In her recent speech on judicial review – given at the Public Law Project’s conference on Judicial Review Trends and Forecasts – Baroness Hale makes some significant remarks about standing. They are significant both because they concern and reflect the relationship between standing and the underlying constitutional function of judicial review, and because of their timing. Last Friday, the Ministry of Justice’s consultation on its recent paper entitled Judicial Review: Proposals for Further Reform closed. I have already posted a link to the response to that consultation paper which I co-authored for the Bingham Centre for the Rule of Law – and I posted earlier in the year, when the proposals concerning standing were first floated, about the relationship between standing and the constitutional role of judicial review.
Speaking against the background of the Government’s current proposals to restrict or prohibit standing on the part of claimants lacking a direct interest in the subject-matter of the claim – and, in particular, the Government’s desire to close off judicial review to “campaigning organisations” – Baroness Hale noted that:
The vast majority of judicial review claims are brought by people with a very direct interest in the outcome, especially those bringing asylum and immigration claims, but also the not inconsiderable number of vulnerable elderly and disabled people who challenge community care decisions, because no statutory procedure for doing so along similar lines to the homelessness procedure has yet been devised. Only a small proportion of claims are brought by charities and NGOs [non-governmental organisation] and only a small proportion of those can properly be called campaigning organisations or pressure groups, rather than umbrella organisations for a group of people many of whom have a personal interest in the subject matter.
Baroness Hale went on to refer to several cases brought by claimants lacking a direct interest, including Walton v Scottish Ministers [2012] UKSC 44, [2013] PTSR 51 (a challenge to a new road scheme by someone who did not live in the immediate vicinity), R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2013] UKSC 25, [2013] 3 CMLR 29 (a challenge to governmental inactivity in relation to air pollution), and R (HS2 Action Alliance Limited) v Secretary of State for Transport (a challenge on environment-related grounds to decisions taken thus far in relation to the HS2 high-speed rail scheme). Having done so, Baroness Hale said:
Let’s think about it: these claimants, ranging from Mr Walton to ClientEarth to the local authorities of different political persuasions along the route of HS2, have all made challenges to the legality of government action which have been found sufficiently meritorious and serious to reach the highest court in the land. Can it really be suggested that they should not be allowed to do so? If they do not, how else is government action to be kept within the law?
Importantly, and correctly, Baroness Hale related these observations about standing to underlying questions about the constitution, and, in particular, about the role of courts vis-a-vis the government within our constitution:
The approach we adopt towards the standing required for people and organisations to bring claims for judicial review or other public law remedies is crucial to the constitutional purpose which they serve. The same is true of the approach we adopt to governmental and non-governmental bodies who want to intervene in the proceedings to draw to our attention arguments or material which for whatever reason the parties may not have put before us. … [T]oo close a concentration on the particular interest which the claimant may be pursuing risks losing sight of what this is all about … [F]undamentally the issue is not about individual rights but about public wrongs. There are better ways of nipping unmeritorious claims in the bud than too restrictive an approach to standing.
As is well-known, Baroness Hale said in R (Jackson) v Attorney-General [2005] UKHL 56, [2006] 1 AC 262 that courts “will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny”. Now of course making the rules on standing more restrictive is clearly a long way from removing executive action “from all judicial scrutiny”. Certainly, it was be going much too far to suggest that Barones Hale’s dictum in Jackson supports the proposition that making the standing rules more restrictive lies outside the field of the constitutionally possible.
At the same time, however, it is necessary to remember that the courts’ constitutional capacity to uphold the rule of law and to hold government to account is capable of being subverted in ways more subtle than explicit ouster of the High Court’s supervisory jurisdiction – a contemporaneous attempt at which formed the backdrop to Baroness Hale’s comments in Jackson. Those comments – along with those of Lords Hope and Steyn in Jackson – amounted to a clear warning-shot across the bows of the government and Parliament in the immediate aftermath of moves to exempt immigration and asylum decisions from judicial review. Baroness Hale’s speech on judicial review, like Lord Neuberger’s recent speech on access to justice, may be understood in a similar spirit. Those speeches were made in the light of the just-closed consultations on judicial review and legal aid, the combined effects of which would – if implemented – be to restrict the practical scope for judicial review in very significant ways.
All of that calls into question the constitutional appropriateness of permitting the executive branch to frame and promote reforms to the very system of judicial scrutiny the purpose of which is to secure the accountability of government to law. Aileen Kavanagh recently observed – and I have argued elsewhere – that our constitution is premised upon the very British notion of “reserve”: that is, the mutual respect that each branch of government typically exhibits towards the other branches. The UK manages without a written constitution in large part thanks to what Kavanagh describes as a “sense of constitutional propriety amongst the various political and legal elites, supported by a popular sense of what propriety entails”. She continues:
Now, this sense of constitutional propriety resonates with what many people perceive to be a character-trait or norm of behaviour which is valued greatly in British society. This is the value of being reserved. Translated onto the institutional and constitutional plane, British reserve has much to commend it. It can be a way of managing the inevitable disagreement between institutions and avoiding open or distasteful conflict between them. Reserve and politeness oil the wheels of the system and prevent it becoming too conflictual.
The existence of such reserve or respect is sorely lacking at present when it comes to the position of the executive government towards the courts, judicial review and human-rights law being increasingly and unthinkingly characterised as obstacles to democratic governance. However, the fallacy inherent in the government’s present attitude is that it holds all the cards: that the role of the courts is ultimately no more than a function of the wishes of the “democratic” branches. The government, in other words, signally misses the constitutional need for reserve upon which present system depends. It is always hard to know whether, in the maelstrom of current events, one is witnessing a fundamental shift or merely a passing trend. However, it is quite possible that we will look back, several years hence, and recognise the current period as one in which the constitutional ground shifted – thanks to a collapse in “reserve” – in an important way. From today’s vantage point, it is hard to forecast what the consequences of such a shift might be. However, the very unpredictability of those consequences – and the fact they would be unlikely to be within the sole control of any single institution of government – are in themselves significant phenomena. At the very least, they should give the current government grounds for doubting the wisdom of further eroding the implicit institutional comity upon which our present constitutional arrangements are built.
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