Chapter 11 Guidance on answering the pop quizzes

Standing to claim that someone else has been treated unlawfully?

Page 444: Remember the landmark case of Ridge v Baldwin [1964] AC 40 (see 4.3.2), in which the House of Lords upheld Charles Ridge’s claim that the police authority acted unlawfully by dismissing him without giving him a hearing on allegations of misconduct. In a case like that today, suppose that the person dismissed chooses not to challenge the decision in court, but a concerned citizen, or an advocacy group for fairness in government, seeks permission to bring a claim for judicial review, on the grounds that succeeded in Ridge v Baldwin. Should the Administrative Court give them standing?

• Would the concerned citizen or advocacy group count as a ‘busybody’? (see p 443)

• See the discussion in Chapter 6 of standing to demand reasons for an administrative decision: a duty to give reasons for planning approvals ‘would not mean that any busybody could seek reasons where permission is granted. The rules of standing ensure that only those who have a proper interest in doing so can challenge a decision’ (Oakley v South Cambridgeshire DC [2017] EWCA Civ 71 [55] Elias J).

• Notice this important point: even with the courts’ very liberal approach to standing, the prospect that the decision was unlawful does not in itself mean that the claimant has standing.

Standing for public authorities

Page 458: Why hasn’t the Senior Courts Act 1981 s 31(3) removed the prerogative to bring relator proceedings? It says ‘no application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with the rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter’.

• Could it be that the Crown’s responsibility for the administration of justice is presumed to give it a sufficient interest in any question of lawfulness that the Attorney-General chooses to bring before the Court?
• Remember, the court can guard against the risk of abuse by an Attorney-General by using its power to dismiss proceedings that are an abuse of process.
• But there is nothing that the Court can do to force a bad Attorney-General to commence litigation where he ought to be doing so. That is one reason for allowing standing to public interest claimants. In fact, even a good Attorney-General cannot be expected to litigate in every case in which an abuse of public power ought to be brought in front of the court.

No standing for public authorities before the Parliamentary Ombudsman

Page 460: Although public authorities are permitted to seek judicial review wherever it helps them to fulfil their functions, they do not have such free access to the Parliamentary Ombudsman (see 13.3). The Parliamentary Commissioner Act 1967 s 6 prohibits the Parliamentary Ombudsman from investigating complaints by local authorities, and by public authorities whose members are appointed by the Crown or whose funds are mainly granted by Parliament (s 6(1)). Why would that be?

• Think about how the Ombudsman was originally conceived.  Was the post of Parliamentary Ombudsman created to arbitrate between the government and the governed, or between public departments?
• Could one argue that this limitation prevents the re-opening of controversial decisions by dissidents in local authorities or other public bodies?
• Think about the need for the Parliamentary Ombudsman to be, and to appear to be, independent.  Could this limitation help to prevent the Parliamentary Ombudsman becoming embroiled in political conflicts between and within government departments and public bodies?