Judicial review - Standing (locus standi)

Learning Outcomes

This article outlines the concept of standing (or locus standi) in the context of judicial review proceedings. It explains the requirements that an applicant must satisfy to demonstrate they have the right to bring a claim. For the SQE1 assessment, you need to understand the test for 'sufficient interest' under the Senior Courts Act 1981, the distinct 'victim' test under the Human Rights Act 1998, and how these tests apply to different types of applicants, such as individuals and pressure groups. Your knowledge will enable you to identify whether a potential claimant meets the necessary threshold to initiate judicial review proceedings in SQE1 scenarios. You should also be able to explain how standing is assessed at the permission stage and can be revisited at the substantive hearing, how courts link standing to the merits of the claim, and the key factors relevant to pressure group standing (including the importance of the issue, the absence of other challengers, and the claimant’s specialist knowledge). Finally, you should be confident in distinguishing between public law challenges brought under general judicial review grounds and those brought under the HRA 1998, where the stricter victim requirement applies.

SQE1 Syllabus

For SQE1, you are required to understand standing (locus standi) in judicial review, with a focus on the following syllabus points:

• The meaning and purpose of standing (locus standi) in judicial review.
• The statutory test of 'sufficient interest' under s.31(3) Senior Courts Act 1981.
• How the courts have interpreted 'sufficient interest', particularly in relation to individuals and groups (e.g., IRC v National Federation of Self-Employed, ex p World Development Movement).
• The distinct 'victim' test for standing under s.7 Human Rights Act 1998.
• The requirement that the body being challenged must be exercising a public function.
• How standing is assessed at the permission stage and can be reconsidered at the substantive hearing in light of the merits.
• Practical categories of claimants who commonly have standing (individuals directly affected, competitors in regulatory contexts, responsible pressure groups).
• The interaction between standing and other preliminary hurdles (justiciability, time limits, alternative remedies).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the primary statutory test for standing in judicial review proceedings (excluding human rights claims)?
2. Can a pressure group ever have standing to bring a judicial review claim?
3. What is the test for standing under the Human Rights Act 1998?
4. True or false? The court decides whether a claimant has standing at the final hearing stage, after considering all the evidence.

Introduction

Judicial review is the process by which courts examine the lawfulness of decisions or actions taken by public bodies. However, not everyone can bring a claim for judicial review. The legal system imposes rules to ensure that only those with a legitimate connection to the matter can challenge a public body's decision. This requirement is known as 'standing' or, traditionally, locus standi.

Standing acts as a preliminary hurdle. It ensures that the courts are not overwhelmed with claims brought by individuals or groups who lack a genuine connection to the issue or decision being challenged. It filters out busybodies or those with only a general grievance, allowing the court to focus on cases where a specific interest is affected. Although it is a threshold requirement, standing is not treated rigidly: courts often consider the merits of the claim when assessing standing, and the assessment can be revisited later if necessary.

The rules on standing differ slightly depending on whether the claim involves an alleged breach of human rights under the Human Rights Act 1998 (HRA 1998) or relies on other public law grounds. Where general public law grounds are pursued (such as illegality, procedural impropriety, or irrationality), the statutory test is one of sufficient interest. Where Convention rights are alleged to have been breached, the HRA imposes a stricter test: the claimant must be a victim of the unlawful act. In either case, the court retains discretion to scrutinise the claimant’s connection to the matter in a way that balances access to justice with effective public administration.

Key Term: Standing
The legal right or eligibility of a person or organisation to bring a claim before a court. In judicial review, it refers to the requirement that the claimant has a sufficient connection to the matter being challenged.

Standing under the Senior Courts Act 1981

The primary test for standing in judicial review (outside of HRA 1998 claims) is set out in s.31(3) of the Senior Courts Act 1981 (SCA 1981).

Section 31(3) SCA 1981 states that the court shall not grant permission to apply for judicial review unless it considers that the applicant has a 'sufficient interest' in the matter to which the application relates.

Key Term: Sufficient Interest
The threshold requirement under s.31(3) Senior Courts Act 1981 that a claimant must meet to demonstrate they have standing to bring a judicial review claim. The claimant must show a connection to the decision or action being challenged that is greater than that of an ordinary member of the public.

The sufficient interest test protects against indiscriminate challenges while preserving access to the court for those with a legitimate stake in the legality of public administration. It is a flexible concept and is assessed contextually. The court examines the nature of the decision, the seriousness of the alleged illegality, the claimant’s relationship to the decision, and whether there is a real prospect of the court’s intervention serving a useful purpose for the rule of law.

Interpreting 'Sufficient Interest'

The term 'sufficient interest' is not defined in the statute, and its meaning has been developed through case law. The courts generally adopt a flexible approach. In R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (the Fleet Street Casuals case), the House of Lords explained that standing should not be determined in isolation at the outset. Standing is linked to the merits: if the case raises a serious issue and the claimant has a discernible stake in the legality of the decision, standing may be granted at permission, but it can be revisited at the substantive hearing. Conversely, if the claim lacks substance, this may undermine standing. The Federation failed because, in general, one taxpayer has no legitimate interest in the tax affairs of another, and they could not demonstrate serious wrongdoing by the Revenue. However, the House acknowledged that pressure groups or public-spirited individuals may, in appropriate cases, have standing.

Modern authorities reflect this pragmatic approach. Courts recognise that denying standing in meritorious cases could allow unlawful public action to escape scrutiny. Thus, while the focus is on the claimant’s connection to the decision, the importance of the legal issue and the practical reality of who is likely to challenge it also inform the analysis.

Individuals Directly Affected

Individuals whose personal rights or interests are directly and adversely affected by a decision will usually have no difficulty establishing sufficient interest. Examples include:

• A person refused a licence required by statute to operate their business.
• A resident impacted by a planning decision, such as approval of a nearby development that arguably breaches statutory procedures.
• A contractor excluded from a public procurement process in a way alleged to be ultra vires.

Case law illustrates this category. In ex p Binks (1985), a local authority issued a notice requiring the claimant to vacate a takeaway caravan without adequate procedure; the claimant, directly affected, had standing. In R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin), two students challenged higher education fees policy decisions. Although they were not yet paying the fees, they were sufficiently affected by the policy’s impact on their imminent education choices, and the court did not treat them as mere busybodies. These examples confirm that direct impact need not be confined to immediate financial loss; practical effects and imminent risks can suffice.

Groups and Public Interest Challenges

The position is more complex for groups (like charities or pressure groups) or individuals who are not directly affected but wish to challenge a decision on public interest grounds. The courts have moved away from a very restrictive approach, though not every public interest body will have standing.

In R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, the Divisional Court granted standing to a pressure group challenging the lawfulness of government funding for the Pergau Dam project in Malaysia. The court identified factors relevant to pressure group standing, often cited in later cases:

• The importance of the issue raised and the need to vindicate the rule of law where public funds or statutory powers are involved.
• The seriousness of the alleged breach of public duty or statutory power.
• The likely absence of another responsible challenger with a more direct interest.
• The nature, relevant knowledge, and legitimacy of the claimant group, including its track record and specialist knowledge.
• The proximity and genuine concern of the claimant with the subject matter, rather than an abstract or manufactured interest.

These factors are not rigid criteria but guide judicial discretion. The decision signals that courts may confer standing on responsible groups where effective public law oversight would otherwise be undermined.

Other authorities help define the boundaries. In R v Secretary of State for Trade and Industry, ex p Greenpeace (No 2) [1994], Greenpeace was granted standing to challenge the decision-making process concerning nuclear reprocessing, due in part to its specialist knowledge, the genuine concern of its members residing near the relevant site, and the absence of other challengers capable of marshalling the complex case. In R v Somerset CC, ex p Dixon [1997] 4 All ER 241, the court held that a citizen may have sufficient interest to challenge a planning decision even without a proprietary interest in the land, recognising a legitimate interest in the proper application of planning law.

By contrast, in R v Secretary of State for National Heritage, ex p Rose Theatre Trust Co [1990] 2 QB 504, a company formed to campaign for the preservation of a historic site was refused standing where the individual members lacked standing themselves; the court was wary of allowing an artificial aggregation of merely general interests to confer standing. Subsequent case law has softened the restrictive tone of Rose Theatre Trust, and decisions like World Development Movement and Dixon demonstrate that genuine public interest standing is permitted when responsibility, specialist knowledge, and the significance of the issue are present. Nonetheless, Rose Theatre Trust remains a caution: forming a company or group will not automatically overcome the absence of a genuine stake.

Courts also view standing flexibly where the claimant is a competitor in a regulated field. For example, in market regulation or licensing, a competitor’s commercial interest in lawful administration is a recognised route to standing, particularly if the decision allegedly distorts the level playing field.

Worked Example 1.1

A local council grants planning permission for a large supermarket on the edge of town. 'Green Town', a local environmental group known for campaigning on planning issues, believes the council failed to follow the correct environmental impact assessment procedures. No individual resident has yet challenged the decision.

Does Green Town have sufficient interest to apply for judicial review?

Answer:
Green Town is not directly affected in the same way as a nearby resident might be. However, applying the principles from ex p World Development Movement, the court would consider factors such as:

• The importance of ensuring correct environmental procedures are followed (public interest).
• The potential absence of an individual challenger (residents might lack resources or awareness).
• Green Town's established role and specialist knowledge in local environmental matters.
• The nature of the alleged failure (a potential breach of statutory procedure).

Given these factors, particularly Green Town's established role and the public interest element, it is likely the court would find Green Town has sufficient interest to bring the claim.

Exam Warning

Do not assume that only directly affected individuals have standing. While direct impact is the clearest route, the courts permit public interest challenges by responsible groups in appropriate circumstances. Focus on the connection between the claimant and the issue, and the importance of the matter raised. Also be alert to the two-stage nature of judicial review: standing is assessed at permission but may be revisited at the substantive hearing. If the claim proves insubstantial, standing may be refused even if permission was granted.

Standing under the Human Rights Act 1998

Where a claimant alleges that a public authority has acted unlawfully in a way which is incompatible with a right under the European Convention on Human Rights (ECHR), as incorporated by the HRA 1998, the test for standing is different and stricter.

Section 7(1) HRA 1998 states that a person may bring proceedings against the authority only if they are (or would be) a 'victim' of the unlawful act.

Key Term: Victim (HRA 1998)
The test for standing under s.7 HRA 1998. A claimant must be directly and personally affected by the alleged breach of a Convention right to qualify as a victim.

This 'victim' test derives directly from Article 34 of the ECHR, which governs applications to the European Court of Human Rights. It requires the claimant to demonstrate that they have been personally and directly affected by the alleged breach. It is stricter than the sufficient interest test: a mere public interest or policy-based grievance without personal impact will not satisfy s.7.

Practical points on the victim test include:

• Direct victims are those whose own Convention rights have been infringed (for example, a person subjected to unlawful surveillance engaging Article 8).
• Indirect victims may also qualify, such as relatives of a person whose rights were violated, where they have suffered directly as a consequence (consistent with Strasbourg jurisprudence and applied by UK courts).
• Potential victims can qualify where a measure’s implementation would imminently and directly affect the claimant’s rights (for example, a policy authorising imminent intrusive searches of identified groups where the claimant is a member).
• Representative bodies do not, as a rule, satisfy the victim test in their own right unless the body itself is directly affected. However, a representative body can support proceedings brought in the name of actual victims, or can seek traditional judicial review remedies on non-HRA grounds if they can show sufficient interest under s.31(3) SCA 1981.

This means that pressure groups or public interest bodies generally cannot bring claims under the HRA 1998 purely on behalf of the public or a section of the public, unless the group itself is directly affected (which is rare). If a challenge seeks HRA relief as well as traditional judicial review relief, courts will apply both tests: a group may have standing for traditional judicial review but fail the victim requirement for HRA relief. In such cases, courts may determine public law issues on non-HRA grounds while declining HRA-based relief to a non-victim.

It is also important to distinguish remedies. Under the HRA 1998, courts cannot strike down an Act of Parliament as invalid. Where primary legislation is incompatible with a Convention right, the court can issue a declaration of incompatibility under s.4 HRA 1998, leaving the legislation in force but inviting Parliament to consider remedial action. This remedial framework does not alter standing: only victims can seek such a declaration, and a campaigning group will not qualify unless it is itself affected.

Worked Example 1.2

A government department implements a new policy requiring all employees in a certain sector to undergo regular surveillance, including monitoring of emails. 'Liberty Watch', a human rights campaign group, believes this policy breaches the employees' right to privacy under Article 8 ECHR.

Can Liberty Watch bring a claim under the HRA 1998 challenging the policy?

Answer:
No. Liberty Watch itself is not having its privacy rights breached by the surveillance policy; the employees are. Liberty Watch is not 'directly and personally affected' and therefore does not meet the 'victim' test under s.7 HRA 1998. Only the affected employees (or perhaps a trade union representing them) would have standing to bring an HRA claim. Liberty Watch might, however, be able to bring a traditional judicial review claim if it could demonstrate sufficient interest under the SCA 1981 test, perhaps arguing the policy was unlawful on grounds other than a direct HRA breach (e.g., irrationality or illegality if the policy went beyond the powers granted by statute), although its standing might still be scrutinised.

Worked Example 1.3

A statutory scheme gives police broad powers to conduct random stop and searches in designated areas. A student who regularly walks through one designated area has not yet been stopped but fears imminent stop and search. The student seeks to challenge the scheme under Article 8 and Article 5.

Does the student satisfy the 'victim' test under the HRA 1998?

Answer:
Likely yes. The student is at real risk of being subjected to the scheme; as a regular user of the area, they are a potential victim of the alleged rights interference. Strasbourg and domestic authorities recognise potential victim status where a measure’s implementation places the claimant in a sufficiently certain and immediate risk of rights infringement. The student would need to show the risk is more than speculative and that the interference is imminent or central to the scheme’s operation.

Revision Tip

Remember the two distinct tests for standing. For general public law challenges, it's the 'sufficient interest' test (SCA 1981). For claims specifically alleging a breach of Convention rights, it's the stricter 'victim' test (HRA 1998). Identify which type of claim is being made in a scenario. If a claim mixes public law grounds and HRA grounds, be ready to apply both tests separately.

Other Procedural Hurdles

Standing is assessed at the permission stage of judicial review. Even if a claimant has standing, they must also show:

• The claim is against a public body exercising a public function. Purely private law matters cannot be judicially reviewed.
• The claim has been brought promptly and within the time limit (generally within 3 months).
• Alternative remedies (like statutory appeals or internal review procedures) have been exhausted where appropriate.
• There are no ouster clauses validly preventing judicial review.

These requirements ensure that judicial review is used appropriately as a remedy of last resort for specific public law grievances.

Amenability and public function are important. Some bodies are clearly public (central government departments, local authorities), but others are privately constituted yet wield public regulatory power. In R v Panel on Take-overs and Mergers, ex p Datafin [1987], the Court of Appeal held that a non-statutory body exercising de facto public regulatory functions was amenable to judicial review, given its public law footprint and governmental nexus. By contrast, in R v Jockey Club, ex p Aga Khan [1993], the Jockey Club’s disciplinary decisions were not amenable: despite influence over a sport, it was a private association and not exercising a public function in the relevant sense. Determining amenability is fact-sensitive and focuses on the source, nature, and impact of the body’s powers.

Timing and promptness matter. Under CPR r 54.5, a claim must be filed promptly and within three months from the date when grounds for the claim first arose; specific subject areas can have shorter limits (for example, certain planning statutory challenges have six-week deadlines). Delay can lead to refusal of permission or relief, even if standing is otherwise clear.

Alternative remedies can be decisive. If Parliament has provided a statutory appeal or review route, courts often require claimants to use it first. Judicial review remains a remedy of last resort. Standing does not compensate for failure to use available alternatives.

Finally, ouster clauses may restrict judicial review, although courts interpret them narrowly. Where an ouster clause is effective, standing cannot overcome a statutory bar to review; the claim must find a route within or around the statutory framework.

Worked Example 1.4

A trade association seeks to challenge a decision of a private regulatory panel that controls mergers in an industry. The panel’s decisions are not made under statute but are widely recognised by government and businesses; the panel can effectively block mergers.

Is the panel’s decision amenable to judicial review, and does the association have standing?

Answer:
Following Datafin, a non-statutory body may be amenable to judicial review if it exercises public regulatory powers with a sufficient governmental nexus and its decisions have public law consequences. Here, the panel’s effective control over mergers and its recognised regulatory role indicate amenability. Standing would then depend on the association’s connection to the decisions: as the trade association represents members affected by the panel’s determinations and has specialist knowledge, it is likely to have sufficient interest to challenge lawfulness. However, the court would scrutinise the merits and ensure the association is acting responsibly and not as a mere busybody.

Worked Example 1.5

A taxpayer group seeks to challenge HMRC’s decision to grant a settlement to a class of taxpayers following a dispute, alleging differential treatment and illegality.

Do they have sufficient interest to bring a claim?

Answer:
The Fleet Street Casuals case indicates that one taxpayer generally has no sufficient interest in the tax affairs of another. Unless the group can demonstrate serious wrongdoing or illegality that engages the rule of law in a way that justifies intervention, standing is unlikely. The court would consider whether any directly affected taxpayers are available to challenge the settlement and whether the group’s claim is more than a general grievance about tax administration.

Key Point Checklist

This article has covered the following key knowledge points:

• Standing (locus standi) is the legal right to bring a judicial review claim.
• The main test for standing is 'sufficient interest' under s.31(3) SCA 1981.
• Sufficient interest requires a claimant to have a connection to the matter greater than the general public.
• Courts interpret 'sufficient interest' flexibly, considering the merits and public interest.
• Pressure groups may have standing in certain public interest cases (ex p World Development Movement), guided by factors including importance of the issue, seriousness of the alleged illegality, absence of other challengers, and the claimant’s specialist knowledge and genuine concern.
• Individuals directly affected by a decision will usually have standing; competitors in regulated markets often do too.
• Restrictive approaches like ex p Rose Theatre Trust caution that standing cannot be created by artificial aggregation of general interests, but later cases take a more flexible view in genuine public interest contexts.
• For claims under the HRA 1998, the stricter 'victim' test applies (s.7 HRA 1998).
• A 'victim' must be directly and personally affected by the alleged breach of a Convention right; potential and indirect victims may qualify if the risk or impact is real and immediate.
• Standing is a preliminary requirement considered at the permission stage, but may be revisited at the substantive hearing in light of the merits.
• Amenability requires the respondent to be a public body or to be exercising public functions (Datafin); purely private matters are not subject to judicial review.
• Promptness, time limits, and the availability of alternative remedies are separate hurdles that must be satisfied regardless of standing.

Key Terms and Concepts

• Standing
• Sufficient Interest
• Victim (HRA 1998)