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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
    1. Boyce v Paddington Borough Council [1903] 1 Ch 109
    2. Gregory and Another v London Borough of Camden [1966] 2 All ER 196
    3. R v Thames Magistrates Court, ex parte Greenbaum [1957] LGR 129
    4. R v Greater London Council, ex parte Blackburn [1976] 3 All ER 184
    5. Supreme Court Act 1981
    6. Inland Revenue Commissioners and National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93
    7. R v Felixstowe Justices, ex parte Leigh and another [1987] 1 All ER 551
    8. R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co [1990] 1 All ER 754
    9. R v Inspectorate of Pollution and another, ex parte Greenpeace Ltd [1994] 4 All ER 329 (No 2)
    10. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co [1990] 1 All ER 754

Schieman J:.... I turn now to consider the question of locus standi. It follows from the foregoing that I do not accept that the decision of the Secretary of State is flawed in law. I go on to consider what logically I ought perhaps to have considered first, namely does the applicant have any standing to move for judicial review? I introduce this section of my judgment by pointing out something which may well surprise many laymen and some lawyers who do not practise in this branch of the law.

Inevitably, in the tide of human affairs, decisions are from time to time reached which are unlawful, occasionally by someone who knows he is acting unlawfully but more usually by someone who does not know this. The law provides in general that even an unlawful decision is to be treated as lawful until such time as the court, at the suit of someone with a sufficient interest in the matter to which the application relates, allows an application to quash that decision. Often the law provides a time limit or other conditions which have to be complied with before the court is empowered to quash an admittedly unlawful decision. The reason for that, at first sight, surprising willingness of the law to treat the admittedly unlawful as lawful is that in many fields, if it were otherwise, uncertainty and, at times, complete chaos would result.

Suppose a decision to build a motorway turns out, once it has been built, to have been unlawful because the Secretary of State took into account something which he ought not to have done. If everyone could challenge an unlawfully granted planning permission for a house, what would be the position of the innocent first or subsequent purchaser? These are the types of problems with which the concept of standing is concerned.....

In the present case leave was granted to apply for judicial review and one might have thought, unaided by authority, that the sufficiency of the interest point could not be taken at the stage of the substantive application unless there was at that same time an application to set aside the leave which had, on this hypothesis, been wrongly granted. However, it is common ground that the point can be taken at this stage without such a formal application and that there is a fair amount of case law to guide the court. There is no doubt that, in the early part of this decade, the High Court was fairly liberal in its interpretation of who had 'a sufficient interest' to be able to apply for judicial review (see Covent Garden Community Association v Greater London Council [1981] JPL 183, a decision of Woolf J on 2 April 1980, R v Stroud DC, ex p Goodenough (1980) 43 P & CR 59, a decision dated 3 June 1980, again with Woolf J with which Donaldson LJ agreed, and R v Hammersmith and Fulham London BC, ex p People before Profit Ltd (1981) 80 LGR 322, a decision of Comyn J on 20 May 1981)....

The leading case on this branch of the law is IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93, [1982] AC 617..... I do not propose to lengthen this judgment by a close analysis of what each Law Lord said but I think the following propositions, to put it no higher, are not inconsistent with that case.

1. Once leave has been given to move for judicial review, the court which hears the application ought still to examine whether the applicant has a sufficient interest.

2. Whether an applicant has a sufficient interest is not purely a matter of discretion in the court.

3. Not every member of the public can complain of every breach of statutory duty by a person empowered to come to a decision by that statute. To rule otherwise would be to deprive the phrase 'a sufficient interest' of all meaning.

4. However, a direct financial or legal interest is not required.

5. Where one is examining an alleged failure to perform a duty imposed by statute it is useful to look at the statute and see whether it gives an applicant a right enabling him to have that duty performed.

6. Merely to assert that one has an interest does not give one an interest.

7. The fact that some thousands of people join together and assert that they have an interest does not create an interest if the individuals did not have an interest.

8. The fact that those without an interest incorporate themselves and give the company in its memorandum power to pursue a particular object does not give the company an interest.

The applicant's argument on standing runs essentially like this.

1. When scheduled monument consent is sought anybody who wishes to make representations to the Secretary of State can do so and the Secretary of State must consider any such representations once made: see the 1979 Act, Sch 1, para 3(3).

2. Therefore Parliament recognised that everyone has an interest in the preservation of monuments considered by the Secretary of State to be of national importance and everyone has a legitimate expectation to be consulted on such a matter.

3. The Secretary of State considers the Rose Theatre to be a monument of national importance.

4. At the stage when he is considering whether or not to schedule a monument considered by him to be of national importance, the area of discretion left to the Secretary of State is a very small one and therefore it would be artificial to make a distinction so far as standing is concerned between the position at the scheduling stage and the position at the scheduled monument consent stage. (I interpose to point out, and it will be evident, that earlier on in this judgment I rejected this particular submission.)

5. Therefore, the court should recognise that everyone has a sufficient interest to challenge, by way of judicial review, the lawfulness of the Secretary of State's decision in deciding not to schedule.

6. Although as a matter of form the applicant is a company, as a matter of substance the company is merely the corporate expression of the wills and desires of persons of undoubted expertise and distinction in the fields of archaeology, the theatre, literature and other fields and includes local residents, the local member of Parliament and so on. These are not mere busybodies.

7. The very fact that the Secretary of State has answered with care the representations made by those whose will the applicant embodies gives them a sufficient interest for the purpose of this application.

8. There is no evidence of any rival organisation which claims to represent the public in relation to the Rose Theatre and thus if this application is struck down for lack of standing then the legality of the Secretary of State's decision is unlikely to be tested in the courts. It was implicitly but not expressly suggested that the Attorney General is unlikely to act ex officio and unlikely to give his fiat for a relator action, which, however, in the present case has not been sought....

It was, I think, accepted on behalf of the applicant that the company could have no greater claim to standing than the members of the campaign had before the company was made into the campaign's vehicle. In any event I so hold. It would be absurd if two people, neither of whom had standing could, by an appropriately worded memorandum, incorporate themselves into a company which thereby obtained standing.

That being so, I propose first to examine the question of standing, leaving aside the fact of incorporation. I raised with junior counsel, who replied for the applicant (leading counsel being detained elsewhere), whether, if I found that no individual in the campaign has standing, he would submit that the agglomeration of individuals might have a standing which any one individual lacked. He replied that he did not so submit. I can therefore consider the question of standing by considering whether an individual of acknowledged distinction in the field of archaeology, of which the campaign has several amongst its members, has sufficient standing to move for judicial review of a decision not to schedule.

Applying the approach indicated in the propositions enumerated earlier on in this judgment it seems to me that the decision not to schedule is one of those governmental decisions in respect of which the ordinary citizen does not have a sufficient interest to entitle him to obtain leave to move for judicial review. Clearly a person cannot obtain a sufficient interest by writing a letter to the Secretary of State. I approach with reluctance the submission that, because the Secretary of State sent a considered reply, that gives the recipient an interest which he would not have had if no reply had been sent beyond a formal acknowledgment. If the court were to sanction such an argument it might cause the decision-makers to be less helpful to the general public. Further, what about the man who appears in the decision-maker's office, the man who telephones the decision-maker and so on?

None of these points are unanswerable but I hope my reluctance to go down this path is at least understandable. In any event I do not consider that an interested member of the public who has written and received a reply in relation to a decision not to schedule a site as an ancient monument has sufficient interest in that decision to enable him to apply for judicial review.

Finally, I ought to say that I recognise the force of the submission of counsel for the applicant that, since an unlawful decision in relation to scheduling either has been made (if the earlier part of my judgment be wrong) or may well be made in the future, my decision on standing may well leave an unlawful act by a minister unrebuked and indeed unrevealed since there will be those in the future who will not have the opportunity to ventilate, on this hypothesis, their well-founded complaints before the court.

This submission is clearly right. The answer to it is that the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated. Parliament could have given such a wide right of access to the court but it has not done so. The challenger must show that he 'has a sufficient interest in the matter to which the application relates'. The court will look at the matter to which the application relates, in this case the non-scheduling of a monument of national importance, and the statute under which the decision was taken (in this case the 1979 Act) and decide whether that statute gives that individual expressly or impliedly a greater right or expectation than any other citizen of this country to have that decision taken lawfully. We all expect our decision-makers to act lawfully. We are not all given by Parliament the right to apply for judicial review.

Since, in my judgment, no individual has the standing to move for judicial review it follows, from what I ruled earlier, that the company created by those individuals has no standing. In consequence I need not and I do not consider the effect of the interposition of the company in the present case....