#13572 - Standing Quick - Administrative Law

Standing

Senior Courts Act 1981, section 31(3): no application of 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.’

The issue is how we define ‘sufficient interest’ and Miles draws a useful distinction between ‘private rights’ and ‘public wrongs’.

• If defined narrowly, standing operates only to protect individuals where their material interests have been affected (private rights); if defined broadly, standing operates to protect the public interest (public wrongs).

  • Private rights – individualistic; public wrongs – communitarian.

• Can also distinguish between dispositive (merely settling the immediate issue) or expositive (giving an explanation as to a wider issue).

Feldman argues that the approach depends on identifying a ‘constitutional ethic’ – a theory as to what judicial review should do will define the standing rules.

1. Move Towards a Public Wrongs Model

Before Fleet Street Casuals, standing ensured that individual rights, but not broader interests, could be asserted before the courts – it operated restrictively, and inconsistently, dependent on the remedy sought.

• Their Lordships made clear that standing would play a minimal role, as a threshold test for preventing ‘abuse by busybodies, cranks and other mischief-makers’ (Lord Scarman).

• Notable that the minimised role of standing at the leave stage created the possibility for success for cases such as Rees-Mogg, Greenpeace and WDM.

  • These go beyond what Cane terms ‘associational standing’ (where an individual represent a group whose interest align with their own), or ‘surrogate standing’ (where the applicant solely represents others’ interests.

    • These might just be considered attenuated versions of private rights model.

  • These are clearly in the ‘public interest’ – e.g. Rees-Mogg was permitted to claim because of his ‘sincere concern for constitutional issues’.

The basis of this expansion is Lord Diplock’s dictum in Fleet Street Casuals: there would be a ‘grave lacuna in our system of public law if a pressure group… if even a single public spirited tax pater, were prevented by out-dated technical rules… from brining the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped’.

• Seen most recently in Walton – Lord Reed stated that the court’s function was not simply ‘to redress individual grievances’, but it also had a ‘constitutional function of maintaining the rule of law.’

  • Particularly where the issue is of notable importance and there is no interested individual to bring the case themselves (WDM).

2. Inconsistency

There has been a clear liberalisation of standing, but it does not embrace a full ‘citizen’s interest’ model, so we still appear to lack a ‘constitutional ethic’.

Rose Theatre Trust is often invoked to suggest a more private right based approach.

• Schiemann J demanded that the applicant demonstrate an interest beyond that of the ordinary citizen in order to have standing.

• However, doubted:

  • As Cane notes, the logic seems flawed.

    • The approach is found on the idea that standing is a requirement designed to prevent ‘uncertainty and chaos’.

    • However, these functions are not performed by standing, but by other requirements, such as time limits.

    • Further, need for an interest ignores specialist expertise (such as in Greenpeace).

  • The case appears anomalous and has been superseded by Walton.

  • Sedley J, in Dixon, considered the case as just saying that, on the specific facts, the merits of the case were such that a narrow view was required – it is no dissent from the broader point.

Endicott suggests that there are three limitations on the current public wrongs model:

1. Campaign groups must show a prominent role in the issue;

2. If a C is particularly affected, the court will not hear the case from anyone else (Bulger);

3. ‘Busybodies’ will not be considered to have a sufficient interest.

These might be considered as illustrating the residue of a private rights system.

• Also seen in s7 HRA – introduction of human rights issues places a greater emphasis on rights.

• S84 Criminal Justice and Court Act 2015 (not yet in force) takes a more private right model in that leave will not be given if it is ‘highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.’

  • Could lead to impunity and likely the courts will interpret it loosely.

3. What role should standing play?

Advantages of a more liberal approach are clear – important issues, such as the poverty of children, can be protected form illegal government action.

Schiemann, however, notes a number of objections.

• For example, the huge cost, policies being forced ‘into suspense’, administrators focussing on policies becoming ‘judge proof’.

  • However, most of these objections are not specific to standing. For example, in relation to...