Standing in judicial review

Supreme Court Act 1981: s.31(3): No application for judicial review shall be made unless the leave of the High Court has been obtained, and the court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
1. Civil Procedure Rules: Part 54.1: An interested party means any person (other than the claimant and defendant) who is directly affected by the claim.
  1. Civil Procedure Rules: Part 54.17: Any person may apply for permission to file evidence or make a representation at the hearing of the judicial review.
2. The Law Commission thinks that 'suffifcent interest' is too uncertain as a test. It proposes a two-prong test where an applicant can have individual standing if he shows that he will be adversely affected by the decision in issue, or he can gain representative standing where the matter is one of public interest.
  1. Harlow: The Law Com's test, and that in Small Businesses shifts attention from the applicant to the substantive claim.
R v IRC ex p National Federation of Self-Employed: The majority of the House of Lords held that there was insufficent interest where a group of taxpayers complained about HMRC granting an amnesty to another group of taxpayers. The matter of standing, unless it was obvious, should not allowed a claim to be dismissed as a preliminary issue. It should be determined by looking at all the facts.
1. Lord Diplock (minority): As a matter of constitutional principle, if there is good ground to suppose that a public authority is transgressing the law, in a way which affects 1000s of HM's subjects, that any one of them should be able to bring this to the attention of the court and have the law enforced. He did not think there had been a breach of the law in this instace.
2. Lord Fraser (majority): A claimant must have a reasonable concern and not be a mere busybody. He indicated that where what was complained of was exceptionally grave or widespread, the court might grant standing where it might otherwise not, although this would be rare.
3. Lord Roskill: There has been a change in legal policy and the rules on standing have been relaxed.
  1. R v HM Treasury ex p Smedley: Slade LJ held that S, if only in his capacity as a taxpayer, had sufficient interest to bring judicial review of a decision by the Queen in Council that, if made, would automatically result in expenditure from the public fund towards the EC. If the court thought the claim was frivilous, it had discretion to dispose of it, but the issue was a serious one. The right of challenge could not belong to AG alone.
4. Lord Wilberforce: Standing is not about jurisdiction
R v SS for the Environment ex p Rose Theatre Trust: Schiemann J held that the applicants did not have standing as individuals and so the society they formed by incorporation did not have standing either. He stated the test as whether the claimant had any greater right or expectation than any other citizen that the decision be taken lawfully. We all have an interest that decision makers act lawfully, but we do not all have the right to judicial review. This is difficult to reconcile with Smedley.
1. Cane: Schiemann J reached the right decision but for the wrong reasons. Standing is not concerned with preventing chaos and uncertainty for public authorities, that is what time limits are for. Standing is to ensure that the applicant has a sufficient interest. A busybody is a person who pursues a claim for an ulterior motive, not for the purpose of righting a wrong. Representative standing is important, but a claim will be frivilous where the applicant does not truly represent the interests they claim to. In this case, the trust saw itself as protecting historical interests, but the statute designated a body to represent this interest. Schiemann J's test is wrong because it would prevent bodies acting for interests which their members dont have. This would be bad becuase it would prevent interest groups from representing those without the means to bring a claim themselves. The poor and underprivileged depend heavily on the government but cannot challenge deicsions affecting them.
  1. "To the extent that judicial review operates as a check on the exercise of government power, the courts must be willing to give serious consideration to the claims of representative groups to further their causes through the judicial process"
  2. R v Foreign Secretary ex p Rees Mogg: The applicant had standing. There was very little discussion of the issue except Lloyd LJ said he had no doubt that R brought the claim becuase of his sincere concern for constitutional issues. This doesnt seem to pass Cane's proposed test of who a busybody is?
    1. R v Foreign Secretary ex p Rees Mogg: Lloyd LJ referred to the Smedley judgment which said that standing could be granted to a taxpayer where a decision affected all UK citizens becuase it involved the public budget.
    2. R v Foreign Secretary ex p World Development Movement: The merits of the challenge were held to be an important if not dominant feature of determining standing. Significant factors indicating that there was standing in the case were: the importance of the issue raised; the likely absence of another responsibilty chalenger; the importance of vindicating the rule of law; the nature of the wrongdoing against the relief sought; and the prominent role of the applicants in the relevant field.
      1. Harlow: This case shows how there has been substitution of legal for political accountability. This stands in contrast to the classic approach in Rose Theatre.
2. Schiemann reinforced the classic position that English law has never recognised the citizen enforcement mechanism.Where no individual rights are at stake, the correct avenue is the political process.
R v Social Security Secretary ex p Child Poverty Action Group: The CA dealt with the substantive issues in the claim first and then determined that as there was no illegality, it did not need to assess the question of standing.
1. Cane: The courts often give little or no consideration to the standing issue since the National Federation case.
  1. The National Federation case said that standing should not be determined by itself as a pre-liminary matter. It has gone from being the first point the court addresses to often being the last, if it is addressed at all. The reluctance of the courts to engage in the standing issue may well be due to confusion about what exactly sufficient interest means.
2. Woolf LJ: Standing is about jurisdiction.
R v Inspectorare of Pollution ex p Greenpeace: Otton J dealt with standing as a matter of discretion. He saw it as a tool which could allow the court not to grant relief where the applicant will not be sufficiently affected. He held that G had standing, influenced by the fact that if they could not bring this challenge, either it could not be brought or it would be brought in a well effective way. He emphasised G's expertise and ability to mount a well-argued challenge. He said that in the substantive application, the strength of the applicant's interest was soething to be weighed in the balance.
1. This seems wrong and a long way from NFSE. In that case the court said it would be impossible to determine the question of whether the claimants had a sufficient interest without looking at the substantive matters because it would not be able to tell whether C would be affected before it looked at the implications of granting the amnesty. Otton J delivered a lengthy judgment here and considered standing only comes in at the last minute as a matter of discretion. This approach would be very wasteful of time and resources.
R v SS for Employment ex p Equal Opportunites Commission: The HL held that EOC had sufficient interest in chalenging legislation that apparently discriminated against women becuase the EOC was established by statute which provided that its duties were to work towards eliminating discrimination and authorised it to take steps to do so.
Wade Forsyth, Administrative Law (7th ed.): “The real question is whether the applicant can show some substantial default or abuse, and not whether his personal rights or interests are involved.”
R v Somerset CC ex p Dixon: Sedley J found that the aplicant had standing, but did not allow leave for judicial review becuase there was no illegality on the merits. This is confusing if standing and the merits of a claim are bound up together. Sedley J disapproved of the idea that someone must have a greater interest than other citixens in order to have standing.
1. Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs—that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. If an arguable case of such misuse can be made out on an application for leave, the court's only concern is to ensure that it is not being done for an ill motive. It is if, on a substantive hearing, the abuse of power is made out that everything relevant to the applicant's standing will be weighed up, whether with regard to the grant or simply to the form of relief.
  1. Pulic interest standing enhances democracy rather than undermines it. JR is sought where a public offical has acted unlawfully. The bounds of the authority's powers are laid down by parlaiment as a result of the democratic process.
    1. C.f. Harlow: Representative standing leads to the courts being used as a surrogate for the political process.
Walton v Scottish Ministers: The court's supervisory jurisdiction exists not merely to redress individual grievances, but to exercise the constiutional functions of maintinaing the rule of law. What counts as a sufficient interest will depend on what best serves the purposes of judicial review in that context. Not every member of the public can complain at every breach, but there may be some cases where any indivdual, simply as a citizen, will have sufficent interest without having to demonstrate a greater impact on himself.
Cane argues that a distinction should be draw between associational standing and public interest standing. In the former only, the applicant should be required to show a democratic nexus between him and those he purports to represent. Where the claim falls under public interest standing, the only limit should be that of frivilous claims.
Rationale for standing rules
1. Craig: THe case law on locus standi is complex and often conflicting, and it will continue to be until the courts develop a clearer idea as to what they believe the purpoes served by standing actually are.
  1. Schiemann: This is true, btu requires judges to make value judgments as there are no indications from parlament as to why stanidng requirements exist. Judges should engage in this exercise, and in time clear principles will emerge. If parliament does not like them, it can change them.
2. Disadvantages of a closed system: being sued is a distraction from the work of public officials; liabilty could mean decision maker's focus less on the quality of their decisions and more on making them judge-proof; litigation is costly to the public purse and can depreciate the legal aid budget; delays in deicsion making due to legal challenge may be damaging; waiting time to access the courts would increase; and judicial decisions in administrative law have wider implications on parties whose interests are not represented or duly considered in adversarial proceedings.
3. Schiemann: Where standing rules exclude someone from bringing a claim, the law regards it as preferable that the illegality complained of continues than that person gain access to the court. We do this in others ways too e.g. time limits.
4. Lon Fuller: when courts decide polycentric issues, they may have wider implications than the court appreciates.Harlow: Courts are not surrogate legislatures.
HRA: The test for stading requires that the claimant is the victim of the violation. This is narrower than the sufficient interest test as it has been interpreted since National Federation. A victim under the HRA also has sufficent interest for JR.
1. Miles: It remains to be seen how this will influence the domestic JR test.
2. Miles: The victim test is inappropraite in human rights law. The function of the courts is expository justice rather than individual dispute resolution. And entitlement to enforce rights should be seen through the communitarian rather than individualist model. The public has an interest in lawful government. An indivdual victim should not be able to waive this right- privatisation of human rights can lead to lower standards for all.

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