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Grayling Reforms may be extended to include tightening of standing requirement

30 July 2013
Reports in yesterday's editions of The Times and The Telegraph suggested that the Government is considering making changes to the test for standing in judicial review cases.

At present, s. 31 of the Senior Courts Act 1982 provides that the Court shall not grant permission for a judicial review unless the applicant has "sufficient interest in the matter to which the application relates".  In the majority of cases, as in today's 'bedroom tax' decision (R(MA & Ors) v Secretary of State for Work and Pensions [2013] EWHC (2213)), applicants are individuals who have been directly affected by the decision being challenged.  However, in recent years, the Court has been increasingly willing to allow challenges brought by interest groups and representative bodies where there is sufficient public interest in the matter.  Well known cases include judicial review challenges brought by the Child Poverty Action Group (R (Child Poverty Action Group) v Secretary of State for Social Services [1989] 3 W.L.R. 1116) and Greenpeace (R (Greenpeace) v Inspectorate of Pollution (No. 2) [1994] 4 All ER 329).  The value of such cases has also been emphasised by the Court: in R (World Development Movement) v Secretary of State for Foreign and Commonwealth Affairs [1995] 1 W.L.R. 386, for example, it was recognised that there are some public law matters that can only realistically be "challenged and corrected" by such interest groups.

However, according to an anonymous "government source" quoted in yesterday's papers, the Government is now exploring the idea of tightening the test for obtaining permission to bring a judicial review by requiring individuals to have a direct link to the challenged policies or decisions.  The source reports that the changes will be introduced to prevent abuse of the system by those "who may not have a direct interest in the issue at hand but simply want to cause delay or disruption to plans or generate publicity for themselves".

Although no formal announcement has yet been made, and the details (such as what level of "direct interest" may be required) remain unclear, these changes appear to be targeted at reducing legal challenges to government policy from interest groups.

What is most surprising about yesterday's reports is the fact that they come only a few months after a consultation on a number of other proposed reforms to judicial review.  As part of that consultation, the Government considered ways in which the permission stage could be improved, and has announced plans to proceed with the removal of the right to oral reconsideration of permission where the application is certified as totally without merit by the judge considering the application on the papers.

It is unclear why the recent consultation did not include proposals to change the requirements for standing, which will now need to be consulted upon separately.  What is clear is that if the Government does proceed with the proposal revealed yesterday, it is likely to elicit some strong responses from the campaign and interest groups that would be affected by the measure.

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