…There is a substantial difference between expounding law impartially and advancing legal arguments on a party’s behalf. The latter involves partisan advocacy, while the former does not; the latter involves engaged confrontation with opposing counsel, but the former involves giving assistance to the court in a neutral and comprehensive way, particularly to ensure that all aspects of a dispute are teased out and addressed.
15.32Only two submitters thought a legislative provision relating to amici curiae was necessary. One of these, the Department of Labour, drew parallels with section 269 of the Immigration Act 2009, which enables the appointment of counsel assisting the court in Immigration and Protection Tribunal and court proceedings involving classified information.
15.33Other submitters, including the Law Society, the Crown Law Office, the Bar Association and the Senior Courts’ judges, did not consider such a provision to be necessary at this point in time.
15.34The Bar Association did, though, state that the grounds on which amici curiae can be appointed should be elaborated in rules or elsewhere, noting that at times they are appointed in circumstances where they then move into partisan advocacy, the difficulties this can lead to when the matter gets appealed, and that it could become a form of de facto legal aid.
15.35On the other hand, the Law Society considered that it would be potentially dangerous to attempt to be overly prescriptive in identifying the specific situations in which it is appropriate to appoint an amicus, and that a review of the case law does not suggest that the power is being over-used, but should be left to judges in individual cases.
15.36The Commission agrees with submitters that, given the range of situations and roles that amici curiae are required for, a detailed legislative provision enabling their appointment would not appropriate. An amicus curiae can be contrasted with, for example, a McKenzie friend, the latter being a right of the self-represented litigant, while the former is at all times there to assist the court. As such, the need for a legislative provision is not the same and, indeed, it would be quite wrong for self-represented litigants to see the appointment of an amicus as some form of de facto legal aid.
R79 There should be a provision in new courts legislation stating that the court may appoint an amicus curiae, and enabling the making of rules regarding the circumstances in which an amicus may be appointed.