By Amy Rees - Law Student @ Churchill College, Cambridge
What can you do if you think the government, or any kind of decision-making body, has made a decision that is wrong, unfair, or unreasonable? Judicial review is one of the most important functions of the Courts and as such, has been under attack by the government. It is a safeguarding mechanism to ensure that everyone is treated equally, fairly and without bias. It is a difficult process to go through – so, who is eligible to bring a case?
The Senior Courts Act 1981 states that Courts cannot grant permission for a review to go ahead ‘unless it considers that the [claimant] has a sufficient interest in the matter’. This seems clear but what does ‘sufficient interest’ mean? The leading case on this is R v Inland Revenue Commissioners [1982] AC 617, more commonly called the Fleet Street Casuals Case. In this, the claimant (a body representing the interests of self-employed workers) wanted to challenge a decision made by the tax authorities. The House of Lords established that sufficient interest must be assessed within the legal and factual context of the case. In this case, they held that the claimant did not have a sufficient interest in the matter – they were not affected any more than the ordinary taxpayer. The claimants in Fleet Street Casuals were directly affected by the decision but that was not considered to be sufficient – it is not the only thing to be considered.
Following Fleet Street Casuals, two types of standing cases have emerged – associational standing and public interest standing. In 1994, Greenpeace wanted to judicially review a decision to allow a nuclear processing plant to open. They were allowed to do so on the basis that they had access to relevant experts and could therefore lead a well-argued, relevant, and focused challenge. This is an example of a group having associational standing.
Secondly, the Pergau Dam case is an example of public interest standing. The UK Foreign Secretary approved financial support to construct a hydroelectric power station on the Pergau river in Malaysia. Prior to the decision, an economic report had concluded that the project was not economically viable. The claimant (a pressure group named World Development Movement Ltd) was not directly affected and weren’t acting on behalf of anyone who would be directly affected, which made it seem very unlikely they would be able to get the Court to review the decision. However, the Court allowed the review to go ahead. They said that it would not be easy to get a review based on public interest grounds. It was allowed in this case because the allegations were serious, there was a strong case by the claimant, there was no alternative challenger to the decision and the claimant was an expert and informed about the situation.
Once standing is established, it does not mean that the case is won. The criterion for overturning decisions is narrow and not easily met. Standing just means that the Court will hear your case. In the cases mentioned above, Greenpeace was not granted any relief – the decision stood and there was no compensation. The Pergau Dam case was incredibly complicated past the standing issue but eventually, the Court concluded – controversially - that the decision was unlawful.
Further reading:
Mark Elliott, Public Law for Everyone: https://publiclawforeveryone.com/2013/07/29/standing-judicial-review-and-the-rule-of-law-why-we-all-have-a-direct-interest-in-government-according-to-law/
Remedies available should a judicial review by successful: https://www.equalitygib.org/assets/Judicial-Review-Remedies.pdf
A very interesting article on the political and legal controversies surrounding Pergau Dam: https://www.cgdev.org/blog/getting-facts-straight-pergau-dam-and-british-foreign-aid