How do you decide what is in the public interest? Just ask the government. That, apparently, is UK Justice Secretary Chris Grayling’s view in his latest proposals to curb judicial review.
There have been too many judicial reviews in the public interest, is what his argument amounts to. In the latest consultation on curbing JRs he says: “The concern is based on the principle that Parliament and the elected Government are best placed to determine what is in the public interest.” It doesn’t need judges, organisations or even ordinary people to do the job for them. “L’intérêt public, c’est moi”.
Among the matters in the public interest that Grayling draws attention to, one assumes because he would rather not have seen them brought to court, was an issue of whether Taliban suspects should have been transferred from the British authorities in Afghanistan to the Afghan government – putting them at risk of severe abuse. Grayling complains that their case was brought by a peace activist, Maya Evans, who was not a member of the Taliban nor a prisoner in Afghanistan – and so had no direct interest in the matter at all.
The judge in the case allowed her to bring it (in other words gave her standing) because of her expertise in such issues of human rights and the fact that Britain’s treatment of prisoners abroad is a matter of public interest.
But that is not good enough for Grayling. He suggests only people with a “direct” interest be allowed to bring such cases – the Taliban prisoners themselves perhaps.
It may be thought that being Taliban prisoners in Afghanistan, they did not have any great access to the High Court of London, nor to a London brief, nor to money to pay such a brief. So the public interest and their interests were served by having Evans step in to fill the gap. But it looks as if Grayling wants this sort of thing to stop.
Background: The issue of standing
As a matter of fundamental principle judicial reviews may only be brought by people with an interest in the matter complained of. So the Senior Courts Act 1981 S.31(3) says:
“No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”
The “sufficient interest” principle is a protection described thus by Lord Scarman: “to prevent abuse by busybodies, cranks and other mischief makers” – and hence to ensure no undue delay for example to planning projects and expense in defending them.
He made his comments in R v IRC ex parte National Federation of Self-Employed and Small Businesses Ltd  AC 617 – known as the “Mickey Mouse” case because it involved Fleet Street printing workers claiming wages under pseudonyms and hence avoiding taxes. The Inland Revenue had come to a compromise deal to end the practice and in effect wrote off back taxes that were due.
This amnesty irked the Federation on behalf of all taxpayers. Its members were given standing to bring the case (to force the IRC to collect the back tax) by Lord Denning in the Court of Appeal because they had “a genuine grievance” (ie there was a public interest in the matter). But in the House of Lords (now UK Supreme Court) it was held that the Federation was not so closely interested in the matter (any more than the rest of us) that it could pursue the case under S.31(3). Thus “one taxpayer has no sufficient interest in asking the courts to investigate the affairs of another taxpayer” and nor does an “aggregate of individuals”.
‘It would, in my view be a grave lacuna in our system if a pressure group, like the Federation, or even a single public-spirited taxpayer were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped’ – Lord Diplock
The court did say, however, that if the matter had been an “exceptionally grave and widespread illegality” then standing would be allowed. On this reading standing is not merely a matter of “direct interest” but one of the seriousness of the substantive case as well – meaning that at a preliminary hearing the merits of the substantive case must be looked at.
The new S.31 procedure seemed to give rise to a certain amount of judicial confusion from the start. Was it intended to extend rights and favour the litigant, to allow easier access to legal remedies, thus following Denning rather than the House of Lords?
Or was it intended to protect state authorities from busybodies and cranks – or in Grayling’s terms publicity seekers, political activists and campaigners “with only a theoretical interest” (as he puts it) in the matter? Was judicial review to protect merely private rights or to allow examination of potentially unlawful government conduct?
In R v IRC Lord Diplock had accepted the Federation did not have standing but expressed the more expansive view of judicial review: “It would, in my view be a grave lacuna in our system if a pressure group, like the Federation, or even a single public-spirited taxpayer were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.”
This suggests the law has less to fear from busybodies than from illegalities going unchecked. The cases that followed moved generally in Diplock’s direction.
Diplock’s view was cited in the Pergau dam case (R v Secretary of State for Foreign Affairs ex parte World Development Movement  1 All ER 611), which allowed the World Development Movement standing to challenge a ministerial decision to fund a Malaysian dam considered appalling value for money but tied to an arms deal.
‘Claims may be brought by campaigning groups and unincorporated associations, some specifically formed for the purpose of bringing legal challenges and as a means of avoiding full costs implications. In some cases, neither the group nor its members are directly affected by the decision or action in issue, and their interest is essentially a political one’ – Grayling consultation
The importance of upholding the rule of law, as per Diplock, was one reason to accept the WDM had “sufficient interest” as were “the importance of the issue raised … the likely absence of any other responsible challenger” and the expertise and even respectability of the WDM. In other words the issue of standing was as much about the nature and importance of the case as the “sufficient interest” of those wanting to bring it.
Grayling refers to this case but disapprovingly: “The World Development Movement (a campaign organisation) did not have members or supporters who were directly affected by a grant of overseas aid to the Government of Malaysia but were held to have standing to challenge the decision on the basis of a public interest.”
He continues: “Claims may be brought by campaigning groups and unincorporated associations, some specifically formed for the purpose of bringing legal challenges and as a means of avoiding full costs implications. In some cases, neither the group nor its members are directly affected by the decision or action in issue, and their interest is essentially a political one.” And politics, seems by definition to be “a bad thing” even if the politics is securely grounded in a sense of morality, legality and pursuit of the rule of law – as with the WDM and Maya Evans.
Initially the Government’s attack on Judicial Review seemed to be aimed at easing up planning applications. Grayling’s new consultation has made it clear it has a darker purpose – to reduce to a minimum how far the Government is subject to the rule of law.
The rationale is that the Government must have the absolute right to say what is in the public interest – including, as far as they can get away with it, denying rights to foreign prisoners under its care or sanctioning allegedly dodgy arms deals.
Grayling says about 50 Judicial Reviews a year “have been lodged by NGOs, charities, pressure groups and faith organisations, ie by claimants who may not have had a direct interest in the matter at hand”. Or, to put it another way, by people committed to principles above and beyond sordid self-interest.
Grayling suggests one option of replacing the judge-made interpretation of the tests of standing with a more restricted version under the Human Rights Act 1998 (yes, that usually derided piece of Labour legislation): “Under section 7(1) a person may only bring a claim under the Act if they are or would be a victim of an alleged breach of human rights.” The benefit of this, apparently, is that “this restricts the capacity of campaign groups to use human rights violations as grounds of challenge unless they are themselves the victim”. So those dangerous and disreputable people who take up battles for justice on behalf of other people would be stymied.
The HRA regime was specifically intended to fit in with the European Convention on Human Rights. Judicial Review is home-grown and derives from Britain’s historic and developing view of the rule of law.
Grayling would seem to want to expunge any look at the merits or importance of a judicial review application from consideration (except perhaps to exclude it at a later stage). It may be profoundly important and a significant illegality may have occurred but unless someone “directly affected” is willing to challenge it or can afford to do so, then the illegality and injustice should continue. This seems to be a bizarre position – and one wholly contrary to the rule of law.
Note: The consultation document can be accessed directly here (pdf): Judicial Review: proposals for further reform consultation.
NB The government response to consultation and proposals have now (2/2/14) been published and can be found here: The Government response pdf. New law on judicial review is incorportated in Part 4 of the Criminal Justice and Courts Act 2014.
The specific attack on standing, the subject of this post, has been abandoned. However “this is not because the Government has been persuaded of the merits of a flexible standing regime”. “Rather, the Government’s view is that the better way to deliver its policy aim is through a strong package of financial reforms to limit the pursuit of weak claims and by reforming the way the court deals with judicial reviews based on procedural defects” (para. 35). In other words, the Government has recognised that there are very few cases where public interest standing is invoked and more effective way to curtail judicial review is to tie the purse strings.” (from Ben Jaffey/Tom Hickman’s roundup of the proposals in the UK Constitutional Law Blog)
A new piece (15/12/15) by Dr Mark Elliott on the new Section 84 of the Criminal Justice and Courts Act 2015 requiring judges to reject judicial reviews in “no difference” cases (ie “if it is ‘highly likely’ that the unlawful administrative action complained of made no substantial difference to the outcome, from the claimant’s perspective, of the decision-making process”: Public Law for Everyone. It examines this case R (Hawke) v Secretary of State for Justice. Here a judge was prepared to make a declaration that “there has been a failure by the Secretary of State for Justice to discharge his duties under section 149 of the Equality Act 2010” – until the new provision was brought to his attention. By Section 84 he was debarred from making the declaration official – even though he had already spoken the words of the declaration!
From the archives
• Earlier Dr Elliott, as the proposals were being discussed in Parliament (Nov/Dec 2014), wrote this: “Judicial review is, fundamentally, something that Ministers should not like — but is something that they must tolerate.” (Public Law for Everyone)
• Angela Patrick on how the Grayling proposals will stymie judicial review claims by ordinary people: UK Human Rights Blog
• This post has quotes from Grayling in the Mail making his anti-rule of law intentions specific: Public Law for Everyone
• ObiterJ looks at the issue here including comments from Sir Stephen Sedley
• Euro Rights blog: Grayling exaggerates numbers of JRs here
• The Nearly Legal site has an angry post on Grayling’s proposals here