Judicial review - Standing (locus standi)

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Overview

Standing, or locus standi, is key in judicial review, determining who can contest decisions by public bodies in court. For SQE1 FLK1 exam candidates, understanding standing is vital for understanding administrative law and balancing government accountability with judicial efficiency. This article explores standing in judicial review, its theory, applications, and evolving case law.

The Constitutional Context of Judicial Review

Judicial review in the UK, part of its uncodified constitution, checks executive power by ensuring public bodies act lawfully and upholds the separation of powers, allowing the judiciary to examine executive decisions.

Lord Bingham in A and others v Secretary of State for the Home Department [2004] UKHL 56 stated:

"The function of independent judges charged to interpret and apply the law is universally recognized as a cardinal feature of the modern democratic state, a fundamental aspect of the rule of law."

Important historical cases include:

  • Entick v Carrington (1765): Established the necessity for public officials to act within legal limits.
  • Chester v Bateson (1920): Highlighted courts' roles in interpreting statutes to protect rights.
  • Human Rights Act 1998: Broadened judicial review to include Convention rights.

Standing (Locus Standi): Framework

Standing determines legal eligibility to bring a case, serving to:

  1. Ensure judicial efficiency
  2. Validate claims
  3. Uphold separation of powers

Categories of Applicants

  1. Privileged Applicants:

    • Automatically granted standing (e.g., government bodies, Attorney General)
    • Justified by their responsibility to uphold public interest
  2. Semi-Privileged Applicants:

    • Organizations with a specific remit related to the disputed decision
    • Must show impact on their functions or authority
  3. Non-Privileged Applicants:

    • Individuals or organizations without automatic standing
    • Must prove 'sufficient interest' in the issue

Establishing Standing

The 'sufficient interest' test for non-privileged applicants has evolved through case law:

  • R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617:

    • Established a broad interpretation of 'sufficient interest'
    • Lord Diplock: Standing should not be judged as a separate issue
  • R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386:

    • Extended 'sufficient interest' to include public interest groups

Courts balance:

  1. Access to justice
  2. Preventing process abuse while maintaining judicial efficiency

EU Law and Post-Brexit Considerations

EU law significantly influenced UK standing:

  • Article 263 TFEU: Governs annulment actions of EU acts
  • Article 265 TFEU: Addresses failure to act actions

Post-Brexit considerations include:

  1. Retaining EU-derived standing principles through the European Union (Withdrawal) Act 2018
  2. Possible divergence from EU doctrines
  3. New standing requirements from international agreements

Case Law and Practical Applications

Environmental Challenges

R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28:

  • ClientEarth challenged UK air quality plans
  • Supreme Court recognized standing based on the group's expertise and the public importance of environmental protection

Individual Challenges to Government Policy

R (on the application of Begum) v Special Immigration Appeals Commission [2021] UKSC 7:

  • Shamima Begum contested revocation of her British citizenship
  • Supreme Court granted standing, despite her absence, highlighting how standing can be established in sensitive cases

Local Planning Decisions

  1. Resident's Challenge:

    • Likely to receive standing due to direct impact (e.g., noise, property value)
    • Must show specific effects beyond general public concern
  2. Environmental Group's Challenge:

    • May gain standing by demonstrating: a) Expertise in relevant environmental matters b) Genuine interest in protecting the local ecosystem c) Inability of directly affected individuals to pursue the case

Conclusion

Understanding standing in judicial review is essential for SQE1 FLK1 exam success. Key points:

  1. Standing serves as a gatekeeper for judicial review, ensuring access to justice while maintaining efficiency.
  2. Applicants are classified as privileged, semi-privileged, or non-privileged, with varying requirements.
  3. The 'sufficient interest' test has evolved to include public interest litigation.
  4. EU law has shaped UK standing doctrines, with potential changes post-Brexit.
  5. Case law illustrates the courts' approach to standing, particularly in environmental and public interest cases.

Mastering these concepts will help candidates tackle complex administrative law scenarios and appreciate the balance between accountability and judicial restraint.