Standing, judicial review and the rule of law: why we all have a “direct interest” in government according to law

According to reports in today’s Times (£) and Telegraph, the government is planning a further set of reforms to judicial review. (I have written before about why the original proposals, published in December 2012, were objectionable—and about the fact that the government pressed ahead with many, but not all, of them, excoriating criticism notwithstanding.) Today, it is said that the Ministry of Justice is drastically to restrict the test for standing in judicial review cases. A “government source” told the Times that:

We’re looking at making some changes so that the system isn’t open to abuse by groups who may not have a direct interest in the issue at hand but simply want to cause delay or disruption to plans or generate publicity for themselves.

This fits with the overarching narrative emerging from (certain parts of) government, according to which accountability to law—whether domestic or European—is increasingly characterised as a brake on economic progress, a challenge to democracy by unelected judges, or little more than a public-relations tool that is strategically deployed so as to “play the system”.

The current approach to standing

The central issue raised by the reported proposal concerns who should have “standing”—that is, the legal capacity— to launch judicial review proceedings so as to challenge the legality of administrative legislation or of a government policy or decision. Should standing, as the government now seems to think, be restricted to those with a direct interest in—which presumably means a personal connection with—the issue, or should the present—broader—approach be retained? The current standing test is set out in section 31(3) of the Senior Courts Act 1981, which says:

No application for 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.

Over the years, the vague statutory “sufficient interest” criterion has been imbued with a generous meaning, the case of R v Inland Revenue Commissioners, ex parte National Federation of Self-employed and Small Businesses Ltd [1982] AC 617 forming the seminal starting-point of the courts’ jurisprudence in this area. As is well-known, a pressure group challenged the legality of a tax amnesty arrangement entered into between the Inland Revenue and casual print-workers: provided that the print-workers registered for tax purposes, no investigations would be made as to tax lost in certain previous years. Although the challenge ultimately failed, Lord Diplock famously said that:

It would, in my view, be a grave lacuna in our system of public law if a pressure group … or even a single public-spirited taxpayer … were prevented by outdated technical rules of [standing] from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.

Against this background, courts went on to fashion a broad—but not infinitely broad—standing test. For instance, in R v HM Inspectorate of Pollution, ex parte Greenpeace (No 2) [1994] 4 All ER 329, the notion of “associational standing” was embraced, a pressure group being allowed to issue a claim, in effect, on behalf of local members who might be affected by the  commissioning a new nuclear reprocessing facility. The courts have gone further still, holding that standing can be generated purely by considerations of public interest. In R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386, for example, a highly-respected pressure group successfully challenged a government decision to commit very large amounts of money to an economically-flawed overseas development scheme. Rose LJ observed that in the absence of a challenge by the pressure group, it was hard to see who else would question the decision, and cited the “importance of vindicating the rule of law” as a key argument in favour of acknowledging standing in such circumstances.

Two thoughts

Viewed against this background, it is clear that insisting that claimants have a “direct interest” would—at least if this were taken to mean a personal connection with the decision concerned—drastically narrow the standing test. Of course, the status of that test is presently only a reported forthcoming proposal; it may never see the light of day, and, even if it does, it might be framed in a way that makes it relatively unobjectionable. (There might, for instance, be a public interest exception, or the directness criterion might be a relatively broad one.) However, the inchoate nature of today’s press reports notwithstanding, there is reason to be concerned—not least because the proposal is of a piece with others in recent months which suggest that some senior members of the government regard judicial review as an unwelcome irritant that exists only to the extent that politicians are prepared to tolerate. It is therefore worth making a couple of point at this preliminary stage.

First, a recurring theme of recent government proposals concerning the legal system has been a lack of underpinning evidence or the selective use of evidence in a way that is capable of misleading. This is a matter to which my colleagues and I at the Bingham Centre for Rule of Law have drawn attention in relation to Ministry of Justice’s recent consultation papers on both judicial review and legal aid. To the extent that evidence will be deployed in favour of restricting standing, much will no doubt be made of the (frequently-made) claim that the judicial review caseload has skyrocketed in recent years. Leaving aside the fact that this claim is, in itself, highly misleading, it is worth noting that, to the extent that the number of claims has increased, that has been due in very large part to challenges in the immigration and asylum area. Yet the vast majority of such claims are brought by individual recipients of adverse government decisions—a more “direct” form of interest being hard to imagine. (And, in any event, section 22 of the Crime and Courts Act 2013 will, when it enters into force, pave the way for the transfer of immigration and asylum judicial reviews to the Upper Tribunal en bloc.)

Second, any suggestion that only those with a “direct interest” should be able to seek judicial review wholly misconceives the constitutional function of the High Court’s supervisory jurisdiction. For all that it is now fashionable to dress up everything in public law in the language of rights, administrative law is fundamentally not about individual rights: it is about public wrongs, the existence of which are identified by applying the standards of fairness and reasonableness which lie at the heart of judicial review. Indeed, it is in the law of judicial review that the lofty abstractions of the rule of law assume their most tangible form. And everyone, whether or not they are directly affected by an unlawful government decision, has an interest in securing administrative adherence to those rule-of-law principles. On this view, the legal standards upheld via judicial review ultimately constitute not rights enjoyed by individuals, but duties owed by government to the public. It does not necessarily follow that the law should recognize an action popularis, such that anyone can institute judicial review proceedings against the government irrespective of whether they have any connection with the subject-matter of the claim. But the fact that a direct interest should sometimes be required does not mean that it should always be required. This point was recognized by Lord Reed in his judgment in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46. Although that case was concerned with Scottish law, Lord Reed’s comments are of general application:

A requirement that the applicant demonstrate an interest in the matter complained of will not however operate satisfactorily if it is applied in the same way in all contexts. In some contexts, it is appropriate to require an applicant for judicial review to demonstrate that he has a particular interest in the matter complained of: the type of interest which is relevant, and therefore required in order to have standing, will depend upon the particular context. In other situations, such as where the excess or misuse of power affects the public generally, insistence upon a particular interest could prevent the matter being brought before the court, and that in turn might disable the court from performing its function to protect the rule of law. I say “might”, because the protection of the rule of law does not require that every allegation of unlawful conduct by a public authority must be examined by a court, any more than it requires that every allegation of criminal conduct must be prosecuted. Even in a context of that kind, there must be considerations which lead the court to treat the applicant as having an interest which is sufficient to justify his bringing the application before the court. What is to be regarded as sufficient interest to justify a particular applicant’s bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context.

In this dictum, Lord Reed deftly acknowledges not only the rule-of-law significance of a broad standing test, but also the courts’ unwillingness to exploit its flexibility in an unthinking way. This is achieved by, in effect, requiring those unaffected by decisions to compensate for their lack of “direct interest” by establishing either that they speak for those with such an interest, or that they speak for a public interest that deserves to be considered by the court—and that they are capable of litigating the case effectively. The “sufficient interest” test thus facilitates an accommodation of constitution principle and pragmatic considerations in a way that a “direct interest” test, taken at face value, likely would not.

It is sometimes said (most often by politicians on the receiving end of adverse decisions by courts) that judicial review is undemocratic, because it enables “unelected” judges to “interfere” in the decisions of the “democratic” government. But this reveals a vision of democracy that is impoverished in two key senses. True democracy is about more than ballot-box legitimacy. It involves holding to account—including through law—those who wield public power. And it calls for forms of participation that transcend voting occasionally in elections. Judicial review constitutes such a form of participation, not least because it gives a voice to those whose interests are poorly-served by the majoritarian political process. The present law of standing is central to judicial review’s capacity to fulfil that purpose, in that it allows those with the necessary means and expertise to advocate on behalf of those whose marginalization deprives them of the opportunity adequately to speak up for themselves. It is evident, then, that apparently dry, technical questions about standing in fact raise issues that are fundamental both to the nature of public law and to its capacity to fulfil its constitutional purpose.