23rd February 2021
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‘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
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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.
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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.
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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.)
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But.
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?
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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.
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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.
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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.
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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.
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That’s odd. I always have the impression that the standing rules in England are generally quite relaxed, and that both MPs and members of the public sue over all sorts of things where they would struggle to show standing in my native land (the Netherlands).
As far as I can tell, that goes back to at least Rees-Mogg sr. judicially reviewing the government over its decision to ratify the Maastricht Treaty. But it also includes Joanna Cherry MP as a pursuer in the Scottish version of Miller-II. In neither of those cases would there have been standing under Dutch law (though they’ve relaxed the rules for public interest litigation in recent years), never mind under the ECJ’s Plaumann standard. Under EU law you have to be directly and individually concerned, and under Dutch law the standard is essentially the same unless you’re an NGO.
So I’m all for tight standing rules, but I’m not sure this is anything more than an ad hoc exception to an otherwise very generous regime.
‘Odd’?
“…can sue the tortfeasor (which must be one of the more glorious words in legal vocabulary)”
It’s up there with “contemnor” as a word that should be shouted at someone in court while pointing a finger in their face.
Does this give the Good Law Project a free pass for the future?
If the GLP fulfils the requirements for standing, then it can bing a claim.
Thanks for the good work David. I’d subscribe if I weren’t flat broke but I can and will advertise the blog.
I have no formal legal training but have been pondering exactly this question. I am progressing a complaint through the ICO that arises because I believe my local government have broken GDPR law by collecting sensitive personal association data that they do not need for their legitimate purposes. It may become clear that the situation has arisen because there are profits to be made from keeping sensitive data secure. The ICO’s power is limited to enforcing compliance with GDPR but could not take the council in question to court to address the underlying cause even if it were in the public interest to do so. Your article makes it clear that any potential contractor who was unsuccessful at tender would have the standing to do so in that case :)
I’m tempted to quibble with the ‘separation of powers’ being a ‘fundamental principle’ of the UK constitution – an aspiration or a chronic work-in-progress maybe. Otherwise, thanks for a very clear and compelling argument.
You can quibble all you like: but in the meantime, please posit (a) anything from the executive or judiciary that is the equivalent of an Act of Parliament; (b) anything from the legislature that has the same effect as judicial review; and/or (c) and anything from the legislature or the judiciary that approximates to a scheme of public administration.
The Supreme Court on the prorogation of Parliament…?
Instances of separated powers don’t really constitute fundamental principles, do they? The separation of powers is surely fundamentally about ensuring that no one power can override the others outside the accepted boundaries of the Constitution.
I might as well say show me another democracy with that principle in place where the Executive uses its majority in the legislature to propose an Act to (a) legislate to break the law (b) oust the power of judicial review (c) give itself the power to produce primary legislation and do it all in the one Bill. Precisely the circumstances where one would hope the word “unconstitutional” might take on some force. It didn’t all happen this time, but I don’t think the risk has gone away.
To answer your challenges directly, I defer to wiser and better informed colleagues below while noting that aspects of Crown Prerogative appear to carry the practical if not theoretical sovereignty of Acts of Parliament.
I’ve finished quibbling now as I don’t want to drag us too far from your well-made point and into the morass of our untidy desk of a Constitution 😀
Rushing boldly if not impertinently in, I submit as equivalence—
(a) to Acts of Parliament—
(i) by the executive: prerogative legislation such as the Civil Service (Amendment) Order in Council 1997 https://www.thegazette.co.uk/London/issue/54767/page/5777 and the British Indian Ocean Territory (Constitution) Order 2004 https://en.wikisource.org/wiki/British_Indian_Ocean_Territory_Constitution_Order_2004 (both admittedly peripheral to the lives of most UK citizens)
(ii) by the judiciary: the ineffable but mighty inherent jurisdiction of the High Court (albeit now vested there by section 19(2)(b) of the Senior Courts Act 1981)
(b) to judicial review by the legislature: avoidance-of-doubt enactments deemed always to have had effect, such as section 47 of the Constitutional Reform and Governance Act 2010 https://www.legislation.gov.uk/ukpga/2010/25/section/47
and/or
(c) to a scheme of public administration—
(i) by the legislature: the Social Security Contributions and Benefits Act 1992 https://www.legislation.gov.uk/ukpga/1992/4/contents/enacted
(ii) by the judiciary: the administration of non-contentious probate by HM Courts & Tribunals Service on behalf of the High Court under rules made by the President of the Family Division (albeit subject to the Lord Chancellor’s consent) https://www.legislation.gov.uk/uksi/1987/2024/introduction/made
There is also of course the executive’s membership of the legislature (higher loyalty rewarded with ministerial salaries), its control of the agenda of the elected House, and the occasional (albeit sometimes merely purported) suspension of the legislature. One might add, the executive’s capacity to make treaties binding on its own successors (perhaps in perpetuity) irrespective of changes of legislature.
Continuing my disregard of Poe’s law of indeterminate irony as to DAG’s need for evidence of the UK’s non-separation of powers, but stepping beyond the above framing:
Delegated legislation is still legislation – the executive performance of a legislative function in form and substance – as in the far-from-peripheral Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020.
Moreover, in substance though not in form, the executive is the maker of any Act inspired and drafted by the executive and whipped through the Commons on pain of political excommunication and through the Lords on pain of abolition – which to some extent is most Acts. For example, the United Kingdom Internal Market Act 2020 remained controversial even after the removal of the worst of its “very specific and limited” excesses. Was that legislation truly the will of “the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled”?
As to executive/judicial separation: when a tribunal determines a full-merits appeal of an executive decision, is that in substance a second executive act or the superseding of a de facto judicial act by the executive? Either way, the judiciary, stepping into the shoes of the original decision-maker, performs afresh functions primarily bestowed on the executive.
Mmm. Are there implications for the just-announced challenge to regulations implementing the NI Protocol? The applicants are an ex-MEP, an NI MLA and a member of the House of Lords, and SFAIK none of them engage in GB/NI trade that could be adversely affected by the implementation of the protocol.
Judgment here seems to say that MPs don’t have standing, at least in part, because Good Law Project does. The NI judicial review may test whether politicians have standing when an entity like GLP could seek review but doesn’t.