Standing

Question 1

Schiemann (1990) on restriction on standing

Answer 1

wherever standing rules restrict someone from pursuing a claim, the law “regards it as preferable that an illegality should continue rather than the person excluded should have access to the courts.”

Question 2

Senior Court Act 1981, s31(3):

Answer 2

High Court must approve applications for JR and it will not do so unless “the applicant has a sufficient interest in the matter to which the application relates.”

The issue is how we define sufficient interest. Term itself is illusory and doesn’t give much guidance and Elliott suggests that it’s just a short hand way of saying the court itself is to decide the test.

Miles draws a useful distinction between private rights and public wrongs:
• Narrow (private rights) model (or ‘closed’ as Schiemann describes): standing operates only to protect individuals where their material interests have been affected. Individualistic model
• Broad (public wrongs) model (or ‘open’ as Schiemann describes): standing operates to protect the public interest against public wrongs. Communitarian model.

Question 3

What does Feldman argue the approach depends on?

Answer 3

depends on identifying a constitutional ethic: i.e. what should JR do?

“Under a liberal political theory, oriented towards personal autonomy, individual rights and freedom of choice, litigation to protect individual material interests would certainly be regarded as legitimate, while attempts to represent public or ideological concerns, or the interests of future members of the political community, would be problematic. Civic republicans or communitarians would be much more likely to regard the latter type of interest group litigation as politically legitimate, and might consider the former type to be an illegitimate attempt to distort public interest decision making”.

So in determining the rules of standing
the judge will need to decide what sort of participation or representation in politics is required by the constitutional scheme
In other words, the judge will need to derive a ‘constitutional ethic’:

“The need for a judge to interpret the constitution in the light of society’s political arrangements and its dominant ideology emphasises the political nature of constitutional adjudication, and the link between constitutional and political legitimacy

Question 4

Craig on the consequences of lacking such a constitutional ethic

Answer 4

Locus standi has given rise to case law which is complex and often conflicting. It will continue to be so until the courts develop a clearer ideaas to what they believe the purposes to be served by standingactually are.

Given the absence of parliamentary guidelines, it seems to be desirable that academics, Bar and Bench should help in the building of guidelines by identifying what are submitted to be or are regarded as relevant considerations and the order of priorities upon which that judgment is based…. If learned writers and Bar and Bench try to formulate what social purpose is sought to be achieved in the exercise of a discretion to accord standing or to grant leave, then in time clear principles should emerge with the aid of the appellate courts and academic writers; and if Parliament does not like them, then Parliament can change them.


Question 5

But maybe some of the confusion in this process arises because the process itself, according to Feldman, is not all one-way but is, on the contrary, symbiotic. The cases which are heard as a result will themselves form and alter the prevailing ‘constitutional ethic’:

Answer 5

interest group litigation often represents a contribution to debate about political theory, by challenging prevailing ideas of constitutional or political legitimacy. Society’s response is shaped by its political and constitutional ethics, which may in turn be reshaped by the demands themselves

Question 6

In particular, Feldman identifies four factors which may make up part of the ‘constitutional ethic’ which determines whether the rules of standing will be wide or narrow:

Answer 6

1. Democracy and ethics, e.g. in the UK courts are often criticised for being ‘undemocratic’ when they adjudicate on public law issues, cf the exchange between the AG and Lord Bingham in the Belmarsh case, X, [2004] UKHL 56 para 42.
2. Federalism; the existence of a federal structure means the courts can be called upon to adjudicate particular substantive issues because they raise questions of state or federal competence. See, e.g. issues relating to devolution in the UK, or relating to EU v UK competence.
3. Ideological interests and the political community, in particular policy directives contained in constitutions. If courts accept even a limited jurisdiction to enforce these principles, Feldman argues that this inevitably extends the capacity for public interest litigation.
4. The perceived proper role of the courts in protecting certain rights even when they are not contained in the constitution, e.g. the UK outside and before the HRA.

Question 7

Schiemann on SCA and how that might inform our determination of the constitutional ethic

Answer 7

Schiemann thinks that, in deciding, it’s important to consider Parliament’s intention in enacting the SCA.

Question 8

Aims of standing rules:

Answer 8

• Efficiency: courts must reduce time / costs of administrative system. Diplock: Fleet Street Casuals (IRC): rules prevent court’s time being wasted by busybodies with misguided / trivial complaints.
• Justice for applicants: desire to ensure those with a valid application are not denied justice. Diplock in IRC: rules which are too strict would create a ‘lacuna’ in the PL system. Claims from pressure groups etc. allow “the court to vindicate the rule of law and get the unlawful conduct stopped.

• Accountability of public authorities: Schiemann: social merit in having answerable DMs. This is reflected in the move toward a ‘public wrongs’ model.
o Originally it was only the AG who represented the ‘public interest’ before the courts. Number of 20th Century cases have liberalised this position. Harlow & Rawlings: this was because restrictive standing rules contradicted the idea of general judicial responsibility to control abuse of power. Basis for a claim was broadened with the 1981 Act and IRC and we now have representational standing where pressure groups can bring JR on public interest concerns.
♣ Greenpeace: G had standing to challenge Nuclear energy testing because it represented local interest and general public interest in preventing radioactive pollution).
♣ Rees-Mogg: Lord RM was allowed to challenge government decision to ratify Maastricht treaty due to concern with constitutional issues.

Question 9

Move towards a public wrongs model

Answer 9

before Fleet Street Casuals standing ensured that individual rights, but not broader interests, could be asserted before the courts —it operated restrictively / inconsistently, dependent on the remedy sought.

• Fleet Street Casuals [1982]: case concerned an agreement between the IRC and Unions representing casual workers in Fleet Street (who hadn’t been paying taxes). National Federation argued that the deal was UV. HL: NF had no standing —it was merely a body of taxpayers without sufficient interest.
o Significant that the court made clear that standing would play a minimal role to keep out ‘abuse by busybodies, cranks, and other mischief-makers’ (Scarman).
o In a case like this, NF may have standing where there was illegality of ‘sufficient gravity’.
o Standing will play a role at the merits stage (Roskill and Wilberforce): suggests a two stage test: (i) at the permission stage courts will deny meddlesome Cs; (ii) when determined on the merits, case may show that C does not have sufficient interest (need to look at whole context).
♣ Elliott: questions whether re-opening standing at the permission stage may not be compatible with the Act; but is now standard practice — Rose Theatre Trust.
♣ Williams: doesn’t like the two-stage test: conflates standing with other issues, including merits and seems to indicate that standing does no real work at all (if all we’re interested in is the public wrong, no individual interest is required). Also doesn’t follow the legislation.
♣ Wade & Forsyth: problem is the point of standing is a good case on the merits may fail on standing: “it would seem to virtually abolishing the requirement of standing.”
Diplock notes parliamentary accountability: thus, here, the deal will be reviewable by Parl.

Question 10

What does Cane argue re the courts stopping short of a strong ‘public wrongs’ moel?

Answer 10

court stops short of a strong ‘public wrongs’ model (standing depends only on justiciability of issues involved) and still requires them, despite effectively abolishing standing as a filter, to distinguish between different degrees of interest. This is the ‘worst of all possible worlds’

Question 11

What two arguments does Endicott make?

Answer 11

• Although the question of merits is now raised before standing is decided, it is a mistake to think the issue of standing collapses into the wider question of substantive merit.:
o Merits relevant to standing in two ways: (i) no one has standing to proceed with a claim which clearly has no merit —this is not specific to JR; (ii) court needs to decide what the matter is in order to decide whether C has an interest ‘in the matter’ —e.g. in Fleet Street, C would have had standing if ‘the matter’ was something outrageous.
o Standing is still prior to the merits in that a case with no merit will be allowed to proceed if C has a sufficient interest and the court cannot yet see that the claim has no merit.
• Why not embrace a full public wrongs model? Point of making something unlawful is not to turn the judges into a general governments mistake department. Processes “need a justification of their own.”
o Rule of law may not require a legal response to unlawful conduct: RL requires that officials abide by the law, but when they don’t the RL requires the operation of a process for interfering only when that process itself will improve conformity to the law —either by changing official conduct for the future, or by remedying the unlawful results of a particular action. No grave lacuna because unlawful conduct does not come before a court.
♣ SR: real point is we don’t need a judicial response every time the law hasn’t been followed. Further, point that RL demands government by the law, indicates we need some control.

Question 12

IRC applied inconsistently:

Answer 12

Although IRC was seen in ex. p. Smedley [1985] as having “greatly relaxed the rules as to locus standing” and allowed a single taxpayer to challenge the legality of a Treasury expenditure decision (where the issue was of general importance). It was interpreted restrictively here:
• Rose Theatre [1990]: Schiemann J accepted that direct financial or legal interest was not necessary for standing, but an applicant must demonstrate an interest beyond that of an ordinary citizen. If this were not the case, the phrase ‘sufficient interest’ would lose all meaning.
o Further, he thought that where several people without such an interest band together (as here) it would be absurd if they gained standing merely by “incorporating themselves into a company.”
o Useful to look at statute in determining whether an applicant has a right to challenge a given duty.

Question 13

what is Elliott’s comment on Schiemann in Re Rose Theatre?

Answer 13

Schiemann appears to accept the possibility of associational standing, but thinks it’s not the case here, since those being represented didn’t have sufficient interest —he assumes that a sufficient interest can only be established by demonstrating some sort of personal stake in the decision. But this overlooks the possibility that sufficient interest may instead be established by demonstrating the importance of the matter means the litigation is in the public interest. Judges in Greenpeace and Dixon declined to follow the judgment. Sedley J questioned its soundness in part in Dixon and the liberal approach seems to have prevailed.

Question 14

How does Cane criticise Shiemann’s decision?

Answer 14

• Misunderstands purpose: Schiemann thought function of standing rules is to prevent ‘uncertainty and chaos’ from resulting (e.g. to prevent a decision to build a motorway being challenged after it had been built). However, this has nothing to do with standing (per Cane) rather it’s time limits, other procedural rules, and residue discretion not to order a remedy that prevents such challenges.

• Rejects Schiemann’s argument that Cs with no standing can’t gain standing by incorporating: again misses the point: trust / company shouldn’t only be given standing where members have sufficient interest, rather the liberalisation of standing rules requires standing is given to “genuine representatives of interested persons.” “Representative standing is an important feature of any system of public law which is chiefly concerned to ensure that governments act lawfully” and helps ensure that poor / underprivileged persons’ interests are represented. Issues if such claims can only be brought by the AG because then the government is responsible for bringing the government to account
o Also, if we take Schiemann’s view, then CPAG was wrongly decided.

Question 15

Personal note on Rose Theatre

Answer 15

Note: Schiemann thought a C must have “a greater right or expectation than any other citizen to have a decision taken lawfully.” However, other cases on campaign litigation have mentioned no such requirement (indeed almost the reverse). Instead of requiring any special interest, they have welcomed pressure group litigation where, as in WDM, it is unlikely someone else could make a challenge.

The case appears anomalous and appears to have been superseded by Walton —Sedley J in Dixon interpreted it narrowly as meriting a narrow approach under that specific statute, rather than dissenting from broader, more liberal, proposition in Fleet Street.

Question 16

General liberalising trend

ex p Child Poverty Action Group [1990]: Woolf LJ discussed

Answer 16

standing of the pressure group: “the issues raised are agreed to be important in the field of social welfare and not ones which individual Cs for supplementary benefit could be expected to raise.” Further, CPAG play a prominent role in “giving advice, guidance, and assistance to such Cs.”
o Elliott: can see in Woolf’s judgment the desirability of permitting claims to be brought on behalf of disenfranchised. But note that the issue was not confronted directly.
o Cane: Public interest standing rather than associational standing: it’s not associational standing because the people CPAG purports to represent are not members of the organisation. However, “there is no reason why it should not… act as a representative of the public interest in areas in which it has expertise.” His argument is that we should recognise public interest standing.

Question 17

General liberalising trend

ex. p. Rees-Mogg [1994]:

Answer 17

challenge to the ratification of the Maastricht treaty on grounds of constitutional legitimacy CA: refused application of JR (no jurisdiction to review signing of treaties) but accept RM has standing. Generous standing to RM is justified because it will promote the rule of law where: (i) there is a significant public interest at stake; and (ii) the DM’s action was a fragrant abuse of power.
o Note: is this really enough? It’s hard to see who could be a busybody if neither Greenpeace nor Rees-Mogg is. Perhaps someone with an “insincere interest” in the outcome?
o Justice / Public Law Project paper: This is different to the other cases, in that it was brought by an individual on no other basis than his “sincere concern for constitutional issues.” But the decision to allow the case to proceed is “testament to the courts having adopted a more liberal approach to who brings cases raising important public interest considerations.”

Question 18

General liberalising trend

ex p Greenpeace (no. 2) [1994]:

Answer 18

G challenged permission for nuclear fuel testing. Otton J: allowed GP standing on the basis that interest groups won’t automatically be afforded standing because members were concerned about a particular basis, rather it will be decided on a “case by case basis”
o Based on the following factors: (i) 2500 members of G lived locally and had concerns about health issues; (ii) if denied standing, those G represented, might not have an effective way to bring issues before the court; (iii) such people do not have the same expertise, so even if they could bring the issue to the courts, the case would be less well-informed; (iv) expertise facilitates efficient use of court’s resources.
o Also mentioned, elsewhere in judgment, it was significant that their interest was part of a general public campaign.
o Comment on GP:
♣ Cane: reasoning was confusing but proper interpretation of the case is that GP was accorded standing as a representative of the public interest, not associational standing on the basis that its members were effected.
♣ Endicott:
• Otton’s reliance on GP’s affected members in Cumbria seems to be a red herring, as it neglects the true nature of GP —it’s not a Cumbrain health and safety organistation, but a global environmental campaign organization. The representative role of the pressure group should have been no more relevant than it was in WDM. However, given Otton J’s judgment, this case is only tentative support for public interest standing.
• Expertise of applicant: the danger in this criterion is that: (i) judges may not be able to make good decisions about quality / expertise of pressure group; (ii) it may discriminate against the underprivileged. Further, not sure why it’s relevant for associational standing where a democratic stake in the issue has been established, and for public interest standing, surely the case is still in the public interest regardless of expertise.
• However, notes that these dangers haven’t come to pass because the courts have been generous in granting standing.

Question 19

General liberalising trend

Equal Opportunities Commission [1994]:

Answer 19

HL: recognised standing for EOC’s challenge to an employment statute on grounds of discrimination. Lord Keith: significant that the proceedings raise questions which are of public importance and affect a large section of the population.
o EOC had joined a worker to the proceedings (Mrs. Day) who did not have standing because she was asserting a personal interest in not being the victim of discrimination and therefore had a private law claim which she could bring before a tribunal.

Question 20

Leading case ex p World Development Movement [1994]:

Answer 20

challenge to the government’s funding of the Pergau Dam in Malaysia. Rose LJ: WDB have standing. The merits of the challenge were an important, if not dominant, factor when considering standing and there were significant factors pointing to the conclusion that the Cs had sufficient interest within s.31(3).
“The real question is whether the applicant can show some substantial default or abuse, and not whether his personal rights or interests are involved.”
Important factors in allowing standing: (i) importance of vindicating the Rule of Law and Diplock’s lacuna concern in IRC; (ii) importance of the issue to the public; (iii) likely absence of any responsible challenger; (iv) prominent role of the applicants.

Question 21

Analysis of WDM

Answer 21

Justice: although the organisation didn’t claim to represent a client group, the court accepted that in view of its reputation and track record, WDM had an interest in ensuring that aid money is lawfully spent. Important that, without WDM, there would likely be no other challenger.

Elliott: decision unequivocally recognizes that standing may be conferred upon a claimant because it is in the public interest that a matter is adjudicated before courts. Court draws a connection between importance of the issue and standing —this builds on contextual, public interest approach in IRC.

Miles (2000) argues that we need a democratic nexus —the autonomy of victims of maladministration requires that they should be able to choose whether the matter is litigated.
• However, this should be set against the competing view that there is a general interest in good administration, which may be threatened if representative Cs are barred from litigating where victims are unwilling to do so.
• EP: Miles argument does, perhaps, tell us that we shouldn’t allow pressure groups to bring cases where the victim is one C, who may not want details of their affairs in the courts. But in such situations the case for pressure group representation is weak anyway. And the law reflects this (Bulger).

Endicott:
• Rose LJ’s factors tell us what factors the court will look for beyond that C ‘finds the case interesting’. Rule of law doesn’t generally demand judicial process as a response to unlawful conduct, so we can boil down the relevant factors to: (i) importance of issues to the public; (ii) absence of any other likely challenger; (iii) expertise in the field. Only the third of these has anything to do with C’s interest in the matter, the other two are simply reasons why it may be a good idea to allow campaign litigation. These considerations may lead the court to think that they should treat C as though he has an interest, even though a groups interest is not at stake.
• Notable that the court in WDM did not assess its agenda to decide whether it was in the public interest. This seems to be a common feature of such litigation. However, Endicott argues this is not that important as any specific agenda will be countered in argument by the government contesting argument in court and the true public interest is in having the case heard.
• Campaign litigation does create a danger that argument in court will become a substitute for the political debates that ought to be conducted in Parliament —indeed, that’s often what C is seeking to achieve in bringing such actions (e.g. Rees Mogg). Endicott thinks it’s reasonable to limit standing in such cases, but the courts do this through: (i) requirement of an arguable case; (ii) limited grounds of JR.

Question 22

Case law after WDM

ex. p. Dixon [1998]:

Answer 22

Dixon (local councilor) challenged planning permission for a quarry. Sedley J: Standing at the permission stage should only be denied if C is a ‘busybody’ —Dixon isn’t and is entitled as a citizen to draw the attention of the court to perceived illegality. Despite Rose Theatre, there is no requirement of a “special private interest in the subject matter” at the permission stage, although private interest will be an issue at the substantive hearing. He thinks the court’s only concern is to ensure “it is not being done for an ill motive.” Public law is not about rights —it is about wrongs, misuses of public power.

o Endicott: doors are now just about open in campaign litigation cases, however, groups must still show: (i) a prominent role in the issues (this distinguishes Greenpeace from Rose Theatre); (ii) if there is some particular potential C who is specially affected, the court will not be prepared to hear a claim from anyone else (Bulger); (iii) busybodies —person with no reasonable concern for the issues —do not have sufficient interest.

Question 23

Case law after WDM

Bulger [2001]:

Answer 23

Father of B sought to challenge SS’s sentence of murderers. Rose LJ: denies standing. Wide standing is justified by RL and accountability of DMs, preventing private rights being denied by public bodies. However, parties to criminal proceedings and the Crown are able to challenge sentencing decisions.

Elliott: preventing other challenges where an individual has clear interest is the ‘flip side’ of WDM(allow group standing where non one individually is affected enough to bring a challenge) — RL is already protected because the Crown can bring a challenge.

Question 24

Case law after WDM

Al-Haq [2009]:

Answer 24

foreign NGO sought to challenge government’s facilitation of weapons supply to Israel. Issues raised were non-justiciable and there was no standing. Cranston J: recognizes that the courts apply a liberal standing test to responsible, expert groups. However, he rejects C’s argument that standing must necessarily follow if there was a justiciable issue of public law for two reasons: (i) on principle, if an act affects a particular individual / group and they choose not to challenge it the courts must generally refuse to permit someone more remote from doing so; (ii) as a practical matter, it can’t be right that any NGO around the world has standing to bring a claim in similar circs.

Harlow (2002): decision is justified — although there is a public interest in just international policy, there is no public interest in making the courts into a forum for advocacy groups to attempt to force judicial influence of government policy

Question 25

Case law after WDM

Walton [2010]:

Answer 25

• W (chairman of Road Sense, local opposition group) challenges construction of Aberdeen bypass. SC: reject W’s challenge based on substance, but thought he had standing.
o Lord Reed: Support for for the public wrongs/ RoL approach: SC clarified approach to standing in AXA and “intended to put an end to an unduly restrictive approach which had too often obstructed the proper administration of justice: an approach which presupposed that the only function of the court’s supervisory jurisdiction was to redress individual grievances, and ignored its constitutional function of maintaining the rule of law” Although it’s not the case that every person can challenge every potential breach by a public body, there may be cases where any individual, as a citizen, will have an interest. Rule of law wouldn’t be maintained if non-one could challenge an unlawful act because everyone was equally affected by it.
o Carnwath on remedies: interest of the applicant isn’t just a threshold requirement that ceases to be relevant once standing is established —it may be important regarding remedies. The liberalisation of standing means discretion as to remedies should act as a counterbalance. Thus, in this case, W wouldn’t get a remedy if his case succeeded; exercise of remedial discretion depends on factual / statutory context —here, countervailing public and private interests would be taken into account.

Question 26

ADDITIONAL ACADEMIC LITERATURE ON STANDING

Schiemann:

Answer 26

We need to think about Parliament’s purposes in imposing a judicial duty to examine standing of litigants.
• Too restrictive standing rules will strip laws of their purpose: “unenforceable laws are delusions which can give rise to substantial anger and justifiable frustrations.”
• Advantages of an open system: (i) facilitation of justice —i.e. to prevent Diplock’s lacuna in IRC; (ii) to ensure public accountability in the admin system —courts won’t act unless set in motion by an applicant, so we need standing to ensure people can apply; (iii) incentivise better administration —prompt administrators to act with greater care.
• Advantages of a closed system I: (i) being sued is a distraction from the business of governing; (ii) threat of judicial action makes administrators focus on the wrong things —i.e. making decisions ‘judge proof’; (iii) financial costs, which are borne by the public purse; (iv) suspending decisions, while under review, which may need to be implemented quickly; (v) greater waiting time for genuine cases if the court is turned into a platform for spurious ones.
o Williams: these points are not really about standing, but rather can be dealt with via justiciability, time limits and reforms to the admin court system.
• Advantages of a closed system II: need to ensure that the person bringing the case adequately represents future and other interests. Some of those affected may not be heard by the courts. This is a particular concern in the ‘private AG’ cases. The courts will need to take a role here to ensure that these interests are represented throughout proceedings —however, the courts aren’t well equipped to do this.
• Lord Diplock in IRC was wrong to say that there should be no depth at the permission to leave stage and, further, ‘busybodies’ is not the best phrase for the people we want to exclude here —especially where “the busybody has a good and important legal point.”
• Key point is that standing would become much clearer if academics and judges were clear about the principles they think it should strive towards.

Question 27

ADDITIONAL ACADEMIC LITERATURE ON STANDING

Harlow:

Answer 27

• Legal process is essentially bipolar / adversarial —movements which subvert that relationship undermine the key values of the legal process: certainty, finality, independence. She endorses Rose Theatre and critiques Greenpeace and WDM.
• The argument that those affected might not have effective resources, radically changes the traditional role of the courts, changing it to a generic law enforcement function / ‘machinery for accountability’.
• Advantages of pressure group standing: (i) access to justice due to financial support pressure groups can provide, e.g. CPAG; (ii) efficiency due to ability to martial resources and research (e.g. Greenpeace); (iii) ability to cope with internationalisation and HR right to litigation; (iv) pluralist / participatory democracy.
• Criticises the fact that, for pressure groups, “no serious credentials in the form of ‘democratic stake’ are required of them.”
• Disadvantages of pressure group standing: courts are becoming a surrogate for the accountability role of parliament —we could end up with the legal process becoming a ‘free for all’ (as in America) as a political tactic, as in Pergau Dam.
• She thinks that groups should have to “prove their stake” and that “the courtroom door should only be open to groups when they are genuinely offering public advocacy services.”

Argues Cane is right in saying through the idea of “democratic stake” that 
representativeness ought not to be assumed. But his test is not practical since “courts have no machinery for ascertaining ‘democratic stake’”. So criticizes Cane’s test as unworkable.

Question 28

ADDITIONAL ACADEMIC LITERATURE ON STANDING

Williams on Harlow’s argument

Answer 28

• Harlow argues that we need to recognise that legal and political systems each have distinctive characteristics, and we should respect that and not let them converge like this.
• Note that Harlow’s criticisms are directed at pressure groups, but we’re now far beyond there on spectrum, we’re now at the loosest end of spectrum.

Question 29

ADDITIONAL ACADEMIC LITERATURE ON STANDING

Craig: favouring a virtual citizen’s action

Answer 29

• Arguments for:
1. Lord Diplock in IRC on the ‘lacuna’ - vindicate RoL and stop unlawful action
2. Some illegalities affect the public at large but not any one individual
3. Woolf LJ in CPAG made the point that interest groups might raise points individual claimants would not, even if the latter is affected
• Practical objections

1. Vexatious litigants and busybodies BUT this “haunts the legal literature, not the courtroom”
2. Applicant without “personal interest will not be the most effective advocate on the issue” BUT there is “no reason to suggest any such correlation exists”
3. Clog up courts, costing money and government time BUT “it is not clear why an action that affects the public at large… is a less deserving distraction from the primary task of governing”
• Conceptual objections

1. Traditional judicial role precludes a citizen action: An attenuated connection between interest asserted and judicial action requested increases the “possibility of broadly framed challenges” — court focus “shifts from the remedying of private wrongs to the making of abstract determinations of legal principle” BUT “allowing a broad range of persons to challenge administrative action does not mean that the principle thereby propounded will be vague or untimely” Furthermore, “the subject matter in a public law case will often involve broad issues of social and political choice. The more ‘abstract’ or ‘general’ nature of the issues presented for judicial determination is not a corollary of who has standing, but of the subject-matter itself” 


Question 30

HUMAN RIGHTS ACT

HRA s.7:

Answer 30

test is whether C is a “a victim of the unlawful act”

Question 31

HUMAN RIGHTS ACT

Joanna Miles (2000): ‘Standing under the HRA’

Answer 31

• Potentially complex issues when assessing standing of interest groups where the issue involves overlapping CL and convention claims (point articulated by Lord Lester).
• Essential characteristic of the ‘victim’ is that the impugned act actually or potentially violates his rights. The “victim” test: Contrast the following:
o Dudgeonv.UK: shows how broadly the concept may be interpreted —the mere threat that surveillance laws might impinge on privacy was enough, without showing specific measures had been taken against Cs under that legislation.
o Leighv.UK: journalist tried to challenge an HL decision (dealing with publishing of court documents) for ‘chilling’ freedom of expression. ‘Victim’ could not be interpreted as ‘all persons who might be affected by the HL’s decision’.
• Public Interest Arguments before the ECtHR: as a general rule, applicants can’t bring general public interest arguments. Further, while an association might be a victim in some cases, groups have no standing to bring representative applications. Although interest groups are prevented from bringing actions in their own name, Donnelly v UK suggests that the Court will allow Vs to make abstract arguments which exceed their immediate personal interests in the case:
o Donnelly v UK Applicants were victims of abuse in prison, which they claimed was part of a systematic administrative pattern. UK argued that the more abstract argument was inadmissible, however ECtHR held an individual applicant could complain about administrative practices as a whole, provided he brought evidence and had been a victim of it.
o Convention also permits third party intervention before the court.

Question 32

HUMAN RIGHTS ACT

Harlow and Rawlings

Answer 32

• HRA imposes a “special cap on the added potentials of Convention rights challenge”
o Ministers were clear that JR’s traditional role of protection of individual shouldn’t be impeded or obscured by abstract and experimental claims of human rights violations.
o ECHR’s own jurisprudence was seen as valuable reference point here.
• This has been much criticised, partly for an excessive individualisation of rights, and partly by reason of the procedural dichotomy. But “In light of the continuing public controversy over the HRA, s.7 may however be accounted a wise precaution. Another illustration of the many complex dynamics associated with the multi-streamed jurisdiction, it is in fact an incentive for a reworking of Convention rights in the image of the common law”

Question 33

MILES ON THEORIES OF HUMAN RIGHTS STANDING IN PUBLIC LAW

“Individualist” and “communitarian” models of rights enforcement.

Answer 33

•	The individualist model No third party, however expert, should be able to assert the rights of competent victims without express consent. Individual rights should be seen in the same way as private rights (e.g. privity in contract). 
o	Miles: to some extent autonomy is overridden where a measure affects more than one victim (as one C will be able to claim without consent of others). However, “where the unwanted challenge is mounted by anideological group,the autonomy of the victims should preclude the action”.The “paternalistic belief of a third party that his or her actions will help a certain class of person should not be allowed to override the wishes of those intended beneficiaries.” Since it’s hard to know the wishes of such persons, it’s better to bar such actions.
•	The communitarian model: rejects victim autonomy as a dominant concern. Focuses on a broader public interest in lawful government. 
o	Miles: many writers who back an individualistic model will make an exception where full adherence to that view would “prevent an issue of national interest from coming under judicial scrutiny.”

Question 34

MILES ON THEORIES OF HUMAN RIGHTS STANDING IN PUBLIC LAW

“Dispute resolution” and “expository justice” models of public law adjudication.

Answer 34

• The dispute resolution model: sees the courts’ function as resolving disputes brought by victims against violators of their rights. Standing rules are in consequence narrowly defined: it is only proper for the courts to make decisions concerning the interpretation of the law in the course of determining a concrete dispute between victim and alleged wrongdoer.
• The expository justice model: resolution of disputes is incidental to the courts constitutional duty to give meaning to the public values enshrined therein. Offers a helpful account of public law adjudication, since decisions in this sphere are likely to affect larger numbers of persons not before the court than decisions in matters of private law. Under this model, “there is no necessary constitutional reason to insist on victim standing.”

Question 35

MILES ON THEORIES OF HUMAN RIGHTS STANDING IN PUBLIC LAW

The English Judicial Review Jurisdiction

Answer 35

• “Cane has suggested (though doubts) the view that the very nature of public law remedies may justify having broader standing rules in public law than in private law.” This would say that only where the remedy sought requires D to do something specifically in relation to the plaintiff, (eg pay compensation), pursuant to some agreement between them or responsibility towards the latter, is involvement of the victim in the litigation necessary.
• Although the courts have been receptive to public interest standing, this doesn’t automatically mean that where a case does involve individual rights, there’ll be a similar receptiveness:
o English courts have permitted interest group challenges in some such cases, perhaps indicating that they’re receptive to such a view and adopt a broad, communitarian approach of dispute resolution, if not the exercise of an expository jurisdiction
o But they’ve “retained enough flexibility within the sufficient interest test to weigh the competing claims of individual autonomy and public interest in lawful government and to afford protection to the former where necessary.” Whilst emphasising the importance of vindicating the RoL, courts “ultimately decline to conclude that all members of society therefore have an equal right to complain to the courts about all abuses of governmental power. Thus, Sedley J. inDixonreasserted the need in most cases to require the applicant to show a greater interest in the alleged breach than the rest of the public in order to guard against the busybody”

Question 36

ACADEMIC LITERATURE AND LAW COMMISSION REPORTS

Law Commission Administrative Law: Judicial Review and Statutory Appeals (Law Com No 226) (1994)

Background

Answer 36

• The HL in IRC said that sufficient interest was merely a threshold test at the leave stage to exclude clearly unmeritorious cases, and standing could be explored in detail at the substantive hearing. The question of standing was seen as inseparable from the substantive grounds and seriousness of the application. LC makes no recommendation for change here.
The general liberal trend has continued with cases like Greenpeace. Most consultees were happy with this position, but perhaps because of exceptions like Rose Garden Trust, many wanted a special provision for cases where the applicant is a representative or pressure group or in cases where the individual has standing but it can be demonstrated that there’s significant public interest in the matter.

Question 37

ACADEMIC LITERATURE AND LAW COMMISSION REPORTS

Law Commission Administrative Law: Judicial Review and Statutory Appeals (Law Com No 226) (1994)

Proposal

Answer 37

• They propose a “two-track system of standing” (the ‘sufficient interest’ test being too uncertain), under which:
(1) An application for JR could be made if the court was satisfied that “the applicant has been or would be adversely affected” by the challenged decision. [NB: this is based on private model]
(2) An application could be made if court considered that it’s “in the public interest for an applicant to make the application” [NB: this ground is discretionary and based on the public model.]
o They considered whether to enunciate the different factors that might be considered under the second track (importance of legal point, whether issue could be raised in other proceedings, allocation of judicial resources etc.) but think it’s better just to give the judge braod discretion.

Question 38

ACADEMIC LITERATURE AND LAW COMMISSION REPORTS

Cane Standing up for the Public [1995] PL 276:

On the LC’s test

Answer 38

• “one reason for introducing a two-track approach seems to be to distinguish clearly between personal standing and representative standing”
• However, the second prong of the test is problematic as:
(1) “It does not distinguish between associational standing and public interest standing. Indeed, the test may not allow for associational standing at all because it mentions only ‘the public interest’. If so this is a serious omission”;
(2) The Commission indicates its intention that the second prong should be ‘discretionary’ in a way that the first prong should not be: “this seems to me to be extremely undesirable. Rules governing access to judicial process should not be a matter for wide judicial discretion in individual cases but should be dealt with by reasonably precise, even if somewhat flexible, rules”.

Question 39

ACADEMIC LITERATURE AND LAW COMMISSION REPORTS

Cane Standing up for the Public [1995] PL 276:

Three different types of representative standing:

Answer 39

• Associational standing” most commonly involves an unincorporated group or a corporation claiming on behalf of identifiable individuals who are its members / it claims to represent.
o Under this model, the representative must show that it fairly reflects the views of the represented—it should show “democratic stake” or “sufficient democratic nexus” i.e. the represented have some control over the body – otherwise, the person may just be expressing a ‘well-informed’ POV.
o IRC: “The House of Lords made nothing of the fact that the Federation was acting as a representative, and the House apparently made no attempt to ascertain whether the Federation had sought the approval of its members for the making of the application.” This was OK in this case because it just so happens that there is a nexus of membership. Remember however that the members themselves did not have sufficient standing, so nor did the body.
o CPAG: “It is not a membership organisation, but rather a pressure and lobby group which purports to represent the interests of the poor … If the criterion of democratic stake were applied to its activities as an applicant for judicial review, it would not qualify for associational standing.” Any standing would be as member of the public, for which any expertise might qualify it to make the representation. The courts have never considered this, but Cane argues that it should not be sufficient for standing that CPAG was set up for a purpose 

• “Public interest standing” involves an individual, corporation or group purporting to represent “the public interest” rather than the interests of any identified or identifiable individuals. Need not have a democratic nexus
- “if public interest actions are to be allowed at all, all members of the public of full age and capacity should be able to bring them.”

o Greenpeace: Otton J’s use of the 2500 members is “confusing.” It is treated as associational standing, but the organisation is an instance of public interest standing. Furthermore, “provided the court believes that there is a genuine public interest in the challenged decision or action being subjected to judicial scrutiny, and provided it is convinced that the applicant before the court is genuinely committed to furthering the public interest, it would not be right to turn the applicant away on the ground of lack of standing because of inadequacy of competence or resources” 

• “Surrogate standing” involves one individual as nominal applicant representing the interests of another individual, who is the real applicant.

Question 40

ACADEMIC LITERATURE AND LAW COMMISSION REPORTS

Cane Standing up for the Public [1995] PL 276:

The Relationship between Associational and Public Interest Standing

Answer 40

• The courts haven’t drawn the distinction between associational and public interest standing. But he thinks it should be introduced into law.
• A litigant that claims to represent the interests of identifiable individuals can’t do so convincingly “unless there’s a reasonably effective mechanism by which the representative can ascertain what the represented believe their interests to be”
o Therefore, in order to be a legitimate representative, C must be able to convince the court that the views he’s putting forward really are a “fair reflection” of the views of the represented.
o “Without some such nexus between the represented and the representative, the claimant may simply be expressing “a well-informed point of view”.”
• However, “this requirement of democratic nexus between representative and represented should not apply to representatives of the public interest”. It follows from this argument that C who can’t establish its credentials as an associational representative, because it can’t demonstrate sufficient democratic nexus between itself and the people it purports to represent, may still be able to make a claim on behalf of the public.
• “It is important to allow this possibility because there may be a public interest in challenging a governmental decision before the courts in addition to any personal interest which identifiable individuals may have in challenging it. Furthermore, the grounds on which a decision may appropriately be challenged in the public interest may be different from those which the personal interests of individuals would support” (as in Leigh).
• So, he argues that any citizen of full age and capacity should, prima facie, be entitled to make a public interest application for JR.
• Another objection to this is that it would open the floodgates, overburden courts, make public bodies “easy targets for the disgruntled and disaffected”
o This objection is “unjustified and unrealistic”: yes, there’s been loads more JR applications, but “much of this is attributable to the lack of suitable alternative mechanisms for grievance resolution rather than bloody-mindedness on the part of the applicants”
o And the point of the leave mechanism is to “weed out cases which are frivolous and unmeritorious” – the law of standing shouldn’t be used to do this.

Question 41

STANDING QUICK NOTES FOR EXAM ESSAYS

What is the law?

Answer 41

• Senior Courts Act 1981 s.31(3): C must have a “sufficient interest” in the matter.
• This has been interpreted broadly by the courts:
o IRC: Lord Diplock: a restrictive interpretation would leave a “lacuna” in the law —a broad interpretation is needed to allow “the court to vindicate the rule of law and get unlawful conduct stopped.”
o CPAG: standing allowed for a pressure group because (Woolf LJ): (i) issues raised are important in the field of social welfare; (ii) CPAG plays a prominent role in giving advice, guidance, and assistance; (iii) issues raised are not ones which individual Cs could be expected to bring to court.
o Rees Mogg: allowed challenge to ratification of Maastricht Treaty on grounds of constitutional legitimacy. Justified in that it will promote the rule of law and because there was a significant public interest at stake.
o Ex p Greenpeace: G challenged permission for nuclear fuel testing. Allowed standing because: (i) many of G’s members in Cumbria would be affected; (ii) it had particular expertise, meaning an efficient use of the court’s resources; (iii) if denied standing the issue may not come before the courts.
o WDM: allowed standing to challenge the government’s decision to fund the Pergau Dam in Malaysia. Allowed standing: (i) RL and Diplock’s lacuna; (ii) importance of the issue; (iii) likely absence of any responsible challenger; (iii) responsible role of the applicant.
o Walton: chairman of local opposition group could challenge construction of a bypass —“intended to put an end to an unduly restrictive approach, which had too often obstructed the proper administration of justice.”
• However, there are limits:
o IRC: standing is relevant both at the permission stage and at the remedy stage. Limit in that busybodies will not be afforded standing.
♣ EP: unclear whether this is a true limit, in that if Greenpeace or Rees Mogg aren’t considered busybodies, then it is unclear who is.
o Bulger: public standing won’t be afforded where there is an individual with a clear interest (here the Crown) so father of Bulger couldn’t bring a JR over sentence of murderers.
o Al-Haq: foreign NGO sought review of government decision to challenge government’s facilitation of weapons supply to Israel. Not necessarily standing if there is a justiciable public law issue for two reasons: (i) Bulger limit; (ii) as a practical matter it can’t be right that any NGO around the world has standing to bring a claim.

Question 42

STANDING QUICK NOTES FOR EXAM ESSAYS

Is the law coherent?

Answer 42

• My thoughts:
o Law isn’t coherent because the courts haven’t been consistent or clear in articulating the rationales underlying the doctrine (see Greenpeace). I think it would be better to look at the system as a whole (as they have done in other jurisdictions —e.g. in the US an element of the test for standing allows for consideration of the proper role of the courts under separation of powers (Valley Forge Christian College v Americans United for Separation of Church and State); in India (e.g. Bandhua Mukti v Union of India) it is very clear that the exceptionally broad rules on standing are necessary to overcome corruption / efficiency issues with public accountability. Thus, any coherent approach to our laws on standing would have to consider the adequacy of political methods of accountability.
o We should also differentiate between associational standing (IRC) and pressure group standing (e.g. CPAG) because different concerns lie beneath each —as Cane suggests.
♣ Associational: C must be able to convince the court that the views he is putting forward are a fair reflection of the views of those he represents. This nexus should be central to the kind of claim. Despite the large number of people involved, this kind of claim still goes toward vindicating private rights.
Public interest: requirement of democratic nexus should not apply to representatives of the public interest. Cane: we should allow this possibility because there “may be a public interest in challenging a governmental decision before the courts in addition to any personal interest which identifiable individuals may have an interest in challenging.”

Question 43

STANDING QUICK NOTES FOR EXAM ESSAYS

Examples of incoherent reasoning

Answer 43

o Greenpeace: Otton J: gives the following reasons: (i) G’s general interest in the case, by virtue of the interests it defends; (ii) particular interest of the inhabitants of Cumbria who might have been directly affected by the decision; (iii) implicit general public interest of all in having unlawful admin decisions redressed.
♣ This begs the question: why isn’t factor (iii) sufficient on its own? Should the financial resources, or the expertise of a particular applicant influence his ability to bring JR? These other factors seem concerned with procedural inefficiency and are hard to reconcile with the type of general interest in (iii).
o Rule of law: ‘Rule of law’ is cited in almost every case, but always seems to push toward broader standing. It’s used to achieve best results instrumentalism and is a poor substitute for judges engaging in more structured consideration of the factors that go to standing.
♣ Endicott: notes that RL may not always push toward broad standing in every case, because there’s a rule of law argument from finality and efficient decision making —very hard for people to plan their affairs against government decisions when such decisions are frequently cast into doubt by JR.
• What functions does standing serve: Three from the case law:
o Procedural filter — prevent the courts from being overburdened.
o Individual rights have not be infringed / can be vindicated
o Illegal administrative action does not go without redress when needed.

Question 44

STANDING QUICK NOTES FOR EXAM ESSAYS

Why might we want a broad approach to standing?

Answer 44

o Sedley J in Dixon: openly acknowledged benefits of public interest standing: “public law is not about rights it is about wrongs … a person or organisation with no particular stake in the issue should be granted standing without in any sense being a mere meddler.”
o Lord Diplock in IRC: to prevent there being a lacuna in the law (i.e. oversight still possible where no individual with sufficient interest could bring a claim).
Craig: pressure groups may raise points that individual claimants would not (i.e. argument raised in Greenpeace).
o ‘Judge over your shoulder’ : the threat of litigation will lead to better decision-making

Question 45

STANDING QUICK NOTES FOR EXAM ESSAYS

Why might we want a narrow law of standing?

Answer 45

o Rose Garden Theatre: Schiemann thought that direct / financial interest was not necessary, but that a claimant must be able to show an interest beyond that of an ordinary citizen. If this were not the case, the phrase “sufficient interest” would lose all meaning. Not the proper function of the courts (separation of powers argument) to give standing to “every individual who is interested in having the legality of an administrative action litigated.”
♣ Particularly hostile to pressure group standing (as opposed to associational standing). Would be absurd if individuals without standing could gain a ‘sufficient interest’ by banding together.
o Harlow: legal process is essentially bipolar / adversarial; movements which subvert that relationship undermine the key values of the legal process —certainty, finality, and independence. She supports Rose Garden and writes against Greenpeace and WDM.
♣ Fears that the courts will become a ‘free for all’ for rehearsing political arguments —is particularly worried about standing being granted in Pergau Dam.
♣ Craig: rejects this concern on the ground that the judicial function already takes on a slightly different slant in this context anyway: “the subject matter in a public law case will often involve broad issues of social and political choice. The more ‘abstract’ or ‘general’ nature of the issues presented for judicial determination is not a corollary of who has standing, but of the subject-matter itself
o Schiemann (extra):
♣ Reasons that are really about other procedural requirements: (i) distraction from the business of governing; (ii) make admin bodies more concerned with ‘judge proof’ decisions that correct ones; (iv) suspending decisions while under review that may need to be implemented quickly.
♣ Reasons about standing: ensure that the person bringing the case adequately represents future and current interests; some of those affected my not be heard by the court. This is a particular concern in the private AG cases. The courts will need to take a role here to ensure that interests are represented throughout proceedings, but the courts aren’t well equipped to do this.
o Floodgates: courts may be overburdened:
♣ Cane: this is unrealistic — can be solved by: (i) improving other methods of redressing grievances; (ii) weeding out claims which are frivolous and unmeritorious (not using standing laws, but permission etc.)
♣ Lady Hale (extra): argues for a broad test of standing. She notes that in 2011, there were 11,360 JR claims; between 2007 and 2011 50 JR claims were brought by NGOs / charities etc.

Question 46

STANDING QUICK NOTES FOR EXAM ESSAYS

HRA s.7: test is whether C is a “a victim of the unlawful act”

Answer 46

Joanna Miles (2000): ‘Standing under the HRA’
•	Potentially complex issues when assessing standing of interest groups where the issue involves overlapping CL and convention claims (point articulated by Lord Lester). 
•	Essential characteristic of the ‘victim’ is that the impugned act actually or potentially violates his rights. The “victim” test: Contrast the following:
o	Dudgeonv.UK: shows how broadly the concept may be interpreted —the mere threat that surveillance laws might impinge on privacy was enough, without showing specific measures had been taken against Cs under that legislation.
o	Leighv.UK: journalist tried to challenge an HL decision (dealing with publishing of court documents) for ‘chilling’ freedom of expression. ‘Victim’ could not be interpreted as ‘all persons who might be affected by the HL’s decision’. 
•	Public Interest Arguments before the ECtHR: as a general rule, applicants can’t bring general public interest arguments.  Further, while an association might be a victim in some cases, groups have no standing to bring representative applications. Although interest groups are prevented from bringing actions in their own name, Donnelly v UK suggests that the Court will allow Vs to make abstract arguments which exceed their immediate personal interests in the case: 
o	Donnelly v UK Applicants were victims of abuse in prison, which they claimed was part of a systematic administrative pattern. UK argued that the more abstract argument was inadmissible, however ECtHR held an individual applicant could complain about administrative practices as a whole, provided he brought evidence and had been a victim of it.
o	Convention also permits third party intervention before the court.

Question 47

STANDING QUICK NOTES FOR EXAM ESSAYS

Harlow and Rawlings

Answer 47

• HRA imposes a “special cap on the added potentials of Convention rights challenge”
o Ministers were clear that JR’s traditional role of protection of individual shouldn’t be impeded or obscured by abstract and experimental claims of human rights violations.
o ECHR’s own jurisprudence was seen as valuable reference point here.
• This has been much criticised, partly for an excessive individualisation of rights, and partly by reason of the procedural dichotomy. But “In light of the continuing public controversy over the HRA, s.7 may however be accounted a wise precaution. Another illustration of the many complex dynamics associated with the multi-streamed jurisdiction, it is in fact an incentive for a reworking of Convention rights in the image of the common law”

Question 48

How standing reflects red/green light model

Answer 48

(i) red everyone should be a policeman = wide standing rules
(ii) green ombudsman/AG should make decisions

Question 49

English law recognises associational & public interest standing to what extent it should do so depends on what we think public law is for:

If NJ etc. are rights that can be waived, there’s little reason to permit public interest standing, if others could bring a claim but choose not to

Answer 49

♣ could say it damages someone’s autonomy if they choose not to bring a claim but someone else does on their behalf. This requires some sort of democratic nexus b/w representative group &person w/ standing.

Question 50

English law recognises associational & public interest standing to what extent it should do so depends on what we think public law is for:

♣ If public law is about keeping up good standards of admin or the rule of law then ought to be in favour of allowing standing (Miles)

Answer 50

⇒ NB: these alternative views can be categorised as ‘dispositive’ (courts are there to resolve disputes between parties) or expository (courts’ role is to expound the law) respectively.

 Cane: the only limitation which should be placed on public interest standing is that the claim shouldn’t be “frivolous” and P should be “sincere”. Courts should not allow themselves to be used merely as pawns in some power game, but beyond should be open to any member of the public genuinely committed to the public interest.”

⇒ Floodgates objection isn’t right. There has been a big increase in no of JR apps in last decade, but this can be partly attributed to the lack of suitable alternative mechanisms for grievance resolution rather than bad-mindedness on the part of Cs + leave stage eliminates any frivolous cases anyway

Question 51

English law recognises associational & public interest standing to what extent it should do so depends on what we think public law is for:

• Schiemann

Answer 51

♣ No jurisdiction has completely open system
♣ Different areas of law + remedies serve different purposes, SO no reason not to vary the rules of standing depending upon area of law (e.g. criminal or admin) or remedy sought (e.g. mandamus or declaration
⇒ How about confusion/complexity that would be caused by various thresholds, especially if developed by common law?
♣ Dislikes the term “busybody” to describe the kind of claim that should be weeded out @ permission stage – what if busybody has a good & important legal point?
♣ Prefers that all substantive points are heard @ permission stage, as this would save courts’ time in the long run
Agrees w/Craig - less complex approach to locus standi will only be achieved when we think about what we want from rules of standing and develop guidelines to fit - temptation in court

Question 52

English law recognises associational & public interest standing to what extent it should do so depends on what we think public law is for:

• Harlow

Answer 52

♣ Legal & political processes should be kept distinct, whereas the growth of representative standing blurs this distinction - legal process must be kept broadly within traditional boundaries, if independence, rationality & finality for which it’s valued are to be maintained.
♣ Cane’s democratic nexus idea is right but totally impractical for the courts to ascertain whether it exists
♣ Public interest standing has never been recognised in English law & Greenpeace was wrong
♣ Schiemann in Rose Theatre was right to say courts aren’t there at beck & call of every individual interested in testing the legality of admin act or decision Otton J (Greenpeace): if he were to deny standing then others would have no effective way of coming to court. This would represent an attitude that asks courts to hold executive accountable, which amounts to an invasion of legal process by the political one.

Question 53

‘What is to be regarded as sufficient interest to justify a particular applicant’s bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, Axa). Discuss.

Intro

Answer 53

Under the Senior Courts Act 1981, no applicant has standing in judicial review unless he “has a sufficient interest in the matter to which the application relates.” The courts have widened the circumstances in which they are prepared to grant standing to both individuals and organisations. The context necessary to confer standing on an applicant are highly sensitive to the facts of each case and hence unpredictable. Lord Reed in Walton v Scottish Ministers distinguished between cases which concern some particular interest of the individual (personal standing), and those which concern the public interest (representative standing). Although at present, the courts have not considered the relationship between these cases, they ought to reform the law so as to introduce the distinction between association and public interest drawn by Peter Cane, which would help to more easily divide cases according to the criteria that they must meet.

Question 54

‘What is to be regarded as sufficient interest to justify a particular applicant’s bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, Axa). Discuss.

Personal Cases

the meaning of sufficient interest and 2 contrasting cases

Answer 54

It is obvious that, where an individual has a private right which is undermined by a decision of a public body, he will have standing to challenge that decision through judicial review. This is the most literal interpretation of the 1981 Act. However, an applicant does not need a legal right to acquire standing under this head so long as he can demonstrate sufficient interest. Yet there are inherent problems in the ambiguity of what constitutes ‘sufficient interest’, which can be demonstrated by contrasting two cases.

The first is R v IRC, ex parte National Federation of the Self Employed, where a federation for the benefit of the self-employed and small businesses challenged the leniency with which the Inland Revenue treated Fleet Street employers in contrast to other cases. However, a majority of the House of Lords held that no taxpayer has an interest in the tax affairs of others, and so the Federation did not have standing to bring their claim.
The second case is R v HM Treasury, ex parte Smedley, where the applicant challenged the legality of a draft Order in Council put before Parliament which would recognise an undertaking to pay into a European Community budget to be a treaty under the European Communities Act 1972. The applicant had no interest other than a diligent taxpayer, yet Slade L.J held that “I do not feel much doubt that Mr. Smedley, if only in his capacity as a taxpayer, has sufficient locus standi to raise this question by way of an application for judicial review”

Question 55

‘What is to be regarded as sufficient interest to justify a particular applicant’s bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, Axa). Discuss.

Difficulty in reconciling IRC and Smedley

Answer 55

It is difficult to reconcile these two cases, as both concern applicants relying on their status as taxpayers to create a sufficient interest in the activities of central government’s finances. The immediate distinction which can be rejected is that the former is concerned with income, whilst the latter is concerned with expenditure. This arbitrary distinction serves no practical purpose and cannot be sustained. Alternatively, it is instead an implicit recognition that there are factors other than the applicant which are relevant to the question of standing and, in reality, it is an early example of recognition of a public interest claim, and can be distinguished from National Federation of the Self Employed, which does not come within the public interest (for reasons below).

Question 56

‘What is to be regarded as sufficient interest to justify a particular applicant’s bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, Axa). Discuss.

Increasingly common practice for individuals to be represented by groups

Answer 56

The law is further complicated by the increasingly common practice for individuals to be represented by groups or organisations acting in their favour. Many of these cases blur the boundary between personal and public interest cases. For example, R v Inspectorate of Pollution, ex parte Greenpeace (No 2), Greenpeace were challenging the regulation of the Sellafield nuclear site. Otton J granted the organisation standing because, inter alia, it had a number of members in the local area. He stated that “I would be ignoring the blindingly obvious if I were to disregard the fact that those persons are inevitably concerned about (and have a genuine perception that there is) a danger to their health and safety.” However, as Harlow notes, this statement belies two fallacious assumptions. First, that the members of Greenpeace would have standing; secondly, that Greenpeace was representing the wishes of its members in bringing a claim, despite no evidence this was so. Indeed, these assumptions are contradictory to other conclusions reached by Otton J. For example, he also surmised that, if Greenpeace did not have standing, then it is likely that no one else would and so the decision would not be challengeable in a court of law. This undermines the implicit presumption that the individual members of Greenpeace who were resident in the area were entitled to standing individually. Again, it seems like another case where it was really the public interest that in question, rather than the interests of individuals.

Question 57

‘What is to be regarded as sufficient interest to justify a particular applicant’s bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, Axa). Discuss.

Public Interest

Genesis of rule and main issue

Answer 57

In Walton v Scottish Ministers, Lord Reed recognised that “there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authority’s violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public.” The key problem here is, again, the lack of clear principles for identifying which cases involve the public interest and those that do not.

Question 58

‘What is to be regarded as sufficient interest to justify a particular applicant’s bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, Axa). Discuss.

Public Interest

WDM and Rose LJ recognising key factors

Answer 58

R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd, was an early case in the development of public interest claims, recognising that the merits of case will sometimes warrant relaxing the normal rules with regards to standing. Rose L.J recognised several factors which he considered to be important:
1. the rule of law;
2. the importance of the issue raised;
3. the likely absence of any other responsible challenger;
4. the nature of the breach of duty against which relief was sought; and
5. the prominent role of the applicants in giving advice, guidance and assistance regarding aid.
These factors are better than no guidance at all, they still permit a wide judicial discretion in classifying a case as being in the public interest. Although it would be impossible and impractical to impose strict requirements, given the variety of circumstances in which one might legitimately seek to call upon the public interest, such a wide discretion also risks the court entertaining questions of policy which it is ill-suited to settle. When the rights of an individual are at stake, the legal process as an adversarial system is an appropriate means of testing the individual’s interests against the arguments against them. However, when there are no individual interests, but merely the public interest, there are a wide range of factors which may need to be balanced against each other. The courtroom is an inappropriate setting to resolve such disputes, given its limited access to evidence and the nature of the discussion. Such polycentric issues are better resolved by administrative decision-makers, and their expertise in these matters should not be challenged merely to enable those who disagree with their decisions another opportunity to air their grievances. Harlow reasonably argues against the courts becoming a political surrogate, undermining the certainty of judicial decisions.

Question 59

‘What is to be regarded as sufficient interest to justify a particular applicant’s bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, Axa). Discuss.

Public Interest

Should such claims be recognised?

Answer 59

Despite these difficulties, however, public interest claims ought still to be recognised by the law, for the reasons Lord Hope and Lord Reed give in both Walton and AXA v HM Advocate. Lord Hope notes that, at least in certain fields of law - such as environmental law - it will be quite common for a public authority to be capable of acting unlawfully without any individual having a greater interest in the matter than anyone else. Environmental law “proceeds on the basis that the protection of the natural environment is of legitimate concern to everyone.” It would be contrary to this basis if no one could act to protect it.

How, then, can they be distinguished from those cases which are not in the public interest? The key lies in the following words of Lord Reed: “[t]he rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no one was able to bring proceedings to challenge it.” (emphasis added). Not only must the issue be an important one and the rule of law be engaged, but crucially, everyone is equally affected by the unlawful act so no one could ever reasonably have a greater interest than his peers. This guidance, recognised by Rose L.J as the third of his important factors, provides far more clarity than the rest, which should therefore be relegated to a less important status.

Question 60

‘What is to be regarded as sufficient interest to justify a particular applicant’s bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, Axa). Discuss.

Distinguishing Between the Two

Answer 60

With the recognition of the public interest as a legitimate ground for conferring standing, it is easier to distinguish those cases which constitute sufficient interest: namely, sufficient interest ought to be an interest in the matter which cannot be claimed by the majority of other people. If the applicant cannot assert such an interest, yet it would be reasonable for someone to have such an interest in the case, then the applicant ought not to be granted standing. It is nevertheless necessary to distinguish between those cases where organisations are representing other individuals on the basis of their own interests, and those where they act for the public interest.

Cane’s distinction between associational and public interest claims would introduce much needed clarity into this area of law. He argues that there is a key distinction between these kinds of cases, because in the former, an organisation is claiming to represent the interests of its members or a group of people related to its cause. In order to establish an associational claim, the applicant must be able to demonstrate that the represented individuals have some degree of control or ‘democratic stake’ in the claim. So long as the individual members had sufficient interest to claim standing individually, it would therefore be perfectly justifiable to permit the organisation representing them to also be given standing. This limits the cases where organisations can bring claims to those where the members have sufficient interest and have consented to the claim being brought.

Question 61

‘What is to be regarded as sufficient interest to justify a particular applicant’s bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, Axa). Discuss.

Conclusion

Answer 61

In conclusion, the law with regards to standing is unsettled and liable to change with regards to the circumstances which come before the courts in each individual case. Although this flexibility has merits, given the wide range of factual scenarios which can arise in judicial review, legal certainty and clarity are fundamental aspects of the rule of law and therefore clear guiding principles are necessary. The clear recognition of public interest claims in AXA and Walton is a welcome addition, helping to make clear distinctions between different cases, this reform can be developed by further distinctions, such as those proposed by Crane, in order to establish consistent principles, which are applicable to all cases.

Question 62

JAMES: ‘What is to be regarded as sufficient interest to justify a particular applicant’s bring a particular application before the court, and thus conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, AXA). Discuss.

Intro

Answer 62

It is stated in s.31(3) of the Supreme Court Act 1981 that no application for judicial review shall be made unless leave of the High Court has been obtained in accordance with rules of court; 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. The courts have made much discussion of this requirement of ‘sufficient interest’ when deciding whether an applicant has standing to bring an application for judicial review. The current position of the court seems to be that in general the applicant will need a personal interest, but may sometimes only need a public interest. The court will take a contextual approach to determine whether the matter is one which requires a private interest or public interest. This approach leads to some ambiguity, although in certain cases there is some elucidation about what factors the court will take into account. It seems that one of these factors is whether allowing the application will serve the ‘purposes of judicial review’, which appears to mean whether the application will serve the Rule of Law. Despite the ambiguity, it is correct in principle to allow representative groups to bring applications on behalf of its members or the public at large to improve judicial efficiency, access to justice and the Rule of Law.

Question 63

JAMES: ‘What is to be regarded as sufficient interest to justify a particular applicant’s bring a particular application before the court, and thus conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, AXA). Discuss.

Para 1

Answer 63

Up until the 1980s, the courts took a relatively strict approach to standing; the court was not there at the beck and call of every individual who was interested in testing the legality of an administrative act or decision. However, the idea of standing depending upon the context appeared in dicta in the “Fleet Street Casuals” case, where, for instance, Lord Diplock held that there would be a grave lacuna in our system of public law if a pressure group, like the federation in that case, or a single spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court. Lord Wilberforce indicated that whether the applicant had locus standi could depend upon the gravity of the case, and where there is sufficient gravity, a single taxpayer could challenge the decision of the Inland Revenue. This reveals that the court was prepared to accept that the applicant did not need a direct personal interest in the matter to have standing in certain circumstances. This serves to illustrate that Lord Reed’s summary of ‘sufficient interest’ is correct in that whether the applicant can bring a particular application before the court will depend upon the context.

Question 64

JAMES: ‘What is to be regarded as sufficient interest to justify a particular applicant’s bring a particular application before the court, and thus conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, AXA). Discuss.

Para 2

Answer 64

The factors to be taken into account when assessing whether the context of the case allowed for the applicant to bring an application for judicial review was elaborated on in Greenpeace, where Otton J held that he could not deny standing to Greenpeace, as those that Greenpeace represented might not have an effective way to bring issues before the court; he held that individuals personally affected by the decision of Her Majesty’s Inspectorate of Pollution in that case would unlikely be able to command the same expertise which was at the disposal of Greenpeace. Hence, it seems that whether the applicant has standing, as noted by Lord Reed JSC in AXA, will depend upon whether the context reveals that the applicant has sufficiently better expertise than the individuals personally affected by the matter and whether those individuals might not have an effective way at all to bring the application themselves. Otton J went further to take into account the fact that Greenpeace was a consultee by the Inspectorate for Pollution and that the relief sought was certiorari, which he regarded as less stringent than other remedies, such as mandamus. This approach was reinforced by Rose LJ in World Development Movement, where he focused on the national and international expertise of the applicants as being primary reasons as to why they should have standing. What seems to be the most liberal interpretation of this contextual approach was in Rees-Mogg, where the Court, with no explanation, held that there was no dispute that Lord Rees-Mogg was able to bring his application for judicial review for the simple reason that he had a “sincere concern for constitutional issues”. Of course, this does not mean that every person who has sincere concerns for constitutional issues will have locus standi in such cases, as each case depends upon the context, however it is unclear what it was about Rees Mogg’s context that gave him standing.

Question 65

JAMES: ‘What is to be regarded as sufficient interest to justify a particular applicant’s bring a particular application before the court, and thus conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, AXA). Discuss.

Para 3

Answer 65

This contextual approach must be contrasted with what was said by Schiemann J in Rose Theatre, where he held that the law does not see it is the function of the courts to be there for every individual who is interested in having the legality of the administrative action litigated. He held that it would be absurd that if two people, neither of whom had standing, could incorporate themselves into a company which thereby obtained standing. This broad-brush approach is completely contradictory to the now seemingly accepted view that if enough people incorporate themselves into a company with sufficient expertise then such a company can obtain standing in a matter which the individuals are not personally sufficiently interested in.

HAYLEY: One way of distinguishing Rose Theatre Trust is that the group did not pre-date the judicial review claim.

Crowd-funded litigation may call this into question, though.

Question 66

JAMES: ‘What is to be regarded as sufficient interest to justify a particular applicant’s bring a particular application before the court, and thus conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, AXA). Discuss.

Para 4

Answer 66

One particular factor which the court considers important in terms of the context of an application is whether allowing the particular application will serve the purposes of judicial review, in other words, whether the application will serve the Rule of Law. Lord Reed JSC held in AXA that insisting upon a strict particular interest in a case for application could prevent the matter from ever being brought before the court and that in turn might prevent the court from fulfilling its function to protect the Rule of Law. Lord Reed JSC built on this in Walton where he held that the Rule of Law would not be maintained if, because everyone was equally affected by an unlawful act, no one was able to bring proceedings to challenge it. Lord Hope JSC gives the example in that same case of an osprey route being impeded by a proposed erection of a cluster of wind turbines, as not affecting any particular individual’s rights or interests, but still deserving of judicial review. He still maintained that this should not allow busybodies to question the validity of a scheme, but one must show that they have a genuine interest in the aspects of the case and have a sufficient knowledge of the subject to qualify them to act in the public interest in what is, in essence, a representative capacity.

HAYLEY: This seems to be restricted to the context of environmental law in Walton. Does the distinction between environmental law and other JR subject matters hold on a conceptual level?

Question 67

JAMES: ‘What is to be regarded as sufficient interest to justify a particular applicant’s bring a particular application before the court, and thus conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, AXA). Discuss.

Para 5

Answer 67

This argument has normative force, as noted by P Cane, where he stated that, what he calls, associational standing (where the group applying for judicial review is representing its own members) facilitates access to justice by making it easier for individuals to invoke the judicial process and promoting judicial efficiency by allowing numerous and bilateral disputes which raise similar issues to be resolved by one set of proceedings. Cane concedes that the justification for public interest standing, where a group represents interests of those unconnected with the group, is more controversial, but it is submitted that such standing is still important. This is because there may be a case, as elucidated by Lord Hope JSC in Walton, where no one in particular is affected by the government action but it still offends the public interest in some way, and without a group representing the public interest, such action could go unchallenged. This would be contrary to the Rule of Law and the principle of accountability.

Question 68

JAMES: ‘What is to be regarded as sufficient interest to justify a particular applicant’s bring a particular application before the court, and thus conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, AXA). Discuss.

Para 5

Answer 68

Harlow would rebuke this argument by saying that the court should not be used as the framework for political accountability of government and he fears that by allowing the campaigning style of politics to invade into the legal process we may undermine the very qualities of certainty, finality and independence of the legal process, thereby undercutting its legitimacy. While this fear is not completely unfounded, and the court should never entertain political arguments only legal arguments, Harlow’s fears are exaggerated. Firstly, the very essence of judicial review, even if it is just an individual who is complaining about an infringement of his right, is treading a line between the legal and the political, because it is fundamentally about reviewing government actions. A particular individual may have political leanings, and this may influence his attitude to the outcome of the case, but this does not mean that we should deny him standing. Similarly, just because a representative group might have a particular goal does not mean that it should be denied standing, it just means that the court should be careful not to entertain political arguments, as it should be anyway. Secondly, in our representative democracy, it is becoming ever more necessary for people to have true and proper access to justice that they are represented by groups that have the means and capacity to challenge the government, especially with regard to large scale issues, like funding the Pergau Dam.

Question 69

JAMES: ‘What is to be regarded as sufficient interest to justify a particular applicant’s bring a particular application before the court, and thus conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, AXA). Discuss.

Para 6

Answer 69

Admittedly, there is some ambiguity in the current contextual approach, as noted by J Miles, especially now with the competing standing test under s.7 of the HRA of the ‘victim test’. However, this is obviously an unfortunate corollary of having a contextual approach. Having said that, the courts have introduced some certainty by outlining what factors it will take into account when considering whether there has been a sufficient interest as noted above, and by infusing the standing test with the merits of the case itself further certainty has been introduced, as one can be more certain about whether their case will be successful.

Question 70

JAMES: ‘What is to be regarded as sufficient interest to justify a particular applicant’s bring a particular application before the court, and thus conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context’ (Lord Reed, AXA). Discuss.

Conclusion

Answer 70

To conclude, it is clear that Lord Reed is accurate in his statement that whether a particular applicant has standing depends on the context. We have seen that the court will take into account the importance of the issue raised, the likely absence of another reasonable challenger, the nature of the breach of duty against which relief is sought and the expertise of the applicant as factors to take into account when considering the context of the application. Also, we have seen that the court will in particular take into account whether allowing the application will serve the purposes of judicial review i.e. whether it will serve the principle of the Rule of Law and access to justice. Normatively, this approach can be justified as being essential in our representative democracy, where individuals are regularly overshadowed by larger businesses and groups with larger resources and defending by fighting fire with fire.

Question 71

Q8(2017) -> ‘The courtroom door should only be open to groups when they are genuinely offering “public advocacy” services. Exceptions may be needed but they should derive from statute … Claims to associational standing need to be carefully scrutinised and parsimoniously construed. It is, in short, legal, and not democratic stake, which groups seeking access to the legal process should be asked to prove’ (HARLOW).
Does this approach offer a desirable approach to standing? How far is it reflected in current law, including section 84 of the Criminal Justice and Courts Act 2015?

Intro

Answer 71

Judicial Review ‘functions as a rationing device’ (Harlow & Rawlings) by requiring potential litigants to demonstrate a ‘sufficient interest’ (s. 31(3) Senior Courts Act 1981) in a matter in question. However, Harlow’s approach seeks to unduly ration judicial review for fear that the legal process will ‘degenerate’ into a ‘free-for-all’ where the court becomes a ‘political surrogate’.
Firstly, criticism of this approach is divided into (a) a philosophical challenge to the individualistic (albeit marginally widened) underpinning and (b) practical concerns with the consequences of legally restricting access to judicial review in light of wider material restrictions, such as expense, time and social exclusion.
Secondly, Harlow’s approach with regards to associational standing reflects the current law to a very limited extent, even with the slight (and unjustified) enlargement brought about by s. 84 of the Criminal Justice and Courts Act 2015 (s. 84).

Question 72

Q8(2017) -> ‘The courtroom door should only be open to groups when they are genuinely offering “public advocacy” services. Exceptions may be needed but they should derive from statute … Claims to associational standing need to be carefully scrutinised and parsimoniously construed. It is, in short, legal, and not democratic stake, which groups seeking access to the legal process should be asked to prove’ (HARLOW).
Does this approach offer a desirable approach to standing? How far is it reflected in current law, including section 84 of the Criminal Justice and Courts Act 2015?

1. Does this approach offer a desirable approach to standing?
   a. The philosophical challenge

paras 1 + 2

Answer 72

Two preliminary points must be made in order to attack Harlow’s approach on philosophical grounds.
Firstly, Schiemann (1990) distinguishes between two opposing models of standing: (a) closed (strict requirements) and (b) a liberal approach (with few or no restrictions). In fact, it can be seen as more of a spectrum. Harlow’s approach falls on the narrower end of the spectrum. Whilst Harlow advocates for the existence of associational standing, or what Feldman might call ‘representative standing’, this is merely an extension of the private rights philosophy which underpinned cases like Gouriet v Union of Post Office Workers [1978]. As such, it is apparent that her approach, which calls for a ‘legal, and not democratic stake’, rejects what is termed ‘public interest standing’, whereby a group purports ‘to represent ‘the public interest’ rather than the interests of any identified or identifiable individuals’ (Cane 1981).
Secondly, both Feldman (1992) and Miles (2000) tie the spectrum to differing political theories. The narrower approach corresponds to ‘a liberal, political theory, oriented towards personal autonomy and individual rights’ (Feldman) and can be succinctly labelled as the ‘individualist model’ (Miles). This approach privatises the disputes and can also be understood as dispositive. By contrast, more relaxed rules for standing correspond with a ‘civic republican’ (Feldman) or ‘communitarian’ (Miles) model. In essence, the rules of standing are closely tied to what you think the role of the individual in society should be.

Question 73

Q8(2017) -> ‘The courtroom door should only be open to groups when they are genuinely offering “public advocacy” services. Exceptions may be needed but they should derive from statute … Claims to associational standing need to be carefully scrutinised and parsimoniously construed. It is, in short, legal, and not democratic stake, which groups seeking access to the legal process should be asked to prove’ (HARLOW).
Does this approach offer a desirable approach to standing? How far is it reflected in current law, including section 84 of the Criminal Justice and Courts Act 2015?

1. Does this approach offer a desirable approach to standing?
   a. The philosophical challenge

Paras 3 + 4

Answer 73

As such, Harlow’s approach is a logical consequence of her preferring ‘the traditional bipolar and adversarial’ system over ‘something more fluid, less formal, and possibly less individualistic in character.’

HAYLEY: I’m not quite sure that this captures H’s view. H does not prefer „law“ as a means of doing politics (which she claims is the motivation of most interveners) – she is more arguing that the bipolar and adversarial nature of litigation makes it an unsuitable forum for which to solve questions of a political nature.

The seminal issue with ‘the traditional bipolar and adversarial’ system, is that ‘[p]ublic 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’ (Sedley J in R v Somerset CC ex parte Dixon [1997]). Furthermore, John Laws in his 2017 paper Statutory Interpretation – The Myth of Parliamentary Intent writes, ‘[t]he interests of parties to a contract in the contract‘s correct construction is, entirely, to see their intentions vindicated. The interests of citizen and State in a statute‘s correct construction is, in part, to see that the statute fulfils a clear and proper governmental purpose within a proper constitutional framework and to identify what that purpose is.’ In both quotations, we see that the courts assume an expositive role, pronouncing what the law is and correcting public wrongs. The subjection to governmental power to objective control is essential because it reflects the system’s adherence to the concept and culture of limited government. Therefore, it enshrines the primacy of the rule of law over the victim’s autonomy, deemed to be the ‘constitutional function’ of the courts by Lord Reed in Walton v Scottish Ministers [2012].

Finally, the content of what constitutes a ‘legal’ or ‘democratic’ stake is helplessly ambiguous.

HAYLEY: I agree – good. Think about environmental law in this context.

Harlow uses the term ‘legal’ as a synonym for a private right. However, in a communitarian model, we see that this distinction as understood by Harlow collapses as the law affords ‘sufficient interest’ even where no personal right has been affected. For example, in Child Protection Action Group [1990], (CPAG) Woolf LJ held that the ‘issues raised’ concerning the provision of financial support for family on low incomes ‘are agreed to be important in the field of social welfare and not ones which individual claimants for supplementary benefits could be expected to raise.’ Harlow’s approach overlooks instances where an individual may be unaware of their right. In addition, ‘some rights are collective or diffuse in the sense that they do not belong to any individual in particular’, they ‘belong at one and the same time, to everyone and to no one’ (Cappalletti 1989). The ‘Pergau Dam’ case is an example of where how the government chooses to allocate public aid is a ‘collective’ right. Granting the public authority immunity to distribute aid inefficiently benefits no one. By contrast, opening the scope of standing beyond Harlow’s restrictive approach allows citizens to promote the respect and dignity of their fellow citizens, present and future, in an increasingly socially fractured society.

Question 74

Q8(2017) -> ‘The courtroom door should only be open to groups when they are genuinely offering “public advocacy” services. Exceptions may be needed but they should derive from statute … Claims to associational standing need to be carefully scrutinised and parsimoniously construed. It is, in short, legal, and not democratic stake, which groups seeking access to the legal process should be asked to prove’ (HARLOW).
Does this approach offer a desirable approach to standing? How far is it reflected in current law, including section 84 of the Criminal Justice and Courts Act 2015?

1. Does this approach offer a desirable approach to standing?
   b. Legal and material restrictions to judicial review

Answer 74

Joe Tomlinson, in an article addressing ouster clauses in the Privacy International Symposium, outlined the need to situate discussions about ouster clauses in a wider account of material exclusions from judicial review. Like ouster clauses, standing can be seen as a legal restriction on judicial review. Both contain rules which formally restrict access to judicial review. The issue with Harlow’s approach is that by adopting such a strict approach to standing, she overlooks the broader material exclusions which prevent someone from bringing a judicial review claim.

The first example of a material exclusion is (lack of) money. Tom Hickman explained in a recent blog how ‘public law’s disgrace’ is no legal doctrine but that it appears to be the case that ordinary people cannot afford to bring judicial review: ‘judicial review provides a Rolls Royce form of litigation disputes with pubic bodies. The problem with judicial review is that most people cannot afford a Rolls Royce.’ Whilst not explicit or formal, judicial review, by its very expensive nature, excludes claimants. This is exacerbated by cuts to legal aid which means today claims issued pursuant to a legal aid certificate will only be paid for if permission is granted.

A second example is social exclusion. The CPAG case illustrates that the law is becoming increasingly complex and, in such a multicultural society, it cannot reasonably be expected that all citizens, some poorly educated, are equipped to bring a case of judicial review. Harlow’s approach would preclude organisations like CPAG from bringing a claim on behalf on the constituents, which would inhibit transparency and accountability in public decision making and the long-term development of public and administrative law.

A final material exclusion is expertise. The courts should (and does, as will be shown in part 2) be positively influenced to grant permission to a group which clearly shows relevant expertise. The issue with Harlow’s approach is that she argues that the ‘courtroom door should only be open to groups when they are genuinely offering “public advocacy” services’. Given Harlow’s insistence on there being a ‘legal’ stake before a group can bring a challenge, it seems implausible that a group will have the sufficient expertise to provide the court with ‘public advocacy services’ in the vast majority of cases, with the exception of Greenpeace, where 2500 members of the organisation lived in Cumbria and were therefore directly affected. Harlow’s two-pronged requirement of ‘genuinely offering “public advocacy services”’ and having a legal stake would seemingly preclude organisations such as the World Development Movement in the ‘Pergau Dam’ case, from being granted standing. In that case, it was held that ‘[i]ts supporters have a direct interest in ensuring the funds furnished in the UK are used for genuine purposes’ and that ‘disbursement of aid budget is made where the aid is most needed’ (Rose LJ). Yet, the members had no legal stake. Surely it is in everyone’s interest that such aid be distributed effectively. Finally, the approach is undesirable because the courts would have to establish degrees of expertise. Expertise is incommensurable across different disciplines and the judges lack the expertise to judge this question.

Question 75

Q8(2017) -> ‘The courtroom door should only be open to groups when they are genuinely offering “public advocacy” services. Exceptions may be needed but they should derive from statute … Claims to associational standing need to be carefully scrutinised and parsimoniously construed. It is, in short, legal, and not democratic stake, which groups seeking access to the legal process should be asked to prove’ (HARLOW).
Does this approach offer a desirable approach to standing? How far is it reflected in current law, including section 84 of the Criminal Justice and Courts Act 2015?

2. How far is it reflected in current law, including section 84 of the Criminal Justice and Courts Act 2015?

Answer 75

Harlow’s approach reflects the current law to a very limited extent.
On the one hand, the courts attach considerable weight to a claimant’s ‘history and credentials’, as was the case with Howard League, in which Munby J noted that the claimant was ‘the leading non-governmental organisation in the country concerned with penal issues and policy’. Similar commendation for the expertise of an organisation can also be found in Greenpeace and World Development Movement. In addition, s. 84, at first glance, appears to restrict the scope of standing. Importantly, the grounds for this restriction echo Harlow’s ill-conceived view that judicial review was being used abusively for ‘political’ purposes.
On the other hand, whether a group can provide public advocacy services is merely one of many factors which informs the judges’ broad discretion. In the ‘Pergau Dam’ case, Rose LJ outlined other factors, i.e. (i) upholding the rule of law, (ii) the importance of the issue raised, (iii) whether there is another responsible challenger, (iv) the nature of the breach of duty for which relief is sought and finally (v) the role of the applicants in that particular case, which included their expertise. In R (Williams) v SSHD [2015], the High Court considered 7 factors. This demonstrates that the courts undertake a structured approach, reminiscent proportionality intensity of review. Therefore, claims to associational standing are already ‘carefully scrutinised and parsimoniously construed’, perhaps too much so as the permission stage has been infused with the merits of case (clearly expressed so in the judgments of Lord Roskill and Lord Scarman in National Federation or ‘Fleet Street Casuals’).
Furthermore, s. 84 has narrowed the scope of standing slightly with a view of preventing small procedural errors, where it was ‘highly unlikely’ that it made any substantial difference to the outcome, from being granted relief or permission. The amendment has little, if anything, to do with associational standing. It does not establish a legal, rather than a democratic stake, to bring judicial review. In fact, the Lord Chancellor explained to the House of Commons that ‘judicial review must continue in its role as a check on the powers that be. It is an important tool for our society which allows people to challenge genuinely wrong decisions by public authorities.’ Finally, the courts preserve their discretion to waive the duty in cases of ‘exceptional public interest’. The courts will continue to determine what that means, though it is strikingly not restricted to associational standing.

Question 76

Q8(2017) -> ‘The courtroom door should only be open to groups when they are genuinely offering “public advocacy” services. Exceptions may be needed but they should derive from statute … Claims to associational standing need to be carefully scrutinised and parsimoniously construed. It is, in short, legal, and not democratic stake, which groups seeking access to the legal process should be asked to prove’ (HARLOW).
Does this approach offer a desirable approach to standing? How far is it reflected in current law, including section 84 of the Criminal Justice and Courts Act 2015?

3. Conclusion

Answer 76

Rules of standing reflect (a) the background political theories which determine the role of the citizen with respects to the state and (b) the view of the functions of the courts. Harlow’s approach attributes too little power to both citizens and the courts to vindicate the rule of law. In addition, when considered in light of other material exclusions to judicial review, the courts’ role in ensuring that public bodies give appropriate priority to the principles of legality over competing policy goals (such as speedy decision making and economy with resources) would be severely impeded.
Its undesirability is demonstrable as the common law has given special weight to the citizen’s right of access to the courts. The broad approach has ensured that there are no ‘grave lacuna[s]’ (Lord Diplock National Federation) in administrative law. However, the tightening of the rules of s. 84 has created the possibility of public bodies not being held accountable where it is ‘highly likely’ that the result would be the same. This is an undesirable regression which makes it possible for a public body to be unaccountable for unlawfulness. In practice, the courts have ample scope to guarantee good administration with the high bar of ‘highly likely’ and the ‘exceptional public interest’ waiver.

HAYLEY: Dear Bruno,

well done – but make sure you re-read Harlow to get the nature of her objection to liberal standing straight.

I think her main concern is that well-funded groups might use judicial review to override the political process.

On this vein, the following on crowd funding might be of interest:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3257787