Workshop: No more than a meddlesome busybody?

The government's assault on ?judicial review continues apace. ?On 29 July 2013 The Times and The Daily Telegraph newspapers reported government proposals to further restrict access to judicial review by amending the standing rules which govern who may instigate proceedings.

The current position is governed by section 31 of the Senior Courts Act 1981, which provides that leave shall not be granted for a judicial review application unless the court considers that the applicant has a 'sufficient interest' in the matter to which the application relates. Lord Donaldson MR, in R v Monopolies and Mergers Commission, ex parte Argyll Group plc [1986] 1 WLR 763 interpreted this provision as requiring an application to be refused if the applicant had no interest whatsoever in the outcome of the case and was, in truth, no more than a meddlesome busybody.

The government source quoted in The Times explained that the proposed changes sought to ensure that the "system isn't open to abuse by groups who may not have a direct interest in the issue at hand but simply want to cause delay or disruption to plans or generate publicity for themselves". The source failed to point out that such meddlesome busybodies are already barred from instigating judicial review proceedings by the operation of section 31 of the Senior Courts Act 1981.

Limit access

It appears that the (as yet nascent) government proposal is to change the rules to ensure that only those with a 'direct interest' in the outcome of a case can instigate JR proceedings. The aim, it seems, is to limit the ability of pressure groups or charitable bodies from mounting public law challenges. This follows recent amendments to the Civil Procedure Rules which have shortened the time within which judicial review applications can be made in certain spheres from three months to six weeks. Changes have also restricted the right to orally renew a judicial review application which has been dismissed on the papers and certified as totally without merit. Court fees for lodging judicial review applications have also been increased.

What the new proposals fail to appreciate is that which has been expressed, in more articulate terms than I can muster, by Sedley J in R v Somerset County Council and ARC Southern Limited ex parte Dixon [1997] JPL 1030 (see box). In that case, Mr Dixon was neither a busybody nor a troublemaker. He was perfectly entitled as a citizen to be concerned about what he considered to be an illegality in the grant of a planning permission, which would inevitably have an impact on our natural environment, and he was entitled also to bring those concerns before the court.

 

“Public law is not at base about rights, even though abuses of power may and often so invade private rights: it is about wrongs – that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in  the issue or the outcome may, without  in any sense being a mere meddler, wish and be well placed to call the attention  of the court to an apparent misuse of public power.”  Sedley J, R v Somerset County Council and ARC Southern Limited ex parte Dixon [1997] JPL 1030

 

Public spirited

It would, in Lord Diplock's terms, have been a 'grave lacuna' in our system of public law if a pressure group or single public-spirited individual were prevented by technical rules on standing from bringing unlawful conduct to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped (R v Inland Revenue Commissioners, ex parte National Federation of Self-employed and Small Businesses Ltd [1982] AC 617).

The lack of a pecuniary or special personal interest in the outcome of a case may, in some cases, indicate that a person lacks standing, and section 31 SCA already enables the courts to weed out those applicants at the leave stage. This does not, however, mean that no member of the public can ever complain of any public law wrong unless he objectively has a greater interest than that of the rest of society. The government's proposals to amend the rules on standing risk introducing a grave lacuna indeed into our public law system.