Government still on the standing warpath

20 July 2014 by David Hart KC

O (R o.t.a) v. Secretary of State for International Development [2014] EWHC 2371 (QB) 14 July 2014  read judgment

One proposal of the Lord Chancellor on reforming judicial review last year was the narrowing of the tests for standing, namely the ability to come to court and complain about some public law unlawfulness: see, e.g. here. The idea of statutory reform of standing was later shelved, but the current case is an interesting example of the Government probing the boundaries of the tests laid down by the courts.

The underlying dispute concerns the funding of international aid to Ethiopia by DFID. Mr O is an Ethiopian citizen who says he was the victim of human rights abuses in the course of a programme to re-settle villagers in new and larger communes – this programme (the Commune Development Programme or CDP) is said to involve forced internal relocation. As a result, O fled to Kenya, leaving his family behind. There is evidence of widespread human rights abuses perpetrated in this process of “villagisation”.

O’s case is that UK aid helps to fund villagisation. He says that the UK government has failed properly to apply its own policies on seeking to link aid and respect for human rights, by not having a sufficient process for assessing Ethiopia’s compliance and by not making its assessment transparent.

Warby J decided that there was an arguable case on the first issue, but not on the second. So the judicial review will go to a full hearing.

But the point of particular interest is that DFID decided to instruct the most senior barrister acting for the Government to oppose the granting of permission for this hearing. Why? Well, I suppose the idea of a foreign resident suing the UK Government is not the flavour of the month in Whitehall at the moment: see this week’s posts here and here. But I think it is more likely that Government thought it would have a go at pushing back on the standing rules.

Standing

The underlying test for allowing someone to bring a judicial review case is whether they have a “sufficient interest” in the case.  This involves excluding claimant who are  “mere busybodies” but it is otherwise a liberal and inclusive test. Critically, and when the circumstances justify it, the court has been ready to recognise standing on the part of persons and NGOs who cannot demonstrate that they are directly and individually affected by an administrative measure, such as NGOs.

The current law is laid down by two recent Scottish cases in the Supreme Court  AXA [2011] UKSC 46, (see my post here)  and Walton [2012] UKSC 44 (see my post here). It was common ground that these Scottish cases gave authoritative guidance on English law.  AXA stressed the fact that judicial review was not simply about redressing individual grievances, and to rule otherwise ignored its constitutional function of maintaining the rule of law. And as Lord Reed pointed out in Walton at [170] whilst not every member of the public can complain of every potential breach of duty by a public body, there may be cases in which

any individual, simply as a citizen, will have sufficient interest to bring a public authority’s violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public. The rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no-one was able to bring proceedings to challenge it.

The Government sought to argue a slightly more restricted line based upon other case law, from lower courts (see [20]); O had to show either (1) that he had himself been “affected in some identifiable way” by the decisions under challenge, or (2) that the claim involved issues of real and significant public interest which would not otherwise be raised, such that adherence to the rule of law required that the challenge be allowed to proceed.

Hence it argued that O could not satisfy (1) because there was an inadequate foundation for a link between O’s experiences and DFID’s decision-making. As for (2), there were plenty of other mechanisms by which DFID could be held to be accountable  other than by judicial review.

Warby J was unpersuaded by the Government’s attempts to gloss AXA and Walton. Whilst the policies under challenge post-dated O’s own experiences, the judge took a broader view. O was entitled to say that he remains affected, as someone who remains ousted from his ancestral land and a refugee from his home country. Further, he can say that he is a family member with relatives from whom he has been and remains separated as a result of the way the CDP has been implemented, with those relatives remaining somewhere in Ethiopia. That was not enough to by itself to amount to a sufficient interest. O, in the judge’s view had also shown a sufficient likely linkage between the provision of UK aid and the CDP, not only in relation to the past but also in relation to the present and future.  The CDP may have been at least indirectly funded via UK contributions.

Hence, it was reasonable for O to contend that DFID’s approach to the assessment of Ethiopia’s human rights record, and hence to the disbursement of aid, may have had a causal impact on the implementation of the CDP in the past, and that the same is likely to be true as regards current and future disbursements.

So

The impact, or prospective impact on the Claimant and his family could be described as indirect but it is not remote. In those circumstances it is not fanciful but fair to say that the Claimant is affected by or has a reasonable concern in the Defendant’s present and future policy and practice with regard to the assessment of Ethiopia’s human rights record. That, in my judgment is enough to satisfy the requirement of a sufficient interest.

Conclusion

It is a tad ironic that this unsuccessful attempt to batten down the hatches on standing should come in an overseas aid case. Another one, the World Development Movement case (funding for a Malaysian dam), 20 years ago, is now seen as a turning point in the courts’ current relaxed approach to standing. But I am confident that, with the current scepticism in Government about judicial review, we are going to see repeated attempts to tighten up standing rules, with, in due course, such cases reaching the higher courts. That said, one might have thought that the recent AXA and Walton cases would make significant shifts in the approach unlikely.

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