Standing Quick Notes

Standing

Senior Courts Act 1981, section 31(3): no application of 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.’

The issue is how we define ‘sufficient interest’ and Miles draws a useful distinction between ‘private rights’ and ‘public wrongs’.

• If defined narrowly, standing operates only to protect individuals where their material interests have been affected (private rights); if defined broadly, standing operates to protect the public interest (public wrongs).

  • Private rights – individualistic; public wrongs – communitarian.

• Can also distinguish between dispositive (merely settling the immediate issue) or expositive (giving an explanation as to a wider issue).

Feldman argues that the approach depends on identifying a ‘constitutional ethic’ – a theory as to what judicial review should do will define the standing rules.

1. Move Towards a Public Wrongs Model

Before Fleet Street Casuals, standing ensured that individual rights, but not broader interests, could be asserted before the courts – it operated restrictively, and inconsistently, dependent on the remedy sought.

• Their Lordships made clear that standing would play a minimal role, as a threshold test for preventing ‘abuse by busybodies, cranks and other mischief-makers’ (Lord Scarman).

• Notable that the minimised role of standing at the leave stage created the possibility for success for cases such as Rees-Mogg, Greenpeace and WDM.

  • These go beyond what Cane terms ‘associational standing’ (where an individual represent a group whose interest align with their own), or ‘surrogate standing’ (where the applicant solely represents others’ interests.

    • These might just be considered attenuated versions of private rights model.

  • These are clearly in the ‘public interest’ – e.g. Rees-Mogg was permitted to claim because of his ‘sincere concern for constitutional issues’.

The basis of this expansion is Lord Diplock’s dictum in Fleet Street Casuals: there would be a ‘grave lacuna in our system of public law if a pressure group… if even a single public spirited tax pater, were prevented by out-dated technical rules… from brining the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped’.

• Seen most recently in Walton – Lord Reed stated that the court’s function was not simply ‘to redress individual grievances’, but it also had a ‘constitutional function of maintaining the rule of law.’

  • Particularly where the issue is of notable importance and there is no interested individual to bring the case themselves (WDM).

2. Inconsistency

There has been a clear liberalisation of standing, but it does not embrace a full ‘citizen’s interest’ model, so we still appear to lack a ‘constitutional ethic’.

Rose Theatre Trust is often invoked to suggest a more private right based approach.

• Schiemann J demanded that the applicant demonstrate an interest beyond that of the ordinary citizen in order to have standing.

• However, doubted:

  • As Cane notes, the logic seems flawed.

    • The approach is found on the idea that standing is a requirement designed to prevent ‘uncertainty and chaos’.

    • However, these functions are not...

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