Understanding Standing: Post 2 of 3 Art 263(4) TFEU
Has Art 263(4) of the Lisbon Treaty achieved Advocate General Jacobs’ ideal of “the law itself [being] clear, coherent and readily understandable.” (See UPA Opinion at )?
No. As shall be seen in this post, to continue the maritme metaphor in this series, standing is still a rough and unpredictable sea to navigate. Many a case have been scuppered on the reefs of inadmissibility. Quite why this is the case requires us to pick apart the three notions of “implementing measures”, “direct concern” and “regulatory act”.
To some extent, this post will be rather technical. It is aimed for those who are interested in an overview of the operational problems and internal inconsistencies that lie in the third head. Given the limits of space, it is not possible to discuss at great length all of the finer nuances. Those who are interested may find my article in the European Journal of Legal Studies here which puts the flesh on the bones of this necessarily skeletal overview. Continue reading
O (R o.t.a) v. Secretary of State for International Development  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”.
David Mead, in an interesting post – here – about “publicness” in section 6 of the Human Rights Act, looks at a case in which the Olympic Delivery Agency got an injunction against protesters: Olympic Delivery Authority v Persons Unknown . The ODA was a public authority, and the protesters were advancing defences under Articles 10 (freedom of expression) and 11 (freedom of association). Arnold J dismissed the defences on the basis that these rights needed to be balanced against the ODA’s rights to property under A1P1.
As Mead points out, the judge was probably wrong to do so. On the face of it, the ODA had no rights under the Convention, under A1P1 or otherwise, because it was a public authority, and was likely to be acting as such in its protester-clearing role. One can perhaps save the judge’s blushes, by a slightly different route. The right of free speech under Article 10(1) has to be balanced against the protection of the rights of others under Article 10(2), and the latter would cover the ODA’s property rights which it was enforcing.
But the more fundamental question is why public authorities (think local authorities or NHS Trusts) cannot complain that they are HRA victims. After all, they can be unfairly dumped on by central government, can be lied about, can have their finances cut, their functions or their premises taken away (hospital unit closures), can receive an unfair trial, and ultimately lose their “life” in some governmental reorganisation.
Inuit Tapiriit Kanatami et al v. European Parliament, CJEU, 3 October 2013 (read judgment), following Advocate General Kokott, 17 January 2013, read opinion and my post
This important case is all about “standing” before the EU courts, namely the ability to complain about some EU act that affects you. Lack of standing means that even if a measure was wrong and unlawful, you cannot get your foot in the door of the court. Domestic rules are quite relaxed, though proposals by Government to make it more difficult to sue Government and other public authorities are currently being consulted upon. But you cannot say that an EU law is unlawful without going to Luxembourg.
The EU Courts have always been very restrictive about the circumstances in which an individual can do so. A brief blip (C-50/00 UPA) a few years ago by a UK Advocate-General suggesting that things be done differently was squashed by the Court. And since then it has been one-way traffic in the EU Courts, brushing off criticism from NGOs and indeed the Aarhus Convention Compliance Committee in 2011 (see here). For a good summary of the EU case law up to 2011, see the ACCC at -
Recent Treaty amendments in Lisbon have, it will be seen, made little difference to the result.
Aarhus seems to seep into cases everywhere, so I thought it was about time to start from scratch.
1. What is Aarhus? Denmark’s second city. You can write it like Århus, if you want a bit more Jutland cred. Ryanair fly there-ish (45km away).
2. How do you say it? Something like Orr-hoose: Danes, any better transliteration?
3. Why do lawyers go on about it? Because the UN-ECE Aarhus Convention was signed there in 1998. It came into force on 30 October 2001.
4. UN-ECE? United Nations Economic Commission for Europe, a regional organisation made under Article 68 of the UN Charter
5. What is the Convention about? 3 things (or pillars, in treaty-argot).
- Access to environmental information
- public participation in environmental decision-making, and
- access to justice in environmental matters.
6. Is the UK signed up? Yes, founder member. It ratified it in 2005, when the EU did.
Inuit Tapiriit Kanatami et al v. European Parliament opinion of Advocate General Kokott, 17 January 2013, read opinion, on appeal from the General Court read judgment & my post on it
The EU makes a rule. When can the ordinary person affected seek annulment of the rule on the basis that it is unlawful? This is the big issue tussled with in this important and informative Advocate General’s opinion. You might have thought that if the basic ground for challenge was unlawfulness (and that is a high hurdle in itself), then as long as you were in some way affected by the decision, then you should be able to complain about the decision. That is broadly how we do things here in our UK system of judicial review.
But when you get to the EU Courts very different rules of engagement apply – far fewer people can complain about the illegality directly.
Walton v. The Scottish Ministers, Supreme Court, 17 October 2012 read judgment
The outcome of this challenge to a road scheme near Aberdeen turned on abstruse points about environmental assessment – but the speeches from the Justices go right to the heart of two big questions in public law.
1. When can someone challenge an unlawful act – when do they have “standing” to do so?
2. If an unlawfulness is established, when can the courts exercise their discretion not to quash the unlawful act, particularly where the unlawfulness arises under EU law?
In the course of the standing issue Lord Hope talks about ospreys – hence my title, but a bit more context first. And we shall also see the views of the Court that standing and discretion are linked questions.