#14665 - Locus Standi - GDL Constitutional and Administrative Law

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This is a unique requirement of public law (except perhaps EU law, but that is arguably a type of public law if the CoJ is considered the supreme court of Europe)

• Senior Courts Act 1981 S.31(3) requirement of standing

• Common law has provided the requirements of sufficient interess

Justification

• Schiemann J:

  • Benefits of a closed regime:

    • Resources of public bodies

    • Resources of the court

    • The best argument will be put forth by the person most directly affected

  • Benefits of an open system:

    • Enables public spirited individuals to bring breaches to the attention of the court

    • Wider scrutiny of the executive

    • Rule of law requirement that no-one is above the law

    • Directly affected individuals will not always be those with the resources to bring an action (pressure groups)

• B Hough: “Standing is capable of producing arbitrary results lacking any coherence” suggests that standing confuses public law as a breed of private law which has an individual’s right at its focus – public law proper should be “a system of controls on governmental power the beneficiaries of which are the community at large and not one individual even if that individual suffers more serious harm when abuse of power occurs”

The leave stage might satisfy the benefits of the closed system:

• Lord Diplock (Fleet Street Casuals) – permission stage designed to “prevent the time of the court being wasted by busybodies with misguided or trivial complaints…and to remove the uncertainty in which public…authorities might be left…”

Historical development

Ware v Regent’s Canal (1858)

• Lord Chelmsford: ultra vires, where no individual has been directly affected (they haven’t been harmed/likely to be harmed) then the AG should be the only person with power to review

NB: this is a CLEAR conflict in terms of separated powers – though decided at a time where rule of law discourse was not as central – this has an efficiency justification

Boyce v Paddington BC: two-tier sufficient interest;

• Private law right affected

• Public law right affected in a way which was ‘atypical and intense’

NB: the first is a private law conception of public law, the second is a very high threshold which would rule out many decent claims

Fleet Street Casuals (above)

Casual workers on Fleet Street (newspaper industry hub) gave fake names including ‘M Mouse’ to evade tax & IRC made a promise of amnesty if they would give their real names. The National Federation of Self Employed & Small Businesses were infuriated at the unfairness

Held: (HL) the stronger the merit of the challenge, the easier standing will be found to be sufficient. The merit of the claim was not strong enough here as they found no abuse of power – therefore standing not found.

• Lord Scarman: if the merit of the challenge were strong he would have found standing as the CA did

• Lord Wilberforce: felt that the reforms did not, however, mean that the old caselaw which differentiated according to remedy sought had died with the reforms.

• Lord Diplock: however strongly disagreed (himself an author of the reforms) “It would, in my view, be a grave lacuna…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…It is not, in my view, a sufficient answer to say that judicial review…is unnecessary because they are accountable to Parliament…so far as regards efficiency and policy…Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.’

The HL in Fleet Street Casuals established a two-tier test:

1. Leave stage: threshold issue filtering out busybodies or mischief makers

   1. R (Feakins) included an applicant motivated by ill-will

   2. R v Dean and Chapter of St Paul’s Cathedral found a priest to be a busybody by challenging the decision of a Welsh Church to include women priests

2. Substantive hearing: full consideration of sufficient interest in relation to remedy sought

NB: this is arguably a distortion of S.31(3) Senior Courts Act which only mentions standing at the leave stage

R v Sec of State for the Environment ex parte Rose Theatre Trust

Excavation work on southbank dug up the remains of the Rose Theatre. The Rose Theatre Trust associated itself of fanatics to urge the Sec of State to schedule remains, putting developments on hold – Sec of State considered application but refused. Trust sought a quashing order & a mandamus

Held: the Trust could not establish standing.

• Schiemann J:

  • No recognition of cumulative standing – lots of people with insufficient interest does not create sufficient interest

  • [Following disapproved] the Sec of State’s treatment of them with standing did not urge the court to give them standing because a defensive Sec of State will not consult as widely

  • ‘Sufficient standing’ means not every infringement will have a whistle blower

  • This is Parliament’s intention, so the rule of law implications cannot overturn it

Changing tides:

R v Felixstowe Justices ex parte Leigh

A = journo who wanted names of bench of anonymous magistrates – sought a declaration that magistrate should not seek to perform their functions anonymously & mandamus that they should divulge their names

Held: whilst requirements are uniform, the court may in its discretion find standing for some remedies & not others – here the declaration was granted but the applicant did not have sufficient interest in the mandamus

R v Sec of State for Foreign & Commonwealth Affairs ex parte Rees-Mogg

Action for illegality of Maastricht Treaty

Held: Rees-Mogg’s sincere interest in constitutional affairs seems to have implicitly granted him standing – not disputed

NB: this case also caused concern for JR trespassing into legislative review as the EC (Amendment) Act had already found some Parliamentary approval

• Betty Boothroyd MP, then Speaker of HoC, warned the judges not to infringe Art 9 Bill of Rights Parliamentary privilege

R v HM Inspectorate of Pollution ex parte Greenpeace

Held: Greenpeace had sufficient standing:

• Respected body with a genuine concern

• Well-placed to bring a competent challenge

  • If Greenpeace were precluded, someone legally aided might & chances of success would be hampered

• They had been consulted (Rose Theatre disapproved)

NB: the resources argument is slightly concerning as it suggests legally aided applicants might find standing less easily

R v Sec of...