23rd February 2021
‘Now a cowboy needs a hat, needs a hat, needs a hat
‘And a pair of fancy boots, fancy boots, fancy boots’
– TikTok meme, circa 2020-21
Any legal case at its most basic needs two things.
First: it needs a question that a court can determine – a question of law or evidence that is capable of being determined one way or another by legal proceedings.
Say whether there had been a breach of a contract, or whether a theft had taken place, or whether a government department had acted within its legal duties.
And second: a legal case needs somebody to bring it to the court for that determination.
Sometimes – in criminal cases – that somebody can elsewhere in Europe be a magistrate themselves, or a prosecutor appointed by the state.
But in civil cases – where a party sues another party – that somebody has to be somebody willing and able to bring the case.
And – in England and Wales at least – whether a person can bring a case is described as whether that person has ‘standing’ to bring a claim.
Usually in civil cases it is obvious who can and should bring a claim.
The person who can bring a claim is the person who has been wronged.
A party to a contract can sue the other party to the contract if the latter is in breach, or a person who is victim of a tort can sue the tortfeasor (which must be one of the more glorious words in legal vocabulary), and so on.
In what is called ‘private law’ there is usually no problem identifying who can – and who cannot – bring a claim before a court.
But there is a gap – and that is in ‘public law’ cases.
(Public law is the area of law which deals with the special legal rules which apply to public bodies and others exercising similar powers.)
Who should be able to bring a claim that a public body is acting unlawfully?
The starting point is that a person directly and adversely affected should be able to bring the case before a court so that the lawfulness of what a public body has done or not done can be determined.
And so, for example, a person facing deportation or a person whose property is about to be blighted, and so on, can often bring a judicial review in respect of a relevant decision by a public body.
(A judicial review is when, literally, a thing is reviewed judicially to ascertain whether it within the powers of the relevant body.)
And it is a huge but.
Not all unlawfulness by public bodies will be neatly accompanied by a person being directly and adversely affected.
Take, for example, the topical example of a contract awarded by the government to a supplier where there has been neither an advertisement nor a competitive procurement exercise.
In these circumstances there is not even a disappointed bidder who would have standing to bring a claim.
What should the law – more specifically, what should should a court – do?
One answer, which appeals to those who delight in unchecked executive power, is that nobody should have standing.
That a public body should be allowed to act unlawfully generally unless a person can be found who has been directly and adversely affected.
But this cannot be in the public interest.
And so the courts – sensibly – have expanded the scope of who can bring public law claims in the public interest.
Accordingly, organisations with a sincere interest in an area of public policy, but with no direct financial interest in the outcome of a challenge, are often granted standing to bring a claim.
But how wide should this scope be?
And this is the question asked – and answered – in the procurement transparency case decided last week.
There were four claimants in that case:
(It is a pity they could not have added more parties with ever-shorter names so we could have had a pleasing upturned triangle of names.)
You will see that the second, third and fourth claimants are members of parliament.
Surely if anyone can claim to be able to be guardians of the public interest it would be elected representatives of the democratic chamber?
But the court held otherwise: that the three members of parliament did not have standing to bring this claim.
The court was right to do so.
The reason the court was right to do so goes to a fundamental principle in the constitution of the United Kingdom: the separation of powers.
This familiar phrase means, in practice, that different elements of the state have different remits, and that they should act as a check and balance on each other.
A person may well be elected to parliament – but before the courts they are no different to any other person.
An elected representative has various privileges and rights – some of which can carry considerable weight and power.
For example, members of parliament have absolute privileges in what they say and do in parliament and can hold ministers to account.
But they do not also get any elevated right to bring legal proceedings against those same ministers.
(A member of parliament may have standing on other grounds, but not just because of the simple fact of their office.)
If members of parliament were accorded a special status to bring a public law claim, this would mean that there would be a significant overlap between parliament and the courts.
There would also be a tendency for the work of the courts to be further politicised and for proceedings to become openly partisan devices.
Of course: to a small extent there is already an overlap, and the courts will never be free of the general charge of politicisation.
(And the courts already recognise the attorney-general – an office held by a politician – as having a special status as custodian of the public interest in certain proceedings, though attorneys-general will not bring proceedings against their own government.)
As the judge correctly observed in the judgment last week:
“No doubt, the addition of politicians as parties may raise the profile of the litigation.
‘It may make it easier to raise funds.
‘But these are not proper reasons for adding parties.
‘In a case where there is already a claimant with standing, the addition of politicians as claimants may leave the public with the impression that the proceedings are an attempt to advance a political cause, when in fact their sole legitimate function is to determine an arguable allegation of unlawful conduct.’
One hopes that the fashion of adding (no doubt well-meaning) politicians as, in effect, ornamental claimants in public law claims will now come to an end.
If a non-partisan organisation has standing to bring a claim in the public interest then no politician is needed, and if there is no such organisation than a partisan politician is not a good substitute.
In the case last week, a large portion of the judgment was devoted to the issue of standing.
One can understand why the government wanted to object to the notion that anyone has standing to go to court to in respect of unlawful conduct by the government.
And more widely, the government and its political and media supporters are constantly seeking to narrow the practical availability of judicial review.
That organisations (such as the first claimant in last week’s case) are accorded standing in public interest cases is a boon for accountability and transparency.
But ‘add me as well’ lists of ornamental claimants savour of gesturing and gimmickry.
A pleading is not – and should not be – a round-robin.
If members of parliament want to add their names to something then parliamentary motions and other Westminster devices are available.
If you value this free-to-read explainer, and the independent legal and policy commentary this blog provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.
Each post takes time, effort, and opportunity cost.
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.