeared to confirm an individualist conception of crime (Field and Jorg 1991) frustrating to those campaigners who want to use the penal process for improvements in safety and to fix the generals rather than the subalterns with liability. This does not mean, however, that the campaigners will stop trying. The failure has led to renewed pressure for a change in both the civil and the criminal law. Disaster lawyer Rodger Pannone has urged that in these circumstances the law of tort should play an active deterrent role by means of punitive or exemplary damages (The Times, 20 October 1990). His colleague Michael Napier has suggested that the various procedures should be consolidated into a single thorough inquiry, an idea consistent with the greater coordination of multi-party litigation in civil cases, which the disaster lawyers have done so much to bring about (87 (40) Law Society Gazette 1990:2). The litigation coalitions, as we saw, have joined forces in Disaster Action to press the case for reform, and the HFA has been able to raise sufficient funds to support research into the issues of corporate responsibility and accountability. In respect of workplace deaths, a lead has been given by the trade union-based Construction Safety Campaign and the London Hazards Centre which, in

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conjunction with Inquest, recently published a guide to corporate criminal liability (Bergman 1991). It may be that, in the end, like the group we are about to describe, the campaigners will achieve some of their goals. THE CAMPAIGN AGAINST DRINKING AND DRIVING The victim group which has explored most fully the potential of the criminal prosecution is the Campaign Against Drinking and Driving (CADD) formed in 1985. The group is an associational group, each of its 800-plus members having lost a loved one through drunken driving. It plays a welfare role, a casework role helping to win ‘justice’ in individual cases, and a campaigning role. The group has had as speciflc campaigning objectives: random breath testing and zero blood alcohol levels; the charging with homicide of drunken drivers who kill; and a right of appeal for victims and their families against too lenient sentencing. The underlying aim is to change attitudes—to remove the word ‘accident’ and substitute the word ‘crime’ (CADD 1988:2–3). There are close parallels here with the mass disaster groups. The group still has far to go, some 20 per cent of road deaths—more than a thousand every year—being officially linked to drink. Nevertheless, a criminologist singles out drunken driving as showing how attitudes towards criminality can be changed: Many people who ten or 20 years ago would not have regarded drunken driving as more than a technical transgression seem nowadays to take a more serious view—not only because of the believed risk of being caught, but because of constant publicity about the connection between drunken driving, accidents and injuries or deaths. (Ashworth 1984:77) The group has at its disposal an array of means. Its composition ensures that the hard-hitting TV documentary can be exploited. The group gave evidence to the official committee which reviewed road traffic law,15 and, to anticipate the themes of our next chapter, CADD understands the potential for international action. It is in contact with similar groups abroad: in the European Community, in France, Germany and Italy. It lobbied MEPs ahead of a European Parliament vote in 1989 for lower alcohol limits. The group also courts the influential at home, helped no doubt by the fact that co-founder Graham Buxton is a retired inspector of police. At its first three conferences, guest speakers included the transport minister, a magistrate, a coroner and a chief constable (Newsletter, 1989(1):11). That the group is well on the way to insider status is confirmed by invitations to participate at launches of official campaigns against drunken driving.

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Where the group really comes into its own is in pressure on charging and sentencing policy. Undercharging is the main complaint of victim families, according to Buxton. He is in receipt of hundreds of complaints and apparently has often had the opportunity to examine police files. Families are encouraged by CADD to contact the prosecutor personally and to press him to bring the severest charge the facts will support. If this fails, the group may step in to help win a change of heart and Buxton reports that this has succeeded in half-adozen cases (CADD 1988:13–14). The senior Crown Prosecutor to whom we spoke commented that previously lots of wrong decisions were taken and that CADD had played a positive role in changing things. Graham Buxton believes that the group’s work in the area has done more to concentrate the minds of the prosecuting authorities than anything else (letter, 1991). The group lacks the resources to prosecute, hence operates as a back-up agency which disseminates advice and builds a network of experts, private detectives and specialist lawyers. Obviously, the private prosecutor’s hand would be strengthened immeasurably if the police did the legwork. The sticking-point is access to police files. In R. v. DPP ex p. Hallas (1988) a member of CADD sought to obtain relevant documents by means of a civil action but the court was predictably dismissive. The group warns members of the pitfalls, and counsels a private prosecution only if the Crown Prosecution Service has failed in its obligations. The group assisted in six private prosecutions in the first four years and in each the verdict was homicide. The group does its homework. Members are told that once a defendant is committed for trial (the private prosecutor showing a prima facie case) the Crown Prosecution Service will normally take over and run the proceedings (CADD 1988:13) as in R. v. Curran (1988) where a child was killed by a negligent driver and a breath test revealed that he was over the limit. The Service charged careless driving and driving with excess alcohol but changed tack after CADD helped the parents to launch proceedings for causing death by reckless driving. Eventually Curran pleaded guilty to the more serious charge and was sent down for 15 months, the judge commenting that the initial decision of the Service was extraordinary. To put this differently, CADD is well aware that although resort to prosecution is an expensive option, it may not be as expensive as at first appears. The Crown Prosecutor to whom we spoke commented that the tactic placed the Service in an awkward dilemma. There might be strong reasons in individual cases for taking over, including relieving the family of the financial burden, but to do so could encourage other people. The Service was sufficiently concerned by Curran to review practice and to try to lower expectations. A public warning was issued that individual cases are reviewed on merit and that it should not be thought that the Service would act automatically since that would make it ‘vulnerable to improper pressure’ (AR 1987/8: para 5, 14). CADD was undeterred.

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In England, appeal against sentence is classically a one-way street in the sense that only the defendant can appeal. This difficulty once led CADD to correspond with the Lord Chief Justice, drawing to his attention sentences which seemed unduly lenient. Far from a rebuke for impertinence, it seems that Lord Lane lent a kindly ear (letter, Graham Buxton, 1989). In 1988, in a controversial break with tradition, the Attorney-General was empowered with leave of the Court to apply to the Court of Appeal for a variation of sentence upwards.16 The Court may then use the opportunity to lay down sentencing guidelines. A new ‘window of opportunity’ has been opened. Third parties still have no right of appeal but there is nothing to stop lobbying of the Attorney—indeed it was anticipated that he would act following representations from victims or as a result of ‘public concern’ as well as on the suggestion of the Crown Prosecution Service (The Independent, 20 January 1989). In the first two years the Attorney referred four cases in which CADD made representations (letter, Graham Buxton, 1990). The first to come on was widely reported in the press and Lord Lane’s message to the courts was to crack down on drunken driving (Attorney-General’s Reference No. 3 of 1989). THE THEATRE OF THE ABSURD In CADD we see a group whose concerns engage the sympathy of the powers that be, which is realistic about what can be achieved through legal process. Nothing could provide a greater contrast than the attempts of peace campaigners to bring private prosecutions. So far in this book, legally-speaking, the Peace Movement has appeared in defensive posture but we did mention a strand in the Movement committed, in the words of the Institute for Law and Peace, ‘to reclaim the law as a shield to protect us against indiscriminate slaughter’. Several ginger groups have been involved and the Institute itself was set up in 1988 to put efforts on a more coherent footing. The campaign is distinctive for persistence against over-whelming odds and as a testimony to the strength of conviction that weapons of mass destruction are illegal: a minority enthusiasm criticised within the Peace Movement as a legal cul-de-sac (Vogler 1986). In magistrates’ courts across the country several dozen attempts have been made to initiate a private prosecution against leading politicians and generals for conspiracy, incitement to murder or genocide. Armed with Enforce The Law, a detailed practical guide, a few activists have tried again and again but have never got out of the starting blocks. So far we have not had occasion to consider the preliminaries to a prosecution: the laying of an information before a magistrate and the issue of process, commonly a summons. The magistrate has to be satisfied that the complainant is acting bona fide and that prima facie the information discloses the main ingredients of an offence known to law: otherwise it is an abuse of process.17 The peace campaigners always fail here, usually because the magistrate rules the complaint vexatious or frivolous: that is, it cannot be taken

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seriously by anyone acting judicially (Manson 1988:42–3). Again, consent provisions are inserted into statutes such as the Genocide Act 1969, and activists are well aware that consent will not be forthcoming. A tiny litigation coalition, Pax Legalis, was comprised of four individuals who wanted to prosecute the Prime Minister for conspiracy to commit war crimes contrary to the Genocide Act 1969 by virtue of the country’s ‘firststrike’ capability. Much preparation went into the case but when the AttorneyGeneral refused consent without giving reasons the campaigners were reduced to seeking leave to apply for judicial review. They claimed that no sane Attorney-General could refuse consent and that the legal system was on trial. In the event, the judges found the case a minor irritant and it made for poor theatre. Ruling that courts would not review the Attorney-General in these circumstances, the judges made it clear that the action was intolerable and absurd, standing as it does at the furthest reaches of campaigning through the courts (R. v. DPP ex p. Starkey and Guy (1987)). CONCLUSION Pressure through criminal law has a long history in England and it is a history in the making. Despite the mutation in favour of official forms of prosecution much scope exists for private initiative in law enforcement, and in the contemporary period pressure group campaigning in and about the criminal process shows great vitality. We can instance, on the one hand, new windows of opportunity as with sentencing appeals, and, on the other, the rise of litigation coalitions and single-issue victim groups unwilling to take ‘no’ for an answer. It cannot be right that campaigners who resort to criminal process should have a free hand, even if the special restrictions on the right of private prosecution are a less effective deterrent than commonly supposed. The criminal law is ‘the strong arm of the law’ and must be kept within bounds. The potential for friction between courts and campaigners is considerable and once again the notion of ‘good fit’ is highly relevant in explaining why some campaigns more than others generate friction. For example, the litigation policy of the RSPCA is of a design to avoid ruction. The emphasis is on routine law enforcement and on maintaining credibility with the courts and the police. Again, Mary Whitehouse was able to rely on a common law tradition of punishing indecency; even so, a problem of ‘fit’ arose when in the ‘Romans in Britain’ case prosecutorial process was used to fire a warning shot. The struggle of disaster groups to impose corporate and executive criminal responsibility represents an attempt to break the mould; in this instance, an individualist conception of crime. Conversely, if in the Zeebrugge case the mould had been broken, we could have forecast a rapid growth in group actions. At the end of the spectrum of campaign cases, the Pax Legalis case is best characterised as the ultimate in ‘bad fit’.

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Groups frequently try to persuade law enforcement agencies to take action and so achieve their goals indirectly. ‘Insider’ groups may win co-operation behind the scenes; others may feel compelled to campaign very publicly to win recognition for a cause. An area of victimisation which highlights this aspect is racial harassment, where group involvement is diverse and much lobbying takes place at grassroots or community level. As an instrument of pressure through law, the private prosecution must be looked at in its context, which the Philips Commission failed to do. This chapter has revealed the scope for interplay with informal techniques of persuasion. One objective of private prosecution is to bring pressure to bear on law enforcement agencies. This may serve to cause embarrassment in the instant case; it may also represent an attempt to stiffen attitudes. In recent times we can single out the Campaign Against Drinking and Driving as adept at this. If the right of private prosecution is not the touchstone of pressure through criminal law in England, nevertheless it is rightly seen as a distinctive feature. To repeat, the right of private prosecution is no actio popularis. Practical constraints mean that in many cases it is a remedy which is only theoretically available. On the other hand, the constraints may operate to encourage group action, as individuals are seen to fail for evidential or financial reasons. This chapter shows a considerable range of groups to be using the technique, often successfully and usually for a serious purpose. The Philips Commission concluded that such is the danger of abuse that a public monopoly is right. On the other hand, it could be argued that the power of the judiciary to halt play when it is not cricket forms a sufficient safeguard. Then one could say that the private prosecution can be retained, itself a safeguard against corrupt, negligent or inappropriate conduct on behalf of the police or prosecuting authorities. Prosecution is open; pressure behind the scenes is not. We will leave the matter here, to pick it up in Chapter 7.

6 GLOBAL POLITICS, TRANSNATIONAL LAW

Yes, let them gather!—Summon forth The pledged philanthropy of Earth, From every land, whose hills have heard The bugle-blast of Freedom waking. John Greenleaf Whittier, written for the World AntiSlavery Convention 1840

1 THE INTERNATIONAL SCENE From the start of this book we have been able to observe a transnational dimension to pressure-group activity: British abolitionists involved in the founding of Liberia, American suffragism born at an international anti-slavery conference and so on. William Coote’s International Bureau for the suppression of ‘white slavery’ took the process a stage further by the establishment both of an international committee and a secretariat to coordinate national activity. In the same period, other international organisations were coming into being. The International Committee of the Red Cross (ICRC) was, for example, founded in Switzerland in 1863 expressly to function at international level. An International Slavery Bureau was set up in Brussels in 1890. Today, international ‘networking’ has become much easier and has consequently increased very rapidly. Over the last two decades, for example, the world environmental movement has become big business. Hundreds of national groups number millions of members, an annual budget of more than £150 million and thousandsof employees. The World Wildlife Fund, which has been described as ‘fundraiser and banker’ for the movement (Lowe and Goyder 1983:82) stands behind many national and transnational campaigns. Some of the larger national organisations, such as Greenpeace or Friends of the Earth (FoE) (both founded in the late 1960s as a splinter group of the American Sierra Club in protest at the insularity and low-key style of the parent group (Brown 1989)) have become serious international players. They may in turn join wider coalitions. Both have multiple representation on the

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European Environmental Bureau (EEB) through national branches in the member states. Similar in character is the International Union for Conservation of Nature and Natural Resources (IUCN) founded in 1948 ‘to provide international leadership for the conservation and management of living resources’. The IUCN differs from the EEB in admitting governmental agencies to membership, but it too operates as a loose coalition of groups working in the field. In style, the IUCN resembles Coote’s International Bureau. It exists to lend an international dimension to national campaigns, to bring pressure to bear on national governments and provide expertise to the less experienced groups. Many of the non-governmental organisations (NGOs) which operate on the international scene—the Roman Catholic Church or World Council of Churches—are well outside the ambit of this book. The ICRC would indignantly refute the label of ‘pressure group’ and falls at the very limit of our subject matter as a casework organisation. It works in a low-key style, keeping all exchanges confidential, avoiding public criticism of national governments, refusing to release details of individual cases, and priding itself on its ability to ‘keep politics out’. These self-imposed restrictions have enabled it to work as an ‘insider’ throughout the world and its operating methods have gained the respect of most national governments. The ICRC epitomises the ‘respectable’ NGO. It has been accorded formal status in international law. To resort to pressure through law would not only imperil this status but (or so it would be argued) be unnecessary. Almost inevitably this has led to charges of timidity; that the ICRC has lapsed into a ‘humanitarian do-gooder’, paying insufficient attention to human rights and modern techniques of protecting them (Forsythe 1977,1990). There is an interesting contrast of style to be made with Amnesty International (AI), which also works for prisoners but increasingly applies pressure through law. Founded in 1961 by a British barrister, Peter Benenson, AI started as a locally based casework organisation, aiming to secure the release of targeted political prisoners. At first it worked largely through publicity, influence and mailshot campaigns (Ennals 1982) using lawyers’ groups to highlight legal issues such as the legality of preventive detention or the imprisonment of lawyers acting in anti-government cases. It did not (as it might) provide voluntary legal services or tackle test cases. Later, AI developed a more general human rights programme, sustaining international campaigns against torture and the death penalty (AI 1977, 1979, 1988). In contrast to the ICRC, Amnesty is widely viewed as a campaigning group; indeed, in Britain a successful challenge has been made to its charitable status on the grounds that it indulges in ‘political’ activities (McGovern v. A-G. (1982), Weiss 1983). To chart the tactics and activities of the many and disparate groups operating on the international scene would be impossible. We have therefore chosen to organise this chapter rather differently, focusing on three of the

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international organisations around which pressure groups tend to cluster and whose rapidly evolving legal systems present these groups with a new window of opportunity. The UN is an obvious choice. First, it relies heavily in its policy-making on interest representation by NGOs, as pressure groups tend to be called in the international arena. Second, the UN is a body geared mainly to use by the states parties and some of the energies of NGOs have gone into opening up the procedures to individual and group complaints. Third, international law has the defect of being hard to enforce. NGOs have begun to play a leading role in enforcement, using the medium of national courts. We have chosen to adopt a narrow focus in evaluating their efforts, singling out the activities of the international Peace Movement and of groups working in the field of human rights. Human rights also form the theme of our second section, in which we focus on the European Convention on Human Rights (ECHR). For us, the Convention is interesting in two particular ways. First, it possesses its own transnational institutions in the shape of a Commission, Court and the Committee of Ministers of the Council of Europe which operate and enforce it. Second, the ECHR is of direct relevance to the United Kingdom, which has ratified the Convention (though not all its protocols) and has also authorized a right of direct access to the Commission to individuals directly affected by a breach. Even though the ECHR has never been incorporated into British law by statute and does not form an integral part of its legal system, it can be used to a limited extent as a counterweight to the doctrine of parliamentary sovereignty. As groups began to realise this, test cases started to reach the Commission and Court of Human Rights, a development which is evaluated in the second section. In sharp contrast, EC law, the subject matter of our third section, does form part of the body of United Kingdom law and the paramountcy of this ‘new legal order’ allows it to be used as a trurnpcard in policy and law-making. On the one hand, EC law can be used to nudge Westminster and Whitehall in directions they might prefer not to take, a possibility exploited rather skilfully by the environmental and women’s movements. On the other hand, the fact that the jurisprudence of the European Court of Justice (ECJ) binds all courts including the House of Lords makes it a necessary step in the appellate process in some cases. At first the limited range of subject matter, reflecting the limitations of the original Treaty, meant that few groups would benefit (though once again the women’s movement was able to force openings). Latterly, however, the Community’s range is extending and with it the scope for ECJ litigation. Finally, pressure groups have an important law enforcement role in a Community which largely operates through national governments and civil servants. Here again the environmental lobby has come into its own. In short, in this brief survey of the international scene we shall find old games played by new players in accordance with rapidly changing rules.

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INSIDER STATUS AT THE UN Whether the adjective ‘democratic’ can properly be applied to the UN and its institutions is perhaps questionable. Even if the reply is affirmative, it has to be admitted that this is a special kind of democracy in which states and not citizens are players. Nor are the internal institutions of the state parties always perfectly democratic. In such an environment, NGOs occupy a special place. It is left to them to represent constituencies which might otherwise be altogether unrepresented and voice opinions which states parties would prefer not to hear. Pressure groups were present as ‘consultants’ at the birth of the UN in San Francisco and were instrumental in inserting into the Charter Article 71 which provides for contact between the UN and NGOs through the Economic and Social Committee (ECOSOC) (Green 1978). Subsequently, a list of consultative NGOs was drawn up by ECOSOC and divided into three categories, supposedly according to the correspondence of their activities with those of ECOSOC but generally considered as a hierarchy with differential privileges, which include rights to receive information and make representations to UN bodies and agencies. An NGO can apply at any time to be recognised, the criteria being that the NGO must be of representative character and recognised international standing; represent a substantial proportion or a major segment of the population; and possess an established headquarters, a democratic constitution, and an executive which can speak for it. These requirements probably influence the shape of groups operating in the international field and, as national bodies normally have to be represented through the international NGO to which they are affiliated, there is a clear incentive to organise transnationally. Around 300 NGOs are registered, a fraction of the 4,000-plus registered in the Yearbook of International Organisations. To an outsider, placements, made by the UN’s NGO Committee which in practice exercises considerable control over the lobbying activities of NGOs, sometimes seem arbitrary; for example, one finds International Planned Parenthood and the World Veterans Association in Category I along with sectional economic groups; Amnesty International and the International Commission of Jurists in Category II; and Friends of the Earth on ‘the roster’ (Category III). Consultative status allows an NGO access to the UN and its facilities and there is often provision for open lobbying in the UN and its complex network of ancillary organs (the World Health Organisation or UNESCO) component committees, commissions and specialist organisations (Willetts 1982:11–17). The role which the NGO will play depends upon the rules of the relevant organ; some will allow an NGO to make formal statements on the record, others restrict it to written submissions or an opportunity to talk informally with delegates. This right of access should not be downplayed; NGO influence

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has been described as being stronger in the wings than on the stage, the point being to get access to the theatre in the first place. The right to participate in UN conferences is also valuable. These are a good forum both for lobbying and forming new contacts. NGOs are often consulted at the planning stage and so play a part in forming the agenda. They can also use the meeting as a useful forum for networking. The Stockholm Conference on the Environment in 1972 is a good example. In Stockholm, NGOs held their own unofficial meetings and also circulated a conference newsletter. Two new networking organisations emerged: the EEB, sited in Brussels to lobby in the EC, whose significance in environmental standard-setting was beginning to become clear to the delegates; and the Environmental Liaison Centre, a loose federation of 200 members, sited near the UN environmental headquarters in Nairobi. The Centre subsequently achieved consultative status (Burke 1982). A slightly different example of networking is that of the Human Rights Network, established in 1976 under the auspices of the British UN Association to speak for and co-ordinate the contributions of the various groups working for human rights. In the UN context, NGO activity has several distinct aspects. The first step was to secure a general right of access and establish the key right of NGOs to participate. The second aspect involves standard-setting. NGOs began to experiment with this in the nineteenth century, first through unofficial and semiofficial conferences and conventions, later under the auspices of the League of Nations. After the Second World War, the process of standard setting had to be repeated in the new context of the UN. For example, the UN Charter made reference (at the behest of NGOs) to ‘respect for human rights and for fundamental freedoms’ but, to the chagrin of many of the NGOs present in San Francisco, no inter-national Bill of Rights was included in the Charter (Green 1978). Some commentators accept the excuse given that such a document would have taken too long to draft (UN 1983:8–10), others blame the ‘chilling effect of the Cold War’ (Lester and Grosz 1985). Whatever the reason, the omission had to be rectified and over the years texts have multiplied. Inside the framework of the Universal Declaration of Human Rights of 1948, two more specific Covenants of Civil and Political Rights and Economic, Social and Cultural Rights were adopted by the General Assembly in 1966. Regional charters, such as the European Convention (1950) or American Convention (1969), and texts covering specific subject-matter such as the Conventions on Torture (1975) or on the Elimination of Racial Discrimination (1965), were also adopted. As new texts are added to the repertoire and old ones improved, NGOs play an active part in the promotion, formulation and drafting. Coalitions of groups working in the same or related fields may be formed to work towards stiffening international standards. These feed into the campaign their specific interests and experience. For example, a new Convention on the ‘Rights of the Child’ was adopted by the UN General Assembly in 1989. Amongst the

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groups working towards this objective, we find Anti-Slavery International (ASI), which in 1985 had prepared for UNICEF reports on children in especially oppressive circumstances of work or sexual slavery. Save the Children Fund (SCF), an organisation normally viewed rather as a casework than a campaigning group, was also very active. Here SCF was following an old tradition; its founder, Eglantine Jebb, had drafted the first children’s charter, promulgated by the League of Nations in 1923, which in turn formed the basis of a 1959 UN Convention. Now SCF was lobbying through an alliance of national groups to raise standards once again (World’s Children, March 1990: 2). Amnesty International, a group whose campaigning image sits a little uneasily with SCF’s staider persona, was working closely with it and a wider umbrella group of NGOs was formed to co-ordinate efforts and maxiinise pressure on the states who would ultimately decide for or against the Convention. Their efforts were crowned by the insertion of a new article 39 dealing with the rehabilitation of child victims of torture or other forms of abuse ((1989) 4 Interights Bull. 501). By working through the UN, a numerically small group may achieve an influence wholly disproportionate to membership and income. At one level this is done through borrowing the authority of the UN to concretise objectives in international standards. At another, it is done by networking to maximise influence and pressure on the international organs. ASI, direct descendant of the British and Foreign Anti-Slavery Society (1839) and the oldest abolitionist group in the world, is the paradigm. Based in London, ASI has only about 1, 700 members in thirteen countries. But it networks with other groups, which greatly improves its policy-making potential. The Bonded Liberation Front, which came into being in India in 1981 to fight debt bondage (whereby agricultural labourers pay off their debts to landlords or moneylenders through labour) is represented on ASI’s committee and was in 1984 included in ASI’s UN delegation on the subject. This in turn links ASI to a wider network, the South Asian Coalition on Abolition of Child Servitude, organised by the Bonded Liberation Front at a gathering in Delhi in 1989 (Whittaker 1990). Again, the Aboriginal Protection Society, with which it merged in 1909, working as the ASI has a central place in a UN network aimed at protecting indigenous peoples. ASI has worked with the Minority Rights Group for Australian Aborigine and Amazonian peoples. It has also been active in promoting a Human Rights Fund for Indigenous People, which enables these groups to speak for themselves at the UN. This is in itself a major contribution. National governments are not anxious to draw attention to oppressed minorities, while ‘comfortable international civil servants...do not like to take on uncomfortable issues for voiceless people’ (Jamal 1990). The experience and ‘insider status’ of groups like the ASI can help to overcome this difficulty. The ASI and its allies have worked hard to promote new standards (Archer 1967). The first international text against slavery was adopted by the League

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of Nations in 1926 and operated until the outbreak of war. In 1956, the UN adopted a wider Convention which made specific reference to indirect forms of slavery such as debt bondage, prostitution and child labour (UN 1983:133– 42). New texts (such as that on the Rights of the Child) may be used to extend and improve on this framework; though groups have to bear in mind the danger of fragmentation, which may weaken the effectiveness of the main UN Covenants (Higgins 1989) The third aspect of NGO activity is to secure enforcement of UN texts. This activity can itself be broken down into distinct aspects. The first stage is to ensure ratification by nations. This is not necessarily easy: in the case of the Convention on Rights of the Child, for example, there are notable abstainers, foremost amongst them the United States of America. US failure to ratify has been attributed to the fact that the Convention makes no mention of abortion while condemning capital punishment under the age of 18 (The Independent, 9 October 1990). Given the attitudes to these issues described in Chapter 2, a substantial campaigning effort at national level would be necessary to secure US accession to the Convention. UN ENFORCEMENT PROCEDURES: A DEAD LETTER? To secure ratification of UN Conventions may be difficult: to secure compliance is more difficult still. No doubt it could be argued that this secondary stage is not the function of the UN, which is entitled to rely on the good faith of the state parties. However this may be, UN enforcement machinery was at first largely absent and UN organs had to rely on positive educational programmes coupled with unfavourable publicity about defaulters. The UN Commission on Human Rights first took the view that it had no power to deal with individual complaints. Nearly thirty years after it had been established, we find the Chairman of the International League for Human Rights expressing disappointment at its inability to deal effectively, indeed at all, with human rights violations… Nongovernmental organisations are frustrated and even harassed in their efforts to redress these violations before the UN. (AR 1973:11) Thus a first step for NGOs was to push hard for new machinery to deal with the many thousands of individual petitions and communications which the UN handles annually (Lillich 1970). To a certain extent they have been successful. Many standing working parties now exist to consider ‘information’ or review ‘developments’, both terms which may be interpreted widely so as to include evidence and complaints of mass violations of human rights. The Working Group on Slavery set up in 1974 which reports to the Sub-Commission on

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Prevention of Discrimination and Protection of Minorities has been described as the ‘almost private creation’ of ASI. ASI has gone on to use the new machinery vigorously to campaign against violations of the anti-slavery texts. It has been present at every session and has ‘almost single-handedly ensured that a sufficient range of issues and accompanying documentation was brought to the attention of the Working Group’ (Zoglin 1986:314–51). This consistency has enhanced ASI’s insider status. In 1984, ASI was invited to accompany an official UN Mission to Mauritania to advise on the eradication of slavery and rehabilitation of ex-slaves in this poverty-stricken territory. Mauritania is a signatory to the UN Convention and had theoretically abolished slavery by decree in 1980, yet in 1990 ASI was claiming 400,000 people in a state of slavery or semi-slavery there (Le Monde, 22 October 1990). There are two main problems with UN complaints procedures. The first is inconsistency; each organ formulates its own procedures which may or may not facilitate access by NGOs. The UN Committee on Human Rights (as we shall see) has relatively formal procedures which have been described as ‘quasijudicial’ in character. The Committee on Elimination of Discrimination against Women, however, has not benefited from these ‘salutary innovations in UN human rights procedures’ (Meron 1991). It has no individual communications nor complaints procedures nor does it appoint rapporteurs to monitor discrimination. The second problem is that of political manoeuvring. This is well illustrated in the so-called ‘Resolution 1503 procedure’ whereby the Sub-Commission on Prevention of Discrimination and Protection of Minorities handles communications relating to violations of human rights and fundamental freedoms. The procedure has been compared by one writer to a class action for an injunction in a national court (Tolley 1984:428) and allows individuals, groups or NGOs to make submissions of grave and consistent violations of human rights. In principle, this procedure, introduced in 1972, should offer a ‘window of opportunity’ to NGOs faced with enforcement problems. But states must consent to the ad hoc investigatory procedures—a general problem with all UN procedures—and can all too easily block complaints by political action. When we add that the proceedings are wholly confidential and held in closed session; that there is no adversarial procedure whereby complainants can appear, gain knowledge of, or answer the state’s reply to the complaint; that no lawyers are required to submit a communication, no legal aid is available and no costs can be claimed; and, incidentally, that no damages can be awarded (Tolley 1984, Farer 1987), it is hard to find a basis for Tolley’s claim. ‘Resolution 1503 procedure’, in short, is administrative and political rather than judicial in character. Machinery in place needs to be used. The third stage of enforcement procedure is to use it. Unfortunately, those groups which have experience of using ‘Resolution 1503 procedure’ have expressed considerable dissatisfaction

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with it. ASI has described it as ‘a blank cheque in the hands of the tyrant and torturer’. It tried the cumbersome procedure unsuccessfully to resolve an intractable case of forced marriage by highly placed persons in the Zanzibar government and, disenchanted, has no intention at present of using it again (Montgomery 1990). AI’s assessment is slightly less unfavourable. It cooperated with the International Commission of Jurists (ICJ) in a general complaint over breaches of human rights in South-West Africa and felt that the complaint did something to toughen UN action (Clark 1981, Farer 1987). Again, in advance of the Working Group’s first meeting in 1972, AI had preferred a complaint over the use of torture during the regime of the Greek junta through Professor Frank Newman as counsel, again in conjunction with the ICJ and other groups. AI had previously avoided the UN as a forum, fearing that American influence favourable to the junta would be too strong (AI 1975:84). It tried ‘Resolution 1503’ after Greece withdrew from the Council of Europe in November 1969 in anticipation of an unfavourable ending to the inter-state case brought by Norway and other countries before the European Commission of Human Rights. After the case, AI commented that it had pushed ‘the available international remedies the furthest yet’ but they remained ‘insufficient’ (AI 1975:89). TOWARDS ADJUDICATION Amnesty International lawyers are on record as saying that the absence of ‘legal’ procedures is not in itself a sufficient explanation for UN ineffectiveness. However, activists are calling for judicially enforceable individual rights to guarantee effective protection (Eisler 1987). In this respect the European and American Conventions, each with a Court able to provide judicial remedies to victims (Gray 1987:149–60), are seen as providing an appropriate model. The UN Human Rights Committee, elected by countries which have ratifled the Civil and Political Covenant, is a step in this direction. Composed of independent experts with legal experience, and operative since 1977, the Committee’s first function is to consider reports from states on the state of human rights in their country. There is provision for groups to participate in this procedure in two rather different ways. First, groups may submit comments on reports from the member states. In 1991, for example, when a British return to the Committee fell due, the government faced attacks on issues including Northern Ireland and immigration policies in Hong Kong. The Howard League, Charter 88 and Article 19 (a group which campaigns against censorship) all submitted evidence. The second way into the Committee is for groups to present a ‘communication’ on behalf of victims of human rights abuses. If they try to do this, however, their credentials may be closely scrutinised. NGOs may also be able to influence the Committee indirectly by

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briefing members, who can then use their reports as a basis for questions (Forsythe 1985:262). In respect of states which have signed the Optional Protocol—and Britain incidentally has not—there is a second procedure available. This allows the Human Rights Committee to consider individual complaints of violations, an innovation generally seen as a sharp move to the quasi-judicial. The procedure resembles that of the earlier European Convention in requiring communications to come from applicants who are ‘victims’ of the alleged violation or from their lawyers. Additional requirements are that complainants must have exhausted all domestic remedies and that the complaint must not be the subject of other international investigatory procedure. AN AGE OF LAWSPEAK? It has been suggested that demand for better enforcement procedures goes hand-in-hand with a new campaigning style which Weissbrodt (1977) has described as both more aggressive and more legalistic. The evolution of AI could be seen as illustrative. Essentially a lay organisation whose central role is that of ‘watchdog’, collecting and analysing information about alleged violations and initiating action to help specific victims, AI is today becoming more law-oriented. In principle, it avoids litigation in domestic courts, partly because its sections, the natural agents for such activities, are not permitted to take up cases against their national governments. But the inter-state case brought against Greece in 1969 before the European Commission of Human Rights alleging torture (The ‘Greek Case’) was based partly on an AI report (AI 1975) and, in addition to utilising ‘Resolution 1503 procedure’, AI has submitted amicus briefs to the Inter-American Commission on Human Rights. AI’s legal advisor, Nigel Rodley, told us that ‘if there were an international court before which NGOs could have locus standi we wouldn’t hesitate to use it’ (letter, 1988). Public interest law firms are also springing up in the international field (Tolley 1990). Interights, founded in 1982, works from London with an international advisory council and funding from the Ford, Nuffield and European Human Rights Foundations. It has charitable status which its lawyers interpret strictly as debarring it from lobbying. Interights describes itself as ‘the only law centre concerned exclusively with the practical application of international and comparative human rights law in national, regional, and international courts and tribunals’. Its small staff of expert lawyers offers advice to lawyers and civil liberties organisations involved in human rights cases. It also publishes a quarterly bulletin of human rights law. Interights has already established itself to the point that clients are referred to it both by UN organisations and by the European Commission’s legal department at Strasbourg. But Interights hopes to be more than merely

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reactive. It has the ambitious aim of developing a truly inter-national test-case strategy in which the decision to adopt a particular case will be influenced primarily by the likely effect that the final judgment will have on a line of case law, that is its precedential nature, and in making this judgment attention will be paid to the existence of cases that are ventilating or have ventilated similar issues in the particular system, whether or not they were against the same state. Account will also be taken of the likely impact of the decision on other human rights systems. (Interights publicity leaflet 1982) We shall see that this ambition is already being fulfilled. Interights is not alone in the field. The American Center for Constitutional Law handles international law cases and the International League for Human Rights set up a Lawyers’ Committee in 1976 in New York, one objective of which was to work on the development of a ‘class action’ in the field of international human rights. This American-based Committee also operates transnationally to provide legal advice and assistance to individuals fighting human rights cases (Wiseberg and Scoble 1977:290, 308–9). The International Human Rights Law Group, founded in 1978 with Ford and Rockefeller funding, is also a ‘legal resource centre’ and has published a Guide to International Human Rights Practice (Hannum 1984). The International Commission of Jurists (ICJ) stands at the centre of a different sort of network. It has regular dealings with its national branches, which co-operate and hold joint meetings with both centre and periphery. JUSTICE, the British branch of the International Commission of Jurists, has a monitoring group to deal with British reports to the UN Committee on Human Rights and regularly meets the French and American sections to discuss common problems (AR 1989, 1990). Director Leah Levin sees the task as essential: What we are doing ought to be replicated by all the national ICJ sections the world over…international law is quite useless if it isn’t applied at a national level. To get the agreement of a whole cross-section of countries to certain norms is what we want—to start with …But these norms have to be applied at a national level and their application must be monitored by competent organisations. (Quoted in Grosskurth 1989:27) There is a spurt of enthusiasm for international pressure through law and networks are springing up in response.

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CAMPAIGNING AGAINST THE DEATH PENALTY The potential for such activity can be illustrated by a case-study of a recent campaign against the death penalty orchestrated by Interights. Although specific to the Caribbean islands, this must be read in the wider context of a world-wide campaign against capital punishment. AI, which is at the centre of this campaign, adopted abolition as an objective in 1961 and has been working towards it ever since. AI first circulated a draft resolution at the UN in 1965 and its legal and research departments produced a world-wide report on the death penalty in 1979. Today AI is actively supporting national groups, like the American NAACP/LDF (see pp. 107–8). In 1986, AI handled a complaint in the Inter-American Commission on Human Rights on behalf of Roach, a minor awaiting execution in the US (AR1986:200) to which the Commission responded with a ruling that execution of minors was contrary to the InterAmerican Declaration and that the ‘emerging norm’ internationally was now 18 years. In February 1988, Amnesty published a special report on the death penalty in America (AI 1988). Finally, an amicus brief from AI was used to good effect in the European Court of Human Rights when the United Kingdom was asked to extradite a German citizen wanted on a capital charge of murder to the United States for trial. The Virginian authorities refused to give the customary undertaking that the death penalty would not be exacted, and the applicant appealed under article 3 (cruel and inhuman punishment) and article 6 (fair trial) of the European Convention. In expedited proceedings—for its own delays are notorious—the Court ruled that a protracted period on ‘Death Row’ could amount to a breach of article 3 (Soering v. UK (1989)). This case illustrates the force of international pressure through law very vividly. The media made great play with the spectacle of the famed US legal system in the dock and the US government plainly found the affair embarrassing. To understand the tactics used by Interights in the Caribbean death penalty cases, it is necessary to understand the peculiar appellate status of the Judicial Committee of the Privy Council based in London and composed of British law lords. The Privy Council, once the final court of appeal from British colonial and Commonwealth countries, today retains a residual jurisdiction from a few. This poses obvious problems for appellants as well as judges. In the words of a practitioner who has conducted some of the appeals: Their Lordships’ (understandable) ignorance of local conditions and attitudes, and their (unjustifiable) reluctance to apply inter-national standards…load the dice of constitutional adjudication heavily in favour of validating the legislative or executive decisions which are impugned by the appellant. (Pannick 1982:224)

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It is not altogether surprising to find, then, that cases on appeal to the Privy Council from the Caribbean islands on behalf of prisoners awaiting execution under local laws authorising capital punishment tend to fail.1 Both the Universal Declaration and the UN Covenant on Civil and Political Rights prohibit ‘cruel, inhuman or degrading treatment or punishment’ but do not specifically forbid capital punishment, although in 1977 the UN General Assembly adopted a text requiring states to move gradually towards abolition (GA res. 32/61, 8 December 1977). Asked to advise in some of the Caribbean cases, Interights felt that this difficulty could be overcome. Interights had been involved in a case in which the Inter-American Commission had ruled that long periods spent awaiting execution could amount to ‘cruel, inhuman and degrading treatment’, a ruling which had secured a reprieve in one case (Hulton 1987:34). As some of the Caribbean cases involved similar facts, lawyers now tried for similar rulings. The first communications were not very successful, being ruled inadmissible on the ground of failure to exhaust domestic remedies (C, G and Others v. Jamaica (1989); 4 Interights Bull. 54–5). Interights’ response to failure was to set up a workshop to educate the lawyers involved on how to make the best use of Committee proceedings. The workshop, which was attended by senior lawyers from the Caribbean, was also addressed by Dr Chambers of the NAACP/LDF who described the test-case strategy in the US Supreme Court ((1989) 4 Interights Bull. 17). New cases now went forward in which the prisoners had duly appealed to the Privy Council only to see their appeals rejected. The tactic was justified when the UN Committee ruled that absence of representation in capital cases did not measure up to the procedural guarantee afforded by article 13 of the Covenant on Civil and Political Rights. The Committee also took the opportunity to indicate its attitude to long delays pending appeal, ruling that delay does not in itself amount to inhuman treatment but warning that ‘accused persons are entitled to trial and appeal without undue delay’ (Robinson; Pratt and Morgan; (1989) 4 Interights Bull. 6). As usual, this was not the end of the struggle. The jamaican government had conceded a stay of sentence but the Governor-General, in whom the prerogative of mercy has been vested since independence, refused to commute the sentence and, despite the direct intervention of the UN Secretariat, some executions went ahead. Pratt and Morgan were not among those executed and the alliance of British lawyers who represent them has referred the case back to the Jamaican High Court. The long journey to the Privy Council is once again under way (The Guardian, 5 June 1991). The death penalty cases show how expert organisations may be able to spot new ‘windows of opportunity’, devise new strategies, co-ordinate campaigns, tighten arguments, and so increase campaigners’ chances of success. Skilful networking between sympathetic agencies can heighten the effect. The cases

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show too how strategic forum shopping in international forums can help in outflanking adverse decisions in national courts. NATIONAL COURTS AND INTERNATIONAL NORMS For both Lillich (1984:239) and Cassese (1979:76) the logical step forward in the enforcement of human rights law is through national tribunals, and the existence of groups able to offer skilled advice in this specialist field is enabling this step to be taken. Before turning to specific cases, however, it is important to understand how a national court can be persuaded to implement international law norms. The first way forward is to argue that the rules of domestic law have been modified by the provisions of an international treaty or convention. This is easier in some countries than in others. Some legal systems make provision for the status of treaties. In France, for example, article 55 of the Constitution provides for the incorporation of treaties into the body of domestic law as a superior norm. Article VI of the US Constitution contains a similar provision to the effect that treaties made under the authority of the United States form part of the supreme law of the land. Yet when treaty provisions seem to conflict with domestic law these simple rules are not necessarily all-embracing. French courts, for example, have gone to extraordinary lengths to avoid admitting the paramountcy of the European Convention and Treaty of Rome (Cohen 1991). British courts have ruled on many occasions that treaties do not automatically form part of domestic law but need to be expressly incorporated by Act of Parliament at least in so far as they affect the rights of British subjects. This explains the different positions of European Community law and the European Convention on Human Rights in British law. The former is expressly incorporated by the European Communities Act 1972 and the case law of the European Court of Justice is binding on British courts. The second has never been incorporated, despite vigorous lobbying. The precedents of the European Court of Human Rights are not binding and British judges have repeatedly refused to incorporate the Convention through their case law. Arguments which may be of use in marginal cases are that statute law has to be interpreted so far as possible to accord with our international obligations or that gaps and ambiguities may be filled by having regard to the Convention. It was the failure of Sir Robert Megarry to accept this in Malone v. Metropolitan Police Commissioner (1979) which led to Malone’s case being referred to the European Court of Human Rights. Only when this case was lost (see p. 261) did the government pass the requisite legislation. Customary rules of international law do in principle form part of the body of both English and American law and thus may be capable of filling the gap left by failure to incorporate or ratify a treaty. International conventions frequently cover the same ground as customary international law so that it,

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rather than unratified treaties, can be relied on in national courts. For example, the Hague Conventions are generally admitted to codify the customary laws of war and, to avoid doubt, contain the so-called ‘Martens’ Clause’ which abjures the contracting parties to amplify the Conventions by reference to ‘the rule of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity and the dictates of the public conscience’ (Hague Convention IV, 1907). In Britain however such principles cannot be used to impugn the validity of a national statute (Mortensen v. Peters (1906)), though once again EC law is a special case, being directly incorporated by the 1972 Act (Gravells 1989). Again, Lillich (1984) refers to the notable unwillingness of the United States to ratify international human rights conventions, which makes it difficult to invoke international tribunals and procedures against them. But failure to ratify creates a ‘Catch 22’situation, making it difficult to argue in an American court that treaty provisions which have not been incorporated do form part of domestic law. ‘Judges proud of American constitutional guarantees have been reluctant to find defects in the national order thatshould be remedied by “superior” international standards’ (Tolley 1990:635). The discussion has so far proceeded as if the presentation of arguments based on international law to domestic courts occurred solely in the context of enforcement. The reader must bear in mind, however, the concepts of ‘success’ and ‘good fit’ introduced in Chapter 4. Success as defined narrowly in lawyers’ terms, we showed, was by no means the sole objective for campaigning groups. Even the most ‘respectable’ groups, whose cases formed a good fit with the legal system, were seen to have ancillary motives. Moreover, not all groups were in this sense ‘respectable’ and the means which they were prepared to employ in preparing and fighting cases were not necessarily chosen to increase the chances of success. Similar considerations apply in the field of international law. Let us first look briefly at a case fought by ASI, a group which, in sharp contrast to its ally the Bonded Liberation Front which has been at the forefront of public interest cases in the Indian Supreme Court (Whittaker 1990:58; Baxi 1985), has shown little interest in litigation. On one occasion ASI presented a communication to the Sub-Commission on Minorities alleging that certain highly placed UN officials were themselves conniving at ‘household slavery’ in their own homes. When this allegation proved correct, the officials were successfully prosecuted in the US courts (Joyce 1978:205–6). Given ASI’s remarks about the apathetic attitude of UN personnel, the main objectives here were educative as well as deterrent. In addition, the case was successful in generating friendly publicity for ASI’s work. A rather different case was that sponsored by the American Center for Constitutional Rights, a public interest law firm ‘dedicated to advancing and protecting the rights guaranteed by the US constitution and the Universal Declaration of Human Rights’. Although this case was fought in the name of

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an individual who did ultimately secure redress, it has to be read in the context of deep unease amongst a section of the American public over their government’s Latin-American policies and attitude to breaches there of human rights. Dr Filartiga, the plaintiff in the case, was a Paraguayan doctor working in the radical ‘Clinic of Hope’. During his absence on a fundraising tour in the US, a Paraguayan police officer unlawfully arrested, tortured and murdered Filartiga’s son. Filartiga first had recourse to the courts of Paraguay but without success. His opportunity arose when his enemy was ‘retired’ from the Paraguayan police and unexpectedly came to the US. Deportation proceedings were immediately commenced against him and these gave the Center its chance to intervene in the proceedings by the technical device of opening a civil claim for damages in terms of the Alien Torts Act 1876 (which gives US courts extraterritorial jurisdiction in certain civil cases). Good networking meant that a variety of amicus briefs came in from international NGOs. Their evidence had the ripple effect of inducing the Paraguayan Supreme Court to reverse the ruling barring Filartiga’s private prosecution (though after the unwelcome publicity had faded, the reinstated criminal proceedings were struck out). In the US, an appeal court upheld a right to damages, applying the general principles of international law, and a substantial award of $293,000 was made (Filartiga v. Pena-Irala (1980), Claude (1983)). An important legal precedent stands as a warning to the US government that its dealings with Latin-America do not go unscrutinised. PRESSURE FOR PEACE The most sustained attempts to introduce international law arguments to English courts come from the Peace Movement. The Peace Pledge Union (PPU), founded in 1934 by the Revd Dick Sheppard, was discussing the possibility of a ‘war tax resistance’ campaign by 1937. PPU’s interest stemmed from prosecution of members for failure to pay income tax and Sheppard wished to establish a general defence of conscientious objection. Though the defence was tried by individuals, the idea of ‘tackling the Income Tax question on a grand scale’ lapsed with Sheppard’s untimely death in the same year (The Pacifist, July 1988:4). After the Second World War, however, the question was brought onto the agenda by the Quakers, again contesting income tax assessments. By now the argument had changed slightly and was based on the Geneva Conventions. As modified in 1977, these prohibit weaponry which may either cause superfluous injury and unnecessary suffering or widespread and severe environmental damage. The 1949 Conventions have been ratified and incorporated by statute in 1957 but the 1977 Protocol has not yet been ratified by Britain, which specifically reserved its position on nuclear weapons. In Cheney v. Conn (1968), a Quaker assessed for income tax put up the defence that the assessment was illegal because a portion would be used for

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armament—an unlawful purpose. Not surprisingly, the defence failed on the ground that the words of the Finance Act were unambiguous. Some years later, the Quakers tried to move the argument on to new ground, bringing in the Genocide Convention and Genocide Act 1969. Their case was lost in the Court of Appeal where, on the same day, a similar case based on an alleged violation of a fundamental civil right to protest was also lost (Langran v. Hayter, Surendan v. Hibbs (1985)). In parallel actions Quakers filed applications in the European Commission of Human Rights under Article 9 of the European Convention (freedom of conscience). The Commission too was unresponsive, holding the applications inadmissible (Cv. United Kingdom (1983), Hibbs and Birmingham v. United Kingdom, (1986)). About the same time the Peace Pledge Union was running a similar campaign. In 1982, after some reluctance, Council had finally resolved to contest PPU’s liability to pay tax on behalf of its employees (The Pacifist, March 1983:14). This, the longest running tax resistance case, gained the PPU substantial publicity but was eventually lost in Bloomsbury County Court (The Guardian, 26 May 1988). Meanwhile Lawyers for Nuclear Disarmament, seeking to keep the matter on the political agenda, adopted a classic tactic which we have met in the practice of the NCCL. Pamphlets rehearsing the case against nuclear weaponry (1982) and the arguments for withholding taxes (1986) were published. The group now organised a ‘Nuclear Warfare Tribunal’, presided over by Sean MacBride, a distinguished Irish lawyer, and scientist Dorothy Hodgkin (Grief 1989:543). Unsurprisingly, this tribunal held all nuclear strategies illegal as contrary to the Genocide Convention—and stressed the personal responsibility of individuals as established at the Nuremburg Trials—a serious intellectual piece of political theatre. A more strictly legal effort at political theatre was staged in the District Court of Manhattan by Greenham Women Against Cruise Missiles with the help of the Center for Constitutional Rights. The group was requesting an injunction against President Reagan to prevent the deployment of Cruise missiles in Europe. The international cast included two American senators and 100 peace groups, who sponsored the action and filed amicus briefs, as did peace groups from Europe, including CND. The court struck out the pleadings at a preliminary stage without hearing the copious evidence, a decision which came as ‘a blow but not altogether as a surprise’ to the organisers. But success in court had never been the main aim; the case was designed as a publicity stunt and a candlelit vigil outside the Manhattan court provided a focus for ‘non-violent direct action’ throughout the world. Viewed in this light, the case can perhaps be seen as the success which the organisers claim for it (Center for Constitutional Rights 1984, Hickman 1986). The term ‘political theatre’ may suggest that the authors see this type of case as lying outside or on the very edge of our subject of pressure through law. It may be hard for lawyers to accept the cases as a genuine attempt at litigation,

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but we are inclined to give the Peace Movement the benefit of the doubt. Their problem lies with their subject matter. The waging of war and defence policy is generally acknowledged as an executive responsibility and is thus a classic ‘no-go’ area for judges—a ‘bad fit’ with legal process.2 We should not deduce that litigation strategies which transcend national boundaries and seek to utilise norms of international law cannot succeed. Such campaigns are only in their infancy and at the end of this chapter we shall suggest some ways in which pressure groups are likely to move on to firmer ground. 2 THE EUROPEAN CONVENTION ON HUMAN RIGHTS The European Commission and Court of Human Rights, organs of the Council of Europe based at Strasbourg, exemplify the judicialised machinery for human rights protection for which campaigners have been working. The United Kingdom ratified the European Convention in 1952. Not until 1965 did it concede an individual right of petition to the Court. Once it had done so, the way was open for test-case strategy. It is common knowledge that the UK has been taken before the Commission and Court more often than any other signatory (Liberty 1991:113). Up to the end of 1988, there had been a total of 3,119 individual applications against the UK plus two inter-state complaints from Greece (in respect of Cyprus) and Ireland (in respect of detention during the protracted ‘troubles’), of which fiftytwo reached the Court. Thirty-eight violations involving the UK had been found in the Committee of Ministers, 21 in the Court (the nearest competitors being Austria with 5 and 11 respectively, Belgium with 4 and 12 and Italy with 4 and 10). The picture is recorded more fully in Table 6.1. Table 6.1 shows how applications have rapidly increased in recent years. A common explanation for Britain’s dismal record is the absence of a Bill of Rights and constitutional court, together with failure to incorporate the Convention into domestic law (Lester 1984, 1985). This is, however, an unsophisticated explanation. First, it makes no attempt to compare the position of other Council of Europe countries. In 1969 Greece left for a period of years after the Torture ruling; Turkey endorsed the right of individual petition only in 1988, and France, with two violations, in 1982. Luxembourg or Denmark, which have never been ruled to be in default, have much smaller populations. A more sinister explanation might be that petitions are correspondingly harder to bring in countries with a poor record on human rights. Perhaps we should also bear in mind that many of the applications against the UK originate in the civil war and emergency procedures in Northern Ireland, a situation which— although we do not seek to minimise or excuse it—is not paralleled in neighbouring European countries. After the Ireland interstate case, for example, some 300 individual applications were received from N.Ireland.

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Table 6.1 Number of applications to Commission and Court

Source: European Commission of Human Rights. The period corresponds with fieldwork recorded in Table 6.2.

Finally, more compelling and positive explanatory factors are to be found in the existence in the UK of a long tradition of political litigation; a comprehensive system of legal aid; and well-established pressure groups willing to use the new weapon. In a sense, therefore, the number of ECHR applications ought to appear on the credit as well as on the debit side of Britain’s human rights record. We know that groups began to use the Convention machinery soon after ratification of the individual right of petition; the first application to be declared admissible, Alam and Khan (1966) was a pressure group case supported by the Joint Council for the Welfare of Immigrants (JCWI). However, no accurate statistical profile of group involvement comparable to American data is possible. The Commission is not always aware of group involvement and the official reports do not usually record it as we can see from the case of Campbell and Fell v. United Kingdom (1984). This, a leading case on access to legal advice in British prisons, was referred to Interights by Commission lawyers at a late stage when the applicants were seeking to change their lawyers, and Interights helped to negotiate a friendly settlement, a fact not recorded in the official report. And—a slightly different point—is Interights a pressure group or a public interest law firm, acting here as legal representative? Again, the involvement may be tangential, as with X v. UK (1980), filed by a prisoner who described himself as chairman of the ‘League for Human Rights Observance’ and who complained of restrictions on his correspondence with the chairman of ‘Citizens’ Commission on Human Rights’, a group sponsored by the Church of Scientology. Whether the contribution of these groups was more than nominal is a matter for speculation. A further complication is that some applications concern clusters of cases, some of which may involve pressure groups, others not. For example, in 1968/ 9, a group of applications known collectively as ‘the Northern Ireland Civil

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Rights Cases’ was lodged. Of these, the first six were lodged by individuals; six more were added by the N.I.Civil Rights Association, all being legally aided. Bernadette Devlin, MP, then added one more in respect of decisions taken to prosecute her on charges of riot (European Commission of Human Rights 1984:244–8). Untangling puzzles of this sort is wellnigh impossible. There is little continuity in the personnel of pressure groups. The groups do not keep accurate records, cannot always remember whether they were involved or, if they were running a test-case strategy, how many applications they made. The Society of Teachers Opposed to Physical Punishment (STOPP), whose excellent records were made available to us, is still unsure, for example, how many corporal punishment complaints it has backed and two of its officers differ as to whether Campbell and Cosans (see pp. 262–3) was a STOPP case or merely run by an individual member of STOPP—and are these two positions really different? Groups may sometimes confuse telephone inquiries or informal conversations with legal advisers or other groups with more sustained participation. Sometimes they wish to lay claim to a successful case, sometimes they may prefer to hide their involvement, sometimes they are just unaware of it. We can however state that, of the first twenty-three cases decided by the Court between 1975 and 1988 and reported in Series A of the official Reports, sixteen have direct pressure-group involvement. Seven cases were, so far as we can tell, ‘individual’.The interstate applications and the eight secondary cases which deal with ‘just satisfaction’ after a Court ruling are not included in these figures. Table 6.2 lists those UK cases traced to groups. It by no means represents the sum of pressure group involvement with the ECHR because many of the most important cases went only as far as the Commission and so are not included. Harman v. UK (1982), discussed at length in Chapter 4, is an obvious example, as is Stewart, fought by the NCCL and discussed later (see below). What Table 6.2 shows clearly, however, is the extent to which certain groups are beginning to dominate Court hearings and are becoming ‘repeat players’.

THE NCCL: A REPEAT PLAYER As Table 6.2 shows, the NCCL is the most experienced repeat player among the British pressure groups. Yet NCCL cases are not aptly described as a ‘strategy’. Faithful to its pre-war practice, the NCCL is reactive rather than proactive, selecting from amongst the many inquiries a handful of promising cases in which it will act. The NCCL is not a public interest law firm; its tiny legal department with two qualified solicitors is insufficient to handle a volume of cases, though it does give telephone advice and maintains a list of specialist solicitors for referrals. NCCL lawyers do not generally search out

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Table 6.2 Pressure groups in the European Court of Human Rights

Notes: Table 6.2 records all cases against the UK decided by the Court up to and including December 1988, the period when our interviews were conducted. S=Sponsorship—active support including representation and not merely help with funding. I=Intervention—a plus sign means that permission to intervene was granted, a minus sign the reverse. * Denotes a secondary application under article 50 for costs and/or compensation. † Campbell and Cosans brought by a STOPP member not sponsored by STOPP. ‡ In Dudgeon, the NCCLgave ‘moral support’. 1 During the same period the following applications were made in which the authors found no trace of pressure group involvement: Handyside; The Sunday Times; James; Lithgow and Otherr, Reer, Agosi; Gillaw. 2 For cases since December 1988, see Liberty 1991:110–11. Those discussed in the text are Soering (1989), Thynne, Wilson and Gunnell (1989), Times Newspapers and Others (Spycatcher) (1991). Amnesty Intemational intervened in Somng, Thynne is a Justice/ NCCL case; Article 19 intervened in Spycatcher.

cases nor flood the Commission with multiple applications and seem wary of breaching the profession’s rules against ‘touting’ or ‘poaching’ clients. They do, however, mention fact situations which they would like to test to friendly practitioners (i/v Paul Hunt 1988) and have occasionally gone further: Cohen

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and Staunton, previous legal officers, assert that NCCL advertised in the gay press for a case of dismissal on the ground of homosexuality, though whether one was forthcoming is not stated (Cohen and Staunton 1986:296). Some testcases arrive at the NCCL because of its known expertise in a given area or because a current campaign has been widely publicised. Others are taken because the victim seems unlikely easily to find legal advice elsewhere; early sexual harassment cases taken by the Women’s Rights Unit fall into this category.3 One case more than any other illustrates potential weaknesses in this reactive stance. The Stewart case was brought to challenge the use of plastic bullets for crowd control in Northern Ireland, a practice against which the NCCL and other organisations had been campaigning since 1975. When Brian Stewart was killed by a plastic bullet in Belfast in 1976, the case was referred by his mother to the NCCL after it had failed in the Northern Ireland courts. NCCL saw the chance to use it as the central feature of a new political campaign and represented Mrs Stewart before the Commission. But when the case was dismissed by the Commission as ‘manifestly ill-founded’ (Stewart v. UK (1982)) the unfavourable publicity was extremely damaging. Cohen and Staunton, both involved in the case, comforted themselves by arguing that the decision was ‘very specific’ and that it ‘attracted wide publicity and concern’ (Cohen and Staunton 1986:299). But Gostin, then General Secretary, realised that chief constables would treat the decision as ‘the human rights stamp of approval’—as the Police Federation indeed did, relying on it to demand plastic bullets for all police forces.4 This was one case where the risk of losing was so great that it ought perhaps never to have been fought. It highlights a grave problem for groups in the lawyer/client relationship. If a group declines to act, the case may go forward anyway and may be less well presented and argued; if against its better instincts the group acts and loses, the law will take a step backward and its own reputation be damaged in the eyes of its supporters. Partly because of the way in which they are selected, cases have ranged widely over the field of civil liberties (a point which we made in discussing the work of NCCL’s sister organisation, the ACLU). This would emerge more clearly if Commission as well as Court cases were itemised. In the 1970s, the NCCL took an active part in a series of cases brought on behalf of prisoners, an interest which surfaced again in the late 1980s (Grosz and Hulton 1986:139– 142). Other interesting NCCL cases centre around government secrecy. Hewitt and Harman (1986) was brought when it was revealed that the two NCCL officers had been listed as subversive and that their telephones had been tapped. This case has been claimed as the reason for a new tribunal established by the Security Service Act 1989 to hear complaints. If so, the remedy did not satisfy the NCCL whose legal officer tartly observed that, since citizens would not know because of new Offlcial Secrets legislation that they had been targeted, they would be ‘no better off than before’ (The Guardian, 18 December 1989).This case ties in with the later Brogan case (1988), also

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fought by NCCL, where the UK’s anti-terrorist laws were found to breach the Convention. Once again, the result was not quite what had been hoped for. The British government promptly lodged a derogation from article 15, leaving the offending pro visions in place (Finnie 1991). Those who, like Karen O’Connor, the American political scientist, believe that targeting, or ‘sharp issue focus’ as she prefers to call it, is essential for a successful litigation stragegy would no doubt criticise NCCL for ‘scatter effect’. A more coherent policy could doubtless be achieved but, the NCCL might argue, at a cost. Unlike STOPP (see p. 262) the NCCL is not a single issue group, and for an organisation devoted to the general maintenance of civil liberties to concentrate on too narrow a range might weaken it and lower its credibility with members. PROCEDURAL PROBLEMS: STANDING, INTERVENTIONS AND AMICUS BRIEFS One reason for our difficulties in tracing sponsoring groups is that the ECHR grants standing only to ‘the victim’ of a violation, a restriction which precludes representative action by groups. As one procedural expert has put it, groups will have ‘difficulty in demonstrating an adequate interest in the subject matter of proceedings merely by virtue of their special concern for observance of the particular convention right in issue’. They will need to find as a mouthpiece ‘a standard-bearer…willing to bring an application before the Commission and to stay the course’ (Mahoney 1983:153). This opens the group to the difficulties of ‘buying off, especially at the ‘friendly settlement’ stage. This narrow reading of the Convention has been challenged. The Federation of Heathrow Anti-Noise Groups (FHANG) filed a complaint as part of its campaign to prevent new terminals and extensions of night flying, claiming to act as representative of those affected. Their attempt to introduce the Commission to representative proceedings was ruled inadmissible at an early stage although the group was able to carry on in the name of an individual householder. The Commission subsequently supervised a friendly settlement which included purchase of B’s house under a new statutory scheme for the purchase of noise-blighted properties (a general remedy to a particular action) together widi an ex gratia payment of £24,000 (Baggs v. UK (1981)). Change of government to one more sympathetic to private property owners probably prompted the change of heart. It is article 28(b) which imposes on the Commission a duty to try for a ‘friendly settlement’, which must satisfy the Commission as well as the parties. Technically, the Commission’s findings are not binding though unfavourable Commission rulings tend to be seen as ‘the writing on the wall’ by government and often secure redress (Symmons 1981:401). Only if the conciliation procedure breaks down can the case go to the Court and even then

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this is not inevitable: Article 31 obliges the Commission to draw up and submit a report to the Committee of Ministers which decides on the evidence of the report whether there has been a violation and, if so, what measures are appropriate. The Committee’s rules of procedure do not pretend to be legal in character and political considerations often dictate its decisions. If the applicant requests that the case be referred to the Court under Article 48, it is the Commission and not the applicant which will present it. Until recendy the applicant lost control of his case at this stage. In Lawless v. Ireland (1960), where the procedure was challenged, the Court ruled that it must ‘have knowledge of and, if need be, take into consideration, the Applicant’s point of view’, but that this requirement would be fulfilled through the Commission’s report. This handicap could occasionally be overcome informally by the Commission taking onto its team the applicant’s lawyer, as happened in one of MIND’s early cases where Larry Gostin’s name is to be found among the Commission’s delegates (X v. UK (1981)). In Dudgeon (1983) the Northern Ireland Gay Rights Association was permitted to appear as sponsor. But there was still no official amicus procedure. In the early Tyrer case (1978), for example, an NCCL case in which Tyrer withdrew both his application and his instructions to the NCCL before the Court stage, it was the Commission which decided to go forward. Although the NCCL offered to present Tyrer’s original argument in any way acceptable to the Court it was refused permission. Later the Court began to allow third party representations and in 1983 promulgated new rules. These provide for the complainant to be notified of and take part in Court proceedings. He may appear orally or through a written submission and must normally be legally represented, legal aid being available where necessary. A further change, more useful to groups, permits the Court ‘in the interests of justice’ to hear ‘as a witness or expert or in any other capacity any person whose evidence or statements seem likely to assist in the carrying out of its task’. The Court may also solicit written comments (Mahoney 1983). Groups have already made good use of the Court’s new discretionary powers. Of nine requests, five have been granted, three in UK cases. MIND intervened in the Ashingdane case (1985) which it also sponsored, with information on conditions in UK mental hospitals and on patients’ rights to litigate in other ECHR countries. In Monnell and Morris (1987) JUSTICE intervened to correct an error in the UK government’s testimony, prompting a formal rectification by the government. In Malone v. UK (1984), concerning the legality of telephone-tapping, the British Post Office Engineering Union, probably the only body with access to information capable of rebutting the government case, requested permission, on the ground of its ‘specific occupational interest’, to comment and was granted leave on terms. With the help of JUSTICE and Interights it submitted written comments on the practice of ‘metering’ (recording details of users’ calls). This brief was influential in

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persuading the Court that the Commission’s findings had been wrong (Lester 1988:345). More recent cases include AI’s brief in Soering v. United Kingdom (1989); a comparative brief on freedom of conscience submitted by Interights in Lingens v. Austria (1986), a case which elicited concern because of its implications for the public service throughout Europe; and the ‘Spycatcher’ case (Times Newspapers Ltd. and Others v. UK (1991)) in which Article 19 submitted a detailed comparative law brief on press censorship (i/v Sandra Coliver). Thus the practice can safely be called a growing one. The relatively relaxed attitude to interventions extends to evidence. Both Commission and Court admit material which would not be acceptable to English courts. These include formal sources, such as parliamentary debates (which English judges will not admit in evidence) and informal sources such as press comment, political speeches and TV interviews (Grosz and Hulton 1986:146, 154). Unlike a common law judge, the investigatorial Commission may also gather its own evidence, as it did in the MIND cases by visiting Broadmoor. Both Commission and Court will address policy issues openly. Thus we can tentatively conclude that the Court’s procedures are evolving in a direction likely to be beneficial to groups wishing to use the ECHR procedures. The hotly political case of Young, James and Webster v. UK (1981) recalls American inter-group conflict. NAF, which campaigns relentlessly against the ‘closed shop’, had been following the course of British Rail’s negotiations with unions since 1970. When Webster refused to join a union and was dismissed by BR in 1976, he joined NAF’s staff; simultaneously NAF announced that it would back an ECHR case. The closed shop fell to be defended at Strasbourg by an approbating Labour government, in power at the date of registration; by the time the case reached the Court, however, the new Conservative government was half-hearted in its defence of a situation which it had under review already.5 The Trades Union Congress, anxious that the union interest would not be properly represented, successfully requested permission to appear through Lord Wedderburn, their legal adviser—in the teeth of vigorous protests from the applicants’ legal advisers. Although it won, NAF (and perhaps the British government) did not get all that it wanted in that the Court declined to rule on the existence of a general right not to join a union, limiting itself to the specific dismissals. Its ruling in favour of the applicants was implemented by a payment of £146,000, of which £65,000 represented costs. Blaming Lord Wedderburn for wasting the Court’s time, NAF argued that this left Webster ‘worse off than any of the 400 other closed shop victims for whom he won the battle’ and launched a public appeal to make up the balance (Free Nation, November 1982). In the meantime, a more than willing government had legislated to restrict closed shop agreements in the Employment Act 1982, which also set aside £2 million for compensation of dismissed workers (McNulty 1986:46).

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Grosz and Hulton, both experienced practitioners, describe the ECHR institutions as amenable to test-case strategies (Grosz and Hulton 1986: 154). MIND was early in the field. MIND decided to submit a group of applications (ultimately joined as X v. UK and decided by the Court in 1981) in an effort to prevent the British government from ‘buying off a single applicant with a friendly setdement, thus precluding more fundamental reforms (Gostin 1975, 1984). In the event, the cases did result in legislative reform, though one (A v. UK (1974)) was settled by an ex gratia payment. The decision to litigate was not without cost to the group. In support of his policy, Gostin argues that the campaign was instrumental in transforming an old-fashioned, professional organisation ‘steeped in the tradition of service provision’ into a campaigning group; on the debit side, many members, especially from the medical profession, left in protest at a tactic which they thought aggressive (Gostin 1986:429). STOP THE CANE Amongst single-issue groups which have used the ECHR, the Society of Teachers Opposed to Physical Punishment (STOPP) is exceptional. Started in 1968 by teachers fighting physical punishment in schools, STOPP put aside three years as enough to accomplish this. The first corporal punishment case in Europe, Campbell and Cosans, was not begun until 1976. The complainant, a STOPP member, was a secretary at Glasgow University law faculty which enabled her to take the case herself. STOPP’s first paid worker, Tom Scott, was appointed in 1979, with Rowntree Trust funds and was not a lawyer. He first envisaged a casework service combined with a media campaign for legislative or administrative change. But when Campbell and Cosans was ruled admissible in 1980, at least twenty further cases were submitted. STOPP carefully selected cases which featured a variety of extreme situations: for example, the beating of disabled children, infants and teenage girls. The cases were run on a shoestring budget without legal aid and at first without legal advice. As the Commission would not at that time deal directly with groups, the complaints were drafted by Scott using a friendly barrister as an accommodation address. Whether the cases would have stood up is a moot point—the record of injury was defective—but fortunately for STOPP the evidence was never tested (i/v and letters, 1989–90). After the Court had ruled in Campbell and Cosans (1982) that corporal punishment in state schools was a breach of Article 2, protocol 1 (parental right of choice in education), the UK government took the minimum steps necessary to implement the judgment by administrative direction. These were applicable only to parents who refused consent to caning and in Scotland but not England or Wales (Ghandhi 1984). This position was clearly untenable and STOPP fought on. In 1981, the wider argument of one of their cases that corporal punishment breached article 3 (cruel and inhuman punishment) had been held

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admissible (Warwick v. UK (1981)) and the writing was now on the wall for corporal punishment. Only in 1986 did the government recognise this by allowing a Private Member’s amendment to the Education Reform Bill, ending corporal punishmentin state schools. It also settled the outstanding cases with ex gratia payments totalling £51,000. STOPP was wound up by its members in 1988 but this was not the end of the story. Four cases involving private schools remain on the Commission’s books with a strong chance of success. And a new group has been started by Peter Newell, formerly of STOPP; named EPOCH, it is supported by the Children’s Legal Centre and aims this time to end parental physical punishment (The Independent, 21 April 1989). FAMILY RIGHTS A group of cases brought to test British law on access to children in local authority care has also secured legislative reform. Briefly, Parliament and the courts had moved in recent years to a position in child care law whereby the welfare of the child was paramount. The Family Rights Group (FRG) felt that there was a bias in favour of removing children from their families and wanted to shift the emphasis towards better provision for families at risk. (Founded in 1975 with funding from the DHSS as well as the Nuffield and Rowntree Trusts, FRG is a casework and campaigning organisation, but also employs a qualified solicitor in an advisory and professional capacity. FRG occasionally acts for parents, though in family matters legal advice is often available through the legal aid system.) In 1982, the parental access question attracted media attention when the House of Lords ruled that the courts had no jurisdiction to question the merits of access decisions (A v. Liverpool City Council (1982)). This was not an FRG case, although FRG was in contact with the solicitors, but the media coverage persuaded FRG to make it the centrepiece of a campaign for law reform. A further litigation strategy was problematic. Anonymity rules designed to protect children made publicity dangerous (see p. 179) and FRG’s experienced social workers kept settling the best test cases. ECHR proceedings were also considered. Articles 8 (privacy and family life) and 6 (judicial redress) were clearly applicable (Douglas 1988), but the lengthy proceedings were a disincentive. FRG decided to go for legislation with a nicely judged campaign centred around a Private Members’ Bill introduced by Robert Kilroy-Silk (Levin, seminar, 1987). The government responded by providing a right of appeal to a juvenile court when parental access was terminated. This still left many problems: for example, that the Act did not apply where access was merely restricted or that unmarried fathers did not have parental rights in English law. The scene was set for further campaigning. Given this background, it is surprising to find that the group most closely involved in the ECHR parental access decisions is not FRG—though FRG has

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acted for grandparents refused access (letter, Mary Ryan, July 1988, citing Price v. UK (1986)) but Harlow Parents Aid (HPA), a small but enviably efficient ‘single issue group’. When HPA filed an ECHR complaint in 1981 under Article 6, it discovered that, quite independently, four other parents had filed complaints. HPA describes its role as being ‘to take the case to the admissibility stage before the Commission’ (1984) after which local solicitors took over. There were occasional contacts with the other applicants and, when the cases were held admissible and sent on to the Court together, the group met in Strasbourg for the hearing in 1986. The case (O,W,B,R, and H v. UK (1987)) was an important victory for the group, bringing £49,000 compensation plus costs. The authors cannot say how far the Commission decision facilitated passage of the Family Law Reform Act 1987—supported by Families Need Fathers and vigorously opposed by feminist groups—which greatly extended the rights of fathers to custody and access to illegitimate children. What followed next, however, illustrates a point made earlier about the status of international law norms in English law. The 1987 Act left a drafting ambiguity which produced new litigation. Not for the first time, the House of Lords stubbornly refused to integrate the case law of the Court of Human Rights into English law by recognising the decision and affording a judicial remedy. The House ruled once again that only the legislature can implement judgments from the Court of Human Rights (Re M and H (minors) (1988)). For once Parliament responded speedily and the gap was filled by the Childrens Act 1989, which implemented a major review of child care law. Not surprisingly in the circumstances, HPA believes that the ECHR has a rather limited role in changing the law of a country, unless perhaps it is on a simple, narrow issue like judicial birching. Despite these reservations, HPA went on to work on two further ECHR applications (letter, Tony Bennett, April 1989). SNAKES AND LADDERS This attitude on the part of British judges6 makes indirect enforcement of ECHR norms by way of national courts a virtual impossibility and reliance has to be placed on the internal processes of the Council of Europe. These too are far from satisfactory. It falls to the Committee of Ministers to supervise the execution of Court judgments, a function to which it is ill-suited and which may be done in a perfunctory fashion (Higgins 1978:33–9). Not everyone accepts, as the Commission did, the British government’s explanation that it was unable to end judicial birching in the Isle of Man because of the separate legal system (Bonner 1979:585) nor the similar excuse concerning lack of control over the schools system proffered in the corporal punishment cases. And experience of ECHR institutions in immigration cases, in particular the interminable delays which sunder families for years or allow young children to grow to adulthood and marry, rendering rulings wholly academic, has led the

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Runnymede Trust to describe them as affording ‘rights without remedies’ (Palmer 1981). Several ECHR cases have been brought by the Joint Council for the Welfare of Immigrants (JCWI). Perennially overworked and underfunded, the JCWI has no legal department, though it does have access to specialist legal advice through the Immigration Practitioners’ Advisory Group to which clients can be referred. Unlike the semi-official UK Immigrants Advisory Service, whose representation service is government-funded, the JCWI does not attempt to offer a full-scale representation service. It prefers to preserve its autonomy from government, and reserve its limited resources for casework and campaigning, the latter strengthened through its firm base in service provision (Martin 1986). JCWI may also have been discouraged by its experience with the East African Asians case (1981). This demoralising episode concerned complaints submitted on behalf of Asians summarily expelled from former colonies in East Africa and refused entry into the United Kingdom. Held admissible by the Commission in 1973, these were, after failure to reach a settlement, submitted to the Committee of Ministers in 1974. Nothing further happened until late 1977, when the Committee removed the item from its agenda after failing to obtain the requisite two-thirds majority for a resolution expressing satisfaction with UK ameliorative action. The circumstances were such as to arouse suspicion. The Commission had not insisted on a Court hearing with the result that no definitive legal ruling was ever made. In this way, the UK government avoided a finding of discrimination, and the JCWI was disappointed in its hopes of more general legislative change (Drzemczewski 1978). Tacit sympathy of the Committee of Ministers, conscious of similar defects in their own immigration laws, is the probable explanation. JWCI certainly felt that it had been ‘sold down the creek’. In general, JCWI prefers not to litigate itself but to stand behind and support grassroots groups if they seek to litigate. During the 1980s, however, JCWI, whose relations with government departments had previously been good, turned to ligitation as ‘a counsel of despair’ when it felt that its input into departmental policy-making was being frozen out. Its aims were to get the largely discretionary executive powers judicially defined and to secure publicity for specific campaigns to save individuals (i/v Anne Owers 1988). But in their second major ECHR venture JCWI was equally unlucky. The ‘Asian Wives’ case concerned the right of British women to bring their (prospective) husbands into the country and was sponsored by the Immigration Widows Campaign, a grassroots group based at Islington law centre, as part of a strategy challenging the Immigration Rules. As the Rules were under consideration in 1980 the House of Commons had been warned by Professor Francis Jacobs, Lord Scarman and Anthony Lester, QC, that they would violate the Convention. Asked to consult the Law Officers, the Home Secretary had virtually invited legal challenge to the Rules when he replied

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that legality would be ‘a matter for the courts when the time comes to consider it’ (HC Deb., vol. 974, col. 256). Stephen Grosz, who conducted the case for the JCWI, has told us that the applicants had been carefully selected both to represent different discriminatory aspects of immigration control and also to avoid as far as possible the chances of ‘buying off’ (i/v Stephen Grosz 1989). This is a particular problem with immigration cases, where lawyers feel that individuals cannot be asked to sacrifice their chances of entry or reunion for the good of a wider class (Grosz and Hulton 1986:146–7). So JCWI had secondary applications in the pipeline to guard against the first set foundering or producing inade-quate rulings. But there was no ‘friendly settlement’, the case did reach the Court (Abdulaziz, Cabales and Balkandali v. UK (1985)) and, in May 1985, was partly won on the basis of sexual discrimination.7 In parallel with the case, the Immigration Widows Campaign produced a booklet, Trial by Separation, and lobbied fiercely for legal change. The government responded swiftly to the Court’s ruling. Deciding, as it was strictly entitled to do, to level down not up, it introduced new rules reducing men’s rights to bring in wives to the harsher rules for (prospective) husbands challenged by the case. The campaigners had not been blind to the risk they were taking; the Immigration Widows Group had referred to it in one of their publications (Bhabhla et al. 1985:74) and legal advisers had received warnings from Home Office officials. None the less, the response came as a shock to the promoters, who described it as ‘negative, grudging, cynical and opportunist’ (JCWI, AR 1984/5:3). A year later, when it had had time to monitor the new rules, JCWI reported that nothing much had changed; no wives had yet been refused entry though the refusal rate for husbands had risen sharply over the year (AR 1985/6: 4). Nor had there been any dramatic response from the Committee of Ministers in Strasbourg! The two cases show how, in an area like immigration where all member states have reservations over liberal entry rules, and negative publicity over disobedience to Court rulings is likely to receive an apathetic or chauvinistic reaction from the public, government disobedience to Court rulings is rendered easy. NETWORKING AND THE ECHR In evaluating the findings of this section, we would remind the reader that only a minute fraction of the applications filed has been discussed. Table 6.1 confirms the disproportion: of 3,119 applications against the United Kingdom, only 52 reached the Court. Of those that did not we have mentioned a few, but our information is necessarily fragmentary; some might form part of a network of applications which we have not uncovered. We can none the less say that, judged by American standards, group performance in the Court has been desultory and unenterprising. The most successful campaigns in the Court— those of MIND, STOPP and Harlow Parents Aid—have been the work of single-issue groups. This has enabled them to benefit from ‘sharp issue focus’

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and from a careful selection of multiple applications clustered around a core issue. To improve their performance, generalist groups would do well to bear this lesson in mind. Discussing specifically the performance of the NCCL, the authors have made this point already. Even accepting the need to please a diverse membership, the NCCL could target more efficiently. Many of the issues which engage the organisation merit a sustained ECHR litigation strategy. Amongst them, we would single out prison administration. As Table 6.2 demonstrates, the NCCL was involved in many of the early prisoners’ rights cases. While these, which deal with prison disciplinary procedures and prisoners’ correspondence, are generally seen by commentators as influential and effective (Douglas and Jones 1983), the subject-matter might equally be seen as peripheral to the parlous situation in British prisons. We would expect to have found a more sustained and forceful litigation strategy aimed directly at prison conditions, perhaps under article 3 (degrading and inhuman treatment). Again, we would expect to have found a more developed network of groups working in the area. Yet although we talked to the main groups as well as to lawyers handling such cases, no close parallel to the NAACP/LDF strategy in death penalty cases emerged or appeared likely to emerge. Campaigns on behalf of unpopular and disadvantaged groups can be won only if individuals and small groups are prepared to stand together. This facilitates the careful preparation and transnational networking used to such good effect in the Caribbean death penalty cases. The absence of an effective trans-European migrants network, for example, leaves the initiative with nation states while national groups soldier on unsupported. Again, we would instance a group of cases involving transexuals which reached the Court of Human Rights, largely without group backing. When Mark Rees filed the first of the two British applications to reach the Court, asking for his change of sex to be recorded on his birth certificate, he was, he told us, unaware of others; contact with an unsuccessful Belgian applicant came purely fortuitously. The only group support Rees received was a small donation from SHAFT, the British transexuals’ self-help group. He was otherwise entirely reliant on help from an unusually supportive lawyer (i/v Mark Rees 1988). The case failed (Rees v. UK (1986)), to be followed a few years later by another unhelpful precedent from the same country (Cossey v. UK (1991)). Where subject-matter is not a good fit with the legal system, these are not the ideal conditions in which to prepare a case. It is important to think strategically. Clever forum-shopping is the first prerequisite. Some European countries are more favourable than others to transexuals and to homosexual partnerships; the United Kingdom is not one of them. A cluster of carefully chosen applications with appealing facts can be presented simultaneously to illustrate the problems. To do this, help from an international network of selfhelp groups is essential to identify the best cases8. A socio-psychological dossier or ‘Brandeis brief and a comparative law study are also necessary. All

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this can best be done with the help of a public interest law firm like Interights which can draw on expert advisers throughout Europe. In saying this, we are not to be read as criticising Rees or his legal advisers. We are making the wider point that strategic campaigning in the Court of Human Rights is as yet in its infancy. 3 THE EUROPEAN COMMUNITY CREATING NETWORKS Outside the economic area, pressure groups are only beginning to establish themselves in the EC. This is hardly surprising. Although the Treaty of Rome made reference to the furtherance of ‘economic and social progress’ and ‘improvement of living and working conditions’, its ambit was initially seen as fairly restricted. Policy-making, it was thought, would take place primarily in the area of industrial and agricultural activity and the Common Market was widely perceived as serving large economic interests. As with all new institutions, policy-making processes took some time to develop and national groups at first found it difficult to identify the appropriate target for effective political pressure, a problem accentuated for the United Kingdom by the fact that the powers and functions of EC institutions differed considerably from those to which our national groups were accustomed. Although the Council is the EC’s principal legislative organ and ultimate decision-maker, formal recommendations emanate from the Commission. Moreover, the Council is not in permanent session and is thought to be best approached at national level. The European Parliament at first possessed no legislative powers nor was it truly representative. The focal point for lobbying was therefore the Commission. The Treaty made formal provision for consultation with some interest groups. There was good reason for this in that, if policy was to emanate from a Brussels-based permanent bureaucracy, it needed to be in touch with public opinion over the large EC land mass—particularly important before the Parliament was directly elected. The Treaty therefore authorised the establishment of an Economic and Social Committee (EcoSoc) to ensure representation of interest groups affected by EC activities (Arts. 193, 195 EEC). This of necessity gave priority to industrial, agricultural, commercial and workers’ interests; additional consultative committees—for example, consumers’ and women’s committees—were added later by the Commission with a view to strengthening ‘citizens’ Europe’. This gave an impetus to smaller groups, which could both be consulted and nominate members to consultative committees.

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After the introduction of direct elections to the European Parliament, the Commission came to see the latter as a forum for the expression of public opinion. Lobbyists responded accordingly, creating an alternative focus for lobbying (Jacobs and Corbett 1990:146–51). During the same period transEuropean groupings were forming inside the Parliament and inter-party parliamentary groups were beginning to develop with which NGOs learned to co-operate (von Moltke 1983:39). These processes were accelerated by the Single European Act 1986 which modified the Community’s institutional arrangements. It curtailed national powers of veto in the Council and provided a new ‘cooperation procedure’ whereby the Commission works in tandem with a Parliament whose legislative function is greatly enhanced. The Single European Act also extended the ambit of Community powers over social policy and formally placed environmental matters on its agenda for the first time. EC environmental policy had previously been based on a Council Declaration of 22 November 1973 of dubious legal status which placed the need ‘to combat pollution and nuisances’ and ‘an improvement in the quality of life and the protection of the environment’ in the framework of economic expansion. On this slender basis successive action programmes, resolutions and directives were based, never secure legally until the Single European Act. Unanimity remained a prerequisite for action and policies cannot be carried out by ‘qualified majority’ procedure (Vandermeersch 1987). (Ratification of the Maastricht Treaty of Union would modify the Community power structure.) At first neither interest nor pressure groups were geared up to the task which confronted them. Although the consultative structure had been designed before the Treaties were drafted, no machineiy had been envisaged for the coordination of national NGOs. In the UK, commercial interests—such as the CBI—were well-enough organised to be ‘shadowing’ EC affairs in preparation for entry and were able to take care of themselves. These are today established in Brussels. Social action groups were less well prepared. We must bear in mind too that the developed voluntary sector which is such a feature of British life is not replicated in every EC country. The Commission set out to fill the gap, naturally concentrating on the core area of economic activity. It focused too on interest groups of the type associated with theories of corporatism. When in 1980 the EcoSoc undertook a survey of European interest groups, it was able to trace twenty-two organisations active in Brussels, all save one representing industry, agriculture or labour. COPA, the main agricultural group, was already well organised with a substantial professional secretariat. By 1980, banking, insurance, business and the professions were all present (EcoSoc 1980). These powerful corporate lobbies possess a significant advantage over all other pressure groups in being formally recognised as ‘social partners’ by the Commission, with their interests entrenched in the Treaty and a majority of places reserved for them on EcoSoc. To a certain extent, they have emerged as adversaries rather than allies of the groups on which this book has focused.

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A second stage was for the Commission to encourage unofficial NGOs, using them for the expression of public opinion: for example, a consumer lobby could be stimulated to balance the dominance of industrial interest groups. Pressure groups were beginning to be active by the late 1970s and in 1985 Butt Philip recorded about 500 as working in Europe, a majority in Brussels. Most are federal in character, with the national groups retaining control over policy and often using the Eurogroup primarily for their own ends. Many unofficial groups are known to and encouraged by the Commission which publishes a register of groups with which it is in contact. While some prefer to retain their distance from the Commission, others, like the European Environmental Bureau (1974) or the European Women’s Committee (1984) accept funding. Most maintain a permanent presence in Brussels. This serves a dual purpose: on the one hand, the Eurogroup is positioned to act as a transnational information centre for national groups; on the other, it is centrally placed to lobby the EC institutions and, more important, to act as consultant to them. The Bureau Européen des Unions des Consommateurs (BEUC) is still the only Eurogroup exclusively devoted to the representation of consumer interests. BEUC was set up in 1973 as a federation of national groups which are its sole source of funding. It has an annual budget of ecu one million and employs twelve full-time members of staff. BEUC concentrates its energies on standard-setting and on the Commission, believing it necessary to get in on policy-making at an early stage. Its representative status is often questioned by its opponents, although its relationship with the Commission is good, and it is true that the consumer movement has had difficulty in developing a European image. National groups have been slow to put domestic interests behind them. In practice, this has favoured the well-organised British consumer groups whose prestige and influence are high, which are represented on the ECOSOC and whose concerns tend to be those which receive special attention (Kramer 1986:37). Yet to observers of the American scene, the European consumer movement seems diffuse and apathetic. ‘Public scandals, such as the Thalidomide case, were not exploited as they could have been; there was no Ralph Nader on the European scene,’ Bourgoignie and Trubek comment (1987:123). Consumer groups have sometimes intervened in litigation, but until 1991, when BEUC applied in a case pending before the European Court of Justice (ECJ) for a right to see Commission policy documents they have not gone to court of their own volition. Deeply committed to the cosy concept of a ‘Citizens’ Europe’, the Commission finds the weakness of European consumerism embarrassing. It has publicised a three-point action plan, centred on a Consumers’ Consultative Committee whose role is to be enhanced. The Commission is also providing technical and financial resources to promote consumer organisations, especially in less prosperous regions, and is considering new legal procedures

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to allow consumer access to justice in national courts (Eurofile 15/90). Clearly such a move might stimulate the growth of pressure through law. The European Environmental Bureau (EEB) differs from BEUC by accepting Commission funding. Founded in 1974, the EEB grew out of the UN Stockholm Conference of 1972. At that time the EEB had thirty-nine members; today more than 100 are affiliated to the Brussels-based coalition. Some of the groups are represented several times through national branches whose policies may differ: Friends of the Earth, for example, is represented three times, the World Wildlife Fund twice, and Greenpeace through its Dutch branch. About 30 per cent of the funding for the EEB comes from the Commission, the rest from other sources including national government grants, but despite this aid, underfunding and understaffing—the Bureau has six members of staff—limit EEB effectiveness. National members affiliated to the Eurogroup pay fees and select an executive committee member; the EEB then acts as a ‘forum’ and ‘spokesman’ for members’ views. This structure is said by observers to have led to the dominance of national viewpoints (Rehbinder and Stewart 1985: 276). There is little national networking to date, partly because NGOs are relatively weak in countries other than the UK, Germany and Denmark, a factor which works to ensure the dominance of these countries’ views in policy-making. Underfunded in comparison with their giant industrial opponents, BEUC and the EEB are none the less relatively stable and have gained the respect of the all-important Commission. Other Eurogroups are more volatile. For example, MIGROEUROPE was founded in 1988 to combat a growing threat from the racist, ‘Fortress Europe’ concept and supplement an inter-church committee active in Brussels for some ten years. MIGRO-EUROPE described itself as ‘essentially a service for [NGOs] fighting against racism and xenophobia’ and set out to secure funding and build a network of essential contacts. Two years later it was dead. As the EC enters the age of common frontiers and immigration policy, there is no solid immigrant network active in Brussels. STANDARD SETTING: FIRST STEPS The primary attraction of the EC legislative process for campaigners lay in superimposing transnational standards on national legislatures, the difference with international law being that these new laws formed part of the national legal systems.9 As groups realised the signiflcance of this bypass for parliamentary sovereignty and became more familiar with EC institutions, they quickly developed a tactical sense. We can see this start to emerge in the campaign for lead-free air run by CLEAR, the first and some would say, most successful campaign of Des Wilson and Geoffrey Bradman. CLEAR was formed in the aftermath of a worrying official report in 1980, to push the British government to act against lead in the atmosphere. Wilson’s tactics were

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mainly non-legal; scientific research and opinion polls were commissioned, lobbying and public relations were used skilfully to keep the subject in the headlines. The single test case, in which parents claimed damages on behalf of their children for atmospheric pollution caused by lead in petrol, failed in the Court of Appeal on the ground that the oil companies who were the object of the action had at all times complied with the relevant statutory standards (Albery and Budden v. BP Oil & Shell Oil (1980)). But this decision enabled CLEAR to put in issue the statutory standards. Lead was pushed on to the agenda of the standing Royal Commission on the Environment in 1983 and, after this had reported in favour of reduction, the government finally promised action. At this point CLEAR saw the need to work through Europe, sensing support from two of the member states. Germany and the UK had persuaded the Commission to move with a tentative Directive, finally promulgated in 1978. In 1982, CLEAR persuaded a friendly MEP to table a motion in the European Parliament. Wilson travelled to Europe to plan a European campaign in coalition with BEUC and the EEB (BEUC News, October 1982). This new campaign was launched in every major European capital on the same day, with Wilson attending the Brussels launch. The result was to persuade the UK government that it could make capital from the Royal Commission report, and it combined with Germany to back further reform (Wilson 1984:156–80). In March 1985 the long campaign came to fruition in EC Directive 85/210, which imposed tighter standards on toxic emissions for new cars (Haigh 1987:202– 9). Here national governments were used to engineer reform in the EC and to form a counterweight to the expensive advertising campaign launched by the petroleum industry, influential in the Commission. An alliance forged during this campaign led to the formation of a new group designed to redress the ‘growing imbalance between the public interest and corporate lobbying at EC level’. Euro-Citizen Action Service (ECAS) was started by Tony Venables, former director of BEUC, and offers a consultancy service for social action groups operating in the EC. ECAS aims to support itself wholly by members’ subscriptions; at present, however, it is funded by the Rowntree Foundation and money from Godfrey Bradman’s Citizen Action (Euromonitor, September 1990). ECAS relies on voluntary legal help and has not so far used litigation in its campaigns, though the Director has expressed his interest (i/v Tony Venables 1991). The well-organised animal welfare lobby was also early on the scene and has shown great ingenuity in playing the EC game. The RSPCA was already accustomed to working with the Council of Europe and is well-placed at Westminster with an All-Party Members’ Group. It was also largely responsible for founding the Eurogroup for Animal Welfare, centred in Brussels but with branches in every member state. In 1983 the Eurogroup was able to take the further step of persuading MEPs to set up an unofficial parliamentary ‘lntergroup’ on animal welfare. This meets monthly to exchange

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information and views and is serviced by the Eurogroup (Jacobs and Corbett 1990:151–4). During the years 1983 to 1985 these groups were to combine in working actively for stiffer regulation of experimentation on live animals. A campaign for legislation was initiated by an Intergroup resolution in the European Parliament (EP) and linked with a persistent programme of parliamentary questions and resolutions. Further pressure was exerted on the Commission, where experts from the British, German and Dutch national animal welfare organisations had secured the position of advisor to the Commission’s Environment Committee and the EcoSoc. With the conjunction of a favourable Dutch presidency and a well-disposed British Commissioner (Stanley Clinton-Davies) in 1986, they were in a position to influence the drafting of a new Directive (EC 86/609) and (unusually) to see it adopted in the same year (RSPCA, AR 1986:52 and i/v). More recent campaigns have seen a diversity in lobbying techniques. In 1991, activists demanding a cut-off date for all animal experiments in the cosmetics industry presented a petition to the EP of more than 1.5 million signatures, collected through the coordinated efforts of national anti-vivisection societies in eleven EC countries (The Guardian, 19 March 1991). The movement has also used pressure through law more directly. In 1990, realising the negative effect of opening frontiers on live animal transport, it opened a campaign to toughen EC law. The RSPCA paid for a national advertising campaign. Compassion in World Farming petitioned the Parliament, demanding a Treaty amendment to establish animal rights (European Report, 12 March 1991). Simultaneously the two groups moved in London for judicial review of a ministerial decision to permit the export of live sheep from England to France (R. v. Minister of Agriculture ex p. Roberts and others (1990)). The effect was to pressurise the Commission from two sides, through the British delegation in the Council and through MEPs. A similar pincer movement was used by British environmentalists in securing provision for ‘environmentally sensitive areas’ in an EC regulation (85/797) on agricultural structures. This campaign marks a new realisation that the legalistic structures of EC institutions demand a major input from lawyers. When the House of Lords Select Committee on European Legislation was considering draft regulations, the Council for the Protection of Rural England (CPRE) grasped at the opportunity to submit with its evidence a legal opinion commissioned from Professor Francis Jacobs (later Advocate-General at the ECJ) on the legal status and validity of the applicable Directives. This legal advice was seen as the turning point of the campaign by the CPRE (i/v Robin Grove White 1989). Armed with the House of Lords report, the UK government was able to set the Environment Directorate (DG XI) against the far more influential Agricultural Directorate (DG VI), to claim credit for putting a new text through the Agricultural Council, and subsequently see it implemented by UK statute. This success greatly enhanced the influence of the European environmental lobby (Haigh 1987:309–19).

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Some years later, when proposals for privatisation of water and electricity began to alarm the green lobby, it was able to turn this technique around. A broad coalition was formed to fight the impending legislation: the semiofficial Countryside Commission, the RSPB, CPRE, World Wildlife Fund (which provided much of the funding), the National Trust (breaking its rule of political neutrality), the Anglers’ Co-operative Association (ACA) and Friends of the Earth (FoE) (both specialists in water pollution), and the Ramblers’ Association (concerned over access to the countryside if land held by water authorities were to come on to the open market). Formidable opposition was provided at every stage of the legislation. Criminal prosecutions for water pollution publicised the danger to rivers and local authorities came in threatening judicial review proceedings (The Guardian, 19 April 1989). Proposals to privatise the monitoring Rivers Authority and endow it with standard-setting powers gave a European opening, as they seemed to contravene the case law of the European Court. A second advice from Francis Jacobs secured their with-drawal and replacement. The next stage was to lobby the Commission vigorously. FoE was already very familiar with Commission complaints procedure and complaints were laid over several matters, including levels of nitrates and from FoE (Scotland) lead in drinking water. Maximum press coverage was given to statements from Italian Commissioner Ripa di Meana threatening enforcement proceedings and imposing a time-limit—said by the UK government to be unrealistic—for implementation of EC water standards. In the event, significant amendments were secured to both water and electricity bills (Macrory 1990). CITIZEN ENFORCEMENT Since EC law, in sharp contrast to the international law norms discussed in the two previous sections, does form an integral part of the English legal order it should theoretically be much easier to enforce. EC regulations are legally binding throughout the EC and member states have a treaty obligation both to bring their law into conformity with EC directives and to report on national enforcement measures to the Commission (Van Gend en Loos (1963), Costa v. ENEL (1964)), making it relatively easy to monitor. In practice, however, many directives are not implemented at all while others are only imperfectly implemented. The Equal Pay Acts and the Sex Discrimination Act, for example, which British governments see as implementing the Equality Directives, have several times been ruled to be in breach of EC law (see pp. 282–5). Environmental directives tend also to be badly implemented because, until recently, member states did not see the environment as a priority (Klatte 1986:32). Klatte noted 216 environmental infringement procedures as pending, Belgium and Greece (the latter having only recently joined) being the worst offenders. (It has to be remembered that the breaches may be relatively trivial, a majority being for failure to notify.)

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Implementation may also be resisted by national governments or legislatures and national decision-making may be accompanied by considerable lobbying. For example, the tachograph, first prescribed in 1969 to meter longdistance drivers, was vigorously resisted in Brussels by the powerful farming lobby which forced considerable derogations for livestock transport, and by both sides of the giant haulage industry which had the ear of the British Department of Transport. British environmentalists, particularly the Civic Trust, were on the other side and used the EEB to complain to the Commission of nonimplementation by the UK (Butt-Philip 1985:73–4). Even then, successive British governments managed to delay formal compliance until 1979 (Commission v. United Kingdom (1979)). Tenyears later, Britain was resisting proposed tightening of the scheme (The Guardian, 12 September 1989). The danger is that, when there is governmental or wide public dislike of an EC policy within a member state, enforcement will be poor. The small Commission staff could never adequately police Europe for violations of EC law. In environment alone there are forty-seven pieces of legislation on the books and the staffestimate 25 per cent compliance (The Independent, 8 May 1990). The Commission remains dependent upon individuals, companies and pressure groups to raise the alarm in Brussels by providing evidence of abuse (Butt-Philip 1985:73). This may entail a detailed dossier. When the RSPCA was thinking how best to tackle cruelty to live animals during transportation the legal department realised that British standards fell short of those required by EC Directive 77/489. It submitted a formal complaint to the Commission which both outlined the legal problems and included a ‘trace’ of the offending transportation routes before and after French adoption of the Directive. By itself the Commission would have been unable to undertake the necessary detailed surveys. Two years later, the Commission upheld the complaint and threatened enforcement proceedings against the UK and France. The RSPCA had meanwhile been working with the ministry and the farming industry on better practices and the UK was able to satisfy the EC Commission with promise of legislative change (RSPCA, i/v Katherine Muriel; AR 1986:23, 1987:39). There are three ways forward for groups seeking enforcement of EC law. The first is through litigation in the ECJ, which has today become the final and undisputed arbiter of the compatibility of the national legal order with EC law. As we shall explain, this course is not as easy as it sounds. The second way forward is through the Commission, which is empowered by Article 169 EEC to bring infringement proceedings in the ECJ against offending states. The Commission first issues a ‘reasoned opinion’ requesting that national law be brought into line with EC law by a set date. If this has not been done, the Commission tests the matter in the ECJ. Commission enforcement procedure is crucial to the success of European law as, without it, all the enforcement mechanisms would rest in the hands of member states. In practice, however, this procedure is far from ideal. It is lengthy and allows too much room for

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negotiation at the ‘reasoned opinion’ stage between the Commission and the member states. The problem for groups is that the Commission, like the prosecuting authorities in the US legal system, possesses a monopoly. It is difficult if not impossible to get the Commission’s decisions reviewed by the ECJ (Dashwood and White 1989). As we shall see, this does not inhibit vigorous lobbying of the Commission—indeed, it may stimulate it. The third way forward is via national courts, a course of action whose potential is beginning to attract a significant number of group actions. These cases too may ultimately end in the ECJ as an ‘Article 177’ reference on a point of EC law. There are therefore three key players in the enforcement game: the Commission, the ECJ, and national courts, and we shall deal with them in that order. THE COMMISSION AND CITIZEN ENFORCEMENT Today environmental groups are amongst the most successful in using the Commission to secure enforcement of EC norms. This was not true at first when they were considered slow both in seeing the potential of EC law for domestic campaigns and filling the gaps left by inadequate Commission resources by filing complaints with the Commission (Rehbinder and Stewart 1985:238). For example, when the RSPB was fighting a grant of planning permission to dig peat at Duich Moss in the Scottish island of Islay, which threatened protected flocks of barnacle geese, they let the planning inquiry go by before lodging through the EEB a detailed briefing with the Commission alleging breaches of the EC Birds Directives (EC 79/409, 81/854, 85/411). The Commission saved the day with a prompt intervention, requesting compliance with the Directives by formal notification of the site as a Special Protection Area. An official inspection by EC personnel was accompanied by a skilful media campaign and demonstration by FOE on Islay. The Commission then signed a Reasoned Opinion and announced infringement proceedings. Faced with this decision and an unfavourable opinion from their Law Officers, the UK government backed down and, just before the opinion was delivered, work to restore the character of Duich Moss started. In the same year, Ludwig Kramer, Head of Legal Affairs in the Environment Directorate (DG XI) was in London at a conference drawing attention to enforcement problems (Seminar, EEB, 1986). The next year, European environmental year, the EEB published a pamphlet explaining rights under EC law with a pro forma complaint form annexed (Kallia-Antoniou 1987). This was followed up with a full-page feature in its newsletter exhorting members to help ensure that European directives are respected (Metamorphosis, 1988). What citizen enforcement can achieve when orchestrated by a skilled repeat player is illustrated by FOE’s campaigns on water quality. When the Bathing Water Directives (EC 76/160) were first promulgated, the British government pretended that the measures proposed were inapplicable to Britain’s chilly,

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tidal beaches and listed just twenty-seven bathing beaches for England and Wales. Environmental groups defeated the tactic with the help of a Reasoned Opinion issued by the Commission in 1980 threatening infringement proceedings in the ECJ. The government was finally forced to list a further 362 beaches in 1987. This success was then featured on a short informative video issued by the CPRE for local environmental groups explaining enforcement procedure. Local groups were also able to pass their complaints to FoE, which circulated a standard form by a mailshot campaign and forwarded returns to the Commission. By June 1990, ministers were fending off serious threats of Commission infringement proceedings (The Observer, 3 June 1990). A serious agenda for improvement submitted by Michael Heseltine led to withdrawal at the end of the year (The Independent, 21 December 1990), only to surface again to the embarrassment of the government shortly before the 1991 Maastricht summit FOE was able to refine these tactics in a later campaign against failure to comply with the Drinking Water Directives (Eurofile 8/89). Here the level of public concern was attested by responses to their mailshot from 12,000 individuals and groups. These complaints could be submitted simultaneously to the British government with demands for legislative change and to the Commission, which at once initiated infringement proceedings in respect of the level of toxic chemicals in tap water (The Observer, 16 June 1991). Now FoE went one step further, with a judicial review application to test the legality of derogations in the Water Act from EC directives and asking for mandatory orders to bring tap water up to EC standards. Appealing for funds, FoE revealed that the case had cost over £40,000 to prepare, with the full hearing estimated at £100,000 (Earth Matters, Spring 1991). A risky tactic and one only within the means of a rich group. A later attempt to halt a contested extension of the M3 motorway was altogether less successful. A local amenity group, the Twyford Down Association, had fought the development tooth and nail for many years. Their campaign ended in an unsuccessful application for a judicial review. Their only hope lay in Europe and the TDA turned to the FoE, whose European expertise has earned a reputation amongst environmentalist. But the Twyford case was equivocal, as it antedated the applicable directives requiring an environmental impact assessment on which the group relied. So FoE presented a dossier of transport schemes, all allegedly in breach of the directives, and the Commission agreed to intervene. The UK government went ahead regardless and counter-attacked fiercely by invoking the Maastricht ‘subsidiarity’ principle to argue that planning decisions should rest at national level. LOBBYING AND THE ECJ The ECJ plays a central role in the enforcement of EC norms. Starting with the Van Gerid (1963) and Costa (1964) cases, the ECJ has established the

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supremacy of EC law in all member states (Hartley 1988:183–218). So far as the United Kingdom is concerned, these decisions struck home in 1991, when the ECJ went so far as to disapply an Act of Parliament, the Merchant Shipping Act 1988, on the grounds that it was inconsistent with our obligations under EC law. The Court ruled also that domestic courts must offer an adequate remedy to all those complaining of a breach of EC law in national courts. Thus an injunction was granted to suspend the operation of the Act pending a decision as to its validity (R. v. Transport Secretary ex p. Factortame (Nos. 1 and 2) (1990) (1991) Szyszczak 1990). These key powers make it important for groups to be able to put their viewpoint to the ECJ. It has been argued by an American observer that Europeans have missed the political dimensions of the ECJ and the analogy with the US Supreme Court, adopting instead the classic European tradition of courts as neutral, apolitical arbiters (Weiler 1982). From a constitutional lawyer’s viewpoint this may be true but one should not deduce that the ECJ occupies the same sort of role in the EC as does the Supreme Court in the American governmental system. Neither the standard literature nor the multiplicity of handbooks for lobbyists make so much as a mention of the ECJ in the context of lobbying. One reason for this is political; neither the Court nor the national governments wish the Court to be seen as a political actor. The authors would argue also that legal procedure has much to do with this. As matters stand at present, it is fair to describe the Court’s procedures as hostile to collective action. Article 170 of the EC Treaty authorises proceedings brought against one member state by another. Article 169 authorises infringement proceedings against states by the Commission. Individuals can institute proceedings under article 173(2) only against a decision which, whether addressed to themselves or to a third party, is of ‘direct and individual concern’ to them. From early days, the Court has interpreted standing very narrowly, holding that to sue a person must be affected in a specific way which differentiates him individually from all other persons affected by the decision and not as a member of a class (Plaumann v. Commission (1963)). Moreover, an association or group of persons does not have standing and the term ‘person’ can cover ‘at most a small group of persons’ (Fruit and Vegetable Cases (1962); Hartley 1988:347). One typical pressure-group test case has already come to grief under these rules. Lord Bethell, MEP, was Chairman of the ‘Freedom of the Skies Campaign’, a consumer group which was fighting to bring to an end air passenger cartels. The Commission was unwilling to bring infringement proceedings against the culprits. Article 175 of the Treaty allows ‘the Member States and other institutions of the Community’ (a term which includes the Parliament) to test Commission failure to act in the ECJ, but the group tried to short-circuit this provision by acting through Lord Bethell to challenge the Commission’s failure to act. Applying its restrictive case law, the ECJ held that Bethell had no standing to sue either as an air passenger or in his capacity

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as Chairman of a users’ organisation because he was not the actual addressee of a measure under Article 175 (Bethell v. Commission (1982)). (In English law, as in the law of other member states, Lord Bethell, given his status as MEP plus his chairmanship of a ‘representative’ users’ group, would probably have had standing.) The one way round the restriction to date is where a case involving a group arrives at the ECJ via an ‘Article 177 reference’ which allows a question to be referred to the ECJ from a national court when a point of European law falls to be interpreted in the course of litigation. This can arise in three situations: first, where individuals benefit directly from Treaty provisions (usually in competition and monopoly cases or the equality cases described below); second, when EC regulations apply or a directive is held to be ‘directly effective’ so as to allow individuals to sue in national courts (Oliver 1987); or third, where a group such as an environmental or consumer group has been given locus standi in a national court (see Chapter 3). The ECJ ruled on the last point in a case where German retailers came together to block cruises run by their competitors outside territorial waters, with the motive of evading customs and excise duty. The German administrative court would have allowed them standing but, conscious of the restrictive attitude of the ECJ, referred the point under Article 177. The ECJ ruled that actions in national courts based on EC law must be treated procedurally in the same way as all domestic actions (The Butter-buying Cruises Case (1981)). Third party interventions are equally difficult. This time it is the statute of the ECJ which restricts intervention to member states and EC institutions. Article 37 seems to permit interventions by ‘any other person establishing an interest in the result of any case submitted to the Court’ but goes on specifically to except such interventions in proceedings between member states or EC institutions. Moreover, the scope of interventions is limited in a substantive way because the article only permits interveners to support the submissions of one of the parties. Consumer groups in competition cases have occasionally succeeded in making interventions, the best-known example being that of the Italian National Union of Consumers, which was allowed to intervene in the Générale Sucrière Case (1973) concerning monopoly in the sugar market, despite doubts over its legal status to sue. Similarly, BEUC acting on behalf of the UK Consumers Association applied and was allowed to intervene in support of the Commission in a competition case brought against Ford Motors in 1982 (Ford of Europe Inc. and Ford-Werke A-G v. Commission (1984)). These proceedings had originated in complaints laid by BEUC and the Consumers Association against Ford and other motor manufacturers in respect of retail pricing practices which disadvantaged British consumers (Kramer 1986:360, Lasok 1984:96–109). There are two clear obstacles to building up this procedure. The first concerns costs. Interventions are at present particularly attractive to pressure groups with limited funds because the intervener normally receives costs. It

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has, however, been cogently argued that this practice should be ended as the award of costs to third parties could create hardship and discourage use of the Court by applicants fearing unpredictable costs (Plender 1983:1065). Thus it might well be discontinued by the Court if interventions were to become more general. The second difficulty concerns Article 177 references. It seems that it has never been decided whether or not intervention procedure applies to Article 177 references, although the ‘Sunday trading case’ (Torfaen BC v. B & Q plc (1990)) decided the narrower point that the ECJ will not permit an intervention from someone—in this case the pressure group Keep Sunday Special—who was not represented or was not allowed to appear in the national court (i/v Paul Diamond 1989). These restrictive rules are sufficient in themselves to explain the absence of group activity inside the ECJ. There are, however, signs that the ice could be beginning to crack. In one recent case, a political party was allowed to begin an action in its own name against the European Parliament (Partie Ecologiste ‘Les Verts’ v. European Parliament (1987)). In a second case, BEUC, whose legal adviser, Monique Goyens, is keen to use the ECJ more frequently, sued the Commission for disclosure of policy documents on which, BEUC argued, it ought to have been consulted. This case was lost in the ECJ (BEUC v. Commission (1992)). A FRIEND AT COURT? At this point, ECJ procedure diverges sharply from the Anglo-American model with which we have so far been dealing since it derives from a French civilian law model in which the role of amicus is filled by a court official. The Advocate-General is an official of the ECJ required by Article 166 EEC to be a person ‘whose independence is beyond doubt’. It is the duty of the AdvocateGeneral to present to the Court independent conclusions on the law to be applied to the case. These may either be rejected or accepted wholly or in part by the Court. The European rules of purposive (teleological) interpretation of laws, closer to the practice of American than English courts, permit the Advocate-General to range widely in reaching his conclusions and, like American judges, he may consider sociological or economic evidence and argument (Distillers Company v. Commission (1980)). The Advocate-General never acts on behalf of the parties nor are his conclusions limited to argumentation presented by the parties; he may adopt a wholly different or an intermediate position. To lobby the Advocate-General, whose position is quasi-judicial and who has been likened to a ‘first instance judge’ (Dashwood 1982:207, 213) would be considered improper, and officials close to the Court have assured us that it is never done. However, European procedure, like that of the US Supreme Court, is largely documentary and ‘roomfulls of docu ments…often accompany the pleadings’ (Dashwood 1982:209). This procedure might

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permit a mild and indirect form of legal lobbying through evidence and other documentary submissions to the Commission and Advocate-General. Moreover, one academic commentator has suggested that it would be appropriate for the Advocate-General to ‘present to the Court opinions on legal issues which are put to him by private persons, in particular representatives of group interests, and which he considers might affect the court’s decision’ (Gori, cited in Borgsmidt 1988:118). This would clearly open the AdvocateGeneral to lobbying groups. Finally, judges of the ECJ work, like Supreme Court justices, through legally qualified clerks who research their opinions. Thus the Court is not entirely impervious to the ‘respectable’ lobbying of the legal profession. Access to the ECJ is generally seen by commentators as unnecessarily restricted (Rasmussen 1980) and an English Advocate-General, who is now an ECJ judge, comparing the standing rules unfavourably with ‘the more extensive locus standi which the courts have come to recognise in England’, has argued for extension (Slynn 1983:63–4). Aside from the costs question mentioned above, unwillingness to move may have something to do with pressure on the Court’s limited resources and it might be more willing to change position now that tribunals of First Instance have been set up to ease the pressure. So long as the more restrictive rules remain in place, however, test-case strategy in the ECJ is a near impossibility and actions will have to be started in national courts. TEST CASES FOR WOMEN The best example of a European test-case strategy is that operated by women to enforce their rights under Article 119 of the Treaty. Although it is welldocumented and familiar, it is worth looking at it in some detail because it presents special characteristics not so far dealt with in this book. Article 119 vvas inserted in the Treaty largely to placate the French, who had equal pay legislation and feared competition from countries without it. Only at the Paris summit of 1972 did equality receive a more positive mention as a priority in the Social Action programme, and even then the legal basis for such a programme was obscure. But at the same time a French civil servant, Jacqueline Nonon, working inside the Commission, began to push feminist policies, including stronger action for equal pay. There followed Directives on Equal Pay (1975), Equal Treatment in Employment and Training (1976) and Social Security (1978), which both strengthened the position of women in EC law and formed a basis for national lobbying and litigation. Today a Women’s Employment and Equality Office exists inside the Employment and Social Affairs Directorate (DG V) responsible for policy promotion and coordination. It is monitored by a Standing Committee of the Parliament where women, with about 18 per cent of members, have also managed to establish a power base (Mazey 1988). Since 1977 the Information Service has regularly

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published bulletins on ‘Women in Europe’ which help to co-ordinate grassroots organisations and keep the transnational women’s network informed. It is probably significant that three of these (Supplements 12, 19 and 25) deal specifically with EC law: outlining the law, explaining how to gain access to the ECJ, and listing the successful cases. The Commission also has good contacts with women’s organisations throughout the EC. In 1980, for example, it funded a conference of antidiscrimination organisations under the auspices of the British Equal Opportunities Commission (EOC). This resulted in the establishment of the Standing Liaison Group for Equal Opportunities, partly funded by the Commission, to advise on women’s issues. Since 1989, there has been an official ‘European Women’s Lobby’ to which national women’s associations can adhere, which has Commission backing. The European Network of Women (ENOW), a more radical body to which national groups elect delegates, came into being in 1989 and also has a Commission subsidy (CREW Bulletin, July/ August 1989). The point we are making is that the test-case strategy described below operated in the context of a rapidly spreading women’s Euronetwork and a firm Commission commitment to equality policies. Three celebrated and influential cases from Belgium initiated the equality litigation in the ECJ. Behind all three stood a Belgian lawyer, Eliane VogelPolsky, who set out deliberately to test the compatibility of Belgian law with article 119. Her efforts to set up a test case in the Belgian courts were at first hampered by trade union officials hostile to the idea of litigation in this area, but the right case was finally referred to her by the Association of Airline Staffs which had received a complaint from Gabrielle Defrenne, an air hostess, that she had been grounded at 40 with a very inferior pension, in contrast to her male colleagues. It is important to emphasise the campaigning nature of the cases. Defrenne herself received £160 in consequence of the judgments and lent her name on condition that she took no active part. Defrenne No. 1 (1976) alerted the women’s movement to the narrow basis of Article 119 and encouraged them to lobby more effectively for the EEC women’s programme and expanded Directive described above. As VogelPolsky was actually responsible for drafting the 1975 Directive, the link between litigation and campaigning could hardly have been more clearly made. In Defrenne No. 2 (1978), fought by the same team, the ECJ ruled that article 119 was directly effective in member states. This was of crucial significance for the women’s movement in that it allowed women to enforce the law inside the familiar framework of their national legal systems. (The third case has no further relevance). In Defrenne No. 2 the Court ruled that women had been entitled to equal pay so long as Article 119 had been in force; but persuaded by interventions from Ireland and the UK they refused to make their decision retrospective, thus depriving thousands of women of its benefit. This was naturally felt by feminists to be a betrayal typifying the grip of member states on EC institutions

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(Warner 1984). But, even though two of the three cases failed at least in part, taken as a whole they must be accounted a success. The decade after Defrenne saw a steady flow of equality litigation to the ECJ, partly due no doubt to the publicity they received in the feminist press. The success of the cases, most of which emanated from England, had a ‘ripple effect’, stimulating test cases in other countries, notably the Netherlands (Atkins 1986:350). Information about the cases was also widely promulgated by the Commission, anxious to secure compliance with European law, through a series of conferences for judges, lawyers and industrial relations experts throughout Europe (Docksey 1987:8). This publicity helped to secure more references. In contrast to the majority of the cases discussed in this book, the EC equality cases do not in general emanate from pressure groups. Indeed disappointment has been expressed at the low level of pressure-group activity in the field: We’re still very far from having cases taken as carefully prepared and calculated ‘risk’ ventures by radical pressure groups and feminist lawyers. We want to try and suggest the scope for this sort of action, not least because it was just such an apparently no-hope test case that led to the famous Defrenne judgments which helped spur the main EEC policy Directives on women. (Rights of Women Europe 1983:6) The NCCL ‘Rights for Women’ Unit has taken one or two cases, the bestknown being the case of Price v. Civil Service Commission (1978) which established a wide meaning for the concept of indirect discrimination (Coussins 1976:57), but it has not had the funds to establish a women’s litigation programme comparable to that of the American ACLU. Unions have also played a major part in advising and representing women before tribunals: statistics for the years 1976–83 showed that in equal pay cases 47 per cent of female applicants had a trade union representative, though in sex discrimination cases the figure sank to 24 per cent (Hepple 1987:150, Leonard 1987 a and b). Until the advent of the Women’s Legal Defence Fund (WLDF) there was, however, no group corresponding to the American NOW or WEAL (see p. 99). WLDF was a membership group set up with Nuffield Foundation funding in 1989 to provide women with greater access to legal advice. It aimed to double the number of sex discrimination cases by setting up a network of women lawyers and advisers who agreed to take at least one pro bono discrimination case annually: 200 recruits were reported inside a year. Inexpensive training courses were available and a quarterly magazine provided encouragement by publishing details of successes. WLDF also acted as an international clearing house for information, carrying legal articles and newsletters from women’s groups in Canada and the US (Between Equals, Autumn 1989). Since it is from

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grassroots networks that the best test cases tend to emerge this was a hopeful development. Unfortunately, however, WLDF collapsed through lack of funding in 1991. A STATUTORY PRESSURE GROUP? The Equal Opportunities Commission (EOC) which has sponsored most of the EC cases, might be described as a statutory pressure group exercising a variant of the ‘public advocacy’ powers of the Attorney-General in administrative law (see Chapter 3). It possesses ‘advice and assistance’ powers under section 75 of the Sex Discrimination Act 1975 which have been well-publicised by the women’s movement. They generate around 500 applications annually of which somewhere around 60 per cent receive a response: in 1988, for example, there were 744 requests, in 319 of which advice or assistance was granted. The EOC has granted ten out of eleven requests for assistance to the ECJ, and has supported nine of the ten UK discrimination cases decided by the Court (in one case jointly with a union). This represents a policy decision by the Commissioners, who recognised the potential of EC law at an early stage. The decision was of critical importance for a litigation strategy in Europe since legal aid is not available for the industrial tribunals in which discrimination cases start, although the ECJ itself can grant costs for Article 177 references ‘in special circumstances’ and has occasionally done so (Usher 1987:168). Six cases were outright wins. In some ways, Macarthys Ltd. v. Smith (1980) was the most important because it established that EC law was structurally part of UK law and had to be applied by its courts. An earlier case, Shields v. Coomes (1978) was procedurally innovative in that the English Court of Appeal invited the EOC to present an amicus brief through counsel to explain EC discrimination law. The EOC argument altered the Court’s attitude and formed the basis of its ruling that Article 119 was directly effective and bound the industrial tribunals by which discrimination cases are heard (Atkins 1986: 343). A later case supported by the Northern Ireland EOC gave the ECJ an opportunity to rule on the Equal Treatment Directive (EC 76/207) which obliges member states to provide national legal remedies for all complainants in equality cases. The Chief Constable of the Royal Ulster Constabulary had ruled that policewomen should not carry arms. A police-woman who complained of being put on to part-time work in consequence started proceedings in an industrial tribunal. As the relevant regulations entitled him to do, the Northern Ireland Secretary sent a certificate to the tribunal stating that the decision was taken on grounds of state security. If English law had governed this case, the certificate would have been conclusive; instead the tribunal made an article 177 reference to the ECJ which ruled that the certificate, though it might be persuasive, could never be an absolute barrier to

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legal remedy (Johnson v. Chief Constable of the Royal Ulster Constabulary (l986)). An award of compensation amounting to almost £250,000 plus costs of about £100,000 by the industrial tribunal, seemed almost irrelevant. More striking was the decision to grant representation to the Northern Ireland EOC on a committee set up to advise the Royal Ulster Constabulary on reintegration and reorganisation whose recommendations were later implemented by statutory instrument. But unquestionably the real significance of this momentous decision lay in its effect on a government used to evading judicial scrutiny in this way. The value of the ECJ in countering executive domination and the analogy with the US Supreme Court could hardly be clearer. Enforcement proceedings brought against the UK by the Commission (Commission. v. UK (1982)) on the ground that our Equal Pay Act did not extend to work of ‘equal value’ were in the long run less effective. This was largely because the UK government deliberately decided to implement the judgment by an Order in Council made under section 2 (2) of the European Communities Act 1972, a ruse which avoided parliamentary debate and deflected attention from the minimal nature of the implementation. For once, the EOC came together with trade unions and the women’s movement to lobby ferociously for improvements to draft regulations described as ‘incomprehensible legal gobbledegook’. Although the lobby did obtain some improvements, nobody—except the government—considered the result satisfactory. This has been seen as typical of government’s general response to changes forced by ECJ judgments: namely, to introduce the minimum changes necessary to avoid contravening EC law (Forbes 1989:31). This attitude precisely mirrors experience of implementation of ECHR judgments (see p. 265). Commentators vary in their evaluations of EOC litigation strategy. Szyszczak (1986:52) congratulates the EOC for ‘effective use of the political and legal space created by European law’. Sacks (1986:574–5), on the other hand, believes it has no selective and coherent litigation strategy and that the European cases were ‘unplanned’ in the sense that the applicants came to the EOC and were not—as in the Drake case described below—sought out and selected. She believes that more of the budget should be devoted to a carefully formulated ‘blitz’ strategy in which the EOC should ‘go all out to saturate tribunals’ with suitable cases. Extending this argument, Hoskyns (1985:36) blames the women’s movement for failing to network. It has failed, she believes, to establish ‘real and sustained contact…between the feminist movements in different countries and between these movements and the Community institutions’. We would like to end this account with a case which does show what a really determined litigation campaign run by an expert ‘repeat player’ can achieve. The case involved the legality of government policy in excluding married women from the entitlement to ‘invalid carers’ allowance’. CPAG

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lawyers believed this to be contrary to EC law. They had for some time been looking for a suitable case when, through an advertisement circulated by the Association of Carers, they found an ideal plaintiff in Mrs Kathleen Drake. By acting in conjunction with a carefully selected coalition of ‘respectable’ welfare organisations, including the Disability Alliance, a classic voluntary group not normally involved in litigation, and the Association of Carers, a support group of the same character, CPAG was skilfully playing the game of ‘plaintiff stacking’. Funding was also secure when the EOC came in with financial support. The use of casework groups meant that the alliance was able to initiate proceedings with an orchestrated ‘blitz’ campaign. A spate of applications for invalid care allowance was submitted to the DHSS by women who admitted that they were married—hence ineligible—but who stated on their forms that they were claiming ‘because of the EEC Directive on equal treatment’. The alliance then made skilful use of EC law in two main ways. First, appeal to the ECJ was used to overcome the anticipated reluctance of the British judiciary to hand down a ruling which would undoubtedly involve government expenditure of millions of pounds. This tactic in fact succeeded at tribunal level, when the Social Security Commissioner held that the arrangements for benefit did indeed contravene EC law, a finding ultimately upheld by the ECJ (Drake v. Chief Adjudication Officer (1986)). Second, the use of European law ‘trumped’ the government by making it impossible simply to reverse the judgment, as it is accustomed to do by legislation or regulations. Here again the character of the alliance became important. There had been rumours during the litigation that the government would respond by ‘levelling down’: in other words, by scrapping the benefit entirely (Hoskyns 1985:67). It proved too embarrassing, however, for a Conservative government representing itself as devoted to the family openly to deprive vulnerable ‘carers’ and the disabled, represented by an apolitical and well-respected voluntary organisation, of the fruits of their court victory. This dilemma was skilfully exploited after the case10 when the alliance pursued its enemies relentlessly through the media, in both Houses of Parliament and at grass roots meetings and conferences which generated their own publicity and pressure. The result was full implementation of the judgment. NATIONAL COURTS AND NETWORKS The case-studies in the last sections show groups beginning to use national courts for law enforcement purposes and to experiment with litigation strategies which involve the ECJ. One final example attempts to show how such strategies might be developed to deal with transnational problems. The EC Birds Directives (EC 79/409, 81/854, 85/411) which protect rare species and their habitat and prohibit excessive slaughter, are notably difficult to enforce. The problem is partly cultural. In the northern countries, shooting of songbirds is generally deplored; in Mediterranean countries it is an ancient

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tradition and outside interference with local custom is deeply resented. In 1976, however, northern countries provided the impetus for the International Council for Bird Preservation (ICBP), which was set up in England with a secretariat provided by the RSPB. The ICBP decided to undercut support for slaughter of migrant species at local level with a ‘Stop the Massacre’ campaign which would fund educational projects in southern Europe. Migrating birds are perhaps at greatest risk in Italy, where 1.5 million registered hunters annually slaughter 200 million birds. Attempts to tackle this have been largely ineffective; the hunting lobby is well entrenched and hunters’ rights embodied in national laws. In this hostile environment, the Italian League for Bird Protection has sought backing from international groups, including the ICBP and World Wildlife Fund. In June 1990, the League were able to collect the 5 million votes necessary for a referendum, a move ultimately blocked by the hunters, who were able to undermine the referendum by advising mass abstention. In France, the campaign was more successful when a key decision from the prestigious Conseil d’Etat established the binding character of the EC directives. This campaign was started in the Mediterranean departments and centred on turtle-doves, a protected species. Realising that the dates of the shooting season were set too widely, campaigners filed an application in the local administrative tribunal. The success of this application led to a series of further applications in local tribunals to challenge the validity of national hunting decrees. These were consolidated when they arrived on appeal to the Conseil d’Etat, the issue being whether local laws respected the Birds Directives in giving adequate protection to rare species during the nesting season. Pressure groups dominated both sides of the case presented to the Conseil d’Etat. On one side stood a coalition of major French conservation groups (the French Federation of Societies for the Protection of Nature, the French League for Protection of Birds, the Anti-hunting Coalition, and the French League for Animal Rights) with external backing from the ICBP and WWF. Behind the ministry, the technical defendant, stood the hunting groups: both the National Association and the Union of Hunters were granted permission to intervene and in practice provided much of the evidential material on which the ministry case was based. The scientific ‘Brandeis briefs’ were analysed by the Conseil’s government commissioner, an official who parallels the AdvocateGeneral Sn the ECJ. The result was a resounding victory for the protectionists when the court annulled the ministerial decrees on the ground that they did not conform with the Birds Directives by which the Conseil d’Etat ruled that the French state was bound (Rassemblement des opposants à la chasse et autres (1988)). Success indeed. But one swallow does not make a summer. To be effective, this case needs to be exported and form the basis of a litigation strategy in other member states.

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CONCLUSION The international organisms studied in this chapter offer different windows of opportunity for pressure through law. The United Nations, primarily geared to standard setting, provides an environment in which political lobbyists can flourish. The ECHR, in contrast, operates in a context of judicialised structures which magnetically attract campaigning litigation strategies. Perhaps the EC is in an interim stage; halfway through the tedious work of opening windows and building networks with a pace taken towards effective enforcement via national courts. Some of the key operators work at every level though not necessarily using the same techniques. Environmentalists, for example, use law at every level, helped by the internationalism of FOE and similar groups. They are setting up specialist public interest law firms to provide essential expert advice. The IUCN entered the legal field in 1970, with an Environmental Law Centre in Bonn which essentially acts as a ‘back-up centre’. It does not yet litigate, though it holds information about those of its affiliates which do (letter, IUCN, July 1989). The Centre for International Environmental Law (CIEL), founded in 1989 in London ‘to promote international law as a means of protecting the global environment’ specialises in advice and training though it too is competent and ready to litigate. Human rights groups lobby effectively at international level and are increasingly recognised as repeat players in the Court of Human Rights. As yet they have not made much impact in the Community but, with the advent of 1992, this will clearly have to change (Arnott 1990, Spencer 1990). If the best use is to be made of pressure through international and EC law, new networks and new techniques are essential. Sharp issue focus, plaintiff stacking, forum shopping, polidcal and legal campaigns in tandem are all essential elements in transnational campaigning. Some of our case-studies show the first, tentative steps in this direction; others show just how much remains to be done. The prizes are well worth the effort. Pressure through law is an essential ingredient in tackling transnational problems—pollution, malpractice of multinational companies, state infringement of basic human rights—energetically and on a global basis.

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Only the institutions of civil society can provide an infrastructure of political and economic success. What does that mean? In a word, it means…that creative chaos of organisations and institutions which intervene between isolated individuals and powerful governments. (These are, incidentally, the very stuff of liberty which has been under pressure in Britain in recent years). Sir Ralf Dahrendorf AN ALTERNATIVE TRADITION Like all disciplines, law is selective. Lawyers read cases for specific purposes, deleting from the record information which is not strictly relevant. In thisway, much of the context of important and controversial cases is lost to posterity or survives only as ephemeral press reports. As lawyers we have to remember what the court decided but forget who the characters were and why the case came to court in the first place. Myths have also grown up about the nature of our profession, one of the most potent being that law is apolitical. In their bones most lawyers probably realise that this credo is at best a partial truth. Sustained douches of the cold water of American legal realism plus a more recent dousing from disciples of critical legal studies have helped to undermine the doctrine though never to extinguish it. Its tenacity is extraordinary until one remembers the significance of the concept of neutrality in maintaining the tradition of functional independence which lies at the heart of the judicial systems of Britain and America. A subsidiary and possibly less important myth is that lawsuits are always (or nearly always) the responsibility of individuals; collective legal action is overlooked and often discouraged. Earlier we emphasised that this view of the legal process was a central tenet of the adversarial AngloAmerican legal tradition, linking it to nineteenth-century individualism. In our view it is the unfortunate juncture of these three traditions—the first a habit of legal record, the second a constitutional dogma, the third embodied in principles of legal procedure—which has fostered the wholly fallacious belief

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that pressure-group litigation is a modern phenomenon. It was the concomitant view of pressure-group litigation as a transatlantic phenomenon, linked more specifically with the civil rights movement, which triggered off this book. Later we discovered that this impression also dominated the far-more sophisticated American literature, deriving perhaps from Vose’s seminal study of the NAACP in 1959. The first of these two fallacies was easily dispelled. A cursory look was sufficient to uncover a wealth of historical material documenting the use of law for political and campaigning purposes during the nineteenth century. We were easily able to trace the phenomenon back through the eighteenth century, where we chose arbitrarily both to stop and to start with Granville Sharpe and the case of Somerset v. Stewart. The voluminous literature on this case revealed the existence of an embryonic test-case strategy and the subsequent importance of Sharpe’s court victory to the abolition movement generally. The continuity of this common law tradition was emphasised by the discovery that the Anti-Slavery Society, traceable in direct line to Sharpe and Wilberforce, was still in existence and active internationally. The series of cases associated with the name of John Wilkes and the Bill of Rights Society, seminal to civil liberties law, conveyed a rather different message. Familiar though these cases are to every law student—under the guise of the ‘General Warrant cases’— they are not generally perceived by lawyers as pressure-group cases nor are their complex political connotations clearly explicated in modern law courses. The same lesson was rammed home when we came to look more closely at Beatty v. Gilbanks (1882), a case which the Law Reports associate with the Salvation Army but which is not generally recognised to be a test case. Everywhere we found continuities and parallels. The Vice Society and National Vigilance Association claimed credit for reviving the common law offences of obscene and blasphemous libel over a century or more before Mrs Mary Whitehouse came onto the scene. They were arguably better organised as well as more powerful than her National Viewers’ and Listeners’ Association, whose forays into litigation have in fact been highly dependent on the personalities of both Whitehouse and her dedicated legal adviser, John Smythe, QC. The strategic presence of this committed and highly skilled lawyer was evidence of a different kind of continuity. We had found many earlier successful litigation policies to be associated with the existence of just such a person: Lord Eversley and Sir Robert Hunter of the Commons Preservation Society, both lawyers using their legal skills primarily in the promotion of legislation; John Eastwood, who founded the Anglers’ Cooperative Association to enforce common law property rights; Walter Thompson and D.N.Pritt, forensic lawyers and key figures in the early NCCL. Many, like Lord Erskine, were successful and established figures; lawyers’ participation in pressure through law was by no means solely a fringe activity. Disproof of the assumption about modernity brought with it disproof of of the belief that pressure through law was a transatlantic import. We found much

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evidence of correspondence and contacts showing that the transatlantic traffic had begun much earlier than was commonly supposed and had been by no means only in one direction: the long American career of Granville Sharpe’s celebrated test case is the obvious example. There were clear parallels too in the early suffrage cases which were expressed on both sides of the Atlantic as a challenge to definition of the words ‘citizen’ or ‘person’ in terms of gender. The parallel extended to the outcome of the cases; in neither country did the male judiciary show itself sympathetic to gender-neutral interpretation. When we turned our attention to modern America, the evidence of networking was obviously stronger. Some contacts were informal and personal and did grow out of the international radical cameraderie of the civil rights era. Many students crossed the Atlantic in those heady years, returning to establish radical law practices or work in law centres or pressure groups: Larry Gostin, a keen protagonist of test-case strategies, is not atypical in having worked with MIND and the NCCL as well as with the ACLU. In the environmental movement, networking was necessarily more deliberate. Links in the consumer movement were at the same time less well-developed and more clearly based on law: many of the national litigation coalitions in mass tort claims—Thalidomide, Opren, Dalkon Shield, Bhopal—were in contact for the purposes of legal action or forum-shopping. American consumerist Ralph Nader has also lent his personal support to several British campaigns for compensation and acts as consultant to CitCom. (It is worth noting in this context that transatlantic links are presently stronger than those which exist with European consumerism though the National Consumer Council and other consumer groups are working with BEUC to change all that.) But this is decidedly not the whole story. The NCCL, which has more claim than most to be the founder of modern English pressure through law, was already litigating actively when between the wars it established contact with the ACLU. Moreover, parallel strategies are as least as common as networks. Citizens for Decency through Law (CDL), for example, affords a striking parallel to the National Viewers’ and Listeners’ Association. Mrs Mary Whitehouse has paid it a visit. CDL’s preferred technique of operation through the criminal process and influence on law enforcement officers is, given the modifications necessitated by the different structure of the court system and prosecution process, close to that of NVALA. But the two organisations do not ‘network’ in terms of our definition of the word as ‘the deliberate exchange of information, skills and resources to facilitate pressure through law’. Finally, the progress of history is never an uninterrupted, straight line. There are inevitably discontinuities as well as continuities and every era has its distinguishing marks. If we were asked to summarise the key changes in pressure-group litigation in the last two decades, we should encapsulate it in the single word ‘volume’. We cannot quantify the increase in pressure-group activity in the courts; as we explain later, the civil justice statistics in this country contain no data on which a statistical analysis could be based. We do

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however share the feeling that there has been a rise. In the next paragraphs we shall advance some reasons why this might be so. PLURALISM AND CHANGING CONTEXT Some of the societal changes which we see as likely to lead to increased pressure-group activity in court have been long-term and gradual, are fairly well known, and are matters of general agreement. It is sufficient therefore to touch on them lightly. The tendency towards complex, industrialised societies is one given which does not need prolonged discussion here. In such societies group support, expertise and co-operation are essential if the wealth and power of government or multinational organisations is to be combated. The authors see this as the primary reason for the rise of the litigation coalition in mass-tort cases. Such groups have attracted the attention of lawyers rather than political scientists, the focus being always their legal needs and objectives. The argument has usually been that the individualistic character of civil procedure makes group action in the civil courts difficult, thus necessitating procedural law reform. The authors, however, see the litigation coalition as a classic political tactic. The masstort and disaster campaigns described in this book have often been more about accountability and punishment than damages. Those who run them network with mainline campaigning groups (such as Des Wilson’s consumer group, Citizen Action). Neither procedural law reform nor the statutory compensation which is the paradigm alternative for lawyers (Atiyah 1989) would necessarily have ended the support groups’ campaigning nor their tactics of applying pressure through law. British society has become less homogeneous in the post-war period. This has something to do with the large-scale immigration from New Commonwealth countries which has occurred since 1947, marked since 1962 by a series of increasingly restrictive Immigration Acts likely at one and the same time to form a focus for ethnicity and a target for political action. This ‘new wave’ of immigration has resulted in the highly visible presence of ethnic minorities in the population as well as the introduction of different cultures, frequently rooted in non-Christian religious beliefs. This is, however, by no means the only format for pluralism. The women’s movement is something which governments in all First World countries need to take into account and other cracks in societal homogeneity have become increasingly visible. In so far as the social democratic consensus was based on a common cultural inheritance (Barker 1990), fragmentation must necessarily be a factor in its breakdown. The shift to pluralism is increasingly reflected in a wide spread of new representative organisations. The women’s movement is, in both Britain and the United States, particularly diverse; indeed, its various organs, which range from grassroots movements like Greenham Women and Women Against Sexual Harassment to semi-official lobbies like the Centre for Research for

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European Women or the Equal Opportunities Commission, are well represented in this book. The more relaxed attitudes of the 1960s and 1970s led to a greater willingness to stand up and be counted and a corresponding ability to join with others in similar situations. Cause and membership groups arose to represent minority opinion previously repressed or discountenanced. OutRage and GALOP (the Gay London Policing Group), SHAFT (the transexuals’ group) and Women Against Rape, are all examples of this tendency. Over the same period, minority groups have become more articulate and demonstrate a greater political awareness. No doubt this reflects a rise in educational standards. Greater awareness of political issues has also been instilled by the modern media, especially by colour television, whose visual images make the greatest impact. Minority groups have started to assert their grip upon political institutions including courts. The Muslim community, for example, took a leaf from Mary Whitehouse’s book when they used the criminal law against Salman Rushdie in a notable attempt to have the blasphemy laws which she had revived extended to Islam (see pp. 216–8). Their argument exemplifies the point we are making. Minority religions, they asserted, were entitled to the equal protection of the law and courts. The main effect of the case so far—it is now on its way to the European Commission of Human Rights where it may be judged admissible and ultimately won—has been to gain publicity. The relationship between litigation and the media is symbiotic and the publicity generated by important or controversial cases has a ripple effect. Not only does it educate other groups in the use of the legal system but it also highlights the effectiveness of litigation in generating publicity for their cause. As important as societal change in creating public awareness of the campaigning uses of law and pushing groups into court, is access to lawyers and to good legal advice. We have stressed the historical importance of strategically placed individuals in the formative years of groups like the Commons Preservation Society or NCCL. The latter also had access to a considerable network of volunteer lawyers to establish its pre-war advocacy service. Determined and successful litigation policies may of course be associated with a layman: Oswald Garrison Villard, founder of the NAACP, and Norris McWhirter, Chairman and founder of the Freedom Association (NAF), have in common both a fervent belief in the Rule of Law and a determination to make that law work for individuals. Laymen may become quite as skilled as lawyers in exploiting the law. Neither the National Vigilance Association’s William Coote nor the RSPCA’s John Coram were lawyers, while in the modern era the RSPB’s Peter Robinson has a knowledge of protected species legislation far beyond that of the average lawyer. There is no doubt, however, that lawyers do have a particular cast of thought. They think in terms of legal rights enforceable in courts. By way of contrast, many political activists despise litigation and fear courts. We have seen this viewpoint expressed by Roger Baldwin of the ACLU in the context of NAACP

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litigation strategy. It is a position which tends to be associated with the radical left and in Britain, with the official Labour Party, where there is a long history of distrust of the judiciary and of lawyers. In post-war Britain the legal aid system has greatly extended access to legal advice. Lawyers have also begun to be regularly employed by pressure groups, as we saw with CPAG’s Welfare Rights Unit. In-house lawyers need not inevitably spell litigation; they may be taken on for educational or advisory functions, as in this particular case they were. But the drive to litigate, especially in the superior courts, is undoubtedly a strong one which has much to do with the way in which legal education has traditionally tended to focus attention on judicial decisions, particularly appellate decisions. In this way, from the first days of law school, the studentcomes to see litigation as the main rationale of the legal enterprise. Lawyers never quite lose the feeling that a lawyer who never litigates is not worthy of the name. We do not wish to oversimplify or over-emphasise the homogeneity of professional attitudes. Not every lawyer rushes to issue a writ; indeed, radical lawyers sometimes point to the unwillingness of the profession, at least in Britain, where it has also been seen as one of the functions of the skilled private practitioner to keep disputes out of court and to litigate only where a good cause of action exists, to test new ground. Post-war changes in the culture and organisation of the legal profession have been important to pressure-group litigation. There have been significant changes in legal education at the practical level with the addition to the syllabus of welfare law subjects. At the theoretical level, the infusion of new, jurisprudential writing has challenged and rivalled the dominant formalist tradition of Anglo-American law. No doubt these works will never be widely read; the high street lawyer rightly regards them as esoteric. They have none the less trickled down into legal education, creating awareness of alternative viewpoints. Slowly the legal profession is becoming less homogeneous. Slowly the class barrier is being eroded. Ethnic and feminist groups are starting to fight for a place in the sun and now have their own interest groups within the profession (Abel 1988, 1989). The profession is becoming more pluralist. This in turn is creating a pool of lawyers sympathetic to pressure through law. And even if, as we have been at pains to emphasise, American public interest law did not give birth to British pressure-group litigation, it undoubtedly brought an infusion of transatlantic talent and enthusiasm for litigation into British groups. MIND’s litigation strategy was pushed onto an unwilling social-welfare-oriented membership by the very same Larry Gostin whose American antecedents have already been mentioned. CPAG’s lawyers have similarly been influenced by awareness of and interchange with the American public interest law movement. Nor is this the only area in which American influence has been important. Earlier we suggested that litigation coalitions could sometimes be ‘supplier led’ by a new breed of crusading and publicity conscious lawyers working in the lucrative field of personal injuries

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and influenced by American techniques. The foundation of a new network, the Association of Personal Injury Lawyers, bears this out. APIL derives its inspiration directly from the Association of Trial Lawyers of America, of which its founders are members. If changes of legal culture and ethos provide a partial explanation for a rise in pressure-group litigation then parallel shifts in political institutions and ethos in the post-war period have also contributed. The post-war political scene has come to be divided by commentators into two distinct periods. The first, often called the period of consensus, when social democratic ideas were in the ascendant, covers the rise of the modern welfare state in Britain. Inevitably, this was an era influenced by socialist planning and centralisation and associated with bureaucratisation and corporatism. The second period is usually described in terms of ‘conviction politics’ and associated with deregulation, privatisation and the dismantling of the welfare state. In this analysis, the electoral victory of the Conservative Party under Margaret Thatcher in 1979 stands as a watershed, marking a sharp break in Britain with social democracy and welfarism and inaugurating a decade of radical institutional change. (In the United States, the election of President Reagan in 1976 is the obvious starting point.) Conviction politics have fostered dissensus and, if they have not made pluralism respectable, have done little to restore homogeneity. And whether or not the boundaries of the state have been (in Margaret Thatcher’s phrase) rolled back, 1979 did not presage any decline in government’s main output function of rule-making—rather the reverse. Rules increasingly govern every area of human activity. The difference with the centralised, corporate, socialistic state is that the terms ‘self-regulation’, ‘regulatory agency’ and ‘regulator’ have joined the vocabulary of political scientists and administrative lawyers. In other words, in the context of the modern state, free market liberalism has shown itself to be inherently bureaucratic. The difference is that autonomous and semi-autonomous regulatory agencies have been permitted to join in the rule-making fun. In other ways, the Thatcher era was notable for a marked change in governmental style. An era dedicated to consensus must at least pay lip-service to the concepts of consultation and participation and we do indeed find towards the end of the consensus era a serious interest in participatory democracy. Inside the disciplines of politics and administrative law (Pateman 1970, Galligan 1982) we find considerable interest in the development of machinery for consultation. The Thatcher era inaugurated a retreat from the consultative and participatory towards the directive—what a lawyer might call the ‘command theory of government’. At Cabinet level, the forceful Thatcher style has been the subject of endless comment in the Press as well as from academics (Brazier 1991). Her relations with Parliament have been analysed to show her distaste for parliamentary accountability (Dunleavy et al. 1990). The breakdown in central/local relationships to which the new managerial style has contributed is also well documented. A similar shift was nodceable inside

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government departments where policy-making was increasingly seen as a government responsibility and dominated by politicians and sympathetic officials. Goodbye to Royal Commissions, consultative committees, ‘Think Tanks’ and leisurely Green Papers; enter instant legislation. In consequence, many insider groups accustomed to easy access to government departments have found themselves out in the cold. We would instance the Child Poverty Action Group, previously seen as at least semi-respectable. This may of course work in reverse with increased access by right-wing groups or interest groups which might be supposed to be conservative but this is by no means always the case. Thus both the medical and legal professions have felt a decline in influence, complaining, for example, of lack of consultation over vital changes to the structure of their respective professions. The trend may even be accentuated by a decrease in influence and input by the civil servants to whom pressure groups are accustomed to have access and with whom they may have carefully cultivated a ‘sweet-heart’ relationship or even, as is evidently the case with the Ministry of Agriculture and the National Union of Farmers, come to dominate. The pluralistic character of modern democratic societies has given rise to explanations formulated in terms of interest-group theory. Modern pressuregroup litigation sits neatly inside an interest-group model of political society. Many interest-group theories, for example, explain political behaviour as ‘rentseeking’: in other words, based on a self-interested desire for re-election. There is then a strong incentive for legislation to serve private rather than public ends and to be at the same time inspired by, and supplied to, those political groups or coalitions which can outbid competing groups. We could see pressure groups as seeking to impose themselves through courts when denied access to politicians and legislators. Cortner (1968:282) in particular has voiced the view that groups take to the courts because they are disadvantaged in terms of their ability to attain their goals through the regular political or bureaucratic machinery.1 In other words, litigation campaigns such as that run in the field of welfare rights by CPAG use courts as a surrogate political process for groups disadvantaged at the political level. (Whether this strategy is effective is another point altogether to which we shall return.) This example would be neatly paralleled by that of NAF, which started to use courts and tribunals against trade unions and the ‘closed shop’ at a time when unions formed part of the dominant institutions of the corporatist state. We would argue that the era of conviction politics in which radical policy changes have been coupled to a corresponding decline in outside participation in governmental policy-making and insider groups have suddenly become outsiders, is precisely the climate in which one would expect to see policy tested by those unfavourably affected by change. It is a climate, too, in which the perceived independence, autonomy and apolitical character of courts as a forum for such testing is likely to prove very attractive. Thus it is no surprise to find the legality of cash limts under the Social Fund tested in judicial review

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proceedings by CPAG with the avowed motive of keeping the topic on the political agenda (see pp. 170–1). The customers for modern judicial review are also interesting. CPAG we recognise as a seasoned campaigner from the consensus era. Similar actions by groups seeking to preserve the level of hospital or educational services could be explained as ‘copycat actions’. It comes as something of a shock, however, to find the Bar Council applying for judicial review of the Lord Chancellor’s decision on legal aid rates or the medical profession fighting hospital closure or the terms of the general practitioner’s statutory contract of service with the Secretary of State in the courts.2 So it is, however. In the era of conviction politics and domination by one political party of political institutions, courts are increasingly asked to assume the function of a surrogate political process. And if this is already something of a break with a tradition hitherto dominated by notions of parliamentary democracy and supremacy, then ‘Eurolitigation’ spells an even greater break. Though the European Convention on Human Rights does not technically form part of the corpus of British law, its provisions are none the less influential and do something to balance the absence of a Bill of Rights. Of more far-reaching effect was Britain’s adherence to the Treaty of Rome and membership of the European Community since 1972, with the extended competence of EC institutions after the Single European Act of 1986. As Chapter 6 made clear, the most overwhelming parliamentary majority can in principle receive a check from a success at Luxembourg or (to a lesser extent) Strasbourg. The very existence of the new European adjudicative machinery is undoubtedly an incentive to litigate. PREDICTORS OF SUCCESS The American literature reflects a long tradition of scholarly interest in law and adjudication as a branch of political science. There are many American ‘impact studies’ of test cases. In so far as these depart from the descriptive, they aim, as with Tushnet’s case-study of the NAACP, to provide some evaluation of effectiveness. This immediately brings problems of definition. Take the multifarious impact studies of Brown v. Board of Education of Topeka (1954). Is ‘impact’ different from ‘effectiveness’? Can effectiveness be measured and if so how? Is it to be measured by the ability of the Supreme Court to impose its will on the lower courts? By the ability of the executive to implement the Supreme Court’s decision? By the effect on legal procedure of the managerial bussing orders which dragged the judiciary into the centre of the administrative process? By the effect on the NAACP? Or by the effect on other groups who favoured the use of direct action and other campaign techniques? As we saw in Chapter 2, all have been tried and all are valid provided the author makes clear which he is using. At the end of the day, however, no exhaustive definition of effectiveness emerges from the literature.

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To see why effectiveness is such a slippery concept, let us try to evaluate more fully the various Peace Movement cases described in this book. Taken as a whole, these cases cannot be described as ‘successful’ in the lawyerly sense that they were won in court. There are rare exceptions, like the criminal cases which successfully challenged the Greenham by-laws (see p. 142). In the wider, political sense, this victory embarrassed the Crown Prosecution Service and wrong-footed the government and could be described to this extent as effective, but it was ineffective in the long- term to stop the government from regaining the initiative. Nor has the legal campaign been effective to secure the long-term goal of grounding Cruise missiles. On the other hand, it has succeeded in prolonging the political campaign by preventing the premature closure of the Peace Camp. And if we accept wider objectives for the sometimes bizarre tactics used by Greenham women before the Newbury magistrates of drawing attention to the seriousness and determination of the women’s movement and casting ridicule on pompous legal institutions, then they were undoubtedly effective. Again, whose standards are to be used in evaluation? Accounts of the campaign from inside the Peace Movement suggest that it provided a valuable opportunity to boost flagging morale. Similarly, judged from outside, the Manhattan ‘trial’ of President Reagan was ineffective in the extreme; participants and Peace Movement workers, however, seem to have found it inspiring and it did at least help to secure the attention of the media. To put this somewhat differently, definitions of success and effectiveness often start from the assumption that all the actors are operating within a single system of shared values and goals. The main objective of some of the campaigns described in this book is to provide a public demonstration of the falsity of this assumption. Even inside a perspective of shared values, lawyers are too ready to assume that the sole motive for litigation is the desire to win. This tacit assumption spills over into their definitions of effectiveness; a test case is considered effective if it has been won and unsuccessful if it has not. This assumption begs important questions about implementation and monitoring of court judgments to which lawyers prefer to turn a blind eye. Moreover, the assumption is not always correct; lawsuits are occasionally brought in the knowledge that losing is inevitable. Hard cases may make bad law but they can also make good publicity. The ‘hole-in-the-heart’ baby cases (see pp. 171–2) were brought in the near certainty that they would be lost by parents at the end of their tether. The widely publicised court defeat was more effective in securing political intervention than months of lobbying ministers. Yet at the collective level the remedy was less effective: other children’s chances of surgery were not improved and may even have been lessened. Occasionally too, failure may be more effective than success. Consider the complaint of animal cruelty brought by the British Union for the Abolition of Vivisection (BUAV) against the Royal College of Surgeons. The substitution of a successful prosecution

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against a small, country pet shop in the magistrates’ court would hardly be deemed more effective in securing BUAV’s objectives. We know too that there are other important motives for litigating which do not necessarily include a technical ‘win’. These may include the harassment of powerful opponents, a lawgame indulged in at great cost by large multinationals like Lonrho or Eli Lilly and more cheaply at the other end of the scale by law centres and community lawyers working through ‘blitz’ campaigns in housing cases. Here a single win or loss may be immaterial; it is the war rather than the battle which counts. Again, we have stressed the use of pre-trial procedures to secure access to information in a country which possesses neither freedom of information legislation nor guaranteed rights of access to personal files. Campaigns which have tried to use the court’s discovery procedures to get at confidential information are part of an unceasing war against Britain’s secrecy laws. Media and pressure-group support has extended this campaign in recent years into the European Commission and Court of Human Rights where ‘winning’ is more feasible. Mention of these European institutions provides a reminder that long-term effectiveness needs to be distinguished from success in court. We have seen how patchy the record of British governments is in implementing the decisions of the Court or Committee of Ministers. Again, we must contrast the unceasing war of a body like the RSPB which can, in a sense, never win however effective its litigation strategy, with the tactical short, sharp shock of interim relief. Much depends on the question asked. If, to use another simple example, we ask whether the Commons Preservation Society was effective, the answer would be a clear ‘Yes’ if we were thinking in terms either of its legislative successes or its tally of court wins. If, on the other hand, we were to look at a map of England at the date of the society’s foundation and compare it with a modern map (Environment Guardian, 5 January 1990), our answer might be ‘No’. But if we varied the question to ask whether the situation would be worse without CPS intervention, the reply would again be ‘Yes’. CPAG, to our knowledge the only English group rigorously to keep its Htigation strategy under regular review, commissioned a retrospective study of effectiveness from Tony Prosser, who was forced to the conclusion that CPAG’s vaunted test-case strategy, by then in operation for approximately fifteen years, had not been particularly effective. An important finding was that it was impossible to predict the outcome of court cases which were often so inconsistent as to deserve the term ‘lottery’. Worse, court victories were apt to be short-lived because they were almost certain to be ‘swiftly nullified by government action’ (Prosser 1983:83). Three years later, Roger Smith, then the group’s solicitor, was in agreement, admitting rather despondently that ‘judicial cases are clearly not a particularly effective way of directly improving the lot of large numbers of claimants’ (Smith 1986:284). There is, however, a strong counter-argument to the effect that CPAG’s test-case strategy has been extremely effective both in keeping the Department on its toes and in

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educating the judiciary—an avowed objective immediately prior to the seminal test case in 1965 (Hodge 1979). If again we were to pose the question whether the situation would be worse without CPAG’s litigation strategy, the answer might still be ‘Yes’ but this time more hesitantly. It is in fact difficult to see how a favourable judgment from the English courts in cases like the ‘Delays’ or ‘Social Fund’ cases could be implemented in a meaningful way. They are all too likely to have the effect of upsetting fiscal policy or occasioning a major funding crisis. Thus they invite retaliation from administrators and politicians and are, as Prosser noted, usually wiped out by primary or secondary legislation. In this respect departmental technique is improving all the time; today claimants can be heartlessly deprived of the fruits of test-case victories and loopholes in secondary legislation retrospectively corrected. Court victories can be cynically expunged before the appeal has been heard or retrospectively nullified before they have even been made. A more legitimate but equally dispiriting governmental response involves the reallocation of resources. It has been argued that law-enforcement strategies on behalf of the disabled nearly always founder on this rock (Bloomfield 1986:371). Because the total budget allocated to disablement is limited, a local authority charged with statutory obligations will always have to manoeuvre within its framework. In concrete terms, money spent on wheelchair access to public buildings means less home help for the disabled. Similar arguments could be advanced about resource allocation in the education or health services where money spent when (for example) a parent establishes a right to free music lessons may mean fewer teachers, or more operations on ‘hole-in-the-heart’ babies may entail closure of a geriatric ward. New resources are seldom generated by a lawsuit—though there are exceptions, as CPAG has shown with its ‘Social Fund’ and Drake cases. But the result is more often the recycling of resources. Frustration engendered by the realisation that this was so led Edward Sparer, a leading American welfare advocate, after years spent campaigning in courts, to talk of ‘Gordian knots’, whereby victory for one class of welfare client leads inevitably to losses for another, less privileged, section of the community (Sparer 1981). In discussing American literature which seeks to assess either the ‘impact’ or ‘effectiveness’ of test cases, we need to be sure to define our terms. A number of statistical studies have been made, reflecting the fact that the Supreme Court docket can be used as a base, which seek to express these values in mathematical terms (Becker and Feeley 1973). Typical of these is Kobylka’s study (1987) which tabulates the amicus interventions of the ACLU and conservative groups respectively with a view to measuring their impact in obscenity cases. A similar study by Epstein and Rowland (1986) was designed expressly to measure the success of group litigants against that of individuals by comparing the result of similar cases heard by a single judge. This could be said to have shown something which the authors did not set out to measure,

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namely, that judges are more influenced by precedents handed down by appellate courts than by amicus interventions. Epstein’s most valuable contribution is her study of the practices of right-wing groups. This contains much empirical information and includes an evaluation of strategy in which group sponsorship is measured against group interventions (Epstein 1985:20). Clearly, in the English system, where groups are denied both standing and rights of intervention, such data would be impossible to collect. The format for recording the civil justice statistics, which makes it hard to identify administrative law cases is a further obstacle (Sunkin 1987). Consequently, the nearest parallel to this type of research in Britain is that which seeks to evaluate the impact of representation at tribunal hearings (Genn and Genn 1989, Leonard 1987 a and b). O’Connor, writing in 1980, conveniently pulls together the work of a generation of American political scientists to extract a list of factors which can be used to predict the effectiveness of litigation strategies. Much of the American literature focuses on long-term effectiveness (for example, in changing public attitudes or impinging on administration); O’Connor’s relates to the lawyer’s definition of success in court. We reproduce the criteria with our own comments and examples: 1 longevity of group. (The NAACP is the standard example in the American literature); 2 full-time staff and presence of in-house lawyers or skilled and dedicated volunteers; 3 ‘sharp issue focus’; 4 financial resources, including charitable foundation support; 5 ability to accumulate and process technical data. (This is particularly relevant for environmental or consumer groups); 6 ability to generate well-timed publicity, both amongst the public at large and in specialist law reviews aimed primarily at the judiciary. (The NAACP is again the standard example though Inbau’s Americans for Effective Law Enforcement is perhaps a stronger one); 7 close co-ordination between national headquarters and local affiliates. (Problems caused by weak co-ordination have been mentioned in our discussion of the ACLU); 8 co-ordination and co-operation with other interest groups (in our terminology, ‘networking’); 9 ability to persuade thejustice Department or Solicitor-General to enter the dispute on the sponsoring organisation’s side. (This may be particularly relevant to the criminal process where Citizens for Decency Through Law provides the obvious example); 10 control. (This tenth factor is added by O’Connor herself) (O’Connor 1980: 17, 145).

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In her own excellent study of the litigation of the women’s movement, O’Connor’s main conclusions relate to 10 and 2, inter-related factors which she sees as essential to effective group litigation. O’Connor focuses on the difference between intervention and sponsorship, comparing amicus-based strategy with that of the early National Consumers’ League (see p. 76), where Brandeis insisted on control. We have already listed access to lawyers and legal advice as a factor in promoting litigation; we accept O’Connor’s conclusion that it is also an important factor in determining success, the essential link with ‘control’ being that in-house lawyers are able to take control of potentially good cases at an early stage. Most of the criteria are self-explanatory and some, such as 4 and 7, are in any case better fitted to the American than the British scene. In the British context, we feel that too much can be made of funding. We would not wish to disguise the resource implications of litigation strategies. Justice is notoriously expensive and throughout this book reference has been made to the precarious ways in which most pressure groups fund their litigation. In the modern era, the existence of comparatively generous legal aid provisions in Britain has improved the chance of gaining access to the courts (and has had the incidental effect of disguising the existence of much pressure-group activity behind an individualist facade). On the other hand, successful test cases and even litigation strategies can be run on a relatively small budget. Much may depend on the type of litigation: the mass-tort actions discussed in Chapter 3 demand far greater resources than a simple judicial review. In general, the groups which we have studied have not had vast resources at their disposal and the surprise is just how successful they can be. A tiny group like Social Audit can handle complex technical evidence and is not afraid to pit itself against the vast resources of a multinational company (though we must not forget that the Opren Action Group was never actually called upon to prove its case against Eli Lilly). The inequality has actively promoted the growth of ‘back-up groups’: with relatively modest funding, a group like the Action for Victims of Medical Accidents (AVMA) can act as a repeat player and so make a substantial contribution to the success rate of one-shotters. The authors have serious doubts too about the usefulness of longevity as a criterion for predicting success. There is perhaps a tacit reference here to Galanter’s ‘repeat player’ concept. But there are obvious difficulties with comparison. One group may confine itself to test cases while another, like NAF, runs a ‘blitz campaign’ in tribunals. How are these two strategies to be compared? Amateur dedication and enthusiasm of the kind shown in one way by a ‘one shotter’ like Victoria Gillick may sometimes be more than a match for long-term expertise. It is all too easy to confuse longevity with continuity. A group which, like the NCCL, has remained in business for many years ought, according to the longevity test, to be a successful repeat player. In actual practice, its personnel changes so quickly that the lessons have to be learned again and again. This problem is likely to be exaggerated by the fact

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that most groups (as we found to our cost) keep no adequate records. On some occasions, legal practitioners supply continuity. In a centralised country with a small bar, this type of litigation will often be handled by the same lawyers. Statistically, a long-lived group simply fights more cases. Is it to be judged on a percentage or net success basis? And, like regulatory agencies, pressure groups may go through active and inert phases in some of which they litigate, in others not or—a variant—in some of which they litigate successfully, in others not. The ebb and flow needs to be taken into account. A more serious point concerns ‘sharp issue focus’. O’Connor uses this term to refer to ‘single issue’ strategies which allow an organisation to concentrate its resources and energies and so to develop the sort of expertise which gives it the edge in fighting lawsuits: again a tacit reference to the ‘repeat player’ concept. O’Connor relies on the standard American example of the NAACP’s anti-discrimination campaign. Here we should bear in mind that her classification is at variance with that of Mark Tushnet in his full-length study of NAACP litigation strategy (1987). Tushnet regards these cases as largely unfocused and unplanned, often arising at an inconvenient time or in an unsuitable place, and sometimes forced on the centre—as Brown was on Thurgood Marshall (see p. 85)—by local groups. This raises an interesting question as to where the line is to be drawn. If, for example, the NAACP concentrates its resources on education cases, this is presumably an example of sharp issue focus. Do things change if the campaign is extended more generally to all ‘Jim Crow’ practices? And so on. On this side of the Atlantic, it is hard to find instances of a planned and coordinated test-case strategy which would satisfy a purist. Individual cases are planned and may be carefully structured: the choice of Jacqueline Drake to fight the case of carers to Europe is one example used in this book. More obviously co-ordinated were the European Convention corporal punishment cases fought by STOPP or MIND’s ECHR campaign. Both exemplify ‘sharp issue focus’ and merit the term ‘test-case strategy’ because in each several applications were preferred with plain tiffs carefully selected to provide a broad range of issues for adjudication. It is tempting to attribute the success of these campaigns to sharp issue focus and to contrast the clever tactics with the Rees case on the rights of transexuals which we used (see p. 268) as an example of a case unsupported by a network. We must remember, however, that ‘broad issue’ strategies can be effective: they may also be difficult to avoid. We have criticised the NCCL for its scatter effect but it is hard to know whether this could have been avoided. GROUP PERSONALITY The American predictors are internal in the sense that all relate to the resources and organisation of the group. To the authors’ surprise, since much interest has been shown by social scientists in the topic, there is little emphasis

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otherwise on the question of group personality. ‘lnsider status’ has been seen as a significant determinant of success or failure in the political arena and ‘respectability’ as determinative of group behaviour in lobbying. These two concepts are closely linked. Whether groups choose to aim at insider status or vvork from outside the system, perhaps resorting to direct action, depends at least partly on their ‘respectable’ image. A body like the National Trust would not wish to take up an overtly political stance for fear of affecting its charitable status, offending its membership, damaging its image and impeding access to the government agencies with which it needs to keep on good terms. On the other hand, its representation in high places is such that it has been able to secure legislative successes beyond the reach of fringe groups and its imprimatur may today be enough to stamp a campaign as politically neutral. Group personality is undoubtedly an important factor in the decision to have recourse to law. As this book amply demonstrates, every type of group uses litigation from time to time but they do have their preferred styles. At one end of the spectrum we find the established and accepted charitable institutions liable to be inherently suspicious of litigation, believing that it may prove divisive and reflect unfavourably on their ‘respectable’ image. Insider groups like the Disability Alliance, blessed with good relations with government may fear that litigation will deprive them of their assured place in the power structure, reducing their ability to lobby and influence government. Even this type of group can occasionally be tempted into breaking its rule, as the determinedly apolitical association of Citizens’ Advice Bureaux did with CPAG’s ‘Delays’ case or the Disability Alliance did itself in the successful Drake case. Groups may behave differently at different stages of their existence, as the Howard League for Penal Reform has just done by joining with a network of civil liberties groups to set up a legal unit to advise on prisoners’ rights. At the opposite end of the spectrum are found direct action groups which might be thought unlikely to litigate. This book shows, however, that this is not always so. Radical groups do tend to view the judiciary with suspicion and some may prefer to concentrate their energies on political campaigning; others —Pax Legalis is one—may try to take the legal system on. Extremists may reject both legal and political institutions, refusing to acknowledge the jurisdiction of the courts. Activists may also change their stance. Litigation may come to seem a hallmark of respectability to a campaigning group like Greenpeace, whose early encounters with the law were defensive and mainly unsatisfactory. Again, an ‘outsider’ group may set out to challenge an ‘insider’, as Victoria Gillick did with the Family Planning Association. Despite the absence of official backing from the churches, Gillick was able to draw on the respectability of organised religion and several of the judges described her action as disinterested and public-spirited. Her perceived respectability was undoubtedly a factor in persuading the court to give her a serious hearing. In the alternative forum of the courtroom, groups may change

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their status when judges substitute their preferences for those of the government or of an agency. Some groups seem able to build insider relationships with courts. Interights is the prime example here. Its legal expertise has brought it an enviable reputation with officials of the Council of Europe as well as with the quasijudicial United Nations Committee on Human Rights. For some purposes it has achieved what we might describe as unofficial amicus status and may be called on to help unrepresented litigants in difficult cases. Here legal expertise seems to possess a depoliticising effect importing respectability. The NSPCC owes its special statutory powers directly to its ‘respectable’ image. These have also secured it a special relationship with local authorities who have on occasion indulged in wholesale delegation of their own statutory powers to the NSPCC. The close co-operation of the police and prosecuting authorities with the RSPB is a quid pro quo for and a guarantee of acceptable conduct. GOOD FIT AND RESPECTABILITY In Chapter 4, we suggested that success (in its narrow sense) can be linked to what we chose to call ‘good fit’ with the legal process. ‘Good fit’ was defined in terms of three factors: subject-matter, objectives, and means. In so far as it affects conduct of the case and courtroom behaviour, respectabilhy is a factor in ‘good fit’. Courtroom behaviour conditions judicial views of respectability; from a judicial standpoint a group must avoid the tactics of direct action around the courtroom if it is to be seen as respectable. Those who embark on the contrary course are likely either to come up against the law of contempt or fail. From the opposite standpoint, respectable groups prefer to play by the rules in playing lawgames and those which combine legal expertise with traditional styles of lawyering are are more likely to win. The circularity of this type of argument is, however, self-evident. For example, it has been argued that the contemptuous tactics of the Welsh Language Society were partly adopted because the known support of the magistracy for their cause rendered the tactics less reprehensible (see pp. 160–1). Again, the declared intention of the ‘Mangrove’ defendants to challenge the institutions of society directly hardly suggests a wish to be seen as respectable. Nor, as we emphasised earlier, is such a group necessarily concerned with winning— another point overlooked in many of the American studies which simply assume shared, liberal values. Respectable groups may be able to present themselves as more successful than they are. Discussing animal welfare tactics, we saw how the RSPCA tended to avoid litigation in controversial subject areas, thus ensuring a high success rate impressive to the membership when tabulated in the Annual Report. The self-imposed embargo enabled more radical (less respectable) splinter groups to open up new areas for litigation. These were less ‘successful’. Divisions also enable one sector of a lobby to preserve

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respectability at the expense of another: Compassion in World Farming and other respectable sectors of the animal rights lobby would not refuse to benefit from illegal tactics though they would refrain from using them (see p. 212). Respectable groups could go on to win cases put together with the indirect and unacknowledged help of activists. (A successful litigation strategy could be founded on such tactics.) Divisions can also be put to positive use by experts in ‘plaintiff stacking’. Temporary backing from an established group can be used to suggest support for a radical initiative across a wide spectrum of’respectable’ polidcal opinion. On the other hand, divisions may endanger the success of the whole lobby. To quote O’Connor (1980:27), ‘when schisms within the group are well publicised, the respectability or prestige of any one organisation may fail’. EXTERNALITY A more serious criticism of the American predictors is the undue stress on internality. We would argue for far greater emphasis on external factors as affecting outcome. Advocacy after all does not take place in a vacuum but in a courtroom, and the courtroom is not hermetically sealed. Thus it has been said that Brown v. Board of Education of Topeka was simply an idea whose time had come; after the experience of the Second World War, won with the help of black troops, discrimination had ceased to be compatible with the American selfimage. The concept of ‘good fit’ is helpful in drawing attention to the interplay of external with internal factors in conditioning success and failure. Judicial personality and subject-matter on the one hand, relate to means and objectives on the other. That the former may in the end prove more important than questions of organisation or resources is amply demonstrated by many of the cases discussed in earlier chapters. Much time and labour has been spent by American social scientists in studies of the judiciary. Scaling exercises and studies in group psychology are commonplace. Lawyers have begun to take such work seriously and a more conventional evaluation of the Supreme Court’s performance has become an annual event for the Harvard Law Review. It is surprising, therefore, to find little overt reference in the literature of pressure-group litigation to the personality of the presiding judge. There is a general perception that cases won in the Warren Court could be lost in the Burger or Rehnquist Courts (Blasi 1983, Dworkin 1991). There are tangentially relevant studies such as Peltason’s 1961 impact study of the effect on the southern judiciary of Brown. Yet the woman suffrage cases were ruled out-of-court (so the women’s movement would argue) by the prejudices of a male judiciary. Pressure group lobbying, forbidden by earlier ACLU presidents as a threat to ‘separate identity’, is today commonplace at the appointment of Supreme Court justices. Recent candidates have all faced cross-examination on abortion. Judge Borks ‘conservative’ attitude to civil liberties sank him and campaigning reached a

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climax of impropriety on the appointment in 1992 of the new black justice, Clarence Thomas. Away needs to be found to incorporate external factors into evaluative criteria. In this country, there are no relevant studies on which to draw although the point is recognised as significant by left-wing writers (Griffith 1991, Sedley 1986). In earlier chapters we have suggested that the attitudes of the rural magistracy affected the litigation policy of the RSPCA in its formative years and also influenced the modern League Against Cruel Sports (see p. 169). For some judges, the very term ‘pressure group’ has opprobrious undertones; we have cited Lord Diplock in the Harman case and Lord Donaldson in the ‘Baby C case’ to this effect. At a more technical level, it was easy for CPAG to persuade Sir Harry Woolf, whose commitment to a ‘public interest’ ethos of administrative law is evident (Woolf 1990), to grant representative standing in social welfare cases. It is noteworthy too that the main advances made by environmental groups in planning cases have been pioneered by two judges: Lord Denning in the 1970s and, ten years later, Lord Justice Woolf. A different judge may bring a different result—as indeed occurred in the ‘Rose Theatre’ case (see p. 144). In Chapter 4, we made the point that some subjects lend themselves more to pressure through law than others and that this was a determinative factor in establishing good fit. On one side we put cases which are firmly based on settled, well-known common law rules and whose subject matter falls squarely inside the parameters of the common law such as the nuisance actions of the Anglers’ Cooperative Association, the suits brought by the Commons Preservation Society to defend commoners’ rights, or the trespass actions of the League Against Cruel Sports. All involved recognised common law property rights. There is however a danger here of reading backwards. The group concerned may itself have helped establish the precedents from which it now profits. The first commoners’ cases were regarded as novel and their success was seen to depend on skilful ‘forum shopping’ for favourable judges (see p. 47). This argument can be carried outside the national scene. Some infringements of right—the right to life and the prohibitions on inhuman treatment and torture—fall squarely within the accepted terrain of human rights. Cases based on them are easier to win, even where the infringements are relatively trivial, than are those which seem to require the recognition of new rights, for example, for non-citizens or the clients of social assistance. At the opposite end of the spectrum, we used the phrase ‘no-go area’ to designate a type of subject matter which will almost automatically be classified by the judiciary as ‘non-justicable’, instancing the unwillingness of national courts to review the operation of the security services or the use of the defence power— a barrier sufficient in itself to explain the failures of the Peace Movement. The polycentric nature of decisions with serious implications for resource allocation may also operate to deter the judiciary from intervention. English judges tend to balk at establishing surgical priorities for a hospital or costing

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the annual outlay needed to keep a branch railway operative, preferring to leave such matters to doctors, accountants and economists. Subject matter of this type thus tends to become a ‘no-go’ area because of its technicality. At one and the same time it seems to challenge tacit assumptions about the respective responsibilities of judge and government and to catch the judiciary on the wrong foot by inviting interference in matters in which they can boast no particular expertise. It is therefore hard to develop an effective litigation strategy in such an area, an unpalatable truth which makes the persistence (longevity) of CPAG praiseworthy. In seeking to open new subject areas, judicial personality will obviously be important. It is equally important, however, not to ignore the statutory microclimate. A change in the statutory provisions may present a ‘window of opportunity’, as occurred when the Control of Pollution Act 1974 came into effect creating pollution offences for the first time (see p. 212). As we saw, this Act did not provide an ideal climate for a litigation strategy because of difficulties of access to evidence and of proof. But technicality of subject matter is ambiguous. It may at one level act as a powerful disincentive to a sustained litigation strategy while at another providing a spur to group action when single individuals are seen to fail for evidential reasons. The rise of the litigation coalition makes this point admirably. A single statutory consent provision could close offa whole line of pressure-group activity as, for example, has happened with the offence of incitement to racial hatred. Political campaigning may then be necessary to force Parliament to open the window. The existence of pegs on which to hang campaigning strategies has to be taken into consideration in assessing pressure through law. ‘DRAINPIPE’ TO ‘FREEWAY’ Although our last paragraphs moved some way from a wholly internal assessment of pressure-group litigation, their tenor was still largely internal. To put this slightly differently, effectiveness was being measured subjectively in terms of the group’s own goals. Thus, in discussing judicial preference our criteria remained success and failure in court. Clearly this is a limited perspective and we believe that any evaluation of pressure through law which failed to move outside the viewpoint of its principal actors would be defective. Moreover, this is not the perspective we have adopted in the body of this book. Chapter 3 considers the effects of group litigation on the legal process and Chapter 4 deals with the tension created when group action seems to threaten the concept of separate identity which judges seek to uphold. Chapter 5 touches on the legitimacy of group use of the prosecution process, a question with a significant constitutional dimension. It is now time to come to grips with this central issue of the relationship of group litigation with the adjudicative process.

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Confining ourselves for the moment to ‘public’ law, let us consider the effect of pressure-group litigation on English judicial review procedure. For us three developments are particularly relevant. The first is the introduction of wider and more flexible rules of standing by the Federation case (see pp. 147– 8). These are beginning to find favour with some, though by no means all, of the judiciary. The second is closely related and concerns the first signs of ‘representative proceedings’, using this term in the sense of a form of procedure permitting substitution of a group representative for the personally interested litigant traditionally required in judicial review proceedings (see pp. 149–51). The third development, again closely connected, involves the increased pressure for intervention procedures to allow penetration of the bipolar or adversarial legal process by third parties, usually (though not solely) through the mechanism of an amicus brief. In analysing the effects of these changes, we have found it helpful to postulate three sharply differentiated models of judicial review. The first and classic model we have christened the ‘Drainpipe’. We visualise this traditional format for judicial review in England as a narrow tube barred at intervals by valves. Each valve closes off a different stage of the application for review, separating the threshold requirements of leave to proceed and standing from the substantive stage of grounds for review and the final question of remedies. Before a valve opens to allow passage to the next stage, the court must be satisfied that the requisite conditions have been fulfilled. Although use of the term ‘valve’ implies flexibility, the system is flexible only in so far as some judicial discretion exists at each stage of the proceedings; in practice, the rules of this traditional model were laid down in precedent and the system was widely seen as inflexible. To concentrate on our chosen aspects of procedure, the rules of standing were restrictive; there was little room for collective action; and there was no provision for third-party intervention. The Drainpipe was dominant prior to the introduction of new procedures in 1978 through reform of Order 53. It goes without saying that access to the court in the Drainpipe was limited and deliberately so. At the opposite end of the procedural spectrum we find the American ‘Freeway Model’. The distinguishing characteristic of this ideal type is its permeability at every stage of the action. In its perfect form (which is nowhere in use) group standing is acceptable as it was in the famous Sierra Club case and amicus interventions are an accepted feature. Discovery is generous and the rules of evidence flexible enough to admit non-legal material (the ‘Brandeis brief’). As for remedy, the Freeway lends itself to creativity and encourages the interventionist or managerial judge. Mandatory injunctions are extended to permit judicial supervision of bussing or the ‘Yellow Cab’ style of order (see p. 125) and the court does not back away from the prospect of monitoring compliance with court orders (Chayes 1976:1284, Resnik 1982: 377). While the Drainpipe treats judicial review largely as a mechanism for the protection of individual and private rights and is therefore relatively difficult

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for non-parties to permeate, the Freeway is especially favourable to permeation by non-parties, including groups. The model with which English courts seem currently to be experimenting (though ‘groping towards’ would be a fairer description) is a compromise position which we call the ‘Funnel’. Here, the seal of threshold requirements has been broken, leaving questions of standing to permeate and be permeated by questions of substance or grounds for review. At the point of entry, the model resembles the Freeway in en couraging collectivism; representative status is beginning to be conceded to groups with something substantial to say. Problems with the Funnel arise at later stages in the hearing. Grounds for review remain relatively restricted and procedurally oriented in that the judge is not allowed to substitute his own judgment for that of the impugned decision-maker—a point made only briefly in this book through the ‘East Sussex’ case (see p. 175). A negative attitude is taken to non-party intervention and amicus procedure. Finally, orthodox legal remedies remain the order of the day and there is little willingness to move outside the traditional framework. The Funnel started to impinge on the traditional Drainpipe after the Federation case broke the seal between threshold requirements and grounds of review by allowing standing to be considered in conjunction with the merits of the case. It was, however, the later ‘Underpayments’ and ‘Delays’ cases, in which CPAG was granted representative status for purposes of initiating the action, which have done so much to open the neck of the funnel. Essentially we have two quarrels with the Funnel Model. The first is that it dangerously skews the pattern of legal procedure by encouraging or at least permitting group representation at one stage of a lawsuit and not at others. The inevitable result is to confer a considerable advantage on the attacker because it may well be easier to initiate legal action in the name of a group than to interpose at a later stage of the action. In practice this may mean that the group permitted to enter may not be the only, or even the most, representative. So long as the prevailing model was that of the Drainpipe, this question was scarcely relevant, being subsumed in the corresponding legal concept of ‘interest’, but with the Funnel this safeguard no longer operates. The point is nicely illustrated by the Gillick case. Effectively Victoria Gillick was using the Funnel to broadcast her views to the nation; elsewhere we have expressed our surprise that she was allowed to don the mantle of the Attorney-General in order to do this (Harlow 1986a). The question of her quality as representative was more relevant when considering her primary objective of law reform. This was formally challenged when the Children’s Legal Centre applied for permission to enter an amicus brief. Neither of the parties actually before the court, it argued, could be said to be fully representative or to have exhausted the possible range of interests involved in the case. The House of Lords impliedly rejected this potent argument, refusing permission to intervene but giving no reasons (see p. 198). The effect was to allow Gillick to monopolise

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the funnel, preventing others from taking issue with her arguments. The authors see an unfavourable contrast with the Freeway in terms of adequacy of representation. Our second quarrel with the Funnel is that it sends out misleading signals. In sharp contrast to the Drainpipe, which gives a clear indication from the outset that groups will not be encouraged to fight political or hypothetical battles in the courtroom, the Funnel constitutes a standing invitation to litigate. Where the lay public is concerned, this is calculated to create a class of disappointed litigants, lured into court by the prospect of relaxed rules of standing, only to become disenchanted by the limitations of judicial review proceedings. The grounds for review in particular fail to measure up to the expectations of the lay public, which not surprisingly finds their technicality and their procedural character frustrating and hard to grasp. The disillusion of this class of litigant was pithily expressed in a television interview given by Victoria Gillick after her costly, lengthy, and—to her mind—fruitless trip to the House of Lords. Such sentiments can rebound on the judicial process and do little to enhance its authority. An alternative effect is achieved when pressure groups are encouraged to expend time and energy pushing for procedural reform. With the reservation that for some groups—the Legal Action Group or APIL—procedural reform may be an end in itself, this can be seen as a waste of powder and shot. A social action group such as CPAG could arguably be criticised for allowing itself to become obsessed with legal procedure and spending too much time and energy in litigation. The primary purpose of such a group is not to fight for a Freeway model of judicial review, to extend justiciability or press for extension of the grounds of review. Such activity is really a side-issue and a distraction—from the government standpoint usually a welcome distraction— from the real business of political campaigning. This is really a stronger version of the argument made (for example) by the medical members of MIND when they attacked Gostin’s litigation policy. Another way to put this might be that the membership does not wish the group’s policy to be dictated by lawyers’ interests. One reason for the fall from favour of the Freeway in the last decade is its unstructured character. Like the American class action, it can all too easily degenerate into a ‘free-for-all’ with no clear rules. The excessive discretion vested in ‘managerial’ judges then creates opportunities for abuse of judicial power (Resnik 1982:424). To put this differently, the American managerial judge involves a dramatic change of style which, as we saw, has led to talk of cracks in the icon of disinterested justice (see p. 199). Bryden (1987), writing of constitutional adjudication under the new Ganadian Charter of Rights, has argued for structured reform of public interest representation in the courts. He asks for a close examination of the relationship between locus standi and intervention by non-parties (a link which the Funnel ignores) and his preferred solution involves a reclassification of the types of

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intervenor, with clear rules as to who should be permitted to intervene and at what stage of the action. The authors associate themselves with Bryden’s plea for a structured approach, which they see as working along the following lines. Taking the ‘Rose Theatre’ case (see p. 144) as a hypothetical example, it could be argued that the most representative applicant would have been a museum or other semiofficial body (Redman 1990:93). A ‘Structured Freeway’ would give priority to a museum or other expert body as initiator with room for interventions from unofficial bodies at a later stage. Absent a response from the former, the Trust might receive permission to initiate proceedings, leaving the semi-official lobbies to intervene if they wished. GROUP ACTION AND LEGAL PROCESS As an ideal type, the Freeway represents Stewart’s dream of an ‘interest representation’ model of administrative law (Stewart 1975). Group intervention is seen to strengthen the legal process by permitting groups, more obviously representative in the political sense than individuals, to contribute to a genuinely pluralist style of judicial decision-making. A second reason for its fall from favour lies precisely in the fact that the Freeway is associated with judicial activism. Chayes (1982:96) sees this as inevitable, arguing that all public law litigation ‘casts courts in an affirmative, political—activist if you must—role, a role that contrasts with the passive umpireship we are taught to expect’. And Krislov, the historian of the American amicus brief, remarked at an earlier stage in its march to favour that the Court’s attitude, practices and rules regarding the permission to file amicus briefs may indicate the extent to which it desires to engage in quasi-legislative activities and to depart from a role of narrowly resolving adversary disputes. (Krislov 1963:717) Bryden makes a similar point when he observes that all non-party intervention in constitutional cases depends on ‘open recognition of the truth thatjudges make law’. He admits, however, that the admission may help to undermine the legitimacy of such adjudication because, in a democracy, we ‘tend to believe that all laws ought to emanate from the democratically elected representatives of the citizenry’ (Bryden 1987:505–6). Thus the Drainpipe, which relates closely to formalist theories of law, envisaging for adjudication a limited and distinct function in the protection of individual and private rights, is inherently less dangerous than the Freeway. The rationale of the Drainpipe in its extreme form can be said to lie in the declaratory theory of law which denies to the judge any lawmaking or policy-making function and leaves the judiciary in a less exposed position. Our dissatisfaction with the Funnel at the theoretical level lies in the fact that it falls between two stools. Despite its pretensions, it

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does not in truth provide an alternative political forum because it has made no space for non-parties. On the other hand, because it seems to establish a surrogate political process in the courtroom, an encroachment on traditional executive prerogative, it is capable of bringing the judiciary into collision with government—metaphorically a case of being hanged for stealing a lamb rather than a sheep. Both the Formalist/Drainpipe and Activist/Freeway models of adjudication are in their own terms coherent and viable. Which model is ultimately preferred is largely a matter of personal political choice. In the slightty different context of the debate about ‘government by judges’ the pros and cons have been extensively canvassed and do not bear lengthy repetition here. It could be said, for example, that the Activist/Freeway represents a shift to further input by the judiciary into policy-making which some might argue is not in keeping with our political history or constitutional traditions. The adequacy of the legal process for political or administratve decision-making could be questioned and doubts voiced about the expertise of our judiciary to dabble in policy or adjudicate polycentric decisions. And given the importance of representativeness in modern democratic theory, the judges’ own representativeness is necessarily called into question: judges are, after all, neither elected nor particularly typical of society, although they sometimes claim to represent it (Devlin 1965). The Drainpipe, on the other hand, is criticisable as presenting a wholly unreal picture of the adjudicative process. It fails to make space for the obvious truths that, at least to a limited extent, judges do indulge in lawmaking and do take policy decisions. Moreover, when judges do—as they inevitably must—impinge on the territory of executive government, the unrealistic nature of formalist theory leaves them to be guided by personal notions of the ‘public interest’, which may prove an idiosyncratic and unreliable guide (Griffith 1991). Finally, it can be argued that artificial limitation of the ambit of adjudication, resulting in the creation of significant ‘no-go’ areas, is likely to decrease the real account-ability of political actors. Because it is a model of interest-representation, the Freeway facilitates participation in policy-making. Thus the demand for group participation in lawsuits parallels the movement to which we have already made brief reference for wider participation in administrative and political decisionmaking. In facilitating intervention while preserving an orderly frame-work, the written amicus is probably the greatest procedural contribution to interestrepresentation in adjudicative proceedings yet developed. But the Freeway gives no guarantee of equality of representation. The authors agree with Susan Olson (1990) that the politically advantaged are often equally advantaged in court; in Galanter’s celebrated aphorism, that the ‘haves’ tend to come out ahead. And is it not a central tenet of interest group theory that all groups are essentially self-interested? That the claim to represent the public interest reflected in the label of ‘public interest law’ is no more than a cover for what Mancur Olson (1965) and other interest group theorists call ‘rentseeking’ or self-

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promotion, through publicity? American courts handle the problem in typically pluralist fashion by allowing competing interests to participate as intervenors. It could, however, be argued that the imbalance can best be adjusted in the unstructured free-for-all of the political process where the influence of differences of power is more readily acknowledged. This is a viewpoint endorsed many times from within the pressure-group world. The most convincing argument for the Freeway concerns openness. Discovery procedures can do something, and could with a little common-sense do rather more, to counterbalance undemocratic official secrecy laws. The facility of private prosecution brings pressure out of the closet and into open court. ‘Plaintiff-stacking’ and the representative action reveal details of funding which can otherwise be smothered. Whether or not the Opren litigation was known to be funded by Geoffrey Bradman (see p. 132) was, for example, entirely a matter of chance; there is no procedure whereby the name had to be disclosed to the court. As it happened his backing was unexceptional, but suppose that it had come instead from a commercial rival of Eli Lilly. Surely it would be in the public interest to know this? Lawsuits brought against unions in the name of individuals have been funded by enemies of unionism. We are not suggesting that knowledge of this fact would affect the outcome but we do believe the public ought to know that this type of lawgame can be played. Precisely this point was made recently by the law lords, when they were told that an anonymous financial backer (perhaps a union?) was meeting the costs of a journalist charged with contempt of court (X Ltd. v. Morgan-Grampian (Publishers) Ltd. (1990)). Or, marginally to change the subject, take the ‘Right-to-Die’ case of ‘Baby C’ (see pp. 179–80). It was the avowed interest of media and pressure groups in this case which warned the courts to be careful. Their reaction, if not the final result, might have been rather different if an application to reveal particulars had been made in the name of a close relative; if a pressure group lies behind such an application, this fact might be thought highly relevant. Group actions and representative proceedings are like the Freeway Model in bringing the actors out of the wings to centre-stage. They allow pertinent questions to be asked about representativeness. They force interests to be declared and positions made clear. The authors believe that this is all to the good. We do not see the presence of groups in the legal process as creating the pressure for a Freeway but it does tend to accentuate it. Groups pioneered representative proceedings, sponsor amicus interventions, and campaign to extend the range of justiciable issues. Such activity invites the judiciary—often deliberately—to impinge on areas of decision-making previously reserved for government. By and large, British judges have not shown themselves to be Freeway-minded. Were they to do so, questions about legitimacy, expertise and judicial identity would all come squarely on to the agenda. Questions would arise over access, given the inordinate cost of litigation. And as judicial decision-making became more important, politicisation of the legal process

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would occur in another way. The extension of lobbying techniques learned in political campaigning would imperil the tradition of separate identity and could also provoke clashes with the courts. All these are battles which are being or have been fought in the United States. Thus we might find formalists antagonistic to pressure-group activity in courts on the twin grounds that it threatens the Drainpipe, which typically they see as the only valid version of the adjudicative model; and that it imperils the judicial process. This is, as Epstein discovered (see pp. 101–2), precisely the line taken in the United States by conservative public interest law firms— though logic is not allowed to inhibit their vigorous use of the amicus brief! In Britain, it is possible to associate similar attitudes with the Freedom Association, an avowedly conservative group which sees no contradiction in using collective action to press individual legal claims. And, in any case, the history of the common law provides a hard reminder that groups will wriggle into the Drainpipe however firmly it is sealed against their intrusion. The torts of maintenance and champerty did not extinguish group support for litigation though they did much both to discourage it and disguise its existence. STRIKING BACK? Given the doctrine of parliamentary sovereignty, it would be theoretically possible for a British government to pre-empt pressure through law with a ‘revenge package’ as draconian as that used by the southern American states in the wake of Brown v. Board of Education (see p. 87). The ancient torts of maintenance and champerty could be revived. Sections outlawing a ‘charitable’ and ‘public interest’ type of defence or specifically forbidding group sponsorship and support of lawsuits could be inserted into appropriate legislation. But this is hardly a practical proposition; the drastic nature of the measures involved would attract hostility across the political spectrum. Free access to the ‘ordinary courts of the land’ is a basic article of faith in most versions of the democratic creed. To tamper with this procedural right would arouse the wrath of Diceyan traditionalists including the judiciary, a powerful interest group when roused. The present strength of the movement for a written constitution and justiciable Bill of Rights, centred around ‘Charter 88’ but gaining support from the ranks of the opposition parties again renders such measures unlikely. Less controversial would be termination of the private right to prosecute. Although this ancient constitutional right managed to survive the Philips Commission, its desirability is questionable. Despite the argument for a fallback power in cases of official inertia or malpractice, there has always been a strong case for the continental or American model, both of which reserve the prerogative of inflicting punishment for the state. (In saying this, we do not overlook the existence of a strong lobby in the United States which supports the introduction of a private right to prosecute in conjunction with greater

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participation by the victim in the criminal process.) In this country, consent clauses in specific statutes are readily accepted by Parliament though they often give rise in practice to complaints from victims’ groups (the use of the Attorney-General’s consent powers to authorise prosecution in cases of incitement to racial hatred (see p. 204) is a prime example). Consent provisions do not necessarily bring pressure to an end but they do push it into the background, insulating the magistracy through the substitution of private correspondence with the DPP and other forms of political pressure for proceedings in open court. Consent provisions also have the effect— convenient for government—of foreclosing controversial political areas of strong pressure-group interest. Obviously this can occasion resentment: witness the fuss made by the ‘green’ lobby when provisions in water privatisation legislation before Parliament threatenend the right of private prosecution (see pp. 212–3). We could expect this reaction to be replicated on other occasions. In civil proceedings ‘ouster clauses’—the technical term for a statutory provision which precludes challenge by means of judicial review (Harlow and Rawlings 1984:98–118)—are already common in modern statutes, inserted at the behest of governments of all political persuasions. The problem is that ouster clauses tend to become the target of test cases designed to attack their validity, creating the very nuisance they are designed to outlaw: CPAG’s ‘Social Fund’ cases originated from a desire to break an ouster clause. Even formalists tend to see ouster of the courts’ jurisdiction as the antithesis of the Rule of Law and the judiciary too is innately hostile. The leading modern author has gone so far as to describe ouster as ‘an abuse of the power of Parliament, speaking constitutionally’ (Wade 1980:65). It is, however, an abuse to which Parliament is much addicted. Whether ouster clauses would survive determined attack in the European Court of Human Rights is very questionable. Britain has on several occasions been successfully impugned at Strasbourg under articles 5 and 6 (right to a fair trial) in respect of situations in which there was no provision for judicial hearing.3 Similarly, the significance of the Johnston case from Northern Ireland (see pp. 285–6) was that the ECJ outlawed an ouster clause which would have been valid in domestic law. The ‘Social Fund’ arrangements, which limit review to an inspectorate, might also be successfully challenged. The alternative approach for government is to substitute a tribunal hearing for appeal or review by the High Court. This is, however, by no means a complete answer given the unwillingness of the latter to relinquish its supervisory jurisdiction (Harlow and Rawlings 1984: 98–118). The government may in any case still end in Strasbourg defending the quality and judicial character of its alternative arrangements (the statutory tribunal introduced after the Malone case by the Interception of Communications Act 1986 is one example of arrangements which need testing). A test-case strategy built round this issue would be an interesting experiment in ‘sharp issue focus’.

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Indirect attack by a pre-emptive strike at funding is a far greater danger. The reader will not need a further reminder of the deterrent aspects of the high cost of legal action. Membership appeals, grants from charitable foundations or financial assistance from public bodies, could never fill the gap left by the withdrawal of legal aid. Here again total withdrawal would be unlikely, although the rules could theoretically be tightened so as wholly to exclude group and multi-party actions from their ambit. But this would inhibit the growth of the latter, essential to enable mass-tort claims to be handled efficiently. It would almost certainly provoke renewed demands for an American contingency fee system, unpopular alike with the profession and Lord Chancellor’s Department (see pp. 115–6). Legal aid is under threat but it is more likely to suffer a process of attrition than vanish abruptly. Again, if the rise of the litigation coalition is in part a response to the cost of litigation, then a legal system difficult of access to individuals is likely to stimulate group action still further. THE FUTURE OF PRESSURE THROUGH LAW We have described pressure through law as sitting neatly inside an interestgroup model of political society and so it does, the implication being that political change is likely to be reflected by changes in political litigation and pressure through law. At one level, the political scene constantly changes. Parties wax and wane while politicians come and go with changing agendas. At a deeper level, there is no reason to expect radical change in the underlying pattern of modern western democracy in the near future—rather the contrary. Pluralism remains in vogue in the western world and is presently spreading like a bush fire through eastern bloc countries, where rapid fragmentation is the order of the day. Discussing the political context, we suggested that the swing to conviction politics provoked an upturn in pressure-group litigation, as groups disappointed in the political arena struggled to keep a toehold in court. A further swing would only accentuate this trend. One would also expect to find litigation campaigns run on behalf of, though increasingly by, minorities who may be disadvantaged at the national political level. And whether the pendulum swings left or right, towards or away from consensus, two factors are likely to remain constant. On the one hand, there is unlikely to be an increase in resourcing public services equivalent to that which took place during the 1960s and 1970s. On the other hand, whatever the political complexion of the government, administration will inevitably remain rulebound—the complex mass society which is modern Britain can hardly operate in any other fashion. (There are other, more complex reasons, but this is not the place to expound them.) So long as thejudiciary remains the chosen constitutional vehicle for rule-interpretation, courts can expect to arbitrate an escalating number of disputes over the meaning of the rules. This in itself

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points to a rise in the judicial workload and many of the applications will naturally be initiated by groups disappointed in the legislative process. This does not necessarily imply, however, that the subject areas of judicial challenge will remain static. At the time this book was conceived, CPAG provided the major example of a group consistently experimenting with testcase strategy and the major area for judicial review was immigration (Sunkin 1987), though cases brought by and against local authorities occupied much media space. At the time of writing, cases brought by parents against education authorities seem to be on the increase. If services in housing, health and education continue to decline, we might find actions for judicial review becoming commoner in these areas. Increases in parental power at the grassroots level may lure parents into court to enforce new obligations—the centralised syllabus perhaps? Media attention meanwhile turned to a newsworthy campaign fought by the militant Anti-Poll Tax Federation against the Thatcher government’s unpopular community charge. Every element of pressure through law discussed in these pages seems to surface here. Starting as an inexpensive ‘blitz campaign’ based on a reactive strategy, fought by non-payers in magistrates’ courts, it soon had to change levels when a serious point of law concerning courtroom support and advice from lay representatives had to be appealed. Legal advisers formed an informal support group to exchange information. Later the NCCL, which has appeared so often in these pages, came in to fight this important test case to the Court of Appeal (R. v. Leicester City Justices ex p. Barrow (1991)). Mass-tort cases are never out of the headlines, with the foundation of a new victim support group announced almost daily. From Thalidomide, Opren, Dalkon Shield to haemophilia. While the last was being resolved, a listeria support group was formed to sue the Ministry of Health for failing to warn pregnant women of the dangers of eating unpasteurised cheese (The Times, 13 July 1990). A year later, victims of hepatitis-C were threatening to sue the blood transfusion service (The Independent, 7 August 1991). The authors note with interest the recurrence of the same, specialist lawyers in the press reports. There is an increasing tendency, too, to turn to the criminal law in a search for accountability: failure of the Herald Families Association has done nothing to deter relatives of those drowned on the Marchioness from a private prosecution of the owners of the Bowbelle (see pp. 230–1). Although Citizen Action has made several appearances in this book, the consumer movement in this country has been otherwise relatively docile, coopted, some might say, by preferential insider status. This may be about to change. The Consumer Association recently advertised for an ‘unhappy passenger with a watertight complaint’ to apply to its legal department with a view to testing British Rail’s liability to comply with its advertised time-table (The Observer, 12 August 1990). The first press announcements of Prime Minister John Major’s ‘Citizen’s Charter’ (Cm 1599, 1991) suggested that this was precisely the sort of enforcement machinery he had in mind. Even as it

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emerged without specific rights of action, the ‘Citizen’s Charter’ is likely to push complainants towards the courts. Here again we are likely to find individuals’ rights in practice enforced by or with the help of groups. Again, a new Food Safety Act has just come into force which defines standards, creates new offences and establishes enforcement machinery in cases of infraction (Scott 1990). This type of statutory regime encourages citizen enforcement by those for whose protection it is designed. The struggle is also likely to extend into Europe where, as the EC increasingly takes responsibility for food standards, the food industry is one of the most powerful of EC lobbies and consumer bodies are said to be ‘battling against hopeless odds’ (Weekend Guardian, 9–10 March 1990). Political imbalance could drive opponents towards ‘independent’ courts. It is on the European scene that the authors confidently expect the main developments. As we started to write, the focus of attention was the European Convention on Human Rights, a document grounded in legal rights whose institutions provided the obvious forum for an American-style litigation strategy. The only clear example of pressure through law in the EC at that time was the equality litigation of the women’s movement (see pp. 282–6). Mirroring political developments, the picture has rapidly changed. The environmental movement, with mounting political support, has operated transnationally with great vigour. Britain is threatened with infringement proceedings in the ECJ in respect of bathing and drinking water. On the one hand, the environmental lobby is actively whipping-up opposition to Commission plans for heavier lorries; on the other, manipulating the Commission to foil the British government’s transport policies. One does not need to be much of a prophet to foresee that, in every available forum, pressure from the well-funded environmental movement will increase and find a response. Consumerism has already been mentioned as an obvious growth area and we noted that Brussels-based groups are beginning to talk of test cases in the ECJ (see p. 281). An upsurge of interest from immigrants’ groups or civil libertarians, bringing their experience on the international scene and in the European Court of Human Rights into Community institutions is also a possibility. The Maastricht Treaty creates a duty to ‘respect’ the guarantees provided by the ECHR. In time this may open a new ‘window of opportunity’ in the ECJ. British pressure groups, accustomed to work within a framework of parliamentary sovereignty, have now grasped the amazing truth that, in the last resort, national legislation is no longer final (R. v. Transport Secretary ex p. Factortame (Nos. 1 and 2) 1990). They are not yet positioned, however, to use the new machinery to best effect. It is not entirely the fault of the Commission, which has been generous in extending funding to unofficial groups, that the field was at first dominated by the more powerful interest groups of industry and agriculture; indeed, it could be argued that this mirrors the history of group pressure at national level (Brabrook and Bolt 1980). Informal or grassroots

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lobbies are harder to generate and maintain at the transnational level and they have been correspondingly slower to get off the ground. In Chapter 6, we stressed the crucial importance of net-working and registered our view that its potential has hardly begun to be realised. A greater input of resources and commitment to transnational networking is an essential next step in pressure through international law. The international political scene has been, and must necessarily remain, dominated by state players. The democratic institutions to which western countries are accustomed at national level have been either absent or notably weak. Public opinion is represented through national governments and opposition expressed through the lonely voices of NGOs. Inter-national organisations usually make space for NGOs in their institutional framework and, as the power and relevance of the new international norms begins to intrude on the cosy world of national politics, they act as a lure to lobbyists. The UN has been a fact of pressure-group life since the end of the Second World War (before, if experience of the League of Nations is taken into account). Groups have had time to accustom themselves to the new style of lobbying and to adjust their approach. More recently, however, the climate of international opinion seems to favour the establishment of judicial or quasi-judicial machinery for the enforcement of human rights. An important reason for this preference is that the ethos of judicial independence seems—and we choose the word with deliberation—to place such machinery above the political scene. The precedent of the European Convention with its adjudicative machinery is being adapted in other parts of the world. Like the ECJ, which has proved to be central to the development of the European Community, new machinery creates new space in which to play lawgames. Some existing groups are eager to play the lawgame, and new groups, often lawyer-dominated, have come into being keen to try their litigation skills. By the end of the century, we confidently expect that more will have arrived on the scene and that the game will be played with increasing professionalism. Rightly or (as the authors have tried to show) wrongly, pressure through law tends to be seen as an American activity. That the British should have dabbled also is hardly surprising given our common cultural and legal heritage. Throughout this book, however, we have been at pains to stress that the traffic in ideas is never a one-way traffic. If we have borrowed heavily from the United States, their debt to us is a large one. The Anglo American contribution to international law is already substantial. The future points in a new direction, towards an emergent European legal heritage. We should beware, however, of viewing European law purely as an incoming tide from the European Community. The common law tradition has much to contribute to Europe, and hybridisation is far more likely than submergence. Finally, although we have only been able to hint at this, pressure through law is not unknown in other European countries. But that is the subject of a future book.

NOTES

1 PHILANTHROPY AND DISSENT 1 This view is shared by modern lawyers and legal historians: Fiddes 1934, Wiecek (1974). 2 For some groups founded between 1865 and 1886, a bibliography by Malchow 1983 lists the promoters and their various interests. 3 Normally the father would have had custody, though it transpired after the trial that the girl was illegitimate and therefore in the legal custody of her mother—a complete answer to the charge: Strachey 1928:221. 4 See, for example, 1889 61 Parl. Papers (NS): 137, nos 175, 491, 582; (1892) 64 Parl. Papers: 509, nos. 255, 275, 503, 621). Individuals appear more often than groups. 5 We have used the common abbreviation RSPCA, for convenience, although at first the Society had no royal charter and was simply the Society for Prevention of Cruelty to Animals, 6 See for some examples, Ladd v. London Road Car Co. (1900); Wiggins v. Lavy (1928); Haseldine v. Hoskin (1933). 7 Neville v. London Express Newspapers (1919). This was done by ruling thatthe tort was actionable only on proof of damage, which was not originally the case and, the Lords held, there was no damage where the plaintiff had lost the maintained action. 8 See also, Beatty v. Glenister (1884). 9 See statement made by the Home Secretary, Sirjohn Gilmour, to the House of Commons, HC Deb, vol. 290, col. 1968; Cd 4673 (1909) p. 6; Kidd 1940:126–8. 10 See, for contemporary comment, Wade 1937; Goodhart 1936; Anon 1938: 247–60.

2 LIBERTY THROUGH LEGALITY: THE UNITED STATES EXPERIENCE 1 See Bushell’s Case (1670). 2 The various positions adopted through the centuries are conveniently set out and evaluated by jacobsohn 1986.

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3 Martin v. Hunter’s Lessee (1816); Fletcher v. Pech (1810); McCulloch v. Maryland (1819); Marbury v. Madison (1803). 4 Of 175 cases decided over a ten-year period in which the Supreme Court returned the case to a state court for final decision, 46 cases required further litigation for a successful outcome, yet in nearly 50 per cent of these the Supreme Court winner lost in the state court: Note 1954:1251–9; see also Baum 1978. 5 The reader can find a very full account of NAACP litigation strategies in Tushnet 1987 for which reason we shall not repeat it here. The author had access to NAACP papers. 6 Otherwise known as the ‘Garland Fund’ because it was the somewhat haphazard creation of a radical millionaire undergraduate named Garland, at the suggestion of Roger Baldwin of ACLU. 7 Compare the NCCL with the ‘plastic bullets case’, (see p. 258) 8 For example, Scenic Hudson Preservation Conference v. Federal Power Commission (1966) and Sierra Club v. Morton (1972).

3 GROUP ACTION IN THE CIVIL COURTS 1 See for example the speech of Lord Templeman in Re Smith Kline and French Laboratories Ltd. (1989). Another example in the context of the European Community is the campaign by the ‘Do it Yourself’ stores against the Sunday trading laws: see Diamond 1991. 2 This office was established under the Parliamentary Commissioner Act 1967 to investigate ‘maladministration’ in central government departments. The office of Health Service Commissioner performs a similar function in respect of the NHS. The practice has arisen of appointing a single Commissioner to both posts. He can recommend or negotiate for compensation but has no mandatory powers. 3 Cmnd 7054 (1978). The Consumer Protection Act 1987 may lighten the burden of proof in such cases where the producer is sued. A draft EC Directive may ultimately have the same effect on the liability of a supplier of services for the NHS. 4 In the Dalkon Shield litigation all the plaintiffs’ lawyers resisted class certification and it was denied (Re Northern Dist. of California Dalkon Shield IUD Prods. Liability Litigation (1982)). Later on, the company filed for bankruptcy; all the victims’ claims were consolidated in the bankruptcy court and a pro rata settlement was made (see p. 188). 5 Duke of Bedford v. Ellis (1901); Markt & Co. Ltd. v. Knight Steamship Co. Ltd. (1910); J.Bollinger SA v. Goldwell Ltd. (1975). 6 For an earlier notable example of the ‘shareholders’ derivative action’, see Wallersteiner v. Moir (No. 2) (1975). 7 Until recently such cases were heard by a court of three High Court judges, correctly termed a ‘Divisional Court’. For convenience, we retain this term throughout. 8 The reader who wishes to know more about this esoteric area of law should consult Wade 1988 or Craig 1989.

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9 See Wandsworth LBC v. Winder (1984). See also now Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee (1992) which limits the scope of Cocks v. Thanet DC (1982) without overruling it. 10 There are no prizes for guessing that it was G.Shaw Lefevre, MP of the Commons Preservation Society, who had the provision inserted! See Lefevre 1910:168. 11 Boyce v. Paddington Corporation (1903); Gregory v. Camden LBC (1966); de Smith 1980:409–21. 12 See also on the redevelopment of the Royal Opera House, R. v. Westminster City Council ex p. Monahan (1990). There are many instances of pressure group involvement in planning cases. See for example R. v. Poole BC ex p. Beebee (1990); Save Britain’s Heritage v. Number 1 Poultry Ltd. (1991). 13 The tactic of incorporating a litigation coalition as a limited liability company was used much earlier in Bradbury v. Enfield LBC (1967) by a parents’ group opposed to comprehensive education. 14 The Freedom Association started life as the National Association for Freedom, commonly NAF, an abbreviation which for convenience is retained throughout. 15 Attorney-General ex rel. McWhirter v. Independent Broadcasting Authority (1973). 16 Another approach is to adopt an actio popularis which allows any concerned citizen to test the legality of administrative action. On the approach in Scotland, see Scottish Old People’s Welfare Council, Petitioners (1987).

4 COURTS, CAMPAIGNS AND LOBBYISTS 1 For a list of court powers to deal with disruptive defendants see Zellick 1980. 2 For further discussion see Bankowski and Mungham 1976. See also Barker 1990. 3 A case involving squatters which establishes the absence in English law of a general defence of necessity is Southwark LBC v. Williams (1971). See further Smith 1989. 4 A striking illustration (and the remarkable sequel to Chandler’s case) is the unsuccessful prosecution of Patrick Pottle and Michael Randle for helping the spy George Blake to escape from prison (The Independent, 14 April 1991). 5 See Fysh 1989; and especially A-G v. Guardian Newspapers (1990). 6 For a full discussion of the evolution of the doctrine of public interest immunity, previously known as Crown Privilege, see de Smith 1980:35–46. For the modern law, see Wade 1988:833–43; Air Canada v. Secretary of State for Trade (No. 2) (1983). On the point whether the privilege can be claimed other than by the Crown, or public authorities and bodies, see D v. NSPCC (1977), discussed in the text (see p. 174). 7 If implemented, the latest report from the Committee on Members’ Interests (HC 586 (1990/91)) will stiffen the controls considerably. 8 An illustration of lobbying by ministers is R v. Secretary of State for the Home Department ex p. Sivakumaran (1988) in which ahead of the House of Lords’ hearing the Home Secretary broadcast what became a lead story in the popular press, that were the Court of Appeal decision to stand, that applications for political asylum could increase twenty-fold (Burgess 1991:50).

320 NOTES

5 THE STRONG ARM OF THE LAW 1 For an instructive article written in the Canadian context, see Friedland 1978. 2 See on the Scottish system in the context of the notorious Glasgow rape case, Harper and McWhinnie 1983. 3 There is an extensive literature. See for example, Richardson et al. 1982; Hawkins and Thomas 1984; Hutter 1988. 4 See s. 6. There are different views on the precise effect of this provision: see R. v. Ealing Justices ex p. Dixon (1989); R. v. Stafford Justices ex p. Customs and Excise Commissioners (1990); Vaughan 1991. 5 Actually the table understates matters. The RSPCA receives over a million calls annually from members of the public seeking advice or giving information, only a small minority of which are considered appropriate for investigation. 6 For example, Robinson v. Whittle (1980); Kirkland v. Robinson (1986) (an important case on strict liability); Robinson v. Everett (1988). 7 Although protecting species may increasingly involve litigation to protect habitat. See R. v. Swale BC ex p. Royal Society for the Protection of Birds (1990). 8 British NuclearFuels Ltd, v. Greenpeace (1986); British NuclearFuels Ltd. v. Stichting Sirius (1987). 9 Later cases include R. v. Chief Constable of Devon and Cornwall ex p. Central Electricity Generating Board (1981). 10 There is a considerable literature on official prosecutorial policy and discretion. See for example, Mansfield and Peay 1987; Hall Williams 1988. 11 See for example, National Audit Office, Review of the Crown Prosecution Service, Cmnd 345 of 1988/9. 12 Conversely, the representativeness and effectiveness of police liaison committees (the ofiicial machinery for consultation of local communities) is often put in question by minority community groups. See Morgan 1989; Stratta 1990. 13 Dept. of Transport, The Merchant Shipping Act 1984, mv Herald of Free Enterprise, Report of Court No. 8074. 14 Investigation into the King’s Cross Underground Fire (HMSO, 1988). 15 See Review of Road Traffic Law (HMSO, 1988). 16 Criminal Justice Act 1988, s. 36. For the former DPP’s view, see Green 1990. 17 For relevant case law involving the Freedom Association, see R. v. Horsefeny Road Justices ex p. Indepmdent Broadcasting Authority (1986); Stephenson v. McWhirter (1989). See generally Pattenden 1989.

6 GLOBAL POLITICS, TRANSNATIONAL LAW 1 See de Freitasv. Benny (1976); Riley v. A-G (1983); Eaton Baker v. R (1975). 2 See on this point the Canadian case of Operation Dismantle v. The Queen (1985), in which a broad coalition of groups working for nuclear disarmament used the Canadian Charter of Rights to challenge a decision to allow Cruise missile testing. The action was struck out.

NOTES 321

3 Today such cases would be more likely to be dealt with by Women Against Sexual Harassment (WASH), a small specialist group or the Women’s Legal Defence Fund (see below). Since the Equal Opportunities Commission supported a successful tribunal case in 1984, solicitors specialising in employment law are also beginning to take such cases on a routine basis (Independent on Sunday, 5 April 1990). 4 For one unfortunate aftermath of the ECHR ruling, see R. v. Home Secretary ex p. Northumbria Police Authority (1989). 5 The campaign is fully documented in the Association’s paper, The Free Nation from which the story here has been extracted. See specially the issues of 30 April 1976; 28 May 1976; 20 August 1976; 20 July 1979; 17 August 1979; 20 October 1979. 6 See now R v. Secretary of State for Home Affairs ex p. Brind (1991). 7 The discrimination provisions of the Convention are said to be ‘parasitic’ on the breach of another, substantive article. Here art. 14 (discrimination) was read with art. 8 (right to family life). 8 This point has recently been made trenchantly in the first successful transexual case won against France, where Rees and Cossey could be distinguished on the ground that French law was less favourable than British to transexuals: B v. France, European Court of Human Rights, 25 March, 1992. 9 For the UK, the Treaty of Rome was implemented by the European Communities Act 1972. The Single European Act 1986, which modified the Treaty, was incorporated into UK law by the European Communities (Amendment) Act 1986. The Maastricht Treaty of European Union of 1991 has not, at the time of writing, been ratified or implemented. 10 For a less enthusiastic analysis, see Luckhaus 1987.

7 PRESSURE THROUGH LAW 1 But see for a contrary view Olson 1990. 2 These cases are reported as: R. v. Lord Chancellor ex p. Alexander (1986); R. v. Secretary of State for Health ex p. Keen (1990); an and Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee (1992). 3 See Malone v. UK (1984); Weeks v. UK (1987); Thynne, Wilson and Gunnell v. UK (1991), all discussed in Chapter 6.

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346 BIBLIOGRAPHY

INDEX

AABA see American Anti-Boycott Association (AABA) ABA see American Bar Association (ABA) ACA see Anglers’ Cooperative Association (ACA) ACL see American Constitutional League (ACL) ACLU see American Civil Liberties Union (ACLU) AELE see Americans for Effective Law Enforcement (AELE) AERA see American Equal Rights Association (AERA) AFI see International Abolitionist Federation (AFI) AI see Amnesty International (AI) AIDS: haemophiliacs infected with HlV virus 171; homophobia, increase in 224 APIL see Association of Personal Injury Lawyers (APIL) ATLA see Amencan Trial Lawyers Association (ATLA) AVMA see Action for Victims of Medical Accidents (AVMA) AWSA jeeAmerican Woman Suffrage Association (AWSA) Abolitionists in court 10–15 Abortion: pro-choice versus pro-life 99–4 Abortion Rights League 101 Action Committee for Defence of Mangrove 158

Action for Victims of Medical Accidents (AVMA) 121 Ad hoc support groups 158, 180 Adams, Stanley 170 Adjudication: individualist model of 112; private law 112; United Nations 240–6 Administrative tribunal: legal aid, lack of 115 Advocate-General 275–2 African Institution 13 Afro-American League 65 Agent Orange litigation 123, 186 Agent Orange Veterans Association 92 Alyeska Pipeline 94, 95 American Anti-Boycott Association (AABA): establishment 76 American Association for Advancement of Science 87 American Bar Association (ABA) 78, 88 American Chamber of Commerce 84 American Civil Liberties Union (ACLU): cleaning up criminal process 103; death penalty and 104; development of 86–87; diversity of courts and 67; negro liberties and 79; post-war period 89–4; third party intervention and 87–2; women in court 96; Women’s Rights Project 99 American Constitutional League (ACL) 74 American Equal Rights Association (AERA): 347

348 INDEX

annual convention 1869 72 American Federation of Labor: foundation 76 American Fund for Public Services 82 American Jewish Congress 88 American Law Institute: civil actions, proposals relating to 124 American Liberty League: formation 78 American Society for Promotion of Temperance 72 American Trial Lawyers Association (ATLA) 92, 121, 186 American Woman Suffrage Association (AWSA) 72 Americans for Effective Law Enforcement (AELE) 103, 107 Amicus brief: ACLU and 87–2; Brandeis brief and 75; criminal cases 101, 102; European Court of Human Rights and 255–2; European Court of Justice and 275–1; interest representation and 305–12; lobbying function 190; numbers of 99; original meaning 98; purpose of 4, 88, 89; representation, central to theme of 113 Amnesty International (AI): death penalty and 105; founding of 233; miscarriage of justice, campaigns against 180 Anglers’ Cooperative Association (ACA): good fit achieved by 155–9; litigation strategy 46–47; private prosecution by 202, 208 Animal welfare: legislation 38–5, 50; private prosecutions and 203–12 Anthony, Susan 72, 73 Anti-Poll Tax Federation 313 Anti-Slavery Society 13, 14, 38, 237–5 Arbitrator: resolution of disputes, US 61 Arrest:

common law power of 15 Ashley, Jack, MP 120, 182, 183, 184 Association of Chiefs of Police and District Attorneys 104 Association of Parents of Vaccine Damaged Children 119–2 Association of Personal Injury Lawyers (APIL): formation 121, 124 Association of Southern Women for Prevention of Lynching 82 Attitudinal groups: classification 6 Attorney-General: amicus, appearance as 190; nolle prosequi and 201, 212; public interest and 142–5; sub judice rule 176, 177, 178; Thalidomide affair 182, 183 Automobile Association (AA) 36 BEUC 185 BUAV see British Union for Abolition of Vivisection (BUAV) BWNIC Defence Group 163 Bachelors of Windsor 43 Baldwin, Roger 86, 87 Bank of Credit and Commerce International 121 Banks, Mrs 11, 12 Bar Council: miscarriage of justice, campaigns against 179 Beale House Action Group 136 Beggs, John 205 Bell, Ernest 205 Benbow, William 30 Benenson, Peter 233 Bennion, Francis 202 Benzodiazepine 133 Bhopal case 185 Bill of Rights 169, 170 Birmingham Council Estates Project: nuisance action 136 Birmingham Six 179, 180 Blackburn, Raymond 209–14, 212 Blitz campaign:

INDEX 349

nature of 137; Southwark, in 137; Wales, in 137 Board of Deputies of British jews 222 Bodkin, Archibald 37 Bogdanov, Michael 212 Boston Female Anti-Slavery Society 69 Bradford Twelve 158 Bradlaugh, Charles: maintenance, connection with 32–5 Bradman, Geoffrey: Freedom of Information Campaign 169; intervention in Opren 130–4, 183 Bradwell, Myra 73 Brandeis, Louis 75, 78, 83 Brandeis brief 75, 83, 98, 107, 190 Brent Law Centre: judicial review of closure of schools 116 British and Foreign Anti-Slavery Society 13 British and Foreign Bible Society 13 British Broadcasting Corporation: Rough justice 180 British Institute of Adult Education 55 British Medical Association 1, 193 British Rail: local branch line, review of decision to close 172 British Union for Abolition of Vivisection (BUAV) 205–10, 207 British Veterinary Association 207 British Withdrawal from Northern Ireland Campaign 162–6 British Workers’ Sports Federation 49 Brook Advisory Services 193 Brougham, Lord 21, 31 Burger court 96, 98, 103, 145 Bush, President George: abortion question 101 Butler, Josephine: action by Victoria Gillick 192; campaigning by 34–7, 36, 58; International Abolitionist Federation and 37, 38; National Vigilance Association and 37;

White Slave Trade, campaign against 36 Butler-Sloss inquiry 117 Buxton, Graham 228–3 CADD see Campaign Against Drinking and Driving (CADD) CARD see Campaign Against Racial Discrimination (CARD) CDL see Citizens for Decency Through Law (CDL) CICB see Criminal Injuries Compensation Board (CICB) CLEAR see Campaign for Lead-Free Air (CLEAR) CLO see Campaign for Law and Order (CLO) CPAG see Child Poverty Action Group (CPAG) CRE see Commission for Racial Equity (CRE) CREEP see Campaign to Re-elect President (CREEP) Camden, Lord see Pratt, Chief Justice Camden Council: guidelines for funding litigation 118 Campaign Against Drinking and Driving (CADD): cause group as 7; private prosecutions and 227–4 Campaign Against Racial Discrimination (CARD) 200 Campaign for Freedom of Information 130 Campaign for Law and Order (CLO) 177, 211 Campaign for Lead-Free Air (CLEAR) 130, 267–3 Campaign for Nuclear Disarmament 161 Campaign to Re-elect President (CREEP) 92 Cardiff Corporation: representative action against 126 Carrington, Frank 103, 104, 106 Casework group: meaning 7 CassReport 174–8 Cause groups:

350 INDEX

classification 6 Cawdor Crescent Action Group 136 Center for Law and Social Policy 93 Certiorari: Divisional Court, obtained from 138 Chadwick, Edwin 18, 24, 57 Champerty: abolition 113; meaning 32; sterner attitude of judges to 46 Character assassination: rules against 159 Charter 86, 173 Chernobyl 96 Child labour: Federal Child Labor Act 1916 (US) 77; legislation, involvement of Lord Shaftesbury with 19 Child Poverty Action Group (CPAG): cause group, as 6; fabian style of lobbying, shift away from 2; foundation at behest of Quakers 149; government grants 117; Greater London Council support for 118, 147–50; impetus from US 93; leaks to 169–3; plaintiff stacking 191; representative proceedings and 146–51; Social Fund case 167–1; survey of test cases undertaken for 2; Thalidomide affair 182 Children’s Legal Centre 194 Chiswick Women’s Aid 219 Chubb, Lawrence 42 Citcom see Citizen Action Compensation Campaign (Citcom) Citizen Action: ECAS and 268; foundation of 183; single issue campaigns, umbrella organisation for 130 Citizen Action Compensation Campaign (Citcom) 7, 130, 184, 185 Citizen enforcement 270–9 Citizens for Decency Through Law (CDL): cleaning up criminal process 102,103

Civic Trust 50 Civil courts: group action in 109 et seq. Civil liberties: history 50–9; USA 86–87 Claimants’ Union 149 Clapham disaster 225 Clapham Sect 19 Clark, David 77, 78 Class action: concept of 122; contingency fees 123, 124; damages 123; funding 46; historical development 122; injunctive relief, seeking 122; United States 122, 123 Cleveland: alleged child abuse, inquiry into 117 Climbing Boys’ Society 13, 56 Closed Shop: European Court of Human Rights and 256–2; litigation strategy of Freedom Association 144 Coordinated scheme: class action, England’s answer to 127 Coal Smoke Abatement Society 42 Code of Conduct of Bar 158–2 Colam, John 39, 40 Coleridge, Sir John, QC: maintenance, doctrine of 33; suffragist argument 21, 22 Collateral review: ban on 139 Collective injunction 135 Collective legal action: studies of 1 Collective rights: use of courts to vindicate xxii Columbia Center for Social Policy 93 Commercial lobbies: case-studies of 1 Commission for Racial Equality (CRE): hate-crime, pressure against 222, 223; legal advice 117; lobbying by 190;

INDEX 351

private prosecution by 200 Commission on Interracial Cooperation 82 Committee Against Blasphemy Law 214 Committee for Abolition of Slave Trade 13 Committee for Suppressing Traffic in British Girls 35, 36 Committee of 97, 164 Common Cause 91–5 Common law: adversarial systems 112; arrest, search and seizure, powers of 15; bipolar system 112; colonial society, impact on 61–4; heritage 59–9; inquisitorial systems 112; US 62 Commoners’ rights: ancient common law doctrine 57 Commons Preservation Society: activities of 42; Anglers’ Cooperative Society compared with 155; commoners’ rights, doctrine of 57; founding of 43; friends in high places 44; modern environmental movement 49; planning cases, action in 140; public interest, claim of 46; Stonehenge (Antrobus) case 47–1 Community lawyers: housing cases 135–40 Compassion in World Farming 206, 208 Confait case 179 Conservatives in court 76–78, 97–4 Constitution League 79 Constitutional Association for Suppressing Progress of Disloyal and Seditious Principles 30 Constitutional Society 17 Construction Safety Campaign 227 Constructivists: fundamental rights, source of 63 Consumers’ Association: disaster coordination service 121; multi-party litigation and 124; Opren case 183

Consumers’ Union 93 Contempt of court: Harriet Harman, by 172–7 Contingency fees: class action funded by 123, 124; criticism of 114; resistance in England to introduction of 113, 312; rule against 46, 113; USA 4 Coote, William 37, 37–1 Coroner’s inquest: legal aid, lack of 115 Corporate lobbies: case-studies of 1 Costs: access to finance 113; conditional fee 113; contingency fees see Contingency fees; group action 113–20; legal aid see Legal aid; speculative fee 113; voluntary organisations, grants to 117– 20 Council for Preservation of Rural England 43 Council for Rural Amenities 42–6 Countryside movement 42–8 Courts: abolitionists in 10–15; access to 138–2; conservatives in 76–78, 97–4; diversity of, USA 67–68; lobbying 187–6; national, and international norms 245– 2; networking 281–9; parliament and 17–20; political cases 15–17; suffragists and 20–5; women in, USA 96–97 Covington, Haydn Cooper 87 Craft, Professor 216 Creeping disaster case 119, 133 Crime Victims Litigation Project 106 Criminal Bar Association: miscarriage of justice, campagns against 179

352 INDEX

Criminal Injuries Compensation Board (CICB) 221 Criminal process: cleaning up 101–6 Cripps, Stafford 52, 54 Crown privilege see Privilege Crown Prosecution Service: code of guidance 216; drinking and driving, prosecutions for 229, 230; establishment 199; Greenham Common, issues raised by women at 140; private prosecution and 201 Dagenhart, Reuben 77 Dalkon Shield 92, 184, 186 Damages: class action 123; High Court, claim in 138 Darrow, Clarence 87 Day-in-life videos 185–90 De Rohan, Maurice 227 Death penalty 104–8, 243–50 Death Penalty Task Force 104 Defence campaigns: generally 156–62; Peace Movement and 159–8; suffragism 20–5 Defences: political 159–5; public interest 169; public law 139–2 Department of Health and Social Security: action by Victoria Gillick 192, 193; vaccine damaged children and 120 Dickens, Geoffrey, MP 177, 178 Director of Public Prosecutions: appeal against lenient sentence and 229; code of guidance to prosecutors 216; establishment of office of 32; lobbying of 37, 211, 215, 216, 225–30, 228–3; obscenity and 37, 200–5; takeover of private prosecution 201, 207, 229

Disaster Action: classification 7; networking 185 Disaster litigation: creeping disaster case 119, 133; disaster coordination service 121; disaster group 121; group actions 6, 113, 118–3; instant disaster claim 119 Disaster Procedures Manual 185 Discovery: central government claim to immunity from 171, 175 courts’ discretion in ordering 170–5; Harman case and 173–7; Health Service Commissioner and 171 Distillers Ltd. 181, 182 Divisional Court: prerogative orders obtained from 138 Doncaster Civic Trust 49 Drinking and driving 227–4 Drury, Anna 131 DuBois, W.E.B. 79, 80–3, 86 ECAS see Euro-Citizen Action Service (ECAS) ECHR see European Convention of Human Rights (ECHR) ECJ see European Court of Justice EEB see European Environmental Bureau (EEB) EOC see Equal Opportunities Commission EPOCH 258 East Sussex Travellers Association 172 Eli Lilly 130 rt se?., 183 Employers’ Association: USA 64–7 Enforcement: citizen 270–9; UN procedures 238–5 Environmental Defense Fund 95 Environmental movement: green movement 42–8; greening America 94–9; modern 49–3; planning cases, action in 140–4; private prosecutions 201, 208–209

INDEX 353

Equal Employment Opportunities Commission 96 Equal Opportunities Commission: legal advice 117; lobbying by 190; powers of 1 Erskine, Thomas: apologia for abandoning Vice Society brief 29–30, 31; parliamentary activities 19, 39; social reform, involvement with 57; trail of Thomas Williams 29–2 Euro-Citizen Action Service (ECAS) 185, 268 European Commission of Human Rights: applications to 249–7; friendly settlement and 254–60; Greek case and 240–6; human rights protection and 249; interights and 252; investigational procedure and 256; miscarriage of justice, campaigns against 180; reference to Court and 255 European Community: citizen enforcement 270–7; Equal Opportunities Commission and 279–6; international scene 234; invalid carers’ allowance, entitlement to 281; networking 263–72; rise of 2; standard setting 267–5; test-case strategy 276–5 European Convention of Human Rights (ECHR): enforcement of transnational standards under 170; enforcement 260–7; freedom of speech, protection of 173; international scene 234; settlement in Opren 132 European Court of Human Rights: activities of NCCL 56; contempt case against Harriet Harman 173; corporal punishment and 257–3, 260;

Joint Council for Welfare of Immigrants, cases brought by 260–7; miscarriage of justice, campaigns against 180; procedure 254–62; Thalidomide affair 183 European Court of Justice: Advocate-General 275–2; campaign against sex shops 212; citizen enforcement 272–9; Equal Opportunities Commission, sponsorship of cases by 1; international scene 234; lobbying and 274–81; standing 274–80; third party intervention 275–1 European Environmental Bureau (EEB) 233 Eversley, Lord 43, 44, 47 Executive Committee of Southern Cotton Manufacturers 77, 78 Externality 302–10 FOE see Friends of Earth (FOE) FYC see Family and Youth Concern (FYC) Family and Youth Concern (FYC) 192 Family Planning Association 193 Family rights 258–5 Federal Commission on Obscenity and Pornography 102 Fidelity Manufacturing Company 77 Fishing expedition 172 Flag salute cases: amicus briefs, use of 88 Footpath Preservation Society 45 Ford Foundation 93, 97 Ford Pinto case 225 Fortune, J.J. 79 Forum shopping: countryside movement and 44; European Court of Human Rights and 263; USA 67, 185 Frankfurter, Felix 75, 87 Franklin, Pink 80 Free George Davis Campaign 179

354 INDEX

Freedom Association (NAF): classification 7; trade unions and 143–7 Freedom of Information Campaign 169 Freethought movement in Britain 30 FriendsofEarth (FOE): Endangered Species Bill 50; European Community and 269, 272; founding 130; greening America 94, 95; international scene 232; private prosecutions 208, 209 Friends of Indian 65 Friends of Lake District 50 Funding: group action 113–20 Future of pressure through law 312–23 GALOP see Gay London Policing Group (GALOP) GLARE (Greater London Action for Racial Equality): private prosecution by 200 Garden Cities Association 42 Garland Fund 87 Gay London Police Monitoring Group see Gay London Policing Group (GALOP) Gay London Policing Group (GALOP) 223–8 Gay News 212–18 General Medical Council 193 General warrant cases 15–16, 17, 51, 62, 285 Georgetown University: Institute for Public Interest Representation 93 Gillick, Victoria 192–8 Goldmark.Josephine 75 Good fit: Anglers’ Cooperative Association, achieved by 155–9; evaluative criteria centred around concept of 9; international norms 246; respectability as important attribute in 158; success, and 301

Gouriet, John Prendergast xxii, 143–7 Grants: voluntary organisations, to 117–20 Grasham, Kathleen 129, 131, 184 Greater London Action for Racial Equality see GLARE Greater London Council: CPAG, supportfor 118, 147–50; inquest, finance for 175; police monitoring groups 222 Green, Sir Allan 201 Green movement see Environmental movement Greenham women 140, 164–8 Greenpeace: direct action at Sellafield 49, 209; international scene 232; private prosecutions by 208–13 Group action: access to court 138–2; Attorney-General and public interest 142–5; civil courts, in ; 109 et seq. class action 122–6; costs 113–20; developments in 150–4; disaster litigation 6, 113, 118–3; funding 113–20; generally 109–15; housing cases 135–40; lead action 127–32; legal aid 114–19, 312; legal process, and 308–17; opening up standing 145–8; planning cases 140–4; public and private law 138–2; remedies 135; representative action 125–8; representative proceedings 146–51; representatives in conflict 130–5 Group personality 299–6 Group theory .seelnterest group theory Guildford Four 179, 180 HFA see Herald Families’ Association (HFA) HlV virus:

INDEX 355

haemophiliacs, infection of 171, 186 Habeas corpus: death of 189; John Wilkes, application by 16; slavery and application for 11, 12; value of common law writ of 62 Haemophiliacs: discovery of NHS records, request for 171–5; infection of 171; settlement 186–1 Hailsham, Lord 153, 175 Hain, Peter 163, 202 Harman, Harriet: contempt of court 172–7, 183 Hate-crime 222–7 Health Services Commissioner: Parliamentary Commissioner, relationship with 318; vaccine damaged children and 120 Hearst Foundation 97 Herald Families’ Association (HFA): classification 7; manslaughter charges 225–31; see also Zeebrugge ferry disaster Hickman, Jane 164, 165 Hill, Octavia 42, 58 Hillsborough disaster 225 Hodge, Henry 149 Hoffman-La Roche: dumping practices 170 Holdsworth, Sir William 52 Home Office: contempt of court 173; pleas by RSPCA for rights of entry 204; sweetheart relationship with Howard League 20 Homelessness cases: judicial review 139 House of Commons: All-Party Group on Child and Family Protection 177; All-Party Group on Disablement 182; All-Party Pro-Life Group 177, 197; Committee on Policing, 1817 29; Register of Members’ Interests 187;

Select Committee on Home Affairs 222, 223; Select Committee of Privileges 176; Select Committee on Members’ Interests 187; sub judice rule 175–82, 182 Howard Association see Howard League for Penal Reform Howard League for Penal Reform: sweetheart relationship with government 20, 58 Howe, Darcus 158 Hume-Rothey, Revd and Mrs William 35 Hunger marches 51, 52 Hunt Saboteurs Association 166 Hunter, Sir Robert 42, 43, 48 Huskisson, Michael 207 ICRC see International Committee of Red Cross (ICRC) IRAG see Inter-Departmental Racial Attacks Group (IRAG) IRR see Institute of Race Relations (IRR) IUCN see International Union for Conservation of Nature and Natural Resources (IUCN) Incitement to racial hatred 200 Independence of judiciary 152–8 Independent Broadcasting Authority 144 India: Bhopal case 185 Indian Rights Association 65 Information: secrecy 169–3 Injunction: class action seeking 122; collective 135; labour 135 Inquest 175 Insider group: sweetheart relationship with government 7 Institute for Law and Peace 230 Institute of Race Relations (IRR) 222 Inter-Departmental Racial Attacks Group (IRAG) 223 Interest group theory:

356 INDEX

approach to interest groups 6; death penalty cases in 243–50; European Court of Human Rights, relationships with 300; interights 252; networking 262; pioneering works on 2; standing of group 145–8 Interest see Locus standi Interights 252 International Abolitionist Federation (AFI) 37, 38 International Commission of Jurists 180, 242; see also JUSTICE for British branch International Committee of Red Cross (IRC) 232, 233 International Convention Relating to Status of Refugees 190 International scene 232–40 International Union for Conservation of Nature and Natural Resources (IUCN) 233 Invalid carers’ allowance, entitlement to 281 Irish Republican Army: Birmingham 5, 179, 180; Guildford 3, 179, 180; Maguire 6, 179; Winchester 2, 179 JCWI see joint Council for Welfare of Immigrants (JCWI) JUSTICE: classification 6; miscarriage of justice, campaigns against 179–3; politically neutral stance 180; see also International Commission of Jurists Jarrett, Rebecca 37 Jehovah’s Witnesses 87 Jim Crow policies 70, 71, 82 Johnson, Rebecca 165 Joint Council for Welfare of Immigrants (JCWI): change in lobbying style 2;

ECHR cases 260–6; private prosecution by 200 Judicial review: application for 138; collateral review, ban on 139; homelessness cases 139; immigration cases 313; pressure-group litigation and 304–14; United States, proper constitution ambit in 15 Judiciary: attitude to pressure groups 4; attributes of 302; independence of 152–8; managerial judge 127 Keating, Charles H. 102 Kelley, Florence 74 Kidd, Ronald 51, 52 KilmuirRules 154 King’s Cross disaster 225 Kinnearjohnie 127–30 Kyrle Society 42 LACS see League Against Cruel Sports (LACS) LAG see Legal Action Group (LAG) LDOS see Lord’s Day Observance Society (LDOS) LIFE: cause group, as 6; complainant as 214–20; subjudice rule and 176–80 LYNX 206 Labour injunction 135 Landlord: private, funding of action against 118 Law: political science and xxii, 4–5 Law centres: blitz campaigns 137–40; distinctive ideology of movement 5–6; funding 116–19; housing cases 135–40 Law Society: cause group, acting as 6; disaster coordination service 121;

INDEX 357

legal aid, responsibility for 114, 130; miscarriage of justice, campaigns against 179; new Legal Aid Bill, amendments to 133 Law Society Gazette 189 Lawyers for Nuclear Disarmament 161 Lead action: legal aid 129–2; representative action overtaken by 126; steering committee handles 127 League Against Cruel Sports (LACS) 166– 70, 205 League Mutual Protection Society see National Anti-Compulsory Vaccination League (NACVL) League of Nations 38 Lefevre, Shaw see Eversley, Lord Legal Action Group (LAG): activities 175; local authorities, education of 223; miscarriage of justice, campaigns against 179; view of private prosecution 198, 202 Legal Advice Pack for Nuclear Disarmers 161 Legal aid: eligibility on income grounds 115; essential elements 114; frontman eligible for 114; group action 114–19, 312 lead action 129–2; means test on income 114; paying client test 115; private prosecution 201–6; relator action 115, 201 Legal Aid Board: legal aid, responsibility for 114; paying client test 115–18; special arrangements 133–6 Leigh, David 173 Levin, Leah 180 Libertarian Puritans 34–8 Litigation coalition: nature of 113; supplier led 6 Lobbying: amicus brief as form of 89;

courts 187–6; ECJ, and 274–81 Local government: voluntary bodies, grants to 118 local ratepayers’ associations: references to 1 Lockerbie 184 Locus standi: amenity groups and 140–4; American test 94, 145, 318; constraints imposed by classic rules of 142; European Court of Human Rights and 254; European Court of Justice and 274–80; groups, of 146–51, 304; meaning 32,140 London Hazards Centre 185, 227 Lord’s Day Observance Society (LDOS): role 34 Loveday, Susan 128 Luba, Jan 191 MIND: cause group, as 6; rights enforcement strategy and ideology, shift to 2 MacDonald, Ian 159 Mackay, Lord 153, 180 Maguire Seven 179 Maintenance: abolition of legal liability for 45–47, 113 meaning 32, 33 Manchester Airport fire 120 Manchester Suffrage Society 21 Mandamus: divisional Court, obtained from 138 Mangrove Restaurant, Notting Hill 158, 159, 163, 173 Mansfield, Lord: abolition of slavery and 11–15, 69; trial of Bingley 17 Marchioness Action Group 226 Marchioness pleasure boat disaster 201, 226

358 INDEX

Margold, Nathan 82, 83 Marshall, Thurgood 82, 83 Maryland League for State Defence 74 Mass torts: nature of 113 May, Sirjohn 180 Mclntosh, David 185 McWhirter, Norris 143–6 McWhirter, Ross 143, 144 Medawar, Charles 183, 183, 184 Membership organisations: reference to 1 Metropolitan Police: death of Blair Peach, complaint relating to 174 Mexican-American Legal Defense and Educational Fund 103 Mildred, Mark 184 Mill, John Stuart: libertarian views 35; suffragism, support for 20–3, 58 Minor, Francis 73 Miscarriage of justice: campaigns against 179–4 Monerville, Trevor 158 Moral crusaders 27–31 Moral Majority: letter-writing campaigns 191, 194 Mortimer, John, QC 213, 214 Mothers against Mrs Gillick 193 Mothers’ Union 193 Motor Vehicle Users’ Defence Association 36 Movement for Reformation of Manners 27–28 Mullin, Chris, MP 180 Multi-party litigation: public relations aspects 134 Muriel, Katherine 205 Myodil case 133 NAACP see National Association for Advancement of Colored People (NAACP) NACRO see National Association for Care and Resettlement of Offenders

NACVL see National Anti-Compulsory Vaccination League (NACVL) NAF see Freedom Association NARAL see National Association for Reform (later Repeal) of Abortion Laws (NARAL) NCC see National Consumer Council (NCC) NCCL see National Council for Civil Liberties (NCCL) NCL see National Consumers’ League (NCL) NCRCD see National Committee for Repeal of Contagious Diseases Acts (NCRCD) NOVA see National Organization for Victims’ Assistance (NOVA) NOW see National Organisation of Women (NOW) NRA see National Rivers Authority (NRA) NSPCC see National Society for Prevention of Cruelty to Children (NSPCC) NT see National Trust (NT) NUWM see National Unemployed Workers’ Movement (NUWM) NVA see National Vigilance Association (NVA) NVALA see National Viewers’ and Listeners’ Association (NVALA) NWSA see National Women’s Suffrage Association (NWSA) Nader, Ralph 93, 182, 184 Napier, Michael 227 National Anti-Compulsory Vaccination League (NACVL): action by 35–8 National Association for Advancement of Colored People (NAACP): ACLU compared with 90–4; cleaning up criminal process 103; development of 79–8; diversity of courts and 67, 68; Legal Defense Fund, death penalty and 104, 105, 243–9, negro liberties and 86, public interest and 93; membership 84;

INDEX 359

public interest law 93; Supreme Court cases brought by 3 National Association for Care and Resettlement of Offenders (NACRO): lobbying by 187 National Association for Reform (later Repeal) of Abortion Laws (NARAL) 99, 100 National Association of Citizens’ Advice Bureaux: group action 118, 148; plaintiff stacking 191 National Association of Manufacturers: conservatives in court and 77; foundation 76 National Association of Victims’ Support Schemes see Victim Support National Civil Liberties Bureau 87 National Committee for Repeal of Contagious Diseases Acts (NCRCD): activities of 35 National Consumer Council (NCC): legal aid scheme, restrictive operation of 116; multi-party litigation and 124, 184; new Legal Aid Bill, amendments to 133 National Consumers’ League (NCL): conservatives in court and 76; Josephine Goldmark and ‘Brandeis Brief’ 74–8 National Council for Civil Liberties (NCCL): ACLU, parallel with 86, 87; BWNIC case and 163; classification 7; death of Blair Peach, inquiry into 174, 175; development of 51–9; miscarriage of justice, campaigns against 179, 180, 181; private prosecution, view on 198; repeat player, as 252–9 National Federation of Self-Employed and Small Businesses: interest group, as 7; references to 1; standing and 145–8

National Federation of Women’s Aid 219 National Health Service: discovery, application by haemophiliacs for 171; opren case 183; staff shortages, postponement of operations due to 168; Thalidomide affair 187; whooping cough vaccine 119 National Lawyers’ Committee 78 National Legal Center for Public Interest 95 Nadonal Organisation of Women (NOW): abortion question 100, 101; litigation strategy 96 National Organization for Victims’ Assistance (NOVA): Program Directory 106 National Rivers Authority (NRA) 209 National Society for Clean Air 42 National Society for Prevention of Cruelty to Children (NSPCC): discovery, immunity claimed from order for 171; early history 41; founding of 40; insider group, as 7; Lord Shaftesbury’s work in 13; rights of entry 204; special status 41–5 National Sunday League 34 National Trust (NT): founding of 42; fox-hunting issue 49; insider group, as 7; legal campaigning and 208 National Unemployed Workers’ Movement (NUWM): civil liberties and 51, 52, 53, 54 National Union of Mineworkers: funding coalition with CPAG 118 National Victim Center (1985) 106 National Viewers’ and Listeners’ Association (NVALA) 102, 211, 213 National Vigilance Association (NVA): activities of 37–37, 107, 197; common-law tradition 212, 216; support for 76;

360 INDEX

work after First World War 38 National Wildlife Fund 95 National Women’s Party 75–8 National Women’s Suffrage Association (NWSA): establishment of 72; litigation strategy 73 Nationwide Festival of Light 200 Natural Resources Defense Council 95 Natural law: American Constitution, and 62 Nazis: ACLU, representation of 89 Negro Fellowship League 80 Negro Rights Associations 65 Networking: abolition of slavery and 13; coalitions, response of 185; European Community 263–72; international 232; meaning 9; national courts and 281–9 New Jersey Citizens Against Death Penalty 104 New York Society for Suppression of Vice 107 Niagara Movement 65, 79 No go areas 157 Non-constructivists: fundamental rights source of 63 Non-governmental organisations 233 et seq. Northern Ireland: British Withdrawal from Northern Ireland Campaign 162–6; ECHR applications, and 251, 252, 254; miscarriage of justice, and 179–4 OAG see Opren Action Group (OAG) Office of Equal Opportunity: Legal Services Program 93 Official Secrets Acts: Freedom of Information legislation contrasted with 3; prosecution under 170; repressive, century of 169; trial in camera 176

Official Solicitor: friend of court, appearance as 190 Olin Foundation 97 One shot player: meaning 8–9 Open spaces 42–8 Open Spaces Society 49, 198 Opren Action Group (OAG): campaigning 183; coordinated scheme 129; single issue group, as 7 Opren case: class action 124; lead action 128–1; legal aid 114; length of 146; litigation coalition 183–91; settlement 130–5 Ouster clauses 311–19 OutRage: kiss in at Piccadilly Circus 8 Oxley, Charles 177, 211 PASS ieeParents’ Action to Save Schools in Brent (PASS) PLF seePacific Legal Foundation (PLF) Pacific Legal Foundation (PLF): environmental litigation 95; founding 97; progression of 97–1 Paine, Tom: criminal libel, prosecution for 29, 30 Pan Am: crash at Lockerbie 184 Pankhurst, Christabel 23, 164 Pankhurst, Dr Richard 21, 22 Pankhurst, Emmeline 21, 23 Pannone, Rodger 120, 134, 184, 227 Pannone Napier 120, 185 Parents’ Action to Save Schools in Brent (PASS) 116 Parents-in-Suffolk 192 Parliament: courts and 17–20; parliamentary sovereignty, doctrine of 4;

INDEX 361

Private Members’ Bills, campaigns carried out through 19, 20 Parliamentary Commissioner: vaccine damaged children and 120 Pax Legalis 230, 231 Peace Movement: ACLU, foundation of 87; Greenham women and 163–8; international law arguments and 247–4; political defences and 159–5; private prosecution 230; sub judice rule 176 Peach, Blair: death of 174–8 People Before Profit, 141–4 Personal injuries case: legal aid, special arrangements for 134 Petersham Amenity Society 141 Pethwick-Lawrence, Mr and Mrs 23 Philips Commission on Criminal Procedure, 197 et seq. Physical punishment in schools 257–3 Piper Alpha Oil Rig 185 Plaintiff stacking 191 Planned Parenthood 99–3 Planning cases: environmental groups, action by 140–4 Planning inquiry: legal aid, lack of 115 Political defences 159–5 Political science: law and xxii, 4–5 Pottle, Patrick 160 Pratt, Chief Justice 15, 62 Predictors of success 293–299 Pritt, D.N. 52, 53, 54 Private law: adjudication 112; public law distinguished from 138–1 Private Members’ Bills: campaigns carried out through 19, 20; Mary Whitehouse and 211 Private prosecution 31–4, 195 et seq., 310– 18 Privilege: absolute in defamation 159; parliamentary 153, 176–81, 180, 187; public interest immunity 170, 171, 319

Proactive group: reactive group contrasted with 7–8 Proclamation Society 28, 29 Prohibition: Divisional Court, obtained from 138 Promotional groups: classification 6 Prosecution: private 31–4; 195 et seq.; public or private right? 31–4; societies 23–9 Public Citizen 93 Public interest: Attorney-General and 142–5; cause groups 91; defence of 169; immunity 170, 171, 319 Public interest law movement: law firms 97, 241–7, 286; nature of xxii; rapid growth of 91–7 Public law: access to court 138–2; defences 139–2; private law distinguished from 138–1; remedies 138 Public prosecution: rights relating to 31–4 Publicity: objectives of 167–2; value of 3 Quakers: CPAG, foundation of 149; Howard Association, foundation of 20; lay arbitrators, employment of 61; women as persons and 72 Queen’s Proctor: friend of court, appearance as 190 RADAR 187 RCRP see Rape Counselling and Research Project (RCRP) RSPB see Royal Society for Protection of Birds (RSPB) RSPCA see Royal Society for Prevention of Cruelty to Animals (RSPCA) Racial attacks 222–7

362 INDEX

Racial hatred: incitement to, offence 200 Ramblers’ Association 43, 49 Randle, Michael 161–5 Rape Counselling and Research Project (RCRP) 219, 220, 221 Rationalist Press Association 214 Rawnsley, Canon 42, 58 Reactive group: proactive group contrasted with 7–8 Reagan, President Ronald: abortionquestion 100; death penalty and 104; effect of Reaganism 1; task force on crime 106; welfare legislation 97 Reformation Society 34 Rehnquist court 98, 145 Relator action: legal aid, lack of 115, 201 Repeat player: meaning 8–9 Representation: amicus brief central to theme of 113; concept of 113 Representative action: common grievance 125; common interest 125; history 125–8; lead action, overtaken by 126 Representative proceedings 146–51, 304 Representativeness: concept of 113; plaintiff stacking 191 Respectability: good fit and 158, 301 Respectable groups: success and 301; sweetheart relationship with government 7 Riches, Valerie 192 Robinson, Peter 205 Roosevelt, Franklin D.: New Deal 78 Rose Theatre Trust Company 142 Royal Automobile Club (RAC) 36

Royal College of Surgeons 207 Royal Commission on Legal Services: legal aid, on 115 Royal Society for Prevention of Cruelty to Animals (RSPCA): independence from government 117; litigation policy 231; lobbyingby 187; police support for entry or arrest, need for 42; private prosecutions by 39–3; 203 et seq. Royal Society for Protection of Birds (RSPB): private prosecution by 204–9, 208, 216 Runnymede Trust 222 Rushdie, Salman 214 Russell, Bertrand 162 SHAFT 263, 288 Salisbury Group 193 Salvation Army: action by Victoria Gillick 192, 193; civil liberties and 50–5; Stead case 37 Scaife Foundation 97 Scandalising court 157 Scandalous statements: rules against 159 Scarisbrick, Nuala 214, 215, 216 Schools: physical punishment in 257–3 Scopes affair 87 Scott, Dred 69 Search and seizure: common law power of 15 Secular Society 32 Sellafield 49, 209 Shaftesbury, Lord: abolition of slavery and 13; child labour legislation, relationship with 19; climbing boys, protection of 27, 56; foundation of NSPCC 40; National Sunday League 34 Sharp, Granville:

INDEX 363

abolition of slavery and 10–15 Sharp, Montagu: founding of RSPB 41 Shelter: Birmingham Council Estates Project, nuisance action by 136; Citizen Action and 130 Shelter Wales: access to court 139; aims 137; blitz campaign 137–40 Sierra Club 93, 95, 232 Sierra Club Defense Fund 93, 95 Significant case: meaning 8 Silkwood, Karen 170 Single issue group: meaning 7 Skeleton arguments 190 Skeleton Army 50, 51 Slavery: abolition of 10–15; USA 68–3 Smith, Roger 148 Smith, Samuel, MP 37, 57 Smyth, John, QC 212 Social Audit 183 Social Fund case 167–1 Social-action law: focus on 1 Society for Abolition of Slave Trade 13 Society for Constitutional Information 29 Society for Individual Freedom 202 Society for Preservation of Ancient Buildings 42 Society for Supporting Bill of Rights 16– 17 Somerset, James: abolition of slavery and 10–15 Southall Defence Committee 158 Sparer, Edward 93 Special Committee on American Citizenship 78 Spingam, Joel 80 Spock, Dr Benjamin 88–2 Spycatcher litigation 169 Standing see Locus standi Stead, W.T. 36–9

Storey, Moorfield 79, 80, 81 Story, Justice Joseph 14 Stowell, Lord 14 Stubbs, Celial 75, 175 Sub judice rule 175–82, 182 Success: good fit and 301; international law and 246; objectives of winning 166; predictors of 293–299 Suffragists: courts and 20–5; reactive relationship with criminal process 8; Suffrage Bills, introduction of 18; USA 65 Sunday Times: Thalidomide affair 181–6 Supreme Court: abortion question 99–4; constitutionally guaranteed, existence of 63; legal and political process, interface between 107; New Deal, battles over 78; political role 61; public interest law, development of 95 Sweetheart relationship with government 7 Swire, Jim 184 Task Force on Victims of Crime 106 Temperance Movement 34 Test case: meaning 8 Test-case strategy: meaning 8 Thalidomide affair 113, 130, 181–6, 187 Third party intervention see Amicus brief Thompson, W.H. 52, 55 Three Mile Island 96 Tooke, John Horne 16, 17 Tort: champerty 32; maintenance 32; mass torts 113–15 Town and Country Planning Association 42

364 INDEX

Trade unions: Freedom Association, action by 143–7; government, dealings with 1 Transnationals Information Centre 185 Trespass actions 165–70 Twyford Down Association 273 Ullswater Preservation Society 50 Union Carbide: Bhopal case 185 United Nations: Anti-Slavery Society working with 14, 237, 239, 240; Committee on Human Rights 240–6, 244; complaints procedures 239–5; enforcement procedures 238–5; insider status at 235–3; non-governmental organisations and 235, 315; standard-setting 236–3, 283 United Nations High Commissioner for Refugees 190 United States of America: Bill of Rights, Amendment xxii 87, Amendment 11 71, Amendment 12 65, 80, Amendment 13 71, 80, generally 4, 62; civil liberties 86–87; civil procedure tendency to relax rules of 4; class action 122, 123; common law heritage 59–9; constitution 4, 61, 62; contingent fee arrangement, funding through 4; courts, conservatives in 76–78, 97–4, diversity of 67–68, women in 96–97; criminal process 101–6; cultural characteristics 59–3; day-in-life videos 185–90; death penalty 104–8; employers’ associations, growth of 64– 7; flag salute cases 88;

formalism, lack of 5; forum shopping 67, 185; freedom of contract doctrine 75, 76; Freedom of Information legislation 3; generally 59, 107–11; group litigation, rapid growth of interest in 3; judicial review, proper constitutional ambit of 15; natural law tradition 63–6; New Deal 78; openness, advantages of 3–4; post-war period, freedom in 89–4; public interest law movement 91–7; slavery 68–3; suffrage societies 65; Supreme Court see Supreme Court; two-party system, growth of 64; victims’ lobby 105–9; voluminous writing on pressure groups 2–3; women 71–6, 96–97 Upper Heyford cases 161, 164 VALOR see Victims’ Assistance Legal Organisation (VALOR) Vaccine damage litigation: lead action 127–30 Venables, Tony 184 Vice Society: activities of 28–1, 30, 33–6; common-law tradition 212; compared with RSPCA 40; crusade against French literature 37; formation of 28; Mary Whitehouse following in footsteps of 56, 57, 107; Wilberforce and 19 Victim support 217–2, 219 Victims: feminist challenge 219–6; lobby 105–10; rights 217–2 Victims’ Assistance Legal Organisation (VALOR) 106 Victims’ CAN (Victims’ Constitutional Amendment Network) 106

INDEX 365

Vietnam: Agent Orange litigation 123, 186 Viguerie, Richard 97 Vilification: rules against 159 Villard, Oswald Garrison 79–2, 86 Voluntary organisations: grants to 117–20 WAR see Women Against Rape (WAR) WASH see Women Against Sexual Harassment (WASH) WEAL see Women’s Equity Action League (WEAL) WLDF see Women’s Legal Defence Fund (WLDF) Walter, Nicolas 214 Warren Court 90 et seq. Welsh Housing Aid see Shelter Wales Welsh Language Society: effectiveness of 157 Wesley, John: moral crusading 27–28 Whitehouse, Mary: activities of 211; paedophilia, action to curb 177; private prosecution by 212–18; Vice Society, following in footsteps of 56, 57,107 Wilberforce, William: Abolition Society, parliamentary representative of 13; animal welfare legislation 39; moral crusading 28; parliamentary interests 19 Wilderness Society 95 Wilkes, John 16, 17, 30 Wilson, Des: Campaign for Lead-Free Air (CLEAR) 267–3; Citizen Action 130; Freedom of Information Campaign 169; intervention in Opren 130–4,183 Winchester Three 179 Winfield, Marlene 184 Winterton, Ann, MP 177, 193

Winterton, Nicholas, MP 177 Women Against Rape (WAR) 220–5 Women Against Sexual Harassment (WASH) 288, 320 Women’s Equity Action League (WEAL): abortion question 100; membership 96 Women’s Legal Defence Fund (WLDF) 278 Women’s National Commission 221 Women’s Rights Convention 72 Women’s Social and Political Union 23 Womens’ groups: court, in, USA 96–97, 297; domestic violence and 219; European test-case strategy 276–5; feminist challenge 219–6; rape and 219–6; suffrage litigation 3, 20–5, 71–6 World Anti-slavery Convention 72 World Council of Churches 233 World Wildlife Fund 50, 232 Young at Heart 168 Zeebrugge ferry disaster 113, 121, 224–31, 231