Admin Formative - Grade: 72 PDF

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Word Count : 1583Judicial review is a constitutional mechanism adopted by the Administrative Court to ensure the reviewal and scrutiny of decisions undertaken by public bodies. Within their supervisory jurisdiction, their role is limited to assessing the lawfulness of these decisions to ensure they ...

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Word Count: 1583

Judicial review is a constitutional mechanism adopted by the Administrative Court to ensure the reviewal and scrutiny of decisions undertaken by public bodies. Within their supervisory jurisdiction, their role is limited to assessing the lawfulness of these decisions to ensure they stay within the limits of their powers. Essentially, there are legal requirements set by statutory provisions which must be fulfilled to bring a legitimate claim for review.

One of the main issues raised in this scenario concerns the requirement of locus standi and time. Therefore, we will go through each of the parties, in turn, examining whether the residents of Ryansville will satisfy the requirements for judicial review in respect of the Government’s decision to build the airport. Pete and Amy:

The first party to consider in this scenario is Pete and Amy. Whether Archie will be able to proceed with the application for judicial review on behalf of his friends must be assessed. Regarding the requirement of standing set out in section 31(3) of the 1981 Act, the courts must assess whether the applicants, ‘... have a sufficient interest in the matter to which the application relates.’ 1 The authority of Inland Revenue Commissioners provides guidance on this test, based on merit and strength. To safeguard the courts from being flooded by ungenuine applications, the courts need to establish whether direct impact can be found.2 Over the years, judges have leaned towards a more liberal approach to standing to provide a greater measure of legal accountability and upholding of the rule of law. From the facts, Pete and Amy appear to be affected by the proximity of the new airport as they have become aggrieved about their business being significantly disturbed, however regardless, they have shown no interest or determination in challenging the Government’s decision. Although Part 54 establishes that an interested third party will need to demonstrate that they also have sufficient standing of connection to the 1 The Senior Courts Act 1981, s 31(3). 2 Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617.

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case to proceed with the application, Archie appears to be completely unaffected by the plan. We may compare this situation to the case of R (DSD and NBV and others) v The Parole Board and others.3 The applicant, Sadiq Khan, was found to have no standing as his interest was, ‘very general in scope, and … [did] not relate in any respect, even indirectly, to the workings of the Parole Board’.4 Similarly, to elaborate, despite Archie agreeing to bring a claim on behalf of his friends, he cannot be said to satisfy this requirement as he has no genuine interest in the Government’s decision, but merely is keen to support his friends. Therefore, the court will less likely find a legitimate claim as Archie remains an unsuitable candidate for the application. Camilla: With regards to Camilla, other procedural requirements need to be examined. The issues which arise concern the question of standing and time limit. The scope of the claimant’s interest is key as the decision needs to noticeably impact them to form an arguable case. As exemplified by the case of R v Secretary of State for Foreign Affairs ex p Rees-Mogg, there has been an adoption of a more flexible approach to standing. 5 Applying those principles, Camilla may be granted standing as she has demonstrated a genuine personal concern for her job and has shown that she would face great difficulty with the new project. Hence, Camilla will more likely be granted standing in accordance with her proximity and negative impact. Assuming that standing will be satisfied, it is essential to examine the issue of time. Under the Civil Procedure Rules, a claim must be made promptly and specifically, within three months of challenging the decision. 6 This was reaffirmed in R v Swale Borough Council, ex parte Royal Society for the Protection of Birds, in which judicial review was rejected due to undue delay. 7 Accordingly, there is an obligation to proceed immediately. As 7 months have passed, it is unlikely that the court will progress with Camilla’s application since she exceeded the time limit for bringing judicial review cases. This time limit is put in place to ensure that the government can get on with its job quickly and efficiently, and seek a quick remedy. Though the Court has shown 3[2018] EWHC 694. 4 John Stanton and Craig Prescott, Public Law (OUP 2018) 426 - 427, citing [2018] EWHC 694 (Admin) [109]. 5 [1994] QB 552. 6 The Civil Procedure (Amendment No. 4) Rules 2000, r 54.5. 7[1991] JPL 39.

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more leniency and flexibility in exercising its discretion to give an extension of time, as displayed in R v Dairy Produce Quota Tribunal for England and Wales, ex parte Caswell, if a valid justification can be found, for example, the ability to bring a claim was unknown to the party. 8 Nevertheless, in this instance, the court will less likely proceed with her application due to the delayed response of 7 months which did not meet the requirement established in the Senior Courts Act.9 James: As for James' application, we are directed by the Parole Board and others case.10 The Mayor of London argued he had genuine concerns and that it was in his best and the public interest to ensure that the board's decision was reviewed by the Court. Nonetheless, it was concluded that there were more suitable applicants and he was, ‘in no different position from any other politician or … member of the public’.11 If we apply this approach, arguably, the MP is keen to represent the members of his community as exacerbated by the negative complaints he received and believes he will be acting as their defence counsel. The complaints are made up of all the locals who have been directly affected by the implementation of the plan, therefore the courts may find a strong basis for standing. However, despite the discretionary approach to standing, the MP cannot be viewed as best suited for representing the interests of these complainants, given his role as the opposition party may indicate that he seeks to interfere with the application as a meddlesome busybody. Thus, since the complainants appear to be more affected and suitable for the role, the Courts will likely dismiss his application as he is not the right person for the claim.

Theresa: The main issue with Theresa’s claim concerns whether a pressure group representing on behalf of several people can amount to sufficient interest. Instances, 8 [1990] 2 AC 738. 9 The Senior Courts Act 1981, s 31(6). 10 The Parole Board (n 3). 11John Stanton and Craig Prescott, Public Law (OUP 2018) 426 - 427, citing [2018] EWHC 694 (Admin) [109].

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where pressure groups represent an individual who lacks the means to pursue a case has generated considerable controversy as judicial review cases, are increasingly being used as, ‘a tactical tool rather than a vehicle for an individual to right a wrong.’ 12 Concerning Theresa’s application on behalf of William, we can make a comparison to the case of R v Inspectorate of Pollution, ex p Greenpeace (No 2). 13 Since Greenpeace was a ‘...responsible and respected body with a genuine concern for the environment,’ each member could successfully demonstrate that they would be negatively affected by the radioactive waste, ergo, a shared interest was established.14 Although the claim failed on its merits, it serves to elaborate on the issue of group standing and emphasise that we should not expect that every pressure group will easily be granted standing. In relation to the problem, as William does not have the means for a claim, a reputable pressure group has agreed to represent him and other residents concerned by the pollution’s danger to their safety. William and the other residents have displayed their concern about the effects of the pollution from the airport on their health, therefore, they could be held to have an interest in challenging the decision due to being dangerously affected by it. BigTrees, a prestigious environmental pressure group, similar to Greenpeace, seek to represent those residents and appear to be in the best position for it. Crucially, like the campaigners in the Rose Theatre Trust case, the residents will need to be assessed individually to examine their personal interest.15 Like Greenpeace, the courts will therefore need to look into the objectives of Bigtrees to assess whether it genuinely represents the public interest and is not just a case of the busybody. While refusing them standing would mean William and the other worries residents would not be able to effectively challenge the decision, Bigtress, who acquires better resources will help relieve their predicament. Despite the decision in Rose Theatre, where interest in each member was found to be irrelevant to the primary decision, it seems more likely that each individual in this scenario would pass the first stage test as BigTrees is a responsible group with environmental issues at the forefront of their agenda, thus their interest seems sufficient enough for locus standi to be granted. At the second stage, the extent of this interest will be 12 Chris Grayling, ‘Judicial review cases undermining parliament, says justice secretary’ The Guardian (London, 26 Mar 2014). 13[1994] 2 CMLR 548. 14John Stanton and Craig Prescott, Public Law (OUP 2018) 430 - 431. 15 R v Secretary of State for the Home Department, ex p Rose Theatre Trust [1990] 1 QB 504. 4

evaluated, however, it is unclear whether they will proceed to the next stage.

To conclude, we cannot be certain if these applications for judicial review would succeed on the facts without taking into account the other grounds for review. However, in terms of standing and time, as Pete and Amy show no intention to appeal the decision and Archie’s connection to the new project does not personally impact him, the courts will less likely persist with Archie's application. Comparably, the courts will be less willing to continue with James' application as there appears to be other applicants better suited for the role. As for Camilla, although she may be granted standing on the ground that she demonstrates she is directly impacted, the delay in her application indicated that she acted contrary to the requirement set out in the procedure rules. Ultimately, Theresa will more likely be able to proceed with judicial review given that Bigtrees, an established body, would be granted standing based on its sufficient interest.

Bibliography Secondary Sources Stanton J and Prescott C, Public Law (OUP 2018) Case Law Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 R v Dairy Produce Quota Tribunal for England and Wales, ex parte Caswell [1990] 2 AC 738 R v Secretary of State for the Home Department, ex p Rose Theatre Trust [1990] 1 QB 504 R v Swale Borough Council, ex parte Royal Society for the Protection of Birds [1991] JPL 39 R v Inspectorate of Pollution, ex p Greenpeace (No 2) [1994] 2 CMLR 548 5

R v Secretary of State for Foreign Affairs ex p Rees-Mogg [1994] QB 552 R (DSD and NBV and others) v The Parole Board and others [2018] EWHC 694

Legislation The Senior Courts Act 1981 Statutory Instruments Civil Procedure (Amendment No. 4) Rules 2000, rule 54.5 Newspaper Articles Grayling C, ‘Judicial review cases undermining parliament, says justice secretary’ The Guardian (London, 26 Mar 2014)

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