#15601 - Standing - Administrative Law

STANDING

Schiemann (1990): wherever standing rules restrict someone from pursuing a claim, the law “regards it as preferable that an illegality should continue rather than the person excluded should have access to the courts.”

Senior Court Act 1981, s31(3): High Court must approve applications for JR and it will not do so unless “the applicant has a sufficient interest in the matter to which the application relates.”

The issue is how we define sufficient interest. Term itself is illusory and doesn’t give much guidance and Elliott suggests that it’s just a short hand way of saying the court itself is to decide the test. Miles draws a useful distinction between private rights and public wrongs:

• Narrow (private rights) model: standing operates only to protect individuals where their material interests have been affected. Individualistic model

• Broad (public wrongs) model: standing operates to protect the public interest against public wrongs. Communitarian model.

Feldman argues the approach depends on identifying a constitutional ethic: i.e. what should JR do? Schiemann thinks that, in deciding, it’s important to consider Parliament’s intention in enacting the SCA.

Aims of Standing Rules

• Efficiency: courts must reduce time / costs of administrative system. Diplock: Fleet Street Casuals (IRC): rules prevent court’s time being wasted by busybodies with misguided / trivial complaints.

• Justice for applicants: desire to ensure those with a valid application are not denied justice. Diplock in IRC: rules which are too strict would create a ‘lacuna’ in the PL system. Claims from pressure groups etc. allow “the court to vindicate the rule of law and get the unlawful conduct stopped.

• Accountability of public authorities: Schiemann: social merit in having answerable DMs. This is reflected in the move toward a ‘public wrongs’ model.

  • Originally it was only the AG who represented the ‘public interest’ before the courts. Number of 20^th Century cases have liberalised this position. Harlow & Rawlings: this was because restrictive standing rules contradicted the idea of general judicial responsibility to control abuse of power. Basis for a claim was broadened with the 1981 Act and IRC and we now have representational standing where pressure groups can bring JR on public interest concerns.

    • Greenpeace: G had standing to challenge Nuclear energy testing because it represented local interest and general public interest in preventing radioactive pollution).

    • Rees-Mogg: Lord RM was allowed to challenge government decision to ratify Maastricht treaty due to concern with constitutional issues.

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 / inconsistently, dependent on the remedy sought.

• Fleet Street Casuals [1982]: case concerned an agreement between the IRC and Unions representing casual workers in Fleet Street (who hadn’t been paying taxes). National Federation argued that the deal was UV. HL: NF had no standing —it was merely a body of taxpayers without sufficient interest.

  • Significant that the court made clear that standing would play a minimal role to keep out ‘abuse by busybodies, cranks, and other mischief-makers’ (Scarman).

  • In a case like this, NF may have standing where there was illegality of ‘sufficient gravity’.

  • Standing will play a role at the merits stage (Roskill and Wilberforce): suggests a two stage test: (i) at the permission stage courts will deny meddlesome Cs; (ii) when determined on the merits, case may show that C does not have sufficient interest (need to look at whole context).

    • Elliott: questions whether re-opening standing at the permission stage may not be compatible with the Act; but is now standard practice — Rose Theatre Trust.

    • Williams: doesn’t like the two-stage test: conflates standing with other issues, including merits and seems to indicate that standing does no real work at all (if all we’re interested in is the public wrong, no individual interest is required). Also doesn’t follow the legislation.

    • Wade & Forsyth: problem is the point of standing is a good case on the merits may fail on standing: “it would seem to virtually abolishing the requirement of standing.”

  • Diplock notes parliamentary accountability: thus, here, the deal will be reviewable by Parl.

Cane: court stops short of a strong ‘public wrongs’ model (standing depends only on justiciability of issues involved) and still requires them, despite effectively abolishing standing as a filter, to distinguish between different degrees of interest. This is the ‘worst of all possible worlds’

Endicott: Two key points:

• Although the question of merits is now raised before standing is decided, it is a mistake to think the issue of standing collapses into the wider question of substantive merit.:

  • Merits relevant to standing in two ways: (i) no one has standing to proceed with a claim which clearly has no merit —this is not specific to JR; (ii) court needs to decide what the matter is in order to decide whether C has an interest ‘in the matter’ —e.g. in Fleet Street, C would have had standing if ‘the matter’ was something outrageous.

  • Standing is still prior to the merits in that a case with no merit will be allowed to proceed if C has a sufficient interest and the court cannot yet see that the claim has no merit.

• Why not embrace a full public wrongs model? Point of making something unlawful is not to turn the judges into a general governments mistake department. Processes “need a justification of their own.”

  • Rule of law may not require a legal response to unlawful conduct: RL requires that officials abide by the law, but when they don’t the RL requires the operation of a process for interfering only when that process itself will improve conformity to the law —either by changing official conduct for the future, or by remedying the unlawful results of a particular action. No grave lacuna because unlawful conduct does not come before a court.

    • SR: real point is we don’t need a judicial response every time the law hasn’t been followed. Further, point that RL demands government by the law, indicates we need some control.

IRC applied inconsistently:

Although IRC was seen in ex. p. Smedley [1985] as having “greatly relaxed the rules as to locus standing” and allowed a single taxpayer to challenge the legality of a Treasury expenditure decision (where the issue was of general importance). It was interpreted restrictively here:

• Rose Theatre [1990]: Schiemann J accepted that direct financial or legal interest was not necessary for standing, but an applicant must demonstrate an interest beyond that of an ordinary citizen. If this were not the case, the phrase ‘sufficient interest’ would lose all meaning.

• Further, he thought that where several people without such an interest band together (as here) it would be absurd if they gained standing merely by “incorporating themselves into a company.”

• Useful to look at statute in determining whether an applicant has a right to challenge a given duty.

Elliott: Schiemann appears to accept the possibility of associational standing, but thinks it’s not the case here, since those being represented didn’t have sufficient interest —he assumes that a sufficient interest can only be established by demonstrating some sort of personal stake in the decision. But this overlooks the possibility that sufficient interest may instead be established by demonstrating the importance of the matter means the litigation is in the public interest. Judges in Greenpeace and Dixon declined to follow the judgment. Sedley J questioned its soundness in part in Dixon and the liberal approach seems to have prevailed.

Cane: criticises Schiemann’s decision.

• Misunderstands purpose: Schiemann thought function of standing rules is to prevent ‘uncertainty and chaos’ from resulting (e.g. to prevent a decision to build a motorway being challenged after it had been built). However, this has nothing to do with standing (per Cane) rather it’s time limits, other procedural rules, and residue discretion not to order a remedy that prevents such challenges.

• Rejects Schiemann’s argument that Cs with no standing can’t gain standing by incorporating: again misses the point: trust / company shouldn’t only be given standing where members have sufficient interest, rather the liberalisation of standing rules requires standing is given to “genuine representatives of interested persons.” “Representative standing is an important feature of any system of public law which is chiefly concerned to ensure that governments act lawfully” and helps ensure that poor / underprivileged persons’ interests are represented. Issues if such claims can only be brought by the AG because then the government is responsible for bringing the government to account

  • Also, if we take Schiemann’s view, then CPAG was wrongly decided.

Note: Schiemann thought a C must have “a greater right or expectation than any other citizen to have a decision taken lawfully.” However, other cases on campaign litigation have mentioned no such requirement (indeed almost the reverse). Instead of requiring any special interest, they have welcomed pressure group litigation where, as in WDM, it is unlikely someone else could make a challenge.

The case appears anomalous and appears to have been superseded by Walton —Sedley J in Dixon interpreted it narrowly as meriting a narrow approach under that specific statute, rather than...