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Standing

Legal capacity to launch judicial review proceedings so as to challenge the legality of


administrative legislation or of a government policy/decision

Issue should standing be restricted to those who have a direct interest in the issue, or should the
present broader approach be retained?
Developments
Vague statutory sufficient interest test imbued with generous meaning
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R v Inland Revenue Commissioners, ex parte National Federation of Self-employed and


Small Businesses Ltd (tax amnesty agreement)
R v HM Inspectorate of Pollution, ex parte Greenpeace (No 2)
o Notion of associational standing was embraced, pressure group allowed to issue a
claim, in effect, on behalf of local members who might be affected by the
commissioning a new nuclear reprocessing facility.
o Courts have gone further still, holding that standing can be generated purely by
considerations of public interest
R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development
Movement Ltd
o highly-respected pressure group successfully challenged a government decision to
commit very large amounts of money to an economically-flawed overseas
development scheme.
o Rose LJ observed that in the absence of a challenge by the pressure group, it was hard
to see who else would question the decision, cited the importance of vindicating the
rule of law as a key argument in favour of acknowledging standing in such
circumstances.

Increase in number of JR claims largely due to challenges in area of immigration and asylum who
qualify under the direct interest test
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(And, in any event, section 22 of the Crime and Courts Act 2013 will, when it enters into
force, pave the way for the transfer of immigration and asylum judicial reviews to the
Upper Tribunal en bloc.)

Critically, and when the circumstances justify it, the court has been ready to recognise standing
on the part of persons and NGOs who cannot demonstrate that they are directly and individually
affected by an administrative measure, such as NGOs.
Fusion technique There may be a fusion of standing and merits, in order to determine whether
an applicant has standing or not. The merits of the application include such factors as the nature of the

relevant power or duty, the alleged breach and the subject matter of the claim.

Public interest standing


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Rose Theatre
o A group was formed to persuade the Secretary of State to preserve a site as a national
monument, which was refused. Held that the applicants did not have a sufficient
interest.
Greenpeace,
o Court refused to follow Rose Theatre decision. It found that
o Recognised that Greenpeace was a respectable international organisation, which had
members in the affected region, and if standing was not granted to it there might be
no other way the matter in question could be brought to court.
World Development Movement
o A similar liberal approach was taken
o WDM was accorded standing to uphold the rule of law considering the fact that no
other challenger was likely to come forward to challenge the decision of a Minister to
aid in funding the Pergau Dam in Malaysia.
Rees Mogg
o S
tanding could be accorded to those having a genuine concern over the
matter in question.
Administrative law is fundamentally not about individual rights: it is about public wrongs, the
existence of which are identified by applying the standards of fairness and reasonableness
which lie at the heart of judicial review. Indeed, it is in the law of judicial review that the lofty
abstractions of the rule of law assume their most tangible form. And everyone, whether or not
they are directly affected by an unlawful government decision, has an interest in securing
administrative adherence to those rule-of-law principles. On this view, the legal standards
upheld via judicial review ultimately constitute not rights enjoyed by individuals,
but duties owed by government to the public.

It does not necessarily follow that the law should recognize an action popularis, such that
anyone can institute judicial review proceedings against the government irrespective of
whether they have any connection with the subject-matter of the claim. But the fact that a
direct interest should sometimes be required does not mean that it should always be required.
This point was recognized by Lord Reed in his judgment in AXA General Insurance Ltd v
Lord Advocate, in his dictum acknowledges not only the rule-of-law significance of a broad
standing test, but also the courts unwillingness to exploit its flexibility in an unthinking way.
This is achieved by, in effect, requiring those unaffected by decisions to compensate for their
lack of direct interest by establishing either that they speak for those with such an interest,
or that they speak for a public interest that deserves to be considered by the courtand that
they are capable of litigating the case effectively. AXA stressed the fact that judicial review
was not simply about redressing individual grievances, and to rule otherwise ignored its
constitutional function of maintaining the rule of law.

The sufficient interest test thus facilitates an accommodation of constitution principle and
pragmatic considerations in a way that a direct interest test, taken at face value, likely
would not.

It is sometimes said (most often by politicians on the receiving end of adverse decisions by
courts) that judicial review is undemocratic, because it enables unelected judges to
interfere in the decisions of the democratic government. But this reveals a vision of
democracy that is impoverished in two key senses. True democracy is about more than ballotbox legitimacy. It involves holding to accountincluding through lawthose who wield
public power. And it calls for forms of participation that transcend voting occasionally in
elections. Judicial review constitutes such a form of participation, not least because it gives a
voice to those whose interests are poorly-served by the majoritarian political process.

The present law of standing is central to judicial reviews capacity to fulfil that purpose, in
that it allows those with the necessary means and expertise to advocate on behalf of those
whose marginalization deprives them of the opportunity adequately to speak up for
themselves. It is evident, then, that apparently dry, technical questions about standing in fact
raise issues that are fundamental both to the nature of public law and to its capacity to fulfil
its constitutional purpose.

Claimant must have sufficient interest in the subject matter


The current sufficient interest test for standing (Senior Courts Act 1981 (SCA 1981), s 31(3)) has been the
subject of an increasingly liberal and expansive interpretation. The courts have been anxious to see issues of
public importance given proper judicial consideration, particularly where allegedly unlawful acts would otherwise
be immune from challenge simply because there was no directly affected individual (see AXA General Insurance
Ltd v HM Advocate [2011] UKSC 46; [2012] 1 AC 868 at 170).
At the same time, the courts have conceded that JR is a field especially open to abuse and that [s]trict judicial
controls, particularly as regards time, will foster not hinder the development of such litigation (R v Secretary of
State for Trade and Industry, ex parte Greenpeace Ltd [1998] Env LR 415 at 425 per Laws LJ).
The governments latest consultation on restricting the availability of judicial review raises further questions about
the justification and efficiency of the proposals. Plans to change the rules on standing and the approach to
procedural unfairness, in particular, are directed at approaches embedded in the common law jurisprudence, and
raise constitutional questions as to the roles of the executive, Parliament and the judiciary in determining the
availability of JR to would-be claimants.

The standing proposals


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Centred around a change to the sufficient interest test, and consider other standing tests from different
areas of law, including human rights, statutory appeals and the test for civil legal aid in JR.
Predicated on concerns that bodies such as NGOs and pressure groups are mounting too many JR
claims, and for the wrong reasons (although the courts own statistics show that between 2007 and 2011
only 50 JRs per year were lodged by NGOs, charities, pressure groups and faith organisations;
compared with the total 11,360 JR claims lodged in 2011).

Even if there is a real problem in this regard, there appears to be a disconnect between the perceived
problem and the rationale behind the reforms.
As the consultation indicates, claims brought by NGOs and similar bodies tend to be more
successful, meaning that they are inherently more meritorious. Whatever the motive for these
claims, the underlying decision-making cannot have been proper and these decisions should be subject
to judicial scrutiny.
The stated rationale for the standing proposals is that it is government and Parliament that are bestplaced to decide what is in the public interest. Yet ensuring the public interest is preserved, as well as
maintaining the rule of law, becomes all the more difficult where potentially flawed decisions cannot be
brought before the courts simply for want of an applicant with standing.
Practically speaking, the standing proposals may have limited effect on commercial JR, where claimants
are always likely to have a direct commercial interest in the relief sought. The exception may be trade
associations, for whom it may be more difficult to satisfy any new test. Ultimately, however, the effect will
turn on judicial interpretation of an amended SCA 1981.

The victim test (under the Human Rights Act 1998 (HRA 1998)
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A decision of the Northern Ireland high court has highlighted the


continued narrow definition of standing, or the right to bring a
claim, under the Human Rights Act 1998.

An 8-year-old child applied to bring a claim, which included a challenge


under Article 2 of the European Convention on Human Rights (the right to
life), to the decision by police to introduce tasers in Northern Ireland.

A taser is a weapon which, when fired, sends an electrical current through the
body of the person it is fired at. This causes temporary loss of muscular
control and pain. Medical evidence on the dangers of taser use on children is
inconclusive and incomplete. However, it is not yet safe to say that they are
not potentially lethal to children.

In order to challenge the introduction of tasers on human rights grounds, the


Applicant needed to establish that she was a victim, within the meaning of the
relevant law. Article 34 of the ECHR sets out that to bring such a challenge,
an Applicant must be a victim of violation of one of the rights set forth
in the Convention or the protocols thereto.

The Court noted that there is a degree of flexibility in[..]the concept of


victimhood (paragraph 12). However, a public interest challenge, that is a
claim brought not by victims of a violation but by a person or persons who
merely object to a decision, is not permissible.

The Applicant had several arguments to support her case that she was a
victim. First, her grandmother had been killed in 1981 by a plastic bullet fired
by police. The Applicant said this made her fear the same event happening to
her mother. The Court was not persuaded this made the child a victim: the
circumstances of the grandmothers death were entirely divorcedfrom those
in question, as plastic bullets were designed to be used in public order
incidents, whereas tasers are never to be used for those purposes according
to operational guidance.

Secondly, the Applicant lived in an area of Belfast where a notorious feud was
ongoing. This caused violence and disorder on nearby streets. However, this
again was insufficient to make the child a victim: tasers are not going to be
used in incidents of public disorder and no evidence indicated any

circumstances in which the child might be in the vicinity of the deployment of


a taser.
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Thirdly, it was argued that the Applicant was a victim by being a member of a
group, namely children, which was vulnerable in relation to the use of tasers,
given the current state of medical knowledge. This argument was also
rejected: no factual situation had been suggested which raised any material
risk that the child would be exposed to the use of a taser.

As a consequence, she was not a victim and had no standing to bring the
human rights challenge.

Narrower than the JR sufficient interest test. A person is a victim only if he is directly affected by the
measure in question (HRA 1998, s 7(7); Klass v Germany(1978) 2 EHRR 214). Furthermore, the
European Court of Human Rights does not permit organisations to bring public interest claims where
they are not directly affected (see Norris and National Gay Federation v Ireland (1986) 8 EHRR
CD 75).
Prima facie, the adoption of a test akin to the HRA 1998 victim test could lead to the exclusion of
certain claimants who could otherwise pass under the lower sufficient interest bar. Crucially, however,
the precise scope of a new victim test would depend on judicial interpretation of the word(s) in
question.

The person aggrieved test


The person aggrieved test appears, eg, in s 288 of the Town and Country Planning Act 1990 (TCPA 1990). Like
the sufficient interest test, restrictive interpretations of person aggrieved have now been rejected (see De
SmithsJudicial Review (7th ed) at 2-064).
Although this test is flexible, the claimant is usually required to have participated in the decision-making process
or have an interest in the land in question (see Pill LJ in Ashton v Secretary of State for Communities and
Local Government and Coin Street Community Builders Ltd [2010] EWCA Civ 600; [2011] 1 P&CR 5 at
53). The public interest and access to the courts will also be given weight (Attorney General of the Gambia v
NJie [1961] AC 617; [1961] 2 All ER 504).
The person aggrieved test under TCPA 1990 should also be viewed in context (see Lord Reed in Walton v
Scottish Ministers [2012] UKSC 44; [2013] PTSR at 84). In planning cases, stakeholders may have participated
in the decision-making process, whereas JR claimants may not be afforded this opportunity. It may, therefore, be
difficult to insist upon participation as limb of a new JR standing test.
Given the courts concern for preserving the rule of law and maintaining wide access to JR in cases of public
importance, it may be that any new person aggrieved test would simply be more widely construed than in other
cases, thus limiting the impact of this proposed option.

The proposals on procedural defects


Procedural unfairness is a well-established ground of JR, applying, eg, where the decision-maker has failed to
consult or give reasons for its decision. However, the courts are alive to the question of whether the alleged flaw
was material. In circumstances where, but for the alleged flaw, the decision reached would have been no
different, the court may refuse to grant either permission or the relief sought (see R (Meany) v Harlow District
Council [2009] EWHC 559 (Admin) at 86).
This is a high threshold of inevitability: Probability is not enough. The defendant would have to show that the
decision would inevitably have been the same. (R (Smith) v North East Derbyshire Primary Care
Trust [2006] EWCA Civ 1291; [2006] 1 WLR 3315 at 10 per May LJ).
The government raises concerns with the number of JRs in which the procedural irregularity alleged would have
made no difference to the decision made. In summary, two proposals for change are offered in the consultation:

Option 1bringing forward the consideration of no difference arguments to the


permission stage. A defendant would be able to raise the no difference argument in its
acknowledgment of service, following which (a) the judge would make a decision on the papers
(possibly with the aid of further evidence from the parties), and (b) an oral hearing would be
held if necessary; and

Option 2introducing a new statutory threshold under which cases based on a procedural
flaw would be dismissed if it were reasonably clear, or if there was a high likelihood, that
the alleged flaw would have made no difference to the decision in question.
Option 1 would inevitably increase the time and cost spent on the permission stage, as claimants would likely
seek to pre-empt the defendants no difference arguments. An additional round of evidence in response to the
defendant raising this point, as well as in preparation for an oral hearing (if applicable), would likely further
increase costs.
However, it is arguable that option 1, taken in isolation, would make little difference. Defendants can already raise
no difference arguments from the outset, and the courts can refuse permission on that basis. Further, this
proposed change would have no effect on the substantive inevitability test.
As for option 2, the imposition of a statutory threshold to overrule the common law-derived inevitability test may
have more profound implications. It may increase the likelihood that cases founded solely on alleged procedural
unfairness are dismissed, either at the permission stage or at a substantive hearing.
If enacted, it would be difficult for the courts to go against clear statutory wording, especially where the mischief
behind this wording were to lower the threshold in no difference cases. Once again, context may prove to be
key, and the policy considerations particular to JR make it difficult to predict how the courts would interpret new
statutory provisions.
In practical terms, this change would put pressure on claimants to rebut arguments from defendants that, even if
a different procedure had been followed, the decision reached would have been identical. This may be
problematic from an evidential point of view, since it is difficult to adduce evidence as to hypothetical scenarios.
At what stage this would need to be addressed would depend upon whether only option 2 were introduced, or
whether it were combined with option 1, above (ie, the no difference assessment taking place at the permission
stage).
In any case, a key consideration for both options is whether it is even possible to evaluate no difference
arguments (whether on a high likelihood or inevitability basis) in anything but the most extreme of cases.

Conclusion
It is not clear from the consultation that the proposals suggested are required or justified, much less whether they
can be translated into a workable alternative to the status quo. Even if implemented, it is arguable that there
would be little material change to the courts approach to interpretation in JR. In particular, it seems very unlikely
that the standing proposals would constrain meritorious applications from parties without a direct interest in the
relief sought. That said, both these and the proposals on procedural defects mayfar from achieving the courts
aims of reducing the burden of JRbring about a further front-loading of issues, and therefore costs, while
potentially adding to the initial administrative burden upon the courts in JR.

The impact of the Human Rights Act 1998:


S.6 of the Act created a new statutory head of illegality, which can be used in judicial review actions.
S.7(1) states that only a victim can plead this head of illegality, which may prove difficult, as seen in
DG of Fair Trading v PAGB. However, in light of Article 34 of the ECHR, the victim test is actually
wider than it seems. And as Craig notes, if the applicant cannot establish himself as a victim, he can
still bring an action for judicial review by relying on the common law.
Harlow and Rawlings considers two theories of judicial review
- JR should be primarily be concerned protecting individual rights through effectively
challenging the decisions of public bodies
- Primary consideration is public bodies need protection from unnecessary challenges in order
to ensure effective public administration
The relaxation of locus standi rules, together with the House of Lords subsequent retreat

from the strict public/private dichotomy propounded in OReilly v Mackman, gives a clear
indication that the procedural obstacles to the enforcement of a rigorous notion of the rule of
law in respect of government action have become less substantial in recent years.