Standing

Before an individual or organisation can bring an application for judicial review, they must be able to demonstrate that they have “standing”, which requires that they have a “sufficient interest in the matter to which the application relates”. In the vast majority of cases, the applicant to the court will be an individual who is directly affected by a public authority decision or other measure, and they will on that basis have a “sufficient interest”. However, in other cases, a decision or other measure may not have an impact on an individual albeit that it still has implications for the wider public. In that circumstance, “pressure” groups, “representational” groups, or “public interest” groups may bring an application for judicial review.

UK courts have for many years been open to such applications and they have interpreted the requirement of “sufficient interest” liberally when hearing cases brought by, among others, Greenpeace, Friends of the Earth, the World Development Movement, the Child Poverty Action Group, and the Joint Council for the Welfare of Immigrants. The corresponding justification for accepting such applications has centred upon the need to control public decision-makers notwithstanding that no individual may have been affected by a particular decision. Although the courts’ willingness to hear such cases has sometimes proven controversial – it has been argued that public interest groups may be using court proceedings to obtain relatively inexpensive publicity – the courts have continued to underline the imperative of upholding the rule of law. In Re D’s Application [2003] NICA 14 , the Northern Ireland Court of Appeal thus listed four “generally valid” points about standing that clustered around the need to ensure that possible government illegality does not escape scrutiny. These were: 

  1. that standing is a relative concept, to be deployed according to the potency of the public interest content of the case;
  2. that the greater the amount of public importance that is involved in the issue before the court, the more ready the court should be to hold that the applicant has the necessary standing;
  3. that the focus of the courts is more upon the existence of a default or abuse on the part of a public authority than the involvement of a personal right or interest on the part of the applicant; and
  4. that the absence of another responsible challenger is frequently a significant factor, so that a matter of public interest or concern is not left unexamined.

One further point about standing concerns the Human Rights Act 1998 (on which see XXXX). Under section 7 of that Act, there is a more narrow test for standing whereby proceedings may be brought only by individuals who are, or would be, “victims” of the public authority (in)action complained of. This means that “public interest” groups cannot bring proceedings under the Act, save where they would be “victims” of a decision or other measure. However, while this greatly narrows access to courts for pressure groups and so on in Human Rights Act cases, it does not mean that they need be wholly without influence. This is because there are other ways in which pressure groups can lend support to individuals who are affected by decisions, for instance by giving practical assistance during proceedings (see, e.g., Al-Skeini v Secretary of State for Defence [2007] UKHL 26; and Al-Skeini v UK[2011] ECHR 1093). Public interest groups may also try to influence the decision of the court by making “third party interventions” on important points of law (XXXX).

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