Public Law - Problem Question - Judicial Review

However, the issue has recently been resolved by Parliament which overruled the decision in YL by enacting the Health and Social Care Act 2008. Section145 of this Act provides for the application of s.6(3)(b) HRA to include contracted out care homes which perform public functions and thus takes a wide approach in line with the earlier case Aston Cantlow.

One should briefly note here that the restrictive approach in previous cases had received an enormous amount of academic criticism and it was also criticized by the Joint Committee on Human Rights. Paul Craig's response, which can be referred to as the ‘contracting out’  argument, is that a function, if public in nature when performed by a core public authority, “should equally be so [under s.6(3)(b)] when contracted out”  and performed by a private provider on the local authority's behalf.

It is submitted that following Weaver and the 2008 legislation, it is clear that Hometrust will be taken as performing a public function. The fact that the council’s duty to rehouse has been contracted out to be performed by Hometrust will not be an obstacle. The decisive factor here will be that Hometrust has been set up by the council specifically for this purpose and because Hometrust is performing the same tasks as the council as a ‘core authority’ would have performed itself had there not been any contracting out.

(ii)

Bill and Sachin as individuals

The contentious issue regarding the permission stage in this scenario is locus standi. The test in relation to standing is the same regardless which remedy is sought and by virtue of section 31(3) of the Supreme Court Act, an applicant must demonstrate a “sufficient interest in the matter to which the application relates”.

The main problem with establishing standing is that the statutory provision has left this issue deliberately broad, leaving it to the common law. However, the courts’ interpretation of standing has also been incoherent as judges have used various approaches and cases such as Rose Theatre and Greepeace are difficult to reconcile. However, since the House of Lords decision in Fleet Street Casuals, the courts seem to favour a large amount of judicial discretion and this was a landmark in widening the approach to standing, resulting in a shift from what Harlow and Rawlings call ‘drainpipe’ model of judicial review to a ‘funnel model’. 

It is suggested that Bill and Sachin, as amateur archaeologists, have a ‘sufficient interest’ in the decision not to list the site. While their claim would be stronger if their primary job was being an archaeologist, it still seems likely that they would be given standing. This is because cases such as Edwards suggest that, in what are regarded as deserving cases, the ‘sufficient interest’ test is wide enough to allow nominal claimants to bring judicial review proceedings. This would also fall in line with ex parte Lord Rees-Moog, where the court recognised that a public-spirited citizen without any direct legal interest in the outcome of the case, unlike a ‘meddlesome busybody’, may be allowed to seek judicial review in cases which present a serious issue of public importance.

Legere points out that the ‘sufficient interest’ test is a “relatively low hurdle” for potential claimants to overcome, and Grekos points out that the general approach of the Administrative Court is a liberal one.  Consequently, it is submitted that in this scenario, the parties have standing.

Roman Antiquities Foundation (RAF)

An action may be taken by a group that claims to represent the public interest. In ‘pressure group’ cases several factors will have to be taken into account in determining locus standi. Firstly, it is generally held that a court will require a substantial local connection of some kind. The RAF, prima facie, seems to lack this geographical link but it is not known whether or not some of its members live close to the site. Further, while in Greenpeace importance was placed on a geographical link, it is suggested that this is not strictly needed as indicated in both World Development Movement and People Before Profit, where it was stated that “[e]ach of us may have a legitimate bona fide interest in places far removed from where we live”. 

                Secondly, Rose Theatre suggests that long-established and prestigious groups will be much more likely to be granted standing, a point also emphasized in Greenpeace where Otton J stated that he regards “the applicant as eminently respectable and responsible,” and that the court had a real interest in having the organisation’s expert knowledge in the case. A similar emphasis on expertise was apparent in Friends of the Earth, in which the organization was described as “a company of high repute”. The fact that RAF has just been established for this issue as opposed to being a well-known and prestigious organization will thus not work in their favour. However, the pressure group has been formed solely because of this matter and the question is then whether RAF is merely a ‘meddlesome busybody’ as described by Lord Donaldson in Argyll Group.

                        A further point which potentially works against RAF is that Schiemann J in Rose Theatre considered that the mere gathering together of people with a common interest did not, in itself, achieve standing. However, if Bill and Sachin as individuals have standing that this should not be an obstacle. Next, the courts have emphasized, particularly in Fleetstreet Casuals, that one has to look at the merits of the case. Taking into account that this is a case involving an important public matter, the courts are likely to use a wide interpretation on standing. 

                        Essentially, the answer as to whether RAF has standing or not will depend on whether the courts opt for an ‘open’ approach to standing, as in Greenpeace or a ‘closed’ approach, in line with the Rose Theatre case. It is suggested that it is more likely that the courts follow Greenpeace as the case is more recent and because the decision in Rose Theatre has been heavily criticized as being unduly restrictive. Furthermore, Lord Diplock argued that a pressure group should not be “prevented by outdated technical rules of locus standi form bringing the manner to the attention of the court.” Thus, to conclude, it is submitted that on balance it would appear that RAF will be granted locus standi. This is assuming that all other elements at the permission stage, such as time limits, are fulfilled.

Bibliography

Craig, Paul. 2008. Administrative Law. 6th edition. London: Sweet & Maxwell.

Craig, Paul. ‘Contracting out, the Human Rights Act and the scope of judicial review’. Law Quarterly Review, 2002, 188 (Oct), 551-568.

Cane, Peter. ‘Statutes, standing and representation’. Public Law, 1990, Aut, 307-312.

Donnelly, Catherine. ‘Leonard Cheshire Again and Beyond: Private Contractors, Contract and Section 6(3)(b) of the Human Rights Act’. Public Law, 2005, 785-806.

Gledhill, Kris. ‘Standing, Capacity & Unincorporated Associations’. Judicial Review, 1996, 1(2), 67-70.

Grekos, Martha. ‘Standing and Substitution of Claimants in Environmental Cases’. Judicial Review, 2003, 8(3), 174-177.

Harlow, Carol. ‘Public Law and Popular Justice’. Modern Law Review, 2002, 65(1), 1-18.  

Harlow, Carol and Rawlings, Richard. 2009. Law and Administration. 3rd edition. Cambridge: Cambridge University Press.

Hilson, Chris and Cram, Ian. ‘Judicial Review and environmental law - is there a coherent view of standing?’ Legal Studies, 1996, 16(1), 1-26.

Legere, Edite. ‘Locus Standi and the Public Interest: A Hotchpotch of Legal Principles’. Judicial Review, 2005, 10(2), 128-134.

Leyland, Peter and Anthony, Gordon. 2009. Textbook on Administrative Law. 6th edition. Oxford: Oxford University Press.

Loveland, Ian, ‘The newest latest last word on the relevance of ECHR Article 8 to possession proceedings’. Journal of Planning & Environmental Law, 2010, 4, 415-430.  

Miles, J. ‘Standing in a Multi-Layered Constitution’, in Bamforth, Nicholas and Leyland, Peter. 2003. Public Law in a Multi-Layered Constitution. Oxford: Hart Publishing.

Oliver, Dawn. ‘Functions of a Public Nature under the Human Rights Act’. Public Law, 329-351.

Palmer, Stephanie. ‘Public, Private and the Human Rights Act 1998: An Ideological Divide’. Cambridge Law Journal, 66(3), November 2007, 559-573.

Williams, Alexander. ‘A fresh perspective on hybrid public authorities under the Human Rights Act 1998: private contractors, rights-stripping and “chameleonic” horizontal effect’. Public Law, 2011, Jan, 139-163.  

Table of Cases:

Aston Carntolow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37

Poplar Housing Association Ltd v Donoghue [2001] 3 WLR 183

R (Edwards) v Environment Agency [2004] 3 All ER 21

R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936

R (Weaver) v London and Quadrant Housing Trust [2008] EWHC 1377

R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 2 All ER 853

R v Hammersmith and Fulham London Borough Council, ex p People Before Profit Ltd (1982) 80 LGR 322

R v Inland Revenue Commissioners, ex p National Federation of Self Employed and Small Businesses Ltd [1982] AC 617

R v Inspectorate of Pollution, ex p Greenpeace Ltd (No 2) [1994] 2 C.M.L.R. 548

R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators Association [1972] 2 QB 299

R v Monopolies and Mergers Commission, ex parte Argyll Group plc [1986] 1 WLR 763

R v Panel of Take-overs & Mergers, ex p Datafin [1987] 1 All ER 564

R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1

R v Secretary of State for the Environment, ex p Friends of the Earth Ltd  

R v Secretary of State for the Environment, ex p Rose Theatre Trust Co [1990] 1 QB 504

R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg [1994] QB 552

R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386

R v Somerset County Council, ex p Dixon [1998] Env. L.R. 111

YL v Birmingham City Council [2007] UKHL 27

Table of Statutes/Secondary Legislation:

Civil Procedure Rules 1998

Health and Social Care Act 2008

Human Rights Act 1998

Supreme Court Act 1981

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