Publication
Standing in judicial review proceedings
No ‘carte blanche’ for public interest groups
Publication
No ‘carte blanche’ for public interest groups
On 15 February 2022, the High Court handed down judgment in a judicial review claim brought by two public interest groups, the Good Law Project (“GLP”) and the Runnymede Trust, against an alleged government policy or practice of making appointments to Covid-19 taskforces without open competition (note 1). The Claimants argued this gave rise to discrimination. The Court did not consider that the alleged policy existed and the claim failed on grounds 1 (indirect discrimination) and 3 (apparent bias). The Court nonetheless found that the specific appointments identified by the Claimants (Baroness Harding as Interim Chair of the National Institute for Health Protection in May 2020 and Mr Coupe as Director of Testing for NHS Test and Trace in August 2020) breached the Public Sector Equality Duty (the “PSED”), which requires public authorities to take reasonable steps to enquire about the potential impact of a proposed decision or policy on people with protected characteristics (as identified in the Equality Act 2010).
However, only one of the Claimants – the Runnymede Trust – succeeded on the PSED ground, as the Court found that GLP lacked standing to bring any of the grounds of challenge, noting that it does not have a carte blanche to bring judicial review claims. The Court dedicated one third of its judgment to the issue of GLP’s standing which, according to an earlier judgment, had been “ripe for review”.
Standing is concerned with who may bring a claim in judicial review and, for successive governments, it has been “ripe for review” for some time. In 2013, the Government published a consultation on judicial review reforms, including a proposal to introduce a narrower approach to standing that would require a more direct and tangible interest in the matter to which the judicial review relates. In July 2020, an independent panel was established by the Government to consider a number of substantive and procedural reforms, including the issue of standing.
Following the judgment in GLP and Runnymede Trust, standing is likely to go from a point rarely argued or debated as part of judicial review proceedings to one which may frequently take centre-stage in public interest claims. The decision is therefore of great importance for government, industry and, most importantly of all, NGOs and other interest groups who make use of judicial review.
In order to bring an application for judicial review, a party must have “sufficient interest in the matter to which the application relates” (note 2). The courts have interpreted this broadly and flexibly, to encompass both personal standing and “representative standing” where the claimant group represents some section of society or the public interest.
The leading case on standing is R v Inland Revenue Commissioners (“IRC”), ex parte (1) National Federation of Self-Employed and (2) Small Businesses Ltd (note 3), which concerned an alleged breach of the duty to act fairly as between different taxpayers arising out of an 'amnesty' (as the claimants described it) given by the tax authority to a group of workers in the printing industry. The case was appealed to the Court of Appeal and then to the House of Lords on the question of standing. The House of Lords dismissed the claim on the basis that the claimants lacked standing, and the claim was without merit. The judgment provides some useful principles:
Subsequent case law provides further guidance on interpreting the sufficient interest test:
In IRC the Court emphasised the broad and flexible approach taken to standing in judicial review proceedings. The House of Lords found that it would be a grave lacuna if an interest group or a private citizen could not “vindicate the rule of law and get the unlawful action stopped.” In subsequent cases, the courts have accepted that pressure groups and other public interest groups have standing, even where they are not directly affected by the decision under challenge.
Group challenges can broadly be categorised as follows:
There were some hints of a more restrictive approach amidst the general ‘liberalisation’ of the test. For example, in R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co, the Court held that the claimant (which had been set up with the object of preserving the remains of the Rose Theatre and making them accessible to the public) did not have sufficient interest to challenge by way of judicial review the Secretary of State's decision not to list the remains in the Schedule of Monuments made under the Ancient Monuments and Archaeological Areas Act 1979. However, the outcome in Rose Theatre – that there may be nobody with sufficient interest to challenge the decision – was at odds with the approach in IRC, and the courts have since emphasised the need to consider the importance of vindicating the rule of law when considering questions of standing.
As noted above, the sufficient interest test aims to filter out the ‘mere busybody’ – i.e., someone who interferes in something with which they have no legitimate concern. However, the circumstances which justify such a conclusion will differ from case to case, depending upon the particular context and the grounds of challenge. One context in which the courts have made adverse standing decisions is judicial reviews of planning decisions brought by developers “as a commercial weapon…to frustrate and delay their competitors’ approved developments”. If there is evidence of an ‘ulterior motive’ in bringing the claim, a court is likely to consider the issue of standing carefully.
GLP describes itself as a not-for-profit campaign organisation that uses the law to protect the interests of the public. This broad remit is reflected in its Articles of Association, pursuant to which its stated purpose includes: (a) upholding high standards in public administration; and (b) challenging injustice and inequality. Since its incorporation in 2018, GLP has brought a wide variety of judicial review claims, including most recently in respect of procurement decisions and practices during the pandemic.
In many of those cases, standing was either not considered by the Court in the substantive hearing or it was expressly held that GLP had standing. However, in GLP’s appeal of the Public First judgment, the Court of Appeal noted that, whilst the Defendant had not appealed the High Court’s approach to GLP’s standing, “[t]he question of standing for complete strangers to the procurement process with no commercial interest both under the Regulations and on public law grounds is a question ripe for review when it next arises.” The High Court in GLP and Runnymede Trust took the opportunity to carry out such a review, and proactively sought out a copy of GLP’s Articles of Association to do so.
This approach aligns with the recommendations of the Panel conducting the Independent Review of Administrative Law (the “IRAL”), published in its report in March 2021: “Courts are encouraged to address the issue of standing in proceedings brought before them, regardless of whether it is raised by parties.” (note 4). The Panel had received a number of submissions on the issue of standing, most of which confirmed that the existing legislative framework was fit for purpose. While many commentators noted that the much-anticipated IRAL led to few substantive reform proposals, it did include such words of encouragement on several issues. GLP and Runnymede Trust may suggest that courts are taking note of this.
From the outset, the issue of standing was a live issue in GLP and Runneymede Trust. Mr Justice Swift noted in his order granting permission that “[he suspected] that on further examination the Claimants may face difficulty in a number of issues in this case; for example, whether they have standing…”.
In its substantive judgment, the Court expressly adopted the categorisation of group claims used in legal scholarship (outlined above) and established that the present claim fell within the public interest category. Whilst it accepted that there had been a ‘liberalisation’ of the test for standing, it noted that the examples cited by the Claimants (including World Development Movement) all related to challenges brought by non-governmental organisations “in their fields of expertise” and were “representative of an identifiable group in society which was affected by the decision or policy in question.”
The Court stepped through what it considered to be the key aspects of the sufficient interest test:
The Court then considered whether the Claimants had standing in relation to each of the grounds:
Grounds 1 (indirect discrimination) and 3 (apparent bias): the Court held that neither of the Claimants had standing to bring these challenges because:
Ground 2 – PSED: the Court held that GLP did not have standing to bring this claim. For the first time, the Court gave detailed consideration to the question of GLP’s purpose and interest in matters such as this. It noted that:
Notwithstanding its finding that the Claimants lacked standing on Grounds 1 and 3, the Court provided its reasoning on the merits of those grounds, as well as on Ground 2, which ultimately succeeded. The Court’s reasoning on the merits may provide further insight into its position on standing. In particular:
The decision in GLP and Runnymede Trust restates and clarifies a number of key themes arising from existing case law on the sufficient interest test:
More broadly, many commentators have observed that the judgment will give pause to public interest groups of a generic nature, like GLP, who may no longer be able to bring such a broad range of claims. However, on 2 March 2022, the High Court granted permission to GLP, Friends of the Earth and Client Earth in their overlapping challenges to the Government’s Net Zero Strategy. Unlike the permission decision in GLP and Runnymede Trust, the Net Zero decision did not flag that standing might be a hurdle for GLP at the substantive hearing. This may be due to the differences in the decisions under challenge – the Net Zero claim concerns a general policy that, by its nature, may not obviously affect a specific or identifiable group the way the appointment decisions in GLP and Runnymede Trust did. Alternatively, the judge may have withheld any commentary on the issue of standing given that it is open to the Defendant and the Court to engage with it at the substantive hearing.
In any event, the judgment in GLP and Runnymede Trust aligns with the approach recently suggested by the IRAL Report: calls to legislate to narrow the test should be resisted, as the majority of respondents to the review consider that the test is fit for purpose. However, the Report notes that it is open to government bodies to do more to challenge the standing of claimants than they currently tend to do. Similarly, the Panel encouraged courts to address the issue of standing in proceedings brought before them, regardless of whether it is raised by parties. After the IRAL Report and GLP and Runnymede Trust, there can be no doubt that defendants and courts enjoy an open invitation to engage more with the issue of standing, and we expect it to be given greater prominence in future public interest cases.
Footnotes: