#17234 - Locus Standi - GDL Constitutional and Administrative Law

The applicant requires permission of the court to apply for JR (CPR 54.4).

• S.31(3) Senior Courts Act 1981 requires the applicant to have ‘sufficient interest in the matter to which the application relates’

For a closed system of standing:

• 1) Safeguards against the wasting of the courts time – the court would only hear important meritorious applications.

• 2) Safeguard for public authorities – prevents them wasting time and money.

• 3) Indicates a long-standing bias of English common law that you get the best argument from the person most closely affected.

For an open system of standing:

• 1) Access to the court is preserved for public spirited individuals.

• 2) The more people who are qualified to challenge the more careful decision makers can be expected to be.

• 3) Reinforces rule-of-law requirement that no-one is above the law.

• 3) It is not the case that a relatively closed system will always produce the best challenges; The most directly affected will not always be the most informed.

  • Pressure groups, representative bodies etc. may be able to deploy more affective arguments.

Early Approach to Standing:

• Ware v Regent’s Canal Co (1858) – Lord Chelmsford held that only the Attorney General had the right to apply for JR.

• Boyce v Paddington BC [1903] – introduced an early test for standing

  • Standing could be satisfied in these circumstances on two grounds:

    • 1) The applicant had a private legal right which was affected. OR

    • 2) The applicant was intensely and atypically affected.

  • Diceyan influence: what matters are private rights.

Being interested in a case is not the same as having an interest in the case.

• R v IRC ex parte National Federation of Small Businesses – ‘Fleet Street Casuals’ [1982] – casual workers in newspaper industry in Fleet St. Would pick up pay packets under false names to avoid being pursued for tax. IRC stated that in return for workers undertaking to give their true details in the future they would not be pursued for arrears in tax.

  • National Fed of Small Businesses were infuriated by unequal treatment.

  • Case lacks a clear and consistent ratio, except that the Federation did nto have standing (unanimous)

  • Lord Scarman described the ‘sufficient interest’ test as being a mixed question of law and fact

  • Held that there were two stages to standing:

    • 1) Permission to Leave as required by parliament. Designed to turn away ‘busybodies, cranks and other mischief-makers.’

      • Here there is no consideration of the substantive merits because this is an ‘ex parte’ hearing, meaning that the potential defendant is not present at this stage.

    • 2) At the substantive hearing a more rigorous review of ‘sufficiency of interest’ may occur, taking into account some of the facts of the case.

      • Held sufficiency of interest does not relate to how closely involved the claimant is but rather (contra legem) is a matter of the merits of the case.

      • Lord Wilberforce held that there were different standing tests depending on the remedy sought.

      • Lord Diplock held that 1978 reforms had swept this away and there was only one test.

It is possible for no one to have sufficiency of interest.

• ex parte Rose Theatre Trust [1990] – trust created to pressure SecS to list the remains of an ancient theatre as a protected monument. They failed and sought a quashing order against his refusal and a mandatory order to compel him to reconsider.

  • Application refused on merits and insufficiency of standing.

  • Schiemann J: individuals who did not have standing would not gain it just because they formed themselves into a group or a company in order (no such thing as cumulative standing).

    • Recognised that in this case no one may have sufficiency of interest – this may be an affront to the rule of law, but Parliamentary statute must be given some meaning.

  • Rose theatre Trust argued that the Sec of State took them seriously as a body therefore the court should

    • This was rejected as it would be bad in policy terms if the Sec of State knows that by consulting he is conferring sufficiency of interest on a future challenger.

  • Cf. ex parte Liverpool Taxi Association [1972] – decision re number of taxis operating in Liverpool. Each of the members (taxi drivers) had a sufficient interest.

Individuals may have standing if they are directly adversely affected by the decision.

• ex parte Venebles [1997] – Venebles directly adversely affected by decision of home sec who set his sentence.

  • cf ex parte Bulger [2001] – Victims father wanted to challenge sentence of son’s murderer. As a third party he did not have ‘sufficient interest’ in the matter.

An individual’s standing may be interpreted broadly where the court acknowledges the importance of the public law decision being challenged.

• AXA Insurance v Lord Advocate [2011] – Scottish case re constitutional interpretation. Lord Hope: 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 he seeks to represent.

• R v Felixstowe Justices ex parte Leigh [1986] – Journalist challenged decision to keep name of magistrates out of the public domain. Granted standing as a ‘concerned citizen.’

• This ex parte Smedley [1985] - Concerned a finance raising measure which would result in a lot of money being paid to the EU. As a tax payer and elector, Smedley was a ‘man of many parts’ with a sufficient interest

• ex parte Rees-Mogg [1994] – Lord Rees-Mogg’s challenge to the Maastricht treaty. No dispute as to his standing: brought the proceedings because of his...