Comparing the rules of standing in regards to judicial review in scotland and US
– You need to be careful about a few things. On the standing issue, you?ll need to learn more about the federal rules of standing in the US and the comparable rules in Scotland. I think you should be able to pick the US rules relatively easily on the internet, but you should check my assumption. Besides a comparison of the two standing regimes, it might be good to think about how the standing rules in each country help or hinder constitutional litigation and the protection of individual rights.
– Comparative essay
-First formulate a nice research question
– in the essay elaborate on the rules in both countries and how they help/hinder protection
– use case law as well as books
“The Supreme Court in AXA correctly reformed the rules of standing to bring an action in judicial review in Scotland.”
In the United Kingdom, in order to bring an action of judicial review, a person (natural or legal) must have locus standi in order to bring the matter to court. The case of AXA General Insurance Limited, Petitioners reformed the rules in bringing an action of judicial review to a public body in Scotland to a large extent. The law relating to this prior to AXA was that a relevant individual had to meet a strictertest of having‘title and interest’ before an action could be raised. After AXA this was scrapped, and the difficulty of bringing judicial review actions was lowered when the UK Supreme Court introduced ‘standing’ to be used when assessing whetheran individual could petition for judicial review, closer to the English position of “sufficient interest”, an easier test to overcome.
The Pre-AXA position of title and interest was a two-pronged, difficult test to overcome. ‘Title’ to sue is the relevant legal grounds on which a person has authority to sue, either having been directly affected by the actions of the offending body, or as prescribed by the relevant statute. Lord Dunedin defines title in the case of D & J Nicol v Dundee Harbour Trustees as “a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies.”In other words, title to sue simply means the legal right to sue. However the issue is not always so clear, and was the main obstacle for many petitioners seeking judicial review.
This is clearly illustrated in the case of Rape Crisis Centre v Secretary of State for the Home Department , where the petitioners sought to challenge a decision to allow Mike Tyson to enter the country, despite his prior convictions for the rape of an 18-year old woman a few years prior. It was held by the Court of Session in that case that the Home Secretary’s ruling was a discretionary one taken under the Immigration Rules which prescribed no rights to anyone else other than the Home Secretary or the applicant themselves and therefore the Centre lacked the necessary title to challenge the decision taken. In Scottish Old People’s Welfare Council, Petitioners the Council challenged the legality of a circular being issued by the Secretary of State for Social Services, in relation to extra payment to those on state pensions in the event of severe weather. The defender argued however that the petitioners had no title or interest to sue, due to the provisions of the circular not affecting the council itself. The Council got round this however when the court allowed the Council to sue on the basis that the Council’s members would have title to sue as individuals, as they were the ones directly affected by what the circular was saying. Through its members, the Council was allowed to sue on the basis that simply banding together to form an organisation did not relieve any of the members of their individual rights to petition. It is through its members that the Council was allowed to sue. Again, this provides for an extensive test on who exactly it is that has title to sue as you must show that you have been directly affected and that you have a directly conferred legal right to sue, a difficult standard to prove.
Moving on to the second requirement, interest to sue, which at first seems a relatively straightforward test to complete;it cannot be based on a mere academic or theoretical interest in the issue, there has to be a real issue at stake. Looking back to the Rape Crisis Centre case it was found that as the centre dealt with helping victims of rape to recover and get the help they needed, the Centre did actually have the sufficient interest required to raise an action for judicial review. Meaning had they had title, they could have logged a potentially successful application for judicial review. However, interest to sue is not a simple test of whether the matter at hand is capable of affecting the petitioner, but rather a much more rigorous test of whether the issue is “material or sufficient” enough to constitute an interest affecting the petitioner so strongly enough that their only solution is to seek judicial review to prevent the measure from taking place, or to seek compensation. Referring back to the case of Old People’s Welfare Council , it was held that they did not have the sufficient interest to challenge the actions as they were not seeking benefit for themselves, but rather to secure it in all cases to all people they thought should deserve it. Thus judicial review was prevented on these grounds.
It is clear from the case law relating to these matters that title and interest is a hard test to satisfy, as both tests had to be metbefore an action for judicial review could be lodged. Just one would not satisfy as we have already seen from the case law: in Old People’s Welfare Council the Council had sufficient title but not interest; and the reverse was true inRape Crisis Centre. The combination of requiring legal authorityfor title and the high threshold required of the interest test meant that gaining title and interest was difficult to achieve, and likelypart of the reasoning the Supreme Court sought to modify them in AXA.
In the years prior to AXA, there were a number of calls for the position of title and interest to be reformed, particularly in the review of the procedure by Lord Gill, calling for the adoption of a “sufficient standing” rule. It was felt that the requirement had led to too strong a threshold for many potential petitioners and as such had led to many potential injustices for perspective claimants. It was on these basis that the UK Supreme Court sought to review and modify the rules in order to introduce the concept of ‘standing’.
In AXA the “the third to tenth respondents” were those who had been directly affected by the pleural plaques they were exposed to. At the Inner House, these respondents were held not to hold the sufficient title or interest to warrant making an action of judicial review. This was felt, by the Supreme Court, as unreasonable in the circumstances. In the view of Lord Hope, the requirement of title and interest was outdated and reform was necessary, with the word ‘standing’ providing a much better approach as to what was required in order that a person could bring forward an action for judicial review in the public sphere (it should be noted that the concept of title and interest remains when identifying criteria for bringing acts of judicial review against private bodies). He did not go on to give an explicit definition of the word standing, however did acknowledge that being “directly affected” could be enough to suffice bringing forward an action for judicial review, drawing a further distinction between a “mere busybody” and someone “having a reasonable concern in the matter to which the application related” . We see here that Lord Hope acknowledges the prior rigorous, difficult and often unfair task of establishing title and interest, and with this reformed idea of standing gives many who had been unfairly denied the opportunity of petitioning in an action of judicial review the opportunity to do so. As the third to tenth respondents were denied the right to petition in the Inner House under ‘title and interest’, but were entitled to do so under ‘standing’ it can also be assumed that the high threshold this test imposed was reduced also, once again allowing those previously prevented from doing so to petition according to the new standards. This also harmonised (somewhat) the laws in the UK as a whole as the law in England for challenging public acts is that of having a “sufficient interest” in the outcome of a public act. This law is even broader than the current Scottish position, so it could be argued that the Supreme Court was taking steps to unify the law across the UK in relation to judicial review.
To conclude, regardless of the motivation behind the reform in the law, it is clear that AXA’s effect on judicial review was to scrap the often unfair and unattainable requirement of ‘title and interest’ in favour of the fairer less restrictive test of ‘standing’. This was a necessary decision due to the increasingly high requirements being put on the old test before proceedings could be challenged. AXA’s effect was to make the law much more balanced, and less favourable toward the public institution effecting the problem acts.