Acting to stop harm: the FCA and Appointed Representatives
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.
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.
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  1 AC 868, at  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:
The case was distinguished from R v Foreign Secretary, ex parte Rees-Mogg  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.
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”.
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.
Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.
As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.
The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
R (A) v Secretary of State for the Home Department  UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department  UKSC 38
Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’
The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.
In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.
Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU.
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019
According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.
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