This is the second blog of a series which is intended to look at judicial review practice and procedure from a practical point of view.

This is the second blog of a series which is intended to look at judicial review practice and procedure from a practical point of view.

 

Part 2: Standing

 

Who is the Petitioner – who will be bringing proceedings?  In most cases that will not be a problem, because the circumstances make it clear.  A decision has been taken which directly involves that person.  The decision made may well be in response to an application or process initiated by that person.  Sometimes it will not be obvious that any one particular person is directly affected by an act or decision, making it less easy to determine whether they are entitled to bring a challenge to that act or decision.  At common law the test which was applied was whether the petitioner had “title and interest” to bring proceedings.  An illustration of kind of difficulties that existed in applying that test in a public law context can be seen in the case of McGinty v The Scottish Ministers.  The petitioner lived in Largs, approximately five miles from Hunterston.  He objected to the addition of a new power station and transportation terminal at Hunterston on the list of national developments in the revised National Planning Framework for Scotland 2 (“NPF2”).  The judge at first instance held ([2011] CSOH 163) that that the petitioner had “title” as a member of the public who sought to prevent a breach by a public body of a duty that was owed to the public, but that he did not have “real and legitimate interest” or a “real and practical interest” because he lived five miles away from the site, and only visited it occasionally for recreational walks.  Nor could he claim any legal interest as a person who had participated in the decision making process, such as an objector to a planning application would have.  That part of the decision was overturned by the Inner House, which applied the test of ‘standing’ as proposed by the Supreme Court in Axa General Insurance Company Ltd v Lord Advocate.  The petitioner was held to have standing because NPF2 had been the subject matter of public consultation, and the petitioner had an interest as a member of the public.

 

In the Axa case the Supreme Court said that it was inappropriate to apply the private law concept of “title and interest” to public law cases.  The two Scottish judges said that in Scottish judicial review cases there should be a change of terminology from “title and interest” to “standing”, which is the test used in England.  Lord Reed went into most detail about this, and proposed a test of standing based upon a sufficient interest.  The test of “sufficient interest” is now incorporated into judicial review procedure by Section 27B of the Court of Session Act 1988 which provides that at the permission stage (discussed further at Part 17), the court may grant permission to proceed only if it is satisfied (1) that the applicant can demonstrate a sufficient interest in the subject matter of the application and (2) the application has real prospects of success.

 

It does appear that it might become easier in future for individuals or groups to challenge decisions on public interest grounds without having to demonstrate a more direct “practical” interest that they would be affected.  In Walton v The Scottish Ministers the petitioner unsuccessfully challenged the validity of schemes and orders made by the Scottish Ministers under the Roads (Scotland) Act 1984 to allow the construction of a new by-pass around Aberdeen.  In the Supreme Court various observations were made by members of the Court relating to sufficient interest.  Lord Hope of Craighead, Lord Kerr of Tonaghmore and Lord Dyson said that the fact that a proposal could not reasonably be said to affect any individual's private interests did not exclude that person from challenging the proposed development on environmental protection grounds, but that they would require to demonstrate that they had a genuine interest and sufficient knowledge of the subject to qualify them to act in the public interest (paras 152-154).  Lord Reed, Lord Carnwath of Notting Hill, Lord Kerr of Tonaghmore and Lord Dyson, observed that that there might be cases in which any individual would have sufficient interest to bring a public authority's violation of the law to the court's attention without having to demonstrate a greater personal than public impact, since the rule of law would not be maintained if no-one could challenge a public act because everyone was equally affected by it.  In the Walton case Mr. Walton in any event had a status as a “person aggrieved” under the planning legislation which would also have given him standing to bring an application for judicial review.  The test of “standing” was further discussed and applied in Christian Institute v Scottish Ministers.

 

In cases founding on the Human Rights Act 1998 and the European Convention on Human Rights, the Petitioner must be able to satisfy the requirement under Article 34 of the ECHR of being a “victim”. 

 

 

Legislative provisions

Human Rights Act 1988, Section 7(1)

Court of Session Act 1988, Section 27B(1) and (2)

 

Leading cases

Axa General Insurance Company Ltd v Lord Advocate, 2012 SC (UKSC) 122

Walton v The Scottish Ministers, 2013 SC (UKSC) 67

McGinty v The Scottish Ministers, 2014 SC 81

Christian Institute v Scottish Ministers, 2016 SC 47 (overturned in Supreme Court in respect of the issue as to whether the “named person” legislation breached Article 8 of the European Convention on Human Rights)