Standing (judicial review)

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The justification for the rules

It is not obvious why there should be rules of standing when safe guarding rights, in a democracy it might be argued that the RoL requires that potentially illegal decisions of government departments and public bodies be easily challenged. Restrictions to Access to Justice ought to be exceptional. 

'it would in my view, be a grave lucuna in our system of public law if a pressure group, like the federation, or even a single public spirited tax payer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped' - Diplock Fleet Street Casuals.

'It cannot be said that the applicants are 'busy bodies', 'cranks' or 'mischeif makers'. They are a non partisan pressure group concerned with misuse of aid money. If there is a public law error, it is difficult to see how else it could be challenged and corrected exept by such an applicant.' - Rose Pergau Dam.

3 reasons often put forward to justify the existance of standing requirements. 1) providing good administration of justice. 2) protecting the administration against 'excessive legislation'- costs alot for both sides. 3) legal certainty- all proceeding cases cast speculation on the law leading to uncertainty unwanted by RoL 

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Standing requirements

a) access to justice- the floodgate argument- needs to be good reasons to limit access to justice. One might take the view it doesnt matter who challenges it. RoL should justify the widest possible interpretation of the rules of standing. However the harsh realities of the administration of justice requires court room access to be limited. Case load for judicial review claims has grown considerably in the law decade. There are around 4000 which are started in High Court every year. 'There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application, then it would be quite correct at the threshold to refuse him leave to apply. The right to do so is an important safeguard against the courts being flooded and public bodies being harrased by irresponsible applications.' - Wilberforce Fleet Street Casuals. 

b) protection of the administration- the idea that the administration needs protection from excessive litigation permeates the whole of judicial review. Too many litigations hamper the running of departments. Administrative action shouldnt be disturbed by constent questioning. So limitations such as standing need to be imposed. This was one of the reasons for adopting Order 53- it would make it easier for claimants to obtain remedies on one hand, but have strict limits on leave, time limits and standing. 

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Why do we need standing?

'the plaintiffs had thereby been able to evade those protections against groundless, unmeritorious or tardy harrassment that were afforded to statutory tribunals or decision making public authorities by Order 53'- Diplock O'Reilly v Mackman 1983.

c) legal certainty- meant to protect third parties from the effects of legal uncertainty. 'Suppose a decision to build motorways turns out, once it has been built, to have been unlawful because the Sec of State took into account something which he ought not have done. If everyone could challenge on unlawfully granted planning permission for a house, what would be the position of the innocnet first or subsequent purchaser? These are the types of problems with which the concept of standing is concerned.' Schiemann in R v Sec of State ex p Rose Theatre 1990. 

It is very debatable indeed if standing should fufil this end, time limits were imposed for this very reason.

d) some criticisms- i) the busy body or vexatious claims- a transnational myth. Not many people really will bring claims- they are expensive and time consuming.

ii) Constitutional implications of an illegal decision- milions of public body decisions a year. Tiny number come to court and many are illegal. 

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Sufficient interest

iii) lack of research on the real impact of courts decisions on the administration. Does it really need all the protection afforded by judicial review? May make more protective procedures. 

iv) the drawbacks of the fusion technique- Fleet Street Causals- 'in these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties and to the breach of those said to have been committed. In other words, the question of sufficient interest cannot in such cases, be considered in the abstract, or as an isolated point: it must be taken as together with the legal and factual context.' - Wilberforce. Looking at merits and standing together.

Sufficient interest and victim tests-

a) the 'sufficient interest' test- comes from Senior Courts Act 1981 s31 (3)- 'no application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with the rules of court and the court shall not grant leave to make such an application unless it considers that the applicant has sufficient interest in the matter to which the application relates.' 

1) individual claimant- have sufficient interest is directly affected by a decision taken eg having a license revoked.

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Sufficient interest

2) can be given sufficient interest even though the decision only vindicates an interest for which the person would not normally have a particularly strong standing. A number of considerations are known to influence the court. However it is not always clear how decisions are taken.  Craig- 'the fusion technique means that standing may vary from area to area. It will depend upon the strength of the applicants interest, the nature of the statutory power or duty in issue, the subject matter of the claim and the type of illegality asserted. The application of these criteria may be unclear and uncertain. Where this is so, the determination of standing will depend upon certain more general assumptions of the judge as to the role which individuals should play in public law.' 

The liberalism of the case law- R v Somerset CC and ARC Southern Limited exp Dixon 1997- challenging planning permission for a quarry. Sedley- 'the first stage of the test which is applied on the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be reapplied as a matter of discretion on the hearing of the substantive application. At the second stage, the strength of the applicants interest is one of the factors to be weighed in the balance.'

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Groups

On the contrary see R v Legal Aid Board ex p Bateman 1992. 

Walton v Scottish Ministers 2012- Reed 'in many contexts it will be necessary for the person to demonstrate some particular interest in order to demonstrate that he is not a mere busy body... but there may also be cases in which any individual, simply as a citizen, will have sufficient intest to bring a public authoritys violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself that upon other members of the public. The rule of law would not be maintained if, because everyone was equally effected by an unlawful act,  no one was able to bring proceedings to challenge it.' 

Challenges by interest groups or associations- dont have greater standing just because theyre a company. Leading authority is R v IRC exp National Federation of Self Employed and Small Businesses 1982.  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 tax payer 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.' 

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Groups

Rose Theatre case- Schiemann 'It was I think accepted on behalf of the applicant that the company could have no great claim to standing than the members of the campaign had before the company was made into the campaigns vehicle. In any event, I hold so. It would be absurd if two people, neither of whom had standing could, by an approprately worded memorandum, incorporate themselves into a company which thereby obtained standing.' 

Liberalisation of the case law- Equal Opportunities Commission v Sec of State for Employment 1994, R v Inspectorate of Pollution ex p Greenpeace n2 1994 and R v Sec of State for Foreign Affairs ex p World Development Movement 1995. 

Issues helping define sufficient interest- 

1) the existence of other potential claimants more directly concerned- case allowed to be bought in Pergau dam as no one else to challenge- Rose - 'Neither a government nor citizen of a foreign country denied aid, is, in practical terms, likely to be able to bring such a challenge.' 

2) the merits of the case- the stronger the merits the more likely standing is going to be granted. 

3) the importance of the issue

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Issues affecting standing

4) the general subject matter of the challenge R v Her Majestys Treasury ex p Smedley 1985

5) the standing in society of the person or interest group claiming- Lloyd in R v Sec of State for Foreign And Commonwealth Affairs ex p Rees Mogg 1994- 'it is suggested by Mr Kentridge that these proceedings are no more than  a continuation by other means of arguments ventilated in parliament. Be that as it may we accept without question that Lord Rees Mogg brings the proceedings because of his sincere concern for constiutional issues.' 

Greenpeace - Otton- 'Greenpeace International has also been accredited with consultative status with the United Nations Economic and Social Council. It has accreditation status with the United Nations Conference on Environment and Development. They have observer status and the right to attend meetings of 17 names bodies including Parcom.' 

6) the expertise of the interest group/association

7) earlier participation in the decision making process- Greenpeace Otton- 'I also take into account the fact that Greenpeace has been treated as one of the consultees during the consultation process and that they were invited (albeit with other non consultees) to comment on the 'minded to vary' letter. 

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Reforming

Is the case law now too liberal? The shadow of reform- wanted to narrow sufficient interest. 

Attempts to reform by the Ministry of Justice- Judicial Review Proposals for Further Reform Sep 2013.  'Over time the courts have taken an increasingly expansive approach to the 'sufficient interest' test so that now a personal interest in the matters to which the application relates is no longer required. The 'sufficient interest'' test has become a relatively low hurdle for potential claimants to overcome, so that a strong public interest can provide standing even where the claimant has no direct interest.'

Response of the senior judiciary to the Ministry of Justices' consultation- 'The test of standing in judicial review must be such as to vindicate the rule of law... We do not agree with the suggestion that standing should be limited in some way to those with a direct interest in the subject matter and that the public interest in the vindication of the rule of law should play no part in the courts determination of whether a person has standing to bring a claim... Any consideration of a new test of standing must address head on the effect this may have on the rule of law. The consultation paper fails to do so'

Criminal Justice and Courts Bill- no mention of new standing requirements in part 4 of the bill.

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HRA

HRA: the victim test- 

3) if the proceedings are brought on application for judicial review, the claimant is to be taken as having a sufficient interest in relation to the unlawful act only if he is, or would be a victim of that act.

7) for the purpose of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of A34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. 

An individual must prove that: a right protected by the ECHR has been violated and that he was directly affected by it. 

The individual must be directly affect, but it can be a potential/future victim as well- Klass v FRG (Germany) 1978- 'a 34 requires that an individual applicant should claim to have been actually affected by the violation he alleges, A34 does not institute for individuals a kind of actio popularis for the interpretation of the Convention, it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention, it is necessary that the law should have been applied to his detriment.'

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HRA

A large category of people can be affected- Open Door and Dublin Well Woman v Ireland 1992.

It is difficult for interest groups/associations to be victims- Adams v Lord Advocate 2003. Only certain rights can be asserted eg about torture or if they represent their members who are victims, they must identify these members and show evidence of mandate. 

Conclusion- some constitutional implications- 

The cases make different assumptions as to the role of the citizens, associations and their access to justice. 

Restricted view in Rose Theatre- 'the answer to this is that law does not see it as a function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated. Parliament could have given such a wide access to the court but it has not done so.' Schiemann. 

R (Application of Edwards) v Environment Agency 2004- 'for these reasons I have concluded that it would not be an abuse of the courts process for this claim to be brought in Mr Edwards name, even if he has been put up to front the claim in order to secure public funding for it...

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HRA

... when it was thought by those who were the moving force behind the claim that funding would not have otherwise have been available.' 

May explain why HoL wanted stricter standing requirements. Council couldnt afford to bring claim so used a homeless man to get legal aid. Ministry of Justice were unhappy about this. 

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