Standing

S 31(3) of Supreme Court Act 1981 provides that the court must not grant leave for an application for judicial review ‘unless it considers that the applicant has a sufficient interest (otherwise expressed as “standing” or locus standi) in the matter to which the application relates’. The justification for such a requirement lies in the need to limit challenges to administrative decision making to genuine cases of grievance and to avoid unnecessary interference in the administrative process by those whose objectives are not authentic. The applicant may be an individual whose personal rights and interests have been affected by a decision, or an individual concerned with official decisions which affect the interests of society as a whole.

Alternatively, the application be brought by an interest or pressure group desiring to challenge a decision which affects the rights and interests of members of that group or society at large. The rules of standing are not unique to administrative law. They are its equivalent of privity in contract and land law, or proximity within the law of negligence. The rules of standing are as important as equivalents in defining the class of persons entitled to bring an action in any particular case.

Constitutional principles of democracy mean that every citizen has an interest in the decision‑making of governmental bodies. Its legality is a matter of great public interest. Furthermore, the control of such decision‑making through the process of law is an aspect of the rule of law of vital importance within a healthy jurisdiction. Nonetheless, it could be argued that the rules of standing should not be abolished. They too have an important role to play within the legal system, and their existence can provide a worthwhile contribution to the preservation of the rule of law. The rules of standing are usually thought of as being a unique and restrictive force within the sphere of administrative law.

Whilst it is generally agreed that the ultra vires rule is concerned with review of the legality of public decisions, rather than with an appeal on the merits of such decisions, there is a conflict of opinion over whether review should be primarily concerned with ensuring the protection of human rights through effective challenges to the decisions of public bodies (the ‘red light theory’), or whether review should be exercised upon the primary consideration that public bodies need protection from unnecessary numerous challenges in order to ensure efficient public administration (the ‘green light theory’). The red light theory contends that judges should be activists in developing liberal approach of review so as to safeguard human rights from the many varieties of misuse of public power. In this regard they also follow a liberal approach of standing.

The starting point for consideration of locus standi is now the decision of the House of Lords in R v Inland Revenue Commissioners, ex p National Federation of Self‑Employed and Small Businesses Ltd.

The Federation sought to challenge the Inland Revenue’s decision to grant a tax amnesty to casual workers in Fleet Street. In particular the Federation sought a declaration that such an agreement was ultra vires the Revenue, and an order of mandamus compelling the Revenue to collect the amount due.

In concluding that the Federation did not have locus standi to challenge the tax amnesty, Lord Wilberforce sought to outline how the matter should be addressed. He explained that the issue of sufficient interest was to be regarded as a mixed decision of fact and law for the courts to decide on legal principles, ie it was not simply a matter of judicial discretion.

Further, that it should not be assumed that because one generic phrase was used as the test for standing it would necessarily be applied in the same way regardless of the remedy sought. As regards mandamus, for example, he agreed with the views expressed by the Lord Advocate to the effect that the courts should be guided by the definition of the duty, and should inquire whether expressly, or by implication, the definition indicates that the complaining applicant is within the scope or ambit of the duty.

The question as to whether there is standing should be examined in two stages. At the first instance, standing should be considered when leave to apply is sought. At that, stage, the court is concerned, according to Lord Scarman, to ensure that ‘it prevents abuse by busybodies, cranks and other mischief makers’. If leave is granted, the court may ‑ at a second stage, when the merits of the case are known ‑ revise its original decision and decide that after all the applicants do not have sufficient interest.

It is submitted that this two‑stage test is unlikely to have any damaging effect on the requirement of the rule of law that decision‑making be subject to judicial scrutiny. The first stage should simply exclude cases where there is clearly no real merit in the application, and is appropriate as a means of preventing wasteful litigation. By the time the second stage of the test comes to be applied, the court should have looked at the factual and legal context of the case and should thus have begun its scrutiny of the decision in question.

The flexibility of this two‑stage test provides the courts with a useful additional string to their bow in scrutinising cases of public interest, judicial review proceedings in this context may be compared with the relator action in civil law proceedings. The correct approach in public interest cases is normally to use the relator action under which the Attorney‑General brings the action.

But there is a serious gap in this type of case in that the Attorney‑General’s discretion in the matter is unchallengeable (Gouriet v Union of Post Office Workers (1978). So, there is no guarantee that the matter will reach the courts. The courts have used the more modern rules of standing to allow individuals or representative groups to bring judicial review cases of wider public importance, thus to some extent by, passing the deficiencies of the relator action.

On the other hand in R v IBA, ex parte Whitehouse (1985) a television viewer was held to have standing to challenge a decision of the Independent Broadcasting Authority to broadcast a particular programme. Thus, with other two important cases viz ex p Leigh (1987) and ex p Smedley (1985), ex p Whitehouse (1985) could be justified on the common ground that constitutional issue of general importance were persuasive.

From the academic point of view, three issues have, however, attracted attention since the English procedural reforms introduced by RSC 1977.

The first relates to the stage in judicial review proceedings at which, any standing question should be resolved. On the one hand, the rules themselves require that the ‘sufficient interest’ test be applied at the application for leave stage. This is readily coupled with an instinctive view that standing is a threshold procedural question to be resolved positively as a prerequisite of further progress on the application. This is not, however, a historically sound approach, and the questions of locus standi have been viewed as aspects of the substantive case to he made in pursuit of a particular remedy.

More importantly, it is clear that the statutory rules, while enabling standing to be raised at the leave stage, do not require it to be dealt with finally at that stage; neither do they preclude the raising of standing issues at a later stage. The point has furthermore, been taken that standing issues are intertwined with - and may indeed be the same as ‑ issues of substances. Most obviously, the same circumstances of fact and law which establish a person’s ‘legitimate expectation’ to a procedural benefit may also form the basis of the same person’s argument for standing in the case.

Thus, one of the principal conclusions reached by the majority in the famous IRC case was indeed that standing will usually need to be decided in the light of the legal and factual context. The point was also taken that a person’s standing may become relevant at the time at, which the court exercises its discretion whether to award a remedy and, if so, which, a person  may need to establish a different relationship to the subject matter of the case to be awarded an injunction or order of mandamus than for the award of a declaration. So, the ‘common’ approach to standing, which may be acceptable and indeed desirable at the outset of the litigation, is much more or less appropriate at its close.

A second feature of the standing literature has been a developing sophistication in the schematic categorisation of the principles to be applied in decisions on the standing of different types of applicant {to which Peter Cane has made the most substantial contribution, in particular his ‘Standing up for the Public (1995) Public Law 276 and Standing, Representation and the Environment’ in Loveland, Ian (ed)}.

Cane has distinguished those, who establish standing on the basis of their own personal interests from those who seek standing on the basis that they represent the interests of others. Regarding the former, the standing requirement is relatively easy to satisfy, since each of their members would have individual standing. Those claiming such ‘representative standing’ are then divisible into three groups.

1. ‘Associational standing’ is typified by the organisation suing on behalf of its members.

2. ‘Public interest standing’ is asserted by those who claim to represent not a group with identifiable membership but a wider ‘public interest’.

3. Cane’s third category, which is more formal in nature, is that of ‘surrogate standing’, where a nominal applicant represents the interests of the real party to the proceedings.

Such an analysis be used to explain why it is insufficient simply to claim that standing in public law proceedings should be treated differently from its private law counterpart: account should be taken of the different ways in which litigants may make legitimate use of judicial review and, therefore, of the different, tests of standing which may be appropriately laid down.

The third general issue of note is that adopting the Cane analysis, it is possible to conclude that while those applicants for review in the categories of ‘personal’ and ‘associational’ standing have benefited from the generosity of approach already referred to, there were initial difficulties with the treatment of the ‘public interest’ type which have only more recently been resolved, at least for the time being. These difficulties were demonstrated in the infamous R v Secretary of State for Environment, ex p Rose Theatre case (1990), where Schiemann J denied standing to a company formed to challenge the refusal of the minister to list an archaeological site. Incorporation could not of itself increase the sufficiency of interest of the individuals concerned.  Where individuals did not have sufficient interest, they did not obtain it by incorporating themselves into an association. Thus, it had to be anticipated that, in some circumstances, there might be no one at all with an interest sufficient to challenge an unlawful decision.

However, in ex p Blackfordby (2000) it was held that the court will not readily find that the incorporation of an action group is a bar to the bringing of an action for judicial review.

It has been argued that, on its particular facts, Rose Theatre is defensible. Whether viewed as a claim to ‘associational standing’  or to ‘public interest standing’ in circumstances in which the public interest had already been adequately accommodate, the applicant’s case may have been appropriately denied. On the whole, however, it has been interpreted as a case in which a very ungenerous attitude to standing was, rather provocatively, adopted.

There have been more recent signs of an apparently liberalising shift of approach. Two cases in particular are interpreted as illustrating this trend viz ex parte World Development Movement Ltd (1995) and the EOC case.

In the first case, the World Development Movement (WDM) sought judicial review of the Foreign Secretary’s decision to grant financial aid to Malaysia for the building of the Pergau dam. The WDM argued that the Secretary of State had exceeded his powers. The court held that the WDM had sufficient interest. The WDM played a prominent role in giving advice and assistance in relation to aid and had consultative status with United Nation’s bodies.

More importantly, the House of Lords has itself added to the weight of authority recognising the legitimacy of bona fide interested organisations, albeit without citing either the Rose Theatre or Greenpeace, by way of its ruling in ex p Equal Opportunities Commission and Another (1994).

Perhaps the most compromising and pragmatic solution has been made by Otton J in ex p Greenpeace Ltd (No 2) (1994). He explained his ruling on standing in favour of the applicants on the grounds that the court would take into account the nature of the applicant body, the extent of its interest, the remedies sought, the extent to which the applicant was a responsible body, its consultative status if any, the extent of its membership and support and whether the applicant body would have any other viable means of challenging the matter in question.

So, it could be submitted that the present law of standing provide some significant barriers to persons wishing to challenge the lawfulness of government decisions as a vexed body otherwise they are not so reluctant as Rose Theatre to provide standing.