We are delighted to welcome this guest post by Maeve O’Rourke. Maeve is a barrister at Thomas Bingham Chambers, 33 Bedford Row. Maeve is the 2013 Pro Bono Lawyer of the Year and is also this year’s recipient of the Forgotten Irish Award. Maeve’s previous guest posts for Human Rights in Ireland can be viewed by using the search tool on this page.
The UK Government’s Consultation on “Judicial Review: Proposals for Further Reform” closed on 1st November 2013.
One of the most contentious aspects of the Consultation Paper is the proposal in Chapter 4 to amend the test for standing to prevent groups or individuals who are not “directly” affected by an alleged unlawful decision from bringing a claim for judicial review.
In its current form, the “sufficient interest” test for standing is crucially balanced to avoid abuse whilst ensuring that it does not act as a licence for unlawful executive action in the absence of a “directly” affected claimant.
The Government’s proposal means that groups which collectively represent the views of individuals, and which previously have brought – and won – judicial reviews in areas of public importance, will have their hands tied in the face of potential unlawful Government behaviour. Even where they are the only ones with the ability or expertise to bring a claim, they will be barred from acting to uphold the rule of law.
Throughout this Consultation Paper and the recent Transforming Legal Aid Consultation, the Government has proposed measures which will decimate the access of “directly” affected individuals to judicial review. The proposals on standing will consolidate that attack, ensuring that as fewer individuals are able to bring claims in their own right, civil society is simultaneously prevented from stepping in to fill the void.
Under the current “sufficient interest” test, the more public interest that attaches to judicial scrutiny of the subject matter of the application, the less directly affected the claimant may need to be. When considering an application by an interested individual or group, the courts also ask themselves whether there is a more appropriate claimant than the one asserting standing.
Therefore, permission tends to be granted to representative groups or individuals where the claim might otherwise not have been brought and it is in the public interest – and the interest of the rule of law – that it should be.
The rationale for this approach was stated by Lord Diplock in R v Inland Revenue Commissioners ex p NFSSB  AC 617 as follows:
“It would, in my view, be a grave lacuna in our system of public law if a pressure group…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…It is not…a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are accountable to a court of justice for the lawfulness of what they do, and of that the court is the only judge.”
Hence, the World Development Movement was allowed to pursue a successful application against a decision of the Home Secretary regarding overseas development which was unlawful and “so economically unsound that there is no economic argument in favour of the case”, in circumstances where there was no other likely challenger.
Greenpeace was allowed to challenge a decision of the Inspectorate of Pollution to authorise the discharge of radioactive waste from Sellafield on the basis that 2,500 of its supporters came from the Cumbria region and if Greenpeace were denied standing, those it represented might not have an effective way of bringing the issue before the court.
Maya Evans was allowed to challenge the Government’s practice of transferring suspected insurgents to the Afghan authorities during UK operations in Afghanistan. It was “with hesitation” that the Court of Appeal ultimately rejected her claim in a 327-paragraph judgment which revealed that there was “plainly a possibility of torture or serious mistreatment” at some facilities. Clearly, those “directly” affected could not have brought this challenge themselves.
By proposing that the absence of a “directly” affected claimant should automatically allow the Government to avoid judicial review, the Consultation Paper is, in effect, suggesting a licence for unlawful executive action.
The Government has provided no coherent evidence to justify its proposals.
The case study which the Consultation Paper proffers as an example of “the inappropriate use of judicial review as a campaign tactic” was a claim brought by a classic “directly” affected individual, not a representative group.
The Government does not say that NGOs, charities, pressure groups and faith organisations are clogging up the courts.
Nor does it argue that claims by representative groups are largely “unmeritorious”. According to the Consultation Paper, judicial reviews by representative groups are “relatively successful compared to other JR cases”. Of the 20 applications that are granted permission annually, a majority are either successful at final hearing or are withdrawn (which, the government concedes, often means they settle in favour of the claimant).
The Government’s real concern may be that these cases are too likely to succeed. If that is the true rationale, it is difficult to imagine a greater affront to the rule of law.
 R v Inland Revenue Commissioners ex p NFSSB  AC 617 at 664E
 R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd  1 WLR 386
 R v HM Inspectorate of Pollution and Ministry of Agriculture, Fisheries and Food ex p Greenpeace Ltd  4 All ER 329
 R (on the application of Maya Evans) v Secretary of State for Defence  EWHC 1445 (Admin)
 See Consultation Paper, page 6. R (Coleman) v The London Borough of Barnet Council & Anor  EWHC 3725 (Admin). The claim was against planning permission and was brought by a man with a disability who lived within walking distance of the land in question and had been a weekly visitor to the garden centre that had previously occupied it for over 24 years.
 . On the Consultation Paper’s own figures, applications by these groups accounted for 0.4% of all claims in 2011.
 Consultation Paper, para 78
 Consultation Paper, para 12