Standing - Admin law

Straining the separation of powers - R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement [1995]

The Secretary of State’s decision to grant funding for the building of the Pergau Dam was held as unlawful under s1 of the Overseas Development and Cooperation Act 1980. It transpired to be a bad buy and worried about the UK’s credibility should he pull out.

On the issue of standing, this case summarises the factors that are relevant to the assessment of whether an applicant has sufficient interest to apply for judicial review

On the issue of improper purpose/illegality, it was for the court to decide whether the Secretary’s conduct was within the purpose of section 1(1) of the Overseas Development and Co-operation Act 1980

What are the two stages in judicial review proceedings for standing?

leave stage / permission stage – an applicant seeks the permission of the court to bring an application for judicial review. Note the importance of the “delay” requirement (three-months, unless there is “good reason to extend time”), case must be arguable with “a realistic prospect of success” Ni Chuinneagain.

Substantive hearing – this is when all evidence etc will be before the court and legal arguments are made. Note that evidence in judicial review cases is almost always by way of affidavit evidence – oral testimony is possible but is exceptional.

Ni Chuinneagain, Re [2022]

A Belfast-born woman who objected to being a British citizen sought judicial review against the Home Secretary, arguing that provisions of the British Nationality Act 1981 interfered with her Article 8 rights by preventing her from being recognised solely as an Irish citizen.

What is Standing?

This determines who – or what – can challenge governmental and other decisions by way of an application for judicial review. Individuals? (people affected by decision) “Representative” bodies such as trade unions? “Public interest” groups.

What are the two main approaches for Standing regarding cases raising common law rights? (no HRA 1998)

The “open” approach – all. Became dominant at one point, brings in public interest litigation.

The “closed” approach – only people directly affected.

What are the relevant legislative procedures for Standing in NI?

s. 18(4) of the Judicature (Northern Ireland) Act 1978 - on an application for judicial review, the High Court may award damages, restitution, or recover a sum due if the applicant included such a claim in their original application and the court is satisfied it is appropriate.

RCJ Ord 53, r 3(7) – an applicant must have “a sufficient interest in the matter to which the application relates”. - applications must satisfy this wording.

When do the courts assess Standing?

The courts typically look at the matter at the substantive hearing, save where it is clear that the applicant is a “crank” or a “busybody”.

What does this mean for judicial review applications outside HRA?

Most applications for judicial review will go to a full hearing.

R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982]

Facts concerned casual workers and a challenge to a decision of the tax authorities not to pursue tax claims – the applicant was an association of small businesses.

In the IRC case, what did Lord Diplock argue?

He thought that the courts should adopt a liberal approach to standing (rule of law; etc). ‘grave lacuna (gap) in our system of public law if a pressure group…or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standing from bringing the matter to the attention of the court..and get the unlawful conduct stopped’.

What did the majority decide in IRC case?

The applicant did not have standing. A coalition of taxpayers did not satisfy a legal test of standing that one taxpayer acting alone could not satisfy.

closed approach - ex p Rose Theatre Trust

The remains of the historical Rose theatre were discovered

The Rose Theatre Trust (R) was set up to preserve it and make it accessible to the public

R applied to the Environment Secretary (ES) for the theatre to be listed in the Schedule of Monuments made under s1 of the Ancient Monuments and Archaeological Areas Act 1979

ES rejected the application giving reasons that the site was not under threat and that listing the site might give rise to claims for compensation