Judicial review is the process by which the courts review the legality of public authority decision making. In order to bring a judicial review challenge, an applicant must demonstrate that they have ‘standing’. This means that they must show that they have a ‘sufficient interest’ in the action which they wish to challenge. In this way, the standing rules operate as a limit on who can challenge a decision which is made by a public authority. Whilst at first face the standing rules may appear to be of legal, rather than political, interest, they are of critical importance for access to the courts, and consequently, for the challenging of public authority decision making. They also pose constitutional questions about what judicial review is for. The rules merit attention and discussion on that basis.
What are the standing rules?
To be found to have standing in a judicial review case, an applicant must show that they have ‘sufficient interest’ in the matter to which their application relates. This test is contained in s.31(3) of the Senior Courts Act 1981. The test looks to the interest that an applicant has, rather than to the existence of any form of legal title or right.[1] The term ‘sufficient interest’ was selected “as one which could sufficiently embrace all classes of those who might apply and yet permit sufficient flexibility in any particular case to determine whether or not ‘sufficient interest’ was in fact shown”.[2] In judicial review proceedings, the question of standing is addressed at both the permission stage, and at the substantive stage. At the permission stage, standing will only exclude cases in which the applicant clearly lacks sufficient interest.[3]
Whilst the sufficient interest test under s.31(3) of the Senior Courts Act 1981 is the test to be applied in traditional, common law judicial review proceedings, other standing tests exist. Significant among them is the ‘victim’ test under s.7 of the Human Rights Act 1998. This test limits standing in a human rights judicial review to those who are, or would be, a victim of the alleged unlawful act.[4] The victim test mirrors Article 34 of the European Convention on Human Rights. It is a narrower test than the sufficient interest test, because it limits standing to those who are, or would be, suffering from the violation themselves. This precludes most campaign groups from satisfying the standing requirements to bring a human rights challenge.
Why does standing matter?
First, the standing rules play an important role in balancing two competing principles in public law. On the one hand, public law exists to ensure the accountability of public power. It is desirable to encourage participation in the law, and to facilitate the vindications of rights and interests which may be limited by, or completely eroded by, unlawful and arbitrary state action. However, on the other, exposing each administrative action to the legal process slows down the state and hinders its ability to get things done.[5] There are some who believe that an overly wide test for standing will increase the likelihood that a decision is subjected to challenge, and that tight controls are warranted to dissuade vexatious litigation brought by ‘busy-bodies’.[6] The standing rules, in any meaningful form, therefore play an important role in ensuring that those competing goals are balanced with one another.
Second, the rules speak to the purpose of judicial review. A narrower test for standing, which demands a closer connection than sufficient interest between a litigant and the decision in question, would suggest that the role of the court in a judicial review was to redress individual grievances.[7] This is because an otherwise meritorious claim, which may raise important questions about the use of state power, could be excluded from consideration by the court on the basis that the litigant’s individual circumstances were not sufficiently closely tied to the subject matter.
Under the current sufficient interest test, a court can consider the strength of the proposed grounds of review when considering whether the litigant has standing, although this will not be a ‘dominant’ factor.[8] However, under more restrictive tests such as the victim test, the courts do not enjoy this discretion. One example of this is the case of In Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27, in which a majority of the Supreme Court concluded that the provisions which criminalised abortion in Northern Ireland were incompatible with Article 8 of the ECHR, but that the Northern Ireland Human Rights Commission did not have standing to bring that challenge. Unduly narrow standing rules can undermine the constitutional role of the courts as the arbiters of the legality of state power, as it curtails their jurisdiction. As Mark Elliot has written, judicial review is not about individual rights, but about public wrongs.[9] Narrow standing tests place a greater emphasis on the former, rather than the latter.
Third, the way that the standing rules are applied to public interest groups can be indicative of the reliance placed on legal, as opposed to political, accountability mechanisms. Public interest groups, such as campaign groups, cannot have standing under the Human Rights Act 1998, unless they themselves are, or would be, victims of the unlawful action. Plainly, this is very rarely the case.[10] Beyond the human rights context, the question of how the sufficient interest test ought to be applied to public interest groups has given rise to several high-profile standing cases, such as R v Inspectorate of Pollution, ex p. Greenpeace (No.2) [1994] 4 All ER 329 and World Development Movement Limited v SSFCA [1995] WLR 386. These older cases establish that public interest groups can be found to have a sufficient interest, but that slightly different criteria will be applicable in determining whether this is the case based on the facts.[11] More recent decisions are suggestive of an increasingly restrained approach to standing in a public interest context.[12]
The emergence of public interest group standing has been controversial. One question raised by this body of caselaw is whether judicial review is the appropriate forum for these decisions to be made at all, or, rather, whether public interest groups might more appropriately mobilise the use of political accountability mechanisms to effect the change that they wish to see.[13] The House of Lords Constitution Committee wrote in 2015 that ‘judicial review has become too much of a political tool of opposition to government policy’.[14] In any constitution which recognises both political and legal accountability mechanisms, it is important that both mechanisms are used appropriately and harmoniously with one another.[15] The standing rules may be one tool to be employed in striking this balance, as they control the extent to which public interest groups can participate in the legal process of holding public power to account.
Conclusion
The question of who ought to have access to the courts via judicial review has long been alive in public law. Beyond the impact that the standing rules have for individual applicants and individual cases, there are wider constitutional questions raised by the rules. Ultimately, standing touches upon the roles of both legal and political accountability, and of the constitutional role that the courts themselves discharge in the context of judicial review.
Cassandra Somers-Joce.
Cassandra Somers-Joce studied law at Oxford University, where she is currently a non-stipendiary lecturer. She has previously taught public law at King’s College London, in addition to holding research roles at the University of York and Durham University.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46 at [63] per Lord Hope.
[2] Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses [1982] AC 617 at 658, per Lord Roskill.
[3] See IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617.
[4] See Human Rights Act 1998, s.7(3): “If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act”.
[5] See generally, the Niskanen Center on State Capacity in a US context. See specifically, Nicholas Bagley, ‘The Procedure Fetish’, Niskanen Center, 7 December 2021.
[6] This is, to some extent, a controversial point: see K Scott in ‘Standing in the Supreme Court: A Functional Analysis’ (1973) 86 Harv.L.R. 645, who writes that “the idle and whimsical plaintiff, a litigant who litigates for a lark, is a spectre which haunts the legal literature, not the courtroom”.
[7] Baroness Hale, ‘Who guards the guardians?’ [2014] Cambridge Journal of International and Comparative Law 100.
[8] R. v Secretary of State for Foreign and Commonwealth Affairs Ex p. World Development Movement Ltd [1995] 1 W.L.R. 386; R. v North Somerset DC Ex p. Garnett [1998] Env. L.R. 91; R (Good Law Project) v Secretary of State for Health and Social Care (Abingdon Health PLC Interested Party) [2022] EWHC 2468 (TCC).
[9] Mark Elliot, The Constitutional Foundations of Judicial Review (2001).
[10] See, for example, the case of Re Application by the Family Planning Association of Northern Ireland for Judicial Review [2003] NIQB 48. From paragraphs [58]–[67] Kerr J finds that the Family Planning Association of Northern Ireland was prevented from making submissions in relation to whether the Minister was acting in contravention of the ECHR.
[11] See in particular, World Development Movement Limited v SSFCA [1995] WLR 386.
[12] See R (Good Law Project) v Secretary of State for Health and Social Care (Abingdon Health PLC Interested Party) [2022] EWHC 2468 (TCC).
[13] Carol Harlow, ‘Public Law and Popular Justice’, (2002) Modern Law Review Vol 65(1).
[14] Constitution Committee, Criminal Justice and Courts Bill, HL 18 (2014-15) at [6].
[15] See, in general, Carol Harlow and Richard Rawlings, ‘‘Striking Back’ and ‘Clamping Down’. An Alternative Perspective on Judicial Review’ (2016); D Nicol, EC Membership and the Judicialization of British Politics (Oxford University Press, 2001) ch 6.