The Equitas, House-3/A, 2nd Floor, Block-F, Lalmatia, Lyceum School Building.

SAYED-UL-HAQUE (Dinar) LLB 2nd Year

Barrister of Lincoln’s Inn Admin
University of London Worldwide Recognised Tutor Locus Standi
Advocate, Supreme Court of Bangladesh. 2021
LLB (Manchester), LLM (Nottingham-Trent), Politics (Oxford).
Contact- 01789444999

Locus Standi
1. Judicial review procedure
A claim for judicial review can be made under one of two procedures – either the
judicial review procedure (JRP), or the basic/alternative procedure (Parts 7/8 of
the Civil Procedure Rules 1998).
JRP - Section 31 of the Supreme Court Act 1981 and also Part 54 of the Civil
Procedure Rules 1998.

2. Meaning of Locus Standi

Standing or locus standi is the term for ability of a party to demonstrate to the
court sufficient connection to and harm from the law or action challenged to
support that party's participation in the case. The general doctrine is that a person
cannot bring a suit or proceedings under judicial review challenging the
constitutionality of an administrative action unless the plaintiff can demonstrate
that the plaintiff is (or will imminently be) harmed by the law. Otherwise, the
court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss
the case without considering the merits of the claim of unconstitutionality.

3. The Gatekeeper
The doctrine served as a “gate-keeper” to deny access to judicial remedies to those
whom the courts considered undesirable4 and to ensure that the courts did not
become the “happy hunting ground of the busybody and the crank

4. Locus Standi – Origin

The standing principle is probably feudal in origin, since under the feudal system
all that was not privately owned vested in the Crown. Whenever municipal
corporations, acting as administrators of those public properties/charitable trusts,
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misapplied funds the Attorney-General as parens
patriae1 moved in Chancery to restrain such
misapplication by way of injunction (Public duties are enforced by the Attorney-
General, as representative of the Crown in its parens patriae role) He did so in
one of two ways - first, in his own right (ex officio) or, alternatively, he did so at
the relation of another (ex relatione), upon having first granted his fiat to
commence the proceeding The relator did not even need a personal interest in
the controversy, beyond being a member of the public. However, it was not
competent for a private individual to enforce a public trust by private suit. By the
1870s, this produced the result that cases were dismissed where a plaintiff was
unable to show “an equity”, but despite the dismissal of the suit, the court
expressed its regret that it lacked authority to grant a remedy against a
defendant which exceeded its statutory powers.

5. No Constitutional Limitations
The logic of the standing doctrine is that if there is no competent plaintiff
governmental bodies may violate the legal limits of their powers and the courts
are powerless to intervene. It is thus inappropriate to describe the constitution as
furnishing limits preventing the abuse of governmental power since such limits
are contingent and may ultimately prove to be delusory.

6. Concept of actio popularis

In English law, previously there was no concept of ‘actio popularis’2 –i.e. the idea
that any citizen can take up a legal issue just because it is of public interest.
Instead there were restrictive rules of standing that have to be satisfied as a
perquisite to being able to obtain a public law remedy by means of JR.

1 A doctrine that grants the inherent power and authority of the state to protect
persons who are legally unable to act on their own behalf.
2 Action to obtain remedy by a person or a group in the name of the collective
interest.

7. The Justifications of the Rules of standing/ Why the

rules of standing are needed?

The justification of the rules of standing lies in the need to limit challenges to
administrative decision-making to genuine cases of grievance (criticism) and to
prevent the frivolous or vexatious (silly/annoying) applicant from troubling the
already overburdened courts or exceedingly disrupting the administrative
process.

However, the concept possesses two fundamental problems:

i. It is quite impossible to identify a busybody with any clarity.
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ii. the "busbody" formula camouflages judicial distaste of
the merits
The Rationale for Busybodies
The rationale appears to be to exclude individuals who seek to raise questions
with which they are not properly concerned. A closely related argument
emphasises the need to protect public bodies from litigation which is perceived as
wasteful: public administration is not to be impeded or delayed by wasteful
challenges.

8. THE RULES OF STANDING IN UK

Þ The Pre-1977 Rule

Standing refers to the restriction to the right to challenge the decisions of public
law bodies by way of JR based on one’s connection with the decision. Pre-1977 the
rule was that the perimeter of locus standi covered only the ‘persons aggrieved’
test – a requirement to be met only for those seeking a public law remedy, not
private law applicants. This old law on standing had been generally restrictive
in terms of access to the courts with different tests of standing being used for
different remedies.
• Certiorari - the applicant had to be a person aggrieved; or having a
particular grievance – R v Thames Magistrates’ Court ex parte Greenbaum
(1957);
• Mandamus - he must have a specific legal right – R v Lewisham Union
Guardians [1897] ;
• sometimes he must have a sufficient interest – R v Cotham [1898]
(mandamus), ex parte Stott [1916] (certiorari)

Þ Present Rule: Section 31(3) of the Supreme Court Act 1981

By virtue of s 31(3) of the Supreme Court Act 1981, new laws on standing have
been imposed where a court will not grant leave to make an application unless it
considers that the applicant has a ‘sufficient interest’ in the matter to which the
application relates. The justification of this new rule was that the new test for
standing might in some respects be more liberally interpreted than which had
gone before. In fact the legitimate scope of judicial discretion in deciding whether
a given applicant meets the test seems virtually boundless. The implication of the
rule was first seen in the landmark case of Fleet Street Casualties, i.e. IRC v
National Federation of Self-Employed and Small Businesses Ltd which switched
the emphasis to allowing access to the courts in order to ensure the ultra vires
action did not go unchecked.

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9. Section 31(3) of Supreme Court Act, 1981
(Order 53 Rule 3)
Section 31(3) of Supreme Court Act, 1981 (Order 53 Rule 3)
“No application for judicial review shall be made unless the leave of the High
Court has been obtained in accordance with rules of courts; and the court shall
not grant leave to make such an application unless it considers that the applicant
has a sufficient interest in the matter to which the application relates.”

Þ Two Stages of Standing

The House of Lords (HL) in the case examined the question of standing in two
stages. At the first instance, standing should be considered when leave to apply
is sought. At that stage, the court is concerned to prevent abuse by busybodies,
cranks and other mischief makers. If leave is granted, at the second stage the
court concerns about the merit of the case. This stage involves the hearing of the
application itself, at which point the court will consider evidence from both
parties. When this new evidence is before the court, it might be found that the
applicant for review does not have locus standi.

10. New test of Locus Standi

In most cases, however, the question of standing and the merits of a claim would
be explicitly fused. This fusion implied that if an applicant approached the court
with ostensibly convincing legal argument in respect of a gross illegality
committed by a government body s/he could expect to be granted leave even if
s/he himself/herself had only a remote, personal interest in the matter. It is
functionalist approach that the function being not so much the protection of
private rights, but ensuring that potentially unlawful government action did not
escape judicial scrutiny.
Therefore, the question of locus standi is dependent to some extent on whether
the applicant succeeds in establishing that the public body has acted ultra vires.
Lord Denning:
“As a result, therefore, of the new procedure, it can I hope be said that we have
in England an actio popularis by which an ordinary citizen can enforce the law
for the benefit of all – as against public authorities in respect of their statutory
duties.” 3

11. THE APPLICATION OF THE RULES OF STANDING

o Individual Standing (Personal Rights and Interests): A liberal

approach

Given, the breadth of administrative decision making in a heavily regulated

society, individuals may have their rights or expectations affected in multifarious
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ways. Subsequent decisions indicate that the courts have
adopted a more liberal approach to give them right of
standing in order to challenge against those administrative decisions.

In R v IBA, ex parte Whitehouse, the applicant was held to have locus standi to
challenge the decisions of the Independent Broadcasting Authority to show the
controversial film scum, about life bfor young offenders, on the basis that she
was the holder of a television licence. The court in the case held that every
television licence holder would have standing in litigation relating to the
broadcast of television programmes likely to give offence to children or adults.

In Schmidt, the students who had entered the country as ‘students of scientology’
challenged the decision of the Home Office not to allow them to remain once the
permitted period of stay had expired. They had a ‘legitimate expectation’ that
they would be allowed to make representation to the Home Office, which they
were denied, over a matter affecting their individual liberty. The court held that
the students had ‘sufficient interest’ for leave to be granted.

In ex parte Ress-Mogg, the applicant sought judicial review of the government’s

ratification of the Treaty on European Union without parliamentary consent.
Ress Mogg was held to have sufficient standing but the application was dismissed
on the basis that the issue was non-justiciable.

Thus, in Smedley a taxpayer who raised a serious question concerning the

legality of governmental action to make payment of £120 million to the EC in an
unlawful manner, was accorded standing. Although Mr. Smedly’s argument
appeared to be weak on its merits, but since £120 million was in issue the matter
he raised was a serious one.

In Leigh, a journalist wanted to know the names of the individuals who had sat
on the bench of a magistrates’ court. He had not been involved in any capacity in
the trial which he was seeking to report, nor had been present at the proceedings.
The court accepted that the journalist met the section 31(3) test on the basis that
he had initiated the action as ‘the guardian of the public interest in the
maintenance and preservation of open justice in the magistrates’ courts, a matter
of vital concern in the administration of justice.

In Dixon case the applicant, who was a local resident, a local councilor and a
member of various bodies concerned to protect the environment, sought to
challenge the grant of permission to extend quarrying (digging/excavation) in a
particular area. He was accorded hearing at the leave stage while Sedley J
holding that the applicant’s interest needed to be superior to that of general
public.

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o A More Restrictive Approach

There are also some examples where a more restrictive approach has been taken
in order to grant standing. For example, in R v Legal Aid Board, ex parte
Bateman it was held that, on construction of the relevant statutory provisions,
that a legally aided client did not have standing to contest an order made as to
the taxation of her solicitor’s costs, since she was not affected by the result of the
taxation. The action could only be brought by the solicitor and the fact that the
applicant was genuinely concerned to see that her solicitor was properly
remunerated did not suffice to afford her a sufficient interest for the purposes of
JR.

In Holmes v Checkland an opponent of cigarette smoking was deemed not to

have standing to seek to restrain the BBC from broadcasting a snooker
championship sponsored by a tobacco company on the ground that he had no
more interest than any other member of the public.

Acting in the defence of group’s own interest

A group may have its interests adversely affected by administrative decision
making. By way of illustration, in Liverpool Taxi Fleet Operators’ Association,
Liverpool Corporation had the duty of licensing taxis and fixing the number of
licences to be granted. When the Corporation announced that the number of
licences was to be increased, without consulting the Operators’ Association, leave
to apply for JR was sought. In the case of Royal College of Nursing v Department
for Health and Social Security, the Royal College had the standing to challenge
departmental circular concerning the role of nurses in abortions.

12. ACTING IN THE PUBLIC INTEREST

In representative cases involving pressure groups finding sufficient interest had
a problem. The infamous Rose Theatre Case. The case concerned the question of
whether a company which had been incorporated for the purpose of
campaigning to save the historic Glove Theatre site in London had locus standi.
HELD: It was found that there had in fact been no illegality, but he also held that
the applicants had no locus standi. He approached the matter with express view
that not every person will always have sufficient interest to being a case; that the
assertion of an interest by many people did not mean that they actually possessed
one; and that there might be certain types governmental action which no one
could challenge

Þ The Rose Theatre Case

Developers who had planning permission for an office block, discovered the
remains of an important Elizabethan Theatre. A number of people formed a
company seeking to preserve the remains. They sought to persuade the Secretary
of State to include the site in the list of monuments under the Ancient Monuments
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and Archaeological Areas Act 1979. The SOS could do so
if the site appeared to him to be of national importance.
If the site was thus designated no work could be done without his consent.
Although the secretary of State agreed that the site was of national importance
he declined to include it within the relevant legislation.

However, in Greenpeace Case(2) the applicant group challenged the regulation

of the Sellafield nuclear site and the Court in refusing to follow the Rose Theatre
has further liberated the ambit of ‘sufficient interest’. It was held that Greenpeace,
being an organisation of national and international status was a serious and
responsible body, was well placed to argue them and that if it did not have
standing there might not be any effective way to bring the matter before the
court.

Þ Ex P. Greenpeace (no.2)
British Nuclear Fuel plc proposed to test its new thermal oxide reprocessing plant
(THORP) in Cumbria before it became fully operational. To this end they were
granted authorization by British Nuclear Fuel plc’s to discharge liquid and
gaseous radioactive waste from its premises at Sellafield. Greenpeace applied for
judicial review to challenge the decision of the Inspectorate of Pollution for said
authorization. It was held that the Inspectorate had not abused its powers but
since Greenpeace was an organisation of national and international status was a
serious and responsible body, it was given standing.

Þ In World Development Movement Case , the WDM sought to challenge the

Minister’s decision to grant aid to fund the construction of the Pergau dam
in Malaysia on the ground that it was outside the relevant statutory powers
and was accorded standing (because of the importance of vindicating rule
of law by ensuring that the Minister remained within its statutory power.

Þ Statutory bodies may also be accorded public interest standing; for instance,
In R v SOS for Employment ex parte Equal Opportunities Commission, the
Equal Opportunities Commission (EOC) sought locus standi to argue that
certain of the rule concerning entitlement to redundancy pay and
protection from unfair dismissal were discriminatory and to breach of EC
law and was allowed standing.
In other cases public interest challenges have been successful. For example, a
trade union was allowed to challenge a decision by the Home Secretary to change
the basis on which criminal injuries compensation was awarded [R v SOS for the
Home Department, ex parte Fire Brigades Union].

13. Cane’s Representative Standing: Associational,

Surrogate and Public Interest
Peter Cane argued that the phrase ‘adversley affected’ is not really much of an
improvement of ‘sufficiently interested’. He offers the alternative of ‘sufficiently
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personally interested’ to emphasize the personal nature
of standing.

Peter cane has argued that in the law on standing, an important distinction must
be made between ‘personal standing’, i.e., on the basis of a claimant’s own
personal interests, and ‘representational standing’. He divided ‘representative
standing’ into three further categories: Associational standing, Citizen/public
interest standing and surrogate standing. Associational standing which occurs
where an unincorporated group or corporation acts on behalf of its members.
Cane argues that in order for there to be genuine associational standing, the
represented must have some degree of control over or some ‘democratic stake’ in
the conduct of the representative. On the other hand, ‘public interest standing’
occurs where an individual or group seeks to challenge a decision in the public
interest rather than directly on behalf of others. Surrogate standing involves an
individual acting as a nominal claimant on behalf of another individual who is
the real claimant.

o surrogate standing, where a claimant purports to represent an individual

with a personal interest in the claim
o associational standing, where a claimant purports to represent a group of
individuals with a personal interest in the claim – eg. the Fleet Street
Casuals Case

14. THE DEVELOPMENT OF LOCUS STANDI

A part from Rose Theatre Case, it seems from the above case laws that the courts
have adopted a very liberal and flexible approach towards approving standing.
This relaxed state had been reached after many complications in interpreting
‘sufficient interest’, as it was left up to the courts to develop its meaning. In 1982,
House of Lords in IRC drew a coherent outline of the subject. It was held that
standing would usually need to be decided in the light of legal and factual
context, what has been termed by the academics as fusion approach. By this
approach as explained by Paul Craig, first standing is decided on the one sided
evidence at the leave stage. In the next stage again the court may decide that
there is no standing based on evidence from both sides. As it had not been evenly
applied in all cases, the decision had given rise to a complication still left tangled-
regarding the stage at which locus standi should be invoked.

15. The Development under the Human Rights Act

(HRA) 1998
Under s. 7(1) of the HRA 1998 a person may make a claim against a public
authority on the ground that the authority has acted incompatibly with a
Convention right (contrary to s. 6) only if the person is a 'victim' of the allegedly
unlawful action. Section 7(3) provides that if the claim is made is for judicial

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review, the claimant has 'sufficient interest' in the claim
only if the claimant is a victim of the action!'Despite the
narrowness of the victim test of standing, the ECHR (Art 34) gives the ECtHR
power to allow interventions (both oral and written) by 'any person concerned’
(Klass v Federal Republic of Germany (1979-80)). This combination of a narrow
standing rule and a potentially generous approach to interventions suggests a
view of the latter not as a corollary of a generous approach to standing but as a
counterbalance to restricted rights of claim-initiation.

16. Victim Test – The way out!

If a claimant is unable to satisfy the victim the test all is not lost since he may still
bring an application of review without directly using the HRA and relying
instead the common law jurisprudence concerning fundamental rights.

17. The Development under the EU Law

The inception of EU law has extended the concept of standing into much wider
arena. Generally, the rules of standing would only be imposed domestically, but
as UK has become a part of European Community by the European Communities
Act 1972, so standing is now imposed internationally, i.e. if the administrative
body is in breach of EU law in some respect then their decisions can be judicially
reviewed by the litigants not only domestically but also internationally.

18. The constitutional impact of the rules of standing:

Red Light and Green Light theory
Locus standi is dependent on establishing that the public body has acted ultra vires. Ultra
vires is concerned with review of the legality of public decisions, rather than with an
appeal on the merits of such decisions. There is a conflict of opinion by Harlow and
Rawlings over this issue which reveals the point:
a. Whether JR should be primarily concerned with ensuring the protection of human
rights through effectively challenging the decision of public bodies (the red light theory),
which seems to be the present condition as the rules of standing have become more
relaxed and flexible.
b. Whether JR should be exercised upon the primary consideration that public bodies
need protection from unnecessary numerous challenges in order to ensure efficient
public administration (the green light theory), which contends that the judiciary must
permit the executive to enjoy a wide measure of discretion that refers back to the
principle of Rose Theatre Case.

The IRC case raised the question of whether access to the courts should now be
regarded as more ‘open’ than ‘closed’. Open approaches to access would be
synonymous with Lord Diplock’s judgment in IRC: that it is more important to
prevent government illegality and at the same time to uphold doctrine of rule of
law so as to establish democracy that it does not matter who is the corresponding
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applicant, so long as the issue is brought to the court.
However, on the other side of the coin excessive
interference is disturbing the administration process thus violating the
separation of powers doctrine. Whilst it is generally agreed that the ultra vires
rule is concerned with review of the legality of public decisions, rather than with
an appeal on the merits of such decisions, there is a conflict of opinion by Harlow
and Rawlings over this issue which reveals the point:- whether JR should be
primarily concerned with ensuring the protection of human rights through
effectively challenges to the decisions of public bodies – the red light theory,
which seems to be the present condition as the rules of standing have become
more relaxed and flexible or whether JR should be exercised upon the primary
consideration that public bodies need protection form unnecessary numerous
challenges in order to ensure efficient public administration – the green light
theory, which contends that the judiciary must permit the executive to enjoy a
wide measure of discretion that refers back to the principle of Rose Theatre Case.
The green light theory would also refer help to the situation where ill-political
motive is involved. In a carefully argued critique, it is pointed out by Harlow and
Rawlings that JR has become a political tactic, as it seems most of the pressure
groups or organisations have been politically motivated and they may regard
litigation as merely one of the aspect of their wider activities [Feldman].

But in the absence of a constitutional court, this open or liberal approach to

standing which has permitted many single issue pressure groups access to the
courts has been questioned as undermining the democratic process of
representative government. This point is needed to be considered under the
doctrine of parliamentary sovereignty and the rule of law. The inevitable tension
between these two doctrines has resulted in academic and judicial debate over
the precise scope of the doctrine of ultra vires.

In a carefully argued critique, it is pointed out by Harlow and Rawlings that JR

has become a political tactic, with permission being routinely granted to a broad
range of organisations without regard to whether they have consulted their
membership. Such groups or organisations will often be politically motivated and
they may regard litigation as merely one aspect of their wider activities
[Feldman]. Well resourced groups may simply calculate that there is much to be
gained form the publicity that a fully hearing may generate, even if the case
itself in unlikely to succeed. This raises the issue of whether such groups have a
legitimate right or justification to challenge the decisions of elected public bodies
either on their own right, or on the basis of their understanding of the public
interest. Harlow argues that the relaxed policy should now be modified to prevent
JR from becoming a free for all, and that the courts should, in effect; tend towards
the Rose Theatre approach rather than that in World Development Movement.

Þ Himsworth, “No Standing Still on Standing” in Leyland and Woods (eds)

Þ Harlow, “Public Law and Popular Justice” (2002)

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