Chapter 11 Guidance on answering the critical questions

1. In enforcing the criminal law, it is the task of the police to investigate any serious allegation of criminal conduct, from anyone who has information to offer. Is the task of the courts in administrative law similar i.e., to investigate any allegation of unlawful conduct from anyone who has information to offer?

• Think about the different roles of the courts and the police.  Police investigate, as do ombudsmen.  Courts hear disputes brought by claimants, and have to decide if the case presented by the claimant is made out. 
• Given this need for a dispute, and for the claimant to be a party that can present a claim and put the case, is it the courts’ task to investigate any allegation, made by anyone, of unlawful conduct?

2. How would an open doors policy on standing to seek judicial review (in which anyone with an arguable case that a public authority has acted unlawfully has standing) differ from the standing rules we have?

• Think of the current requirement of sufficient interest (Senior Courts Act 1981 s 31(3)).  The current law interprets that requirement very generously; an open doors policy would not require it at all. Any citizen would be free to bring a claim for judicial review, regardless of whether the outcome of the dispute would affect him for good or ill and regardless of the fact his concern in the matter is indistinguishable from that of all other citizens.
• For public interest litigation, the current law requires an application to concern an issue important to the public, requires that no one else to be able to make a more responsible challenge, and requires the claimant to have a prominent role in the field (R v Foreign Secretary, ex p World Development Movement Ltd [1995] 1 WLR 386). Those requirements would disappear, if the doors of public interest litigation were flung open to anyone complaining of the allegedly unlawful conduct of a public authority.
• Would an open doors policy be a bad thing? Would there be a flood of vexatious claims for judicial review? Or would the ‘arguable case’ criterion, properly applied, be sufficient to weed out such cases at the permission stage?

3. Was the Fleet Street Casuals case an example of public interest litigation? (R v Inland Revenue Commissioners, ex p National Federation for the Self-Employed and Small Businesses Ltd [1982] AC 617)

• Did the Federation present itself as having standing on the basis of its members’ own interests, or on the basis of the public interest?
• Would this case have been an example of public interest litigation, if the Federation had made the sort of allegation of grossly improper conduct that (according to all the Law Lords) would have given it standing? Would there then have been a public interest in the litigation that would justify standing regardless of the members’ interests, at least if there were no better party to conduct the litigation?

4. Should leave to apply for judicial review be refused in a case where the applicant could have gone to an ombudsman?

• It might depend on whether there really is any allegation of unlawful conduct. If the complaint is really just one of maladministration, leave should be refused on the ground that the claim does not assert any ground of judicial review.
• If the conduct complained of is both maladministration and unlawful conduct, should the court refuse leave on the ground that judicial review is a last resort? If so, how can this be reconciled with the rule that you cannot go to an ombudsman if you have a remedy in judicial review, unless it is unreasonable to expect you to pursue judicial review?

An additional question:

Suppose that I am the only manufacturer of widgets, and a government department decides not to buy widgets. I want to seek judicial review, on the ground that no reasonable public authority would decide not to buy widgets in the circumstances. Should I be given standing?

• Remember Part 54 of the Civil Procedure Rules, which limits the scope of judicial review to controlling ‘the exercise of a public function’ (CPR 54.1).  Is this the type of decision which demands control by judicial review to prevent power being used arbitrarily? Is the decision whether or not to buy widgets one in which the public authority owes any relevant legal duty to the community?
• You are affected (perhaps seriously) by the decision, but does it affect you in such a way so as to give the court a reason to listen to your objections to the decision in a legal proceeding? 
• If a large multinational corporation decides not to buy your widgets, despite the fact that no reasonable multinational would decide not to buy widgets in the circumstances, you would have no legal remedy. Is it different if a public authority decides not to do so?
• Does it depend on what a widget is?