24 3월 2022 Alexander Fawke  -  Emma Kate Cooney Dispute Resolution

Standing in judicial review proceedings: 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.

Standing in judicial review proceedings: the “sufficient interest” test 

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. 

Key principles

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: 

  1. a wide range of factors may be taken into account in answering the sufficient interest test, including the duties in question; the nature of the alleged breach(es); and the proper construction of any relevant statutory material; and
  2. whilst judicial review is a two-stage process (requiring the court’s permission before a challenge can proceed), the issues of standing and the merits of the case often need to be considered together. For certain (complex) cases, it is necessary to consider the whole of the legal and factual context in order to determine whether the applicant possessed a sufficient interest. For that reason, even if permission is granted, the issue of standing may still be relevant at the substantive hearing.

Subsequent case law provides further guidance on interpreting the sufficient interest test: 

  1. generally, at the permission stage, an application should be refused for lack of standing only where “the applicant has no interest whatsoever, and is a mere busybody”. If, however, the case is arguable and there are no other discretionary bars to bringing it, permission should be granted and standing can be reconsidered in conjunction with merits at the substantive hearing;
  2. the question of standing is one which goes to the Court’s jurisdiction. This means that the parties cannot simply agree the point between them, and the Court can consider the point of its own motion, even if not raised by the parties; and
  3. the question of sufficient interest is not merely a threshold issue. Even after passing the initial hurdle of establishing an interest in the subject matter, the question may still be relevant to the issue of what, if any, remedy should be granted.
Liberalisation of the 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:

  • Associational standing concerns groups suing on behalf of its members, who are directly affected by the disputed decision (such as a union or professional body);
  • Surrogate standing concerns groups representing the interests of (often unidentified) persons who may not be well-placed to bring the challenge (for example, the Child Poverty Action Group in various challenges to decisions concerning social security); and
  • Public interest standing concerns groups who represent the wider public interest. The courts have interpreted public interest standing flexibly to date:
Limitations

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. 

Background to the issue of standing in GLP and Runnymede Trust 

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.


The Court’s approach to standing in GLP and Runnymede Trust 
General observations

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:

  • What is to be regarded as sufficient interest depends on the context;
  • In many contexts it will be necessary for a person to demonstrate some particular interest in order to demonstrate that they are not a mere busybody.
  • The interest of the applicant is not merely a threshold issue, which ceased to be material once the requirement of standing was satisfied: it could also bear upon the court’s exercise of its discretion as to what, if any, remedy to grant if the challenge succeeds.
  • Not everyone who has a strong and sincere interest in an issue will necessarily have standing. One consideration which courts can take into account is whether there are or could be “obviously better-placed challengers”.
Interest in respect of each of the grounds

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:

  1. this was not a case where all members of the public were equally affected by the action under challenge – there were individuals who were directly and personally affected and who would be capable of bringing such a claim;
  2. the relevant statutory provisions relating to indirect discrimination and apparent bias are defined in terms of a specific individual suffering such discrimination or bias; and
  3. in respect of Ground 1, even if an individual with standing had brought the claim, the appropriate place for them to do so would have been in the Employment Tribunal. This aspect of the case was therefore not amenable to judicial review.

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: 

  1. General statements such as the ones in GLP’s Articles of Association (see above) could not confer standing on an organisation: “It also cannot be right as a matter of principle that an organisation could in effect confer standing upon itself by drafting its objects so widely that just about any conceivable public law error by any public authority falls within its remit.” GLP does not have a carte blanche to bring any claim for judicial review.
  2. The Runnymede Trust was an obviously better-placed challenger in the circumstances given its specific purpose of promoting the cause of racial equality.

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: 

  • Ground 1: the Court concluded, based on the evidence, that: (i) the policy or practice complained of did not exist; and (ii) even if it did, the Claimants had failed to demonstrate the “particular disadvantage” requirement for indirect discrimination claims.
  • Ground 2: although the Court found that the practices/policy alleged did not exist, the Court concluded that the Secretary of State had failed to comply with the PSED in respect of two of the three specific appointments cited by the Claimants because there was no evidence explaining what was done to comply with the duty. Accordingly, the Court granted a declaration to that effect.
  • Ground 3: this ground of challenge failed on the facts (a fair-minded observer would not conclude that there was a real possibility that the appointor was biased) and because the principles of apparent bias do not apply to employment recruitment exercises, and are usually limited to the context of judicial or quasi-judicial decision-making.
Comment

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:

  1. Merits matter – as had been established in IRC, often the question of whether a claimant has sufficient interest cannot be separated from the merits of the case. Furthermore, the Court in GLP and Runnymede Trust made clear that, even if the Claimants had had standing in relation to Grounds 1 and 3, the claims would have failed anyway. It is possible that, had the Claimants’ case been stronger (as indeed was seen in respect of GLP’s previous challenges, most of which have been successful), a greater degree of indulgence might have been afforded in relation to standing.
  2. Context and specificity matter – the Court made clear that general statements of interest in public law issues will not be enough to satisfy the sufficient interest test. The type of decision under challenge, the nature of the public interest group’s expertise and whether a better-placed claimant might bring the challenge instead are crucial factors to be weighed in the balance.

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:

  1. The Queen (on the application of (1) Good Law Project Limited (2) Runnymede Trust) v (1) The Prime Minister (2) Secretary of State for Health and Social Care [2022] EWHC 298 (Admin) (“GLP and Runnymede Trust”).
  2. Senior Courts Act 1981, section 31(3).
  3. [1982] AC 617.
  4. IRAL Report, March 2021, available here.