The Permission Stage: Standing and Scope

Question 1

Two Questions

Answer 1

A question of standing
Who may seek judicial review?

A question of scope
Against whom may judicial review be sought?

Question 2

The Permission Stage

Answer 2

Reasons for refusing permission to proceed include:

• insufficiently arguable case
• delay (three-month time limit is the default)
• no sufficient interest (lack of standing or locus standi)
• no issue of ‘public law’
• alternative remedies are available
• the challenge is premature

In regulating access to judicial review, the judges exercise strong discretion.

Question 3

Standing: the requirement of ‘sufficient interest’

Answer 3

The Senior Courts Act 1981, s 31(3):

‘No application for judicial review shall be made unless the 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.’

Question 4

Fleet Street Casuals

Answer 4

• The National Federation of the Self-Employed challenged the Inland Revenue’s failure to stop tax evasion by casual workers in the newspaper industry.
• The House of Lords, by majority, held that the National Federation did not have sufficient interest.
  
  • The majority held that the Federation lacked standing because it had an insufficiently arguable case.
  • Lord Diplock disagreed: the Federation had standing but failed on the substantive claim.
• Nonetheless, the House of Lords established a liberal approach to standing.
• Lord Diplock:
  
  • ‘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of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get unlawful conduct stopped.

Question 5

The Rose Theatre

Answer 5

• Rose Theatre Trust and its members were held not to have sufficient interest to seek judicial review.
• Schiemann J: the Minister’s decision in this case was ‘one of those governmental decisions in respect of which the ordinary citizen does not have sufficient interest to entitle him to obtain leave to move for judicial review.’
• The individual must have ‘a greater right or expectation than any other citizen of this country to have that decision taken lawfully. We all expect our decision makers to act lawfully. We are not all given by Parliament the right to apply for judicial review.’

Question 6

Pergau Dam

Answer 6

• Rose LJ listed a number of factors that led him to conclude that the World Development Movement had standing:
  
  • ‘the importance of the issue raised’
  • ‘the likely absence of any other responsible challenger’
  • ‘the nature of the breach of duty against which the relief is sought’
  • ‘the prominent role of these applicants in giving advice, guidance and assistance with regard to aid’
• All these factors, said Rose LJ, ‘point in the present case to the conclusion that the applicants do have a sufficient interest in the matter to which the application relates.’

Question 7

The Scope of Judicial Review

Answer 7

Against whom may judicial review be sought? In other words, which bodies are ‘amenable’ to judicial review?

Bodies that are clearly amenable to judicial review:

• bodies exercising statutory functions; and
• bodies exercising prerogative powers (since GCHQ).

But what about other, non-statutory bodies?

• Other bodies exercising a ‘public function’ are also amenable to judicial review.

Question 8

Datafin

Answer 8

• The Panel on Takeovers and Mergers oversaw the ‘City Code’ and was a form of self-regulation over the conduct of company takeovers.
• The Court of Appeal held that the panel was amenable to judicial review. Why?
  
  • The court applied a ‘but for’ test: if the Panel had not existed, the state would have to invent it.
  • The Panel was effectively exercising a monopoly over an important sector of national life.
  • To these functional reasons, Lord Donaldson MR also suggested an institutional test based on the connection with government.

Question 9

Judicial Review or a Claim for Declaration?

Answer 9

Is the Disciplinary Committee of the Jockey Club amenable to judicial review?

• No—there are adequate remedies for abuse of power through an action for breach of contract. R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909 (CA)
• But the courts have found a way to remedy abuse of power in such cases through a claim for a declaration under CPR 40.20, rather than a claim for judicial review under CPR Part 54. Mullins v McFarlane [2006] EWHC 986

Question 10

Section 6 of the Human Rights Act 1998

Answer 10

Acts of public authorities

6.—(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

…

(3) In this section “public authority” includes—

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature…

…

(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private…

(6) ‘An act’ includes a failure to act…

Question 11

Contracting Out Public Services

Answer 11

• What happens when a public authority contracts out services to a private company?
• E.g., the National Assistance Act 1948, s 21, imposes a duty on local authorities provide nursing homes to people who need care because of age, illness, or disability.
• But suppose the local authority fulfils that duty by contracting out this service to a private operator of care homes.
• Suppose further that the private operator seeks to evict a resident or close the home.
• Can the resident bring a claim under Article 8 ECHR (the right to respect for family and private life)?

Question 12

Poplar Housing

Answer 12

• The Court of Appeal held that the housing association was a ‘hybrid’ (or ‘functional’) public authority. Why?
  
  • The association was ‘enmeshed’ with the activities of the local authority.
  • The local authority had set up the association and had transferred housing stock to it, subject to guidance from the local authority.
• This adopts an institutional test—looking at the connection with government, rather than looking at the nature of the function.

Question 13

Leonard Cheshire

Answer 13

• Residents were funded by the local authority, under a contract between the local authority and Leonard Cheshire Foundation.
• The Court of Appeal held that Leonard Cheshire Foundation was not a public authority. Why?
  
  • It was not ‘enmeshed’ in the council’s activities.
  • There was no difference between the service provided to publicly and privately funded residents.
• Does this give local authorities an incentive to contract out care provision to avoid the burden of Convention rights?

Question 14

Aston Cantlow

Answer 14

• First time the issue came before the House of Lords (though the context is different from the nursing-home context).
• The Law Lords sought to give ‘a generously wide scope to the expression “public function”’.
• There is no single test, but a range of factors:
  
  • ‘the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.’
• The last factor (a functional test) sets it apart from Poplar.

Question 15

YL

Answer 15

• Southern Cross Healthcare Ltd, a nursing home company, was principally funded by the local authority.
• An 84-year-old woman with Alzheimer’s disease was placed in the nursing home under an agreement between the local authority, her family, and the nursing home.
• The company retained the contractual right to terminate the placement ‘for good reason’.
• The company threatened to evict her because of the conduct of her family.
• It was argued that this violated her Article 8 right.

Was the nursing home fulfilling a public function for the purpose of section 6 of the Human Rights Act 1998?

Question 16

YL judgement

Answer 16

• The House of Lords (3:2) held that the company was not performing a public function.
• Lord Scott, in the majority, said:‘Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business.’
• Lord Bingham, in dissent, said:‘The performance by private body A by arrangement with public body B, and perhaps at the expense of B, of what would undoubtedly be a public function if carried out by B is, in my opinion, precisely the case which section 6(3)(b) was intended to embrace.’

Question 17

YL judgement

Answer 17

Both the majority and minority in the House of Lords wanted to treat like cases alike. But which cases?

1. The self-funded resident of a private nursing home
2. The Council-funded resident of a private nursing home
3. The resident of a Council-run nursing home

Why should all residents not receive the protection of the Human Rights Act?

• Parliament legislated to reverse YL on the facts.
  
  • The Health and Social Care Act 2008, s 145:
    
    • ‘A person (‘P’) who provides accommodation, together with nursing or personal care, in a care home for an individual under arrangements made with P under the relevant statutory provision is to be taken … to be exercising a function of a public nature in doing so.’
• But YL remains good law for many other types of contracted public service provision.
• And s 145 does not protect privately funded residents in a private nursing home.

Question 18

Remedies

Answer 18

• remedies are what you receive if a judicial review claim is successful.
• section 31 of the senior courts act.
• quashing order → nullify decision made by a public body retrospectively
• mandatory order → command a public authority to enact duties lawfully

Question 19

overview of judicial review

Answer 19