Standing Rules in Judicial Review

A short overview along with my personal opinion

Hello everyone, for this week’s issue of More About Law, we will be focusing upon the topic of Judicial Review, and more specifically the standing rules within judicial review. I would recommend reading through my previous article of ‘Judicial Review’ in order to have a greater and more in depth understanding of the topic beforehand.

To begin with, Judicial review is a type of case where you challenge an administrative decision. To do so, you must convince the court that you have the appropriate competence to bring and represent this claim, as well as proving that you are ‘worthy’ of its representation. This aspect is to do with ‘Standing rules’.

Standing within judicial review is a threshold you must meet in order to prove that you are the correct individual or group to make this claim. For instance, would you be worthy of making a claim about immigration when you yourself have never been affected by such things? Standing helps determine that.

There are three basic approaches which were originally considered as models for standing:

1. The rights-based model approach

2. The sufficient interest test

3. The approach of the courts

4. The public interest model approach

For the first approach, it focuses purely upon legal standings and rights, overlooking moral viewpoints and class. It is judged solely upon personal rights, interests and legal entitlements. Non-legal aspects cannot be considered. Of course, this comes with a few drawbacks. For instance, unlisted rights are not included within this judgement, which includes rights that are suggested by other laws and rights but are not explicitly stated themselves. This includes, ‘The right to keep personal matters private’, and although not directly related to Judicial Review, it is obvious that this will cause some complications. Another drawback is that no third party or organization is able to represent a claim for another individual within this model. This is due to the fact that they do not have the rights to the interests and rights of another; the law simply functions in this way. Therefore, it is clear to see that this approach will lead to many complications, such as an individual not having access to enough funds to make a claim and being unable to have a group or organization make one for them. Personally, although it is a fantastic hypothetical model, I cannot see it being functional within the UKs legal system. It is for reasons similar to this, that the rights-based model is not being used within today's society.

The second approach focuses upon the subject of sufficient interest. A test found within the senior court's act of 1981 is used to determine whether a claimant has sufficient interest within the claim that they wish to take place. This test, although broad, allows the court to decide if a claimant is entitled to making a claim, thoroughly smoothing out a large deal of uncertainty within court. This test is used today, and its broad nature is unfortunately something which I think is impossible or near impossible to alter.

The third approach is a much more simplistic and realistic model. The approach of the courts states that if you have an arguable case, it is impossible for anyone to stop you from making it. Personally, I believe that this model has a great fundamental standpoint but simply lacks the justification and thorough reasoning of others. It strikes me as a great shell, with nothing within it. For example, this approach allows others to make claims for the good of society without any entry barriers, promoting the freedom of opinion and freedom of speech. Nevertheless, this approach also allows people to make claims for the sake of it, allowing them to waste the courts time, purely because they were annoyed with an administrative decisions outcome. It is for these reasons that once again, this approach is not used within court, as although it has a fantastic structure, it does not progress onwards from there.

The final approach follows a more moral structure, treating the population as a collection group, rather than individuals. The public interest model approach focuses upon the viewpoint of ‘Judicial review is made to protect the public interest, not the individuals’. This approach states that groups are better able to bring these claims towards the court, carrying individual interests and claims within the safety of one large collective (One example being the Good Law project, which we will focus upon later). This outlook is taken to allow costs to be spread, giving individuals the freedom and the confidence to make a claim that they might not have previously. Personally, this approach is a fantastic method to allow both personal interests, and professionalism to shine, with any decisions that are made off the back of pure annoyance being turned down. This is the approach which is being used within the UK court today.

To summarise quickly, this approach allows an individual to take up their claim with an organization (most commonly funded by charities and donations), who will then take up this claim further within court. It is this standpoint that allows individuals to make their claims without the threat of a large fee in case their claim fails.

The public interest model is perfectly represented by the group: Good Law Project. The Good Law Project exists entirely to challenge administrative decisions, such as an anti-progressive agreement. Although politically driven (a quality which is avoided within Judicial Review, the group allows others to bring their claims forward. Nevertheless, they commonly run into issues of whether or not they hold ‘sufficient interest’ in the problems which they aim to challenge. They have argued that they hold sufficient interest in every administrative case, giving them purpose to have standing and to take that standing for all cases. Many agree with this outlook, after all they exist purely to represent others and to challenge decisions, so of course they have sufficient interest. Nevertheless, I find it difficult to believe that they are interested in every possible claim that they can make. Of course, it is entirely possible, but it doesn’t give them the right to make unlimited claims within any justification. I believe that a more suitable outcome would be to individually inspect each and every claim which they bring forward, deciding off the back of that whether or not they hold sufficient interest. Of course, this will bring forward a large number of issues, such as time, money, and frustration for the Good Law Project, making it a difficult issue to discuss. Their main argument is that if nobody else makes the claim, why shouldn’t they? I completely agree with this statement, I just find it difficult to perceive a world where they are able to bypass the sufficient interest claim purely based on the fact that they have interest in every case. This is what makes this area of law completely fascinating, which is why I would love to read some of your ideas upon this in the comments.

Thank you for reading this week’s issue of More About Law, feel free to leave a like and a comment, and make sure to read up on a few of our previous articles.