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Table of Contents

Standing (law)

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The control of governmental decision-making through judicial review is a vital aspect of the rule of law. Locus standi or standing to be heard in court is one of the devices used by the law to filter the class of potential litigants according to their interest or relationship to the matter. The type of injury suffered by an individual or body resulting from the decision is weighed against the need to allow government bodies to carry on with their jobs even if they are carried out illegally.

These rules clearly prevent some people utilising the court system to declare and enforce the law, where that assistance could be obtained by others, but is only one of several techniques of exclusion used which effectively permit the illegality to continue, rather than giving court access to someone excluded. Pre-1977, the rules of standing were extremely technical. Judicial review of administrative action applicants required a private legal right in the matter to justify the courts’ intervention. There followed a liberalisation of the standing rules whereby anyone wanting judicial review access must apply for leave to apply for a remedy under Order 53 rule 3(7), (Supreme Court Act 1981 s.31(3)). “The court should not grant leave unless it considers that the applicant has a ‘sufficient interest’ in the matter to which the application relates”, a preliminary test to be applied at the leave stage. There is no statutory definition of sufficient interest, so it is up to the courts to determine upon the merits of each case. The ‘interest over and above the ordinary man on the street’ is an accepted analogy. This is of great constitutional significance as the courts may use a high degree of discretion to determine when to review the executive.

The likely intentions, or policy goals, behind Order 53 were a desire to speed up the judicial review process and to provide easy access to the applicant, an inherent contradiction existing between them. The matter is put on hold until a ruling is given. To avoid delays, which create growing problems for the public body, desire is for a more efficient administrative system. Getting the decision sorted out as quickly as possible is borne from this belief, ensuring everyone involved knows where they are. In real terms, easy access is considered less important by the courts than adherence to the rule of law. As the English jurist Dicey states, governmental discretionary power should be subject to the same judicial control as that applying to private individuals. Easy access will ensure that the State must ultimately answer to the court. This contradiction is exacerbated because rule 3(7) operates as a filter mechanism. The courts control the workload and protect themselves from a flood of claims. If the mechanism is too restrictive, the courts have no discretion, no standing will be found. However, the courts do not want to be forced to do this. On the other hand, with a greater workload it would take longer to deal with individual cases.

To assess whether there are any coherent principles surrounding sufficient interest, and to understand the problems, four main areas must be referred to;

  • 1. The effect of the National Federation case;
  • 2. Whether it is correct to say that only those directly affected can challenge the validity of the authority’s decision, with specific reference to pressure groups;
  • 3. An assessment of what the function and role of sufficient interest should be in the light of the nature of the interests to be protected, as illustrated by the cases;
  • 4. A consideration of any scope for reform to provide any coherent principles.

Ex parte National Federation (1982) is the first illustration of the amount of court discretion exercised, and brought the new procedure to the House of Lords. There is no coherent line of reasoning, although it was agreed that the question of sufficient interest at the leave stage should often be regarded as inseparable from the substantive grounds and the seriousness of the application; not very restrictive. In more complex cases, at the full hearing stage, standing must be considered in the light of all the facts and merits of the case, including the nature of the power or duties involved, the breach allegedly committed, subject matter of the claim, on which judges can clearly take different views. The House of Lords agreed the Federation had enough sufficient interest in the leave stage but not enough sufficient interest in the full hearing stage, recognising the flexibility of sufficient interest and discretion which follows in its application. Lord Roskill’s view was that the phrase ‘sufficient interest’ was purposefully chosen to allow the court greater flexibility to deal with the facts of a particular case.

Some argue that the temptation in court is to sweep problems under the carpet, rely on the word ‘discretion’ and go on to the next case. Lords Diplock and Wilberforce explained that neither pressure groups like the Federation, nor a single public-spirited taxpayer should be prevented by outdated technical rules of locus standi from bringing a matter to the courts’ attention and getting the unlawful conduct stopped. No hard and fast rules can be deduced from this case to ascertain when an applicant would or would not have sufficient interest.

The flexible framework laid down in National Federation led to the courts moving from a closed system, where only personal interests directly affected by a public body’s decision could bring an action, towards a open system where anyone can bring an action for judicial review, with three types of representative standing (Cane, P. Administrative Law 2004):

  • 1. Surrogate, one individual representing another identifiable individual, usually only allowed where a prospective applicant suffers from a mental illness or is too young to bring an action himself;
  • 2. Associated, a group or association representing another group or identifiable individual personally affected by the decision; (3) Public interest, an individual person or a pressure group representing the public interest or collective rights;
  • 3. The third group have increasingly been allowed to bring representative actions despite the lack of a personal interest. This liberalisation is borne out in subsequent decisions, for example ex parte Smedley (1985). The applicant was held to have a sufficient interest to challenge because the public had an interest in knowing how their money was being spent and to demand that tax payer’s money should only be spent with Parliament’s approval. Ex parte Rees-Mogg (1994) indicates that a ‘sincere concern for constitutional issues’ is not enough to determine sufficient interest without substance in the argument. The considerable room for manoeuvre within the flexible framework is illustrated particularly well by the treatment of pressure groups by the courts.

The problem originates from the lack of any UK tradition of group or representative standing. In private law only parties directly involved may bring a claim. Some judges came from this legal background, and sufficient interest was interpreted similarly restrictively, requiring a direct interest. Does a pressure group have or not have such an interest? The Law Commission (Cmnd 226) acknowledged that the trend in the case law since the reforms reflects a liberal approach beyond the protection of rights and ‘injury in fact’, but was uneasy about decisions affecting the public or a wide section of it. Ex parte Rose Theatre Trust (1990), an exception, questioned the ability of pressure groups to initiate judicial review proceedings. The movement from the restrictive approach to the recognition that pressure groups may have a sufficient interest to bring a case must now be considered.

National Federation concerned a pressure group whose members would benefit individually from a successful action, who may have had a direct interest. Yet they were held not to have a sufficient interest. In ex parte Child Poverty Action Group (1985) the court accepted that the group did not consist of individuals directly affected by the outcome, but did play a prominent role in advising, guiding and assisting those who were. The issues were important in the field of social welfare and not ones which individuals could be expected to raise. So it was possible that it could have locus standi due to representing the public interest. If the standing requirement was not satisfied, the decision would remain unchallenged; against the rule of law. The courts developed this further in ex parte Greenpeace Ltd (1994). The nature of the applicant was looked at in detail, taking into account factors such as expertise, financial backing, international reputation and the number of supporters in the particular area. They had expertise to take on the nuclear industry, the court more likely to come to a correct decision. In ex parte World Development Movement (1995) the group did not have a direct personal interest in the specific area, but were granted standing as they were well organised, well established and had a considerable tradition of expertise; a similar approach. The applicants also succeeded in having locus standi in ex parte Equal Opportunities Commission (1995). Lord Keith considered the issue of sex discrimination important to the public, affecting a large section of the population, and it would be unfair to deny standing.

These cases can be distinguished from the aberrant Rose Theatre decision. No standing was found here for the reverse reason. The company was set up solely for that dispute, with no expertise or tradition. Even if there was unlawfulness, the court refused to recognise the legitimacy of an ad hoc organisation. Lord Schiemann said that Parliament has not given a wide right to the courts to consider a claim by every individual. The matter will be looked at in the light of the statute under which the decision was taken. The court will then decide whether that gives to any individual a right or expectation to have the decision taken lawfully. The court did not take a very liberal approach in this case.

Rose Theatre raised questions of the desirability of restricting sufficient interest to groups such as Greenpeace and World Development Movement. The danger is that if only traditional organisations can come before the courts, only a conservative viewpoint will be advocated. This would have unlawful democratic implications. If pressure groups are repeatedly allowed to bring representative actions this is not democratic since the courts are doing the job of Parliament; controlling the executive. Should unelected judges decide in such political issues? Some argue that there is nothing wrong when a group want to protect interests shared by many that have been interfered with unlawfully by government action.

Protecting those interests by court action is made easier if one person or group can bring an action as representative of a large number of people. The courts have accepted that representative standing is an important aspect of any public law system, chiefly concerned with ensuring that governments act lawfully, particularly when the impact of the action on any individual is too slight to justify litigation, but where the aggregate impact is considerable. Poor and underprivileged members of our society are very dependent on government, but denying them the aid of the courts to challenge governmental action would clearly go against the rule of law.

Until the courts develop a clear notion as to the purpose of standing, the case law remains complex and at times conflicting. Views can fall at any point along a spectrum marked by restricting sufficient interest to applicants with affected private right on one extreme, and a very open system on the other. The first would close the doors of the courts to vexatious or misguided litigants, those with trivial complaints of administrative error and inevitably lead to better administration, but this seems to be adequately dealt with by the leave procedure. Judges appear to welcome the opportunity to deal with cases. An open system recognises that people share broader rights, for example environmental, which go above and beyond simply private rights.

Should everyone have a right to ensure that public bodies remain within the law? Bearing in mind the defects in the accountability of government to Parliament in England, sufficient interest is used as a filter mechanism by the courts, within a flexible framework. The trend towards an open system is positive and may bring the desirable result where administrators will take greater care in their decision-making.

References

Supreme Court Act (1981)

Inland Revenue Commissioners Appellants v National Federation of Self-Employed and Small Businesses Ltd. Respondents (1982)

Administrative Law (Cane, P. 2004)

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