Standing in Judicial Review (L12)

Question 1

What is the history behind, and the current law governing, procedure in judicial review in both Scotland and England?

Answer 1

Statutes provide the bare bones, the rules of courts provide more detail…
Procedure for invoking the supervisory jurisdiction was introduced in 1985.
- To speed up the process of judicial review.
- Provide safeguards against ill-founded litigation.

The procedure is now found in Chapter 58 of the Rules of the Court of Session. Some aspects are also statutory (e.g. Sections 27A – 27D of the Court of Session Act 1988).

In England, introduced earlier: now Civil Procedure Rules, Part 54.

Question 2

What is standing?

Answer 2

Standing is the question of who can bring a judicial review claim.

Approach to take is closely tied to question of what the purpose of judicial review is:
- Righting individual wrongs?
- Protecting the rule of law?
- Something else?

Question 3

What are some objections to allowing ‘public interest litigation’?

Answer 3

Likely to encourage litigation that uses up scarce judicial resources.
Will encourage cases which lack legal merit.
Courts will be politicised.
Cases will be brought in abstract or hypothetical form.
Burden will be placed on the executive by the need to defend litigation.

Question 4

What are some arguments for allowing ‘public interest litigation’?

Answer 4

Establishing standards of good administration.
- Cases that might not be challenged by individual members of the public but may have a very strong rule of law value that may create a precedent that would be helpful across public administration.

Protection of important values, e.g. human rights.

If persons cannot take legal action in the public interests some illegal acts/decisions will not be challenged.

Rule of law requires it.
- If it is the only way to detect unlawful action and allow the courts to address it, this is required by the rule of law.

In modern era, the dominant understanding in England and Wales is that judicial review protects the rule of law, and so public interest litigation should be permitted/facilitated. Becoming dominant in Scotland also. Approach to standing reflects that.

Question 5

What is the rule for standing in England and Wales under the Senior Courts Act 1981?

Answer 5

‘No application for judicial review shall be made unless the leave of the High Court has been obtained… and the court shall not grant leave… unless it considers that the applicant has a sufficient interest in the matter to which the application relates.’

Question 6

What does R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed [1982] AC 617 tell us about the rules for standing in England and Wales?

Answer 6

Deal between HMRC and the Fleet Street Casuals.
Does one set of taxpayers (NFSE) have sufficient interest in the way that another set of taxpayers (Fleet Street Casuals) tax affairs are dealt with so that they have standing for judicial review?

‘It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the Federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.’ — Lord Diplock.

Recognition of both ‘associational’ and ‘public interest’ standing.

Question 7

How does R v Secretary of State for the Environment, ex p Rose Theatre Trust [1990] 1 QB 504 show how the rules for standing in England and Wales have changed after the IRC case?

Answer 7

A body was set up to protect an ancient theatre. They wanted the theatre to be protected under a statute. Minister said no, this monument should not be scheduled under the Act. Did the trust have standing?

‘The decision not to schedule is one of those governmental decisions in respect of which the ordinary citizen does not have a sufficient interest to entitle him to obtain leave to move for judicial review… the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated.’

Shows the old rules again, shows Lord Diplock was right in his dissent in IRC.

If the government has gotten the law wrong, it will stay wrong because no one has standing to have it judicially reviewed.
Rule of law!

Question 8

How does R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg [1994] 1 All ER 457 show how the rules for standing in England and Wales have changed after the IRC case?

Answer 8

‘We accept without question that Lord Rees Mogg brings the proceedings because of his sincere concern for constitutional issues.’
Compare with Rose Theatre… basically anyone can challenge anything and has standing.

Question 9

How does R v Secretary of State for Foreign Affairs ex p The World Development Movement Ltd [1995] 1 WLR 386 show how the rules for standing in England and Wales have changed after the IRC case?

Answer 9

Construction of a dam in Malaysia.
Government funded it despite finding it was not cost effective etc.

‘Standing should not be treated as a preliminary issue, but must be taken in the legal and factual context of the whole case… the merits of the challenge are an important, if not dominant, factor when considering standing.’

Pressure groups would have standing particularly where they have expertise.

Question 10

What was the old law for standing in Scotland?

Answer 10

Necessary to show both title and interest to sue: D&J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7.

Narrow. Made it difficult for persons and groups representing the public interest to sue:
Scottish Old People’s Welfare Council, Petitioners 1987 SLT 179.
Rape Crisis Centre v Secretary of State for the Home Department 2002 SLT 389.

Occasionally litigation would be brought in England specifically to benefit from the more liberal approach to standing.

Critiqued: Lord Hope, ‘Mike Tyson Comes to Glasgow: a Question of Standing’ [2001] Public Law 294.

Question 11

What is the current law for standing in Scotland?

Answer 11

The Scottish Civil Courts Review recommended that the separate tests of title and interest should be replaced by a single test:

“Whether the petitioner has demonstrated a sufficient interest in the subject matter of the proceedings.” — Report of the Scottish Civil Courts Review (2009).

Question 12

AXA General Insurance v Lord Advocate [2011] UKSC 46 shows critiques of the law on standing, before the Civil Courts Review recommendation was acted on. What did Lord Hope say?

Answer 12

Lord Hope, [62]-[63]:
‘…the private law rule that title and interest has to be shown has no place in applications to the court’s supervisory jurisdiction that lie in the field of public law… I agree with Lord Reed… that [standing] cannot be based on the concept of rights, but must be based on the concept of interests… a person may have a sufficient interest to invoke the court’s supervisory jurisdiction in the field of public law even although he cannot demonstrate that he has a title, based on some legal relation, to do so.’
‘One must, of course, distinguish between the mere busybody… and the interest of the person affected by or having a reasonable concern in the matter to which the application related. A personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent…’

Question 13

AXA General Insurance v Lord Advocate [2011] UKSC 46 shows critiques of the law on standing, before the Civil Courts Review recommendation was acted on. What did Lord Reed say?

Answer 13

Lord Reed, [169]-[170]:
‘The essential function of the courts is… the preservation of the rule of law, which extends beyond the protection of individuals’ legal rights… There is thus a public interest involved in judicial review proceedings, whether or not private rights may also be affected. A public authority can violate the rule of law without infringing the rights of any individual… A rights-based approach to standing is therefore incompatible with the performance of the courts’ function of preserving the rule of law…’
‘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… upon the context, and in particular upon what will best serve the purposes of judicial review in that context.’

Question 14

How does Walton v Scottish Ministers [2012] UKSC 44 show the current rules of standing in Scotland?

Answer 14

Obiter remarks about new approach by Court of Session. Addressed by Supreme Court ([90]-[97]).

The requirement of title and interest no longer applies to applications to the supervisory jurisdiction that lie in the field of public law. The term “standing” should be preferred for such applications.

The test is whether the applicant has a sufficient interest in the issues raised by the application.

‘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.’

Question 15

What are interventions in judicial review?

Answer 15

People can apply to have their say in judicial review if that case has broader implications that may affect them as external parties.

Question 16

What is the rule for interventions in judicial review in England and Wales?

Answer 16

Possibility of intervention:
Civil Procedure Rules 54.17: ‘any party’ may apply for permission to file evidence or make representations to the court hearing judicial review.

Question 17

How does R (Air Transport Association of America) v Secretary of State for Energy and Climate Change [2010] EWHC 1554 show the rules for interventions in judicial review in England and Wales?

Answer 17

‘It has been the practice of this court for a number of years… to allow interventions by groups or bodies, or individuals who have particular knowledge and expertise in the area, whether in terms of the effect which the action at issue may have upon them and their interests, or by virtue of the work which they carry out or through close study of the law, practice and problems in an area, or because of the campaigning experience and knowledge which their activities have brought.’

Question 18

What is public service intervention in Scotland?

Answer 18

Intervention in JR proceedings permitted under RCS 58.17 in a petition for judicial review. Intervener must state issue in the proceedings the applicant wishes to address and why it is a matter of public interest: RCS 58.18.

Court may grant only if satisfied that will ‘not unduly delay or otherwise prejudice the rights of the parties’. Generally limited to 5000 words.

Question 19

How does Scotch Whisky Association, Petitioner [2012] CSOH 156 show public interest interventions in Scotland?

Answer 19

Court permitted Alcohol Focus Scotland to intervene in minimum pricing case.
SWA argued the focus group received funding from the Scottish Government.

Court rejected this. Found they were independent. They received funding because of important work they do, not because they represent the government on policy positions.

Question 20

How does Sustainable Shetland v Scottish Ministers [2013] CSIH 116 show public interest interventions in Scotland?

Answer 20

Applications to intervene in wind farm case by Trump organisation, AES K2 Ltd and RSPB. Inner House refused all motions to intervene for variety of reasons.
Being affected is not enough, this does not provide interest to intervene.
If a court can be convinced there is a public interest in someone being able to intervene, then that should be allowed.

Question 21

What are the rules around costs in judicial review in England and Wales?

Answer 21

General rule: costs follows success.

Possibility of cost capping orders in public interest litigation.
CCO is ‘an order limiting or removing the liability of a party to judicial review proceedings to pay another party’s costs in connection with any stage of the proceedings.’

Question 22

How does Criminal Justice and Courts Act 2015, s88 limit the scope of cost capping orders?

Answer 22

May make CCO only if ‘the proceedings are public interest proceedings’; ‘in the absence of the order, the applicant for judicial review would withdraw the application for judicial review…’; ‘it would be reasonable for the applicant… to do so.’

Question 23

What does Criminal Justice and Courts Act 2015, s87 provide for costs for interveners?

Answer 23

Generally, parties will not be made to pay intervener’s costs.
Interveners may be required to pay costs incurred by parties as a result of intervention.

Question 24

What are the rules in Scotland for costs in judicial review?

Answer 24

General rule: costs follow success.

Protective expenses order (PEO) are possible.
- McArthur v Lord Advocate 2006 SLT 170.

Not granted frequently, and caps are often high.
- In Walton v Scottish Ministers, cap was £40k.

PEOs in environmental cases are required by international and EU law.

New rules as of December 2018: PEO must be made where proceedings are ‘prohibitively expensive’ for applicant. PEO as standard limits applicant’s liability to respondent to £5000; respondent’s liability to applicant to £30,000.

Question 25

What does Human Rights Act 1998, section 7(1) provide for standing in ECHR cases?

Answer 25

‘A person who claims that a public authority has acted… in a way which is made unlawful by section 6(1) may bring proceedings against the authority… but only if he is (or would be)… a victim of the unlawful act.’

Also rules in: Scotland Act 1998 s100.
NB Equality Act 2006 exception to allow interventions by the Equality and Human Rights Commission (EHRC).

Question 26

Who is classed as a ‘victim’ for standing in EHCR cases?

Answer 26

Article 34: victim is someone who is or would be a direct or indirect victim of the act complained of.

Direct victim is someone ‘directly affected’ by the act.

No abstract complaints, but status as ‘potential victim’ will suffice in some cases.

No general ‘public interest’ standing.

NB Equality Act 2006 exception to allow interventions by the Equality and Human Rights Commission (EHRC).

Question 27

What were the IRAC conclusions on standing?

Answer 27

Recommended no change.

“We point out that if the courts’ current broad approach to standing is proving problematic for government bodies, it is always open to defendants in judicial review proceedings to do more to challenge the standing of claimants to bring such proceedings than they perhaps do at the moment. Given the jurisdictional importance of standing to the courts’ ability to consider a claim for judicial appeal, we would also encourage the courts to address expressly the issue of standing in proceedings that are brought before them, regardless of whether that issue is raised by the parties.”

Question 28

What were the IRAC conclusions on intervention?

Answer 28

“The Panel is concerned that this development is the product of unfettered judicial discretion. Promptness aside, CPR 54 is silent about the relevant criteria and judicial failure to explain when, why, by whom and in what form intervention will be permitted is a major point of criticism. The courts have effectively adopted a policy of drift. Intervention as a lobbying tactic also raises concerns for the integrity of the adjudicative process and separate identity of courts. The Panel therefore recommends that criteria for permitting intervention should be developed and published, perhaps in the Guidance for the Administrative Court.”

Note: only focused on E&W.

Question 29

What were the IRAL outcomes?

Answer 29

No statutory action taken in relation to the rules on standing and intervention and no measures included in the Judicial Review and Courts Bill.

“Questions 9 to 16 in the consultation document considered procedural reforms. As these reforms would not require primary legislation, but rather would be matters for the CPRC, they are not a relevant consideration for the Judicial Review and Courts Act. Responses to these questions will be analysed and responded to at a later date.”

Consultation questions included a question on intervention, but not standing. Possible that further consideration to be given to intervention at a later date.