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Administrative Court stands firm on the "sufficient interest" test

Ben Gaston

23 July 2014
The Administrative Court's decision in R (O) v Secretary of State for International Development [2014] EWHC 2371 (Admin) – handed down in the midst of fierce debate over the Government's proposed reforms of judicial review via the Criminal Justice and Courts Bill – provides a useful restatement of the principles applicable to the question of standing in judicial review.

The claimant in O claimed to have been a victim of human rights abuses in Ethiopia as a result of a programme known as "villagisation", said to involve the forced relocation of individuals from their place of residence.  He further alleged that the defendant Secretary of State had partly funded those human rights violations through development money provided to the Ethiopian Government.  It was further argued that the Secretary of State had acted unlawfully in failing properly to apply her own policy, which provided that the making of development payments should be reconsidered where the recipient country acted in violation of human rights.

In its acknowledgment of service and summary grounds of resistance, the defendant argued that the claimant lacked standing to bring the claim, and that permission should be refused on that basis.  Having considered the case on the papers, Nicola Davies J ordered that the question of permission be decided at an oral hearing.

In his judgment granting the claimant permission to proceed with his claim, Warby J set out the well-known principles applicable to standing in judicial review – principles that were, until recently, under threat as part of the sweeping "Grayling Reforms".  Section 31 of the Senior Courts Act 1981, the Judge recalled, provides that an applicant for judicial review must have "sufficient interest in the matter to which the claim relates".  That test has been liberally interpreted by the courts, in particular in two recent Scottish cases in the Supreme Court: AXA General Insurance Limited & Ors v HM Advocate & Ors [2011] UKSC 46 and Walton v The Scottish Ministers [2012] UKSC 44.

Accepting those cases as "the latest word" on standing, Warby J rejected counsel for the defendant's submission that a stricter test – requiring the claimant to be "affected in some identifiable way" – should apply.  From the Scottish cases, the Judge said, the following three principles could be derived:

  • a restrictive approach that treats judicial review as a means of addressing individual grievances should be avoided;
  • the concept of "sufficient interest" is elastic and depends upon context; and
  • a "busybody" will not have standing, but a claimant need not demonstrate a personal interest if acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent.

Applying those principles, the Judge concluded that the claimant had a sufficient interest, and therefore standing, to bring his claim for judicial review.  That was because, among other things, he had demonstrated a sufficient basis for asserting that he was affected by the "villagisation" programme, as well as a factual linkage between the provision of UK aid and that programme.   The Judge made clear that:

in reaching this conclusion I do not consider myself to be doing any more than applying to the particular facts of this case, as they presently appear, the law as stated by the authorities I have relied on above and in particular the decisions of the Supreme Court in AXA and Walton.

Comment

It is unsurprising that the Administrative Court did not depart from the common law principles on standing that have developed over decades and which were recently affirmed by the UK's apex court in AXA and Walton.  The judgment is noteworthy, however, since it comes just a few months after the Government abandoned its proposals to reform the standing test.  Those proposals were roundly criticised by the judiciary and practitioners alike, and the Government ultimately concluded that "amending standing is [not] the best way to limit the potential for mischief."  In that context, the Court's robust application in O of existing principles, and its rejection of argument in favour of a stricter standing test – advanced by James Eadie QC, First Treasury Counsel for the Government – serves as a reminder of the pragmatic and flexible approach that will be adopted when it comes to the "sufficient interest" test.

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