Proposed Reforms to the Test of Standing in Judicial Review

In September 2013, the Government published the consultation document, Judicial Review: Proposals for Further Reform, in which it invited consultations on a range of amendments it wished to make to Judicial Review. One of the reforms proposed by the government was to the test of standing in judicial review cases. Dr John McGarry, Reader in Law at Edge Hill University, responded to this part of the consultation and, in this piece, gives a summary of the arguments he made against the Government’s proposed reforms.

Judicial review may be thought of as the way by which the courts ensure that those exercising governmental power do so lawfully. In essence, it is one of the primary ways by which the courts ensure that the Government and its agencies use the powers that they have lawfully and reasonably.

The question of standing, otherwise known as the requirement of sufficient interest, is concerned with who may bring a claim in judicial review to challenge the lawfulness of government action. The rule is that only those who have a sufficient interest in the matter to which a claim relates may bring a challenge in judicial review. However, for the last 30 years or so, the courts have developed a liberal approach with regard to the standing requirement so that those who raise an issue of genuine public interest will not usually have their claim blocked because they do not have a direct personal interest in the matter.

The Government’s proposed reform suggested that this liberal approach developed by the courts should be altered so that only those with a ‘direct and tangible interest’ in the matter to which a judicial review claim relates should be able to bring that claim. Among other things, this change would often prevent campaigning groups from bringing a judicial review claim.

Dr McGarry’s response to, and argument against, the Government’s proposed reform of standing had three strands. First, that the rule of law requires the Government to act lawfully and, as a corollary of this, that the courts should have the power to evaluate the lawfulness of government action. Yet, in the UK, the courts cannot themselves initiate a review of the lawfulness of government action; they need a claimant to bring the matter to their attention. A more restrictive test of standing would reduce the occasions when claimants may bring such challenges which would, in turn, reduce the occasions when the courts are able to rule on the lawfulness of government action. In some cases this would mean that the Government may act unlawfully but that the courts are unable to rule on that unlawfulness because, under a strict test of standing, no-one has sufficient interest to challenge their actions.

Second, allowing campaigning groups to bring challenges in judicial review, even if it cannot be said that they have a direct and tangible interest in the matter, may save judicial time and money. This is because such organisations often have the legal, financial, scientific and technical wherewithal – which an individual claimant who is directly affected may lack – to help the court reach a decision in the case.

Third, campaigning groups often represent individuals who are directly affected by government decisions but who are not, for financial or other reasons, able to bring a claim themselves. Allowing such groups to bring claims on others’ behalf is an important method of ensuring that those who are not able to bring a claim themselves may still have their cases heard.

As a result of the responses it received, the Government has decided to drop its proposed changes to the standing requirement of judicial review. In its response document, Judicial Review – Proposals for Further Reform: the Government Response, the Government accepted the arguments put forward by Dr McGarry and other respondents.

Dr McGarry writes: “At first glance, the Government’s proposals looked attractive; there is something initially appealing in an argument that says that only those directly affected by a matter should be able to challenge it in court. It might also seem that, by limiting the number of people who may bring a claim in judicial review, the Government may save money. However, I am pleased that the Government has accepted the arguments that I and others have made and realised that such a reform would have been an erosion of one of the principles of the rule of law and might, in some cases, have cost more public money.”

Dr McGarry’s arguments against the proposed reforms to the test of standing are also due to be published in the March 2014 edition of the academic journal Judicial Review.