Will Your Voice Be Heard? – A Re-Examination of Standing in Judicial Review in the Light of Worboys

3 May 2018

The judicial review of the decision by the Parole Board to release John Worboys garnered significant media attention. One of the factors that increased its profile was the involvement of the Mayor of London, who was the first party to bring a claim. At the substantive hearing, the High Court took the relatively unusual step of denying him standing as a claimant. This article looks at some of the questions raised by the Court’s approach to standing in this instance, and at an alternative option available to individuals or organisations looking to have their voice heard in judicial review proceedings.

Background to the Case

John Worboys had been convicted of 19 serious sexual offences in 2009 and given an indeterminate sentence with a minimum term of imprisonment of eight years. Though the criminal trial related to offences against 8 victims, as the investigations and trial had unfolded many more individuals had come forward to say they too had been attacked. On 26 December 2017 the Parole Board determined that John Worboys’ incarceration was no longer necessary. The decision provoked outrage from victims and the press. Judicial review proceedings were brought against the Parole Board and the Ministry of Justice. The first claimant in the proceedings was the Mayor of London, who was then joined by two women who had successfully litigated against John Worboys (these victims had been named as interested parties in the Mayor’s claim). No challenge was made to the standing of either party at the initial permission hearing but the issue of the Mayor’s standing was reserved for consideration at the substantive hearing.

Standing in Judicial Review and the Approach in Worboys

The English Courts’ approach to standing in judicial review challenges has been traditionally thought of as generous to claimants, especially when contrasted with the approaches of European Union courts. Claimants have needed to show “sufficient interest” and that they were not “mere busybodies” for standing to be conferred by the court. In Worboys, the court drew from the existing jurisprudence that though the approach to standing could be “very liberal” the test was “discretionary and not hard edged”.

The Worboys judgment cited Lord Reed JSC in AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868, at [170] who spoke of how the test would differ depending on context.  If it was a matter “where the excess or abuse of power affects the public generally”, a more liberal approach to standing might be required.  The reasoning of parts of the passage would suggest that the impact of the decision under challenge was a decisive factor however Lord Reed concluded, rather opaquely, that what is to be regarded as sufficient interest would depend in particular upon “what will best serve the purposes of judicial review in that context”.

The court in Worboys paid some heed to the impact of the decision when denying the Mayor standing. The Mayor had explained the powers and responsibilities he had relevant to crime and criminal justice in London, and the “grave concern” the decision had caused among Londoners. . The Court found that these functions were“very general in scope”, and did not “relate in any respect, even indirectly, to the workings of the Parole Board or to its decisions in any particular case”. They put a heavier emphasis on the practical considerations of the Mayor being denied standing. When summing up the facts of the case they noted that “[t]he nature of [the victims’] challenge is essentially the same as the Mayor’s.” When turning to the issue of the Mayor’s standing they found that:

  1. There were “obviously better-placed challengers”;
  2. “[T]o deny the Mayor standing would not disable the Court from performing its function to protect the rule of law”; and
  3. “The Mayor cannot be regarded as a proxy for the interests of the victims because these have been fully safeguarded by Ms Kaufmann and those supporting her.” (Despite the victims interests being “fully safeguarded” the detailed submissions from the Mayor’s legal team were “fully taken into account”.)

The case was distinguished from R v Foreign Secretary, ex parte Rees-Mogg [1994] QB 552 where the High Court had accepted “without question” that Lord Rees-Mogg, then a life peer, had standing to seek judicial review of the Foreign Secretary’s decision to ratify the Maastricht treaty. This was on the basis that a denial of standing in to Lord Rees-Mogg would have brought that case to an end.

Though the court’s ruling on the Mayor’s lack of standing was, by its own admission, “largely academic” some of the reasoning is troubling. The court’s finding that it can, when there is a question over standing, assess the claimants and essentially back what it views as the best horse(s) for the race is problematic. There may not be particular issues when standing is decided at the hearing that brings a matter to a close (though a court would have to grapple, as they did in this case, with hearing arguments from someone who is then found to have no formal role in the proceedings). However, it is easy to see problems with the approach where standing is decided early on in multi-stage litigation. It is very difficult to predict from the beginning who might be the better placed challenger at the various stages as a party’s resources, interests, and strategies are liable to change in unforeseeable ways.

The Alternative – The Role of Interveners

There is an alternative open to those who wish to be involved in extant judicial review proceedings but have concerns about whether they would meet the test for standing, or who have been denied standing.  Any person may apply for permission to file evidence or make representations at a judicial review hearing, with permission being granted at the judge’s discretion. Though the role of such an intervener may appear to be that of a party providing input into proceedings, not the impetus behind them, the role can be more dynamic. In deciding whether an intervener must pay costs that resulted from their involvement, the court has to consider whether the intervener has “acted, in substance, as the sole or principal applicant, defendant, appellant or respondent”.

Conclusion

Standing in judicial review will be a straightforward issue for many claimants but those at the blurred edges of the sufficient interest test may find it difficult to predict with any certainty whether standing will be conferred upon them. This is particularly so when litigation is at an early stage and it is unclear whether any other potential claimants will come forward and who those claimants may be. The role of an intervener is an alternative option to consider but this does not provide a basis for launching a judicial review and instead requires an individual to be aware of, and make an application in connection with, existing proceedings.

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