Not in the Public Interest
Stephen Sedley on the purpose of judicial review
In 1916 the secretary of the Anti-German Union, Sir George Makgill, a Scottish baronet of extreme right-wing views, brought judicial review proceedings to remove from the Privy Council two wealthy Jewish philanthropists, Sir Ernest Cassel (who had actually converted to Catholicism) and Sir Edgar Speyer, on the ground that, although both were British subjects, they were not British-born.
A full court of the King’s Bench, presided over by the chief justice, Lord Reading, was assembled to hear the claim. It was opposed on behalf of the Crown by the attorney-general, F.E. Smith. Although the High Court, and subsequently the Court of Appeal, rejected it, the case is of continuing interest for more than one reason. The courts at both levels accepted that the prerogative power of the monarch to appoint whom he chose to be a privy counsellor was subject to judicial review, and that it was arguable – though incorrect – that it did not extend to appointing counsellors who were not British by birth. As a preliminary issue, however, the attorney-general submitted that the claim should fail because Makgill lacked standing to bring it: only the attorney-general himself, as guardian of the public interest, Smith argued, could bring such a question before a court of law.
The chief justice disagreed. Makgill, he said, ‘appears to have brought this matter before the court on purely public grounds without any private interest to serve, and it is to the public advantage that the law should be declared by judicial authority. I think the court ought to incline to the assistance, and not to the hindrance, of the applicant in such a case.’ There was longstanding authority to support this approach to what is nowadays known as public interest litigation. A claimant will ordinarily have standing because he or she has a personal stake in the outcome; but there are cases, of which Makgill’s was one, where an arguable breach of the law by the state itself has no identifiable victim. Here the courts have for centuries been willing on occasion to hear an applicant who has nothing personally to gain. As long ago as 1789 Chief Justice Kenyon said in relation to such a claim: ‘I do not mean to say that a stranger may not in any case prefer this sort of application; but he ought to come to the court with a very fair case in his hands.’ In 1835 the presiding judge of the Court of Exchequer added: ‘It has been the practice, which I hope never will be discontinued, for the officers of the Crown to throw no difficulty in the way of any proceeding for the purpose of bringing matters before a court of justice, where any real point of difficulty that requires judicial decision has occurred.’ This was why in Makgill’s case one of the judges said: ‘The process is enforced for the benefit of the community, and is the only available remedy if the office [of privy counsellor] is either abused or usurped.’
The preparedness of the High Court to consider whether the state has abused its powers at the instance of an applicant who has nothing personally to gain is one of the modern cornerstones of the rule of law. It is not an open door: for every individual or NGO that secures permission to apply for judicial review in the public interest, there are a good many turned away. Some are considered to be busybodies, like the Anglican vicar who wanted to stop the ordination of women in Wales. Others are genuinely disinterested but lack what Lord Kenyon called ‘a very fair case’. But where, as also happens, an NGO or a concerned individual calls attention to what appears to be a real and serious abuse of government power, albeit one that does not directly affect them, the courts may call on the executive to explain itself and may intervene if the explanation does not stand up.
In all such cases the court has to determine whether the particular claimant has what the law calls a ‘sufficient interest’ in the subject matter of the claim. The phrase itself is deliberately elastic, calling on occasion for a complex judgment, in recognition of the fact that the public importance of an issue may sometimes be sufficient to compensate for the absence of a personal motive for litigating it, and that it is for the judges to work out who is entitled to be heard issue by issue.
In September 2013, in the wake of a consultation paper which proposed among other things to choke off judicial review by reducing the availability of legal aid for it, Chris Grayling as secretary of state for justice and lord chancellor (two distinct offices now merged, in Gilbertian mode, in one person) published a further consultation paper dealing specifically with the judicial review process. The paper proposed to restrict the meaning of a sufficient interest to a ‘direct and tangible interest’ in the outcome: in other words, to wipe out two or more centuries, in the course of which the courts have adjusted the gateway of judicial review to meet the needs of the rule of law (which Grayling’s oath of office commits him to respect) by according standing not always to those acting for private advantage but occasionally in the public interest.
The blinkered attitude to public interest litigation was visible in the paper’s treatment of the 1995 Pergau Dam case. The facts of the case were startling. The foreign secretary, Douglas Hurd, was proposing, for overtly political reasons, to go ahead with a subvention of £316 million to Malaysia for a hydroelectric project which the government’s Overseas Development Administration had advised would be uneconomic, an abuse of the overseas aid programme and ‘a very bad buy’. The High Court held that the rule of law, the importance of the issue, the probable absence of challenge from any other source, the nature of the breach of legality and the prominent and responsible character of the World Development Movement combined to give it a sufficient interest. On the substantive issue, the court held that the statutory power to provide assistance for the purpose of promoting development did not include promoting unsound development, which this incontrovertibly was. They struck down the decision. There was no appeal. It later became known that the foreign secretary had not sought the advice of his own lawyers, which would have been that the proposed funding was illegal.
Could it be seriously contended that it would have been better had the WDM not been allowed to bring the issue before a court, leaving more than £300 million of public money to be squandered? It seems it could be. The consultation paper cited the Pergau Dam decision as a prime example of challenges which ought not to happen, especially (I am not making this up) since such challenges are ‘relatively successful compared to other judicial review cases’. The paper displayed no awareness at all that this aspect of the law of standing has a long history and a principled purpose, not to supplant or embarrass ministers, but to ensure, first, that government functions within the law and, second and just as important, that within the law government retains full freedom of action.
Instead Grayling’s paper fudged the two distinct meanings of ‘public interest’. It proclaimed the principle ‘that Parliament and the elected government are best placed to determine what is in the public interest’ with the evident purpose of suggesting that judges have been usurping this function; but the paper failed to cite a single case (and I know of none) in which a court has substituted its view of the public interest for that of a minister. The reason is that public interest litigation does not mean litigation about what is in the public interest: it means litigation brought in the interest of the public as a whole in seeing the law upheld. The fallacy that public law can be limited to the vindication of private rights and interests was exposed in the consultation paper’s own recognition that the Aarhus Convention, to which the UK is a party, requires the preservation of public interest access to the courts on environmental issues; but the paper was blind to the fact that there are numerous other kinds of issue to which precisely the same logic applies.
The history of such litigation includes not only Makgill’s malign effort but the interventions of the Child Poverty Action Group; Greenpeace; the actors and scholars who tried to save the remains of the Globe Theatre from demolition; the GPs who saved a local hospital in Hillingdon from closure; the National Federation of Self-Employed and Small Businesses seeking to enforce the taxation of casual print-workers; and a considerable number of private individuals concerned with the legality of official action or inaction. The power of the courts to intervene where an arguable misuse of power affects the public as a whole is, as Lord Reed said in the Supreme Court recently, an aspect of their function (and, one might add, that of the Lord Chancellor) of protecting the rule of law. Departments of state have on occasion welcomed public interest challenges as a means of clarifying the law. In 1990, for instance, a consortium consisting of the Child Poverty Action Group, two London borough councils and the National Association of Citizens’ Advice Bureaux challenged the way social security legislation was being interpreted and administered by the department and the independent adjudicators. The department did not contest their standing; the ruling helped everyone.
Following a barrage of criticism, including a sharp response from the judiciary, the proposal to restrict standing has now been dropped. Thanks apparently to a sudden conversion, Grayling’s response to the consultation begins: ‘I believe in protecting judicial review as a check on unlawful executive action …’ Whether the abolition of public interest standing was a serious proposal or an example of the distraction technique I wrote about in the LRB of 12 September 2013, we may never know.
One possibility the threatened advance of the constitutional bulldozer threw up was a revival of relator actions: proceedings authorised by the attorney-general in the public interest so as to cure the claimant’s lack of standing. The use of this power has become rare as public interest standing has developed, but it is a judge-made instrument (not a prerogative power) for securing justice. The problem is that the attorney-general, like the justice secretary, is something of a pantomime horse: both custodian of the public interest in the observance of the law (and in that regard the government’s legal adviser) and a government minister with political obligations of collective responsibility. In 2007 the Commons’ Constitutional Affairs Committee, in a well-reasoned report, concluded that the attorney’s dual role was constitutionally unsustainable: ‘Real and perceived political independence has to be combined with a role of an intrinsically party political nature in one office holder.’ The committee advised that the attorney-general’s functions should be split between a non-political legal adviser and a government minister. Nothing has been done to act on the advice.
In 1977 John Gouriet and his Freedom Association tried to obtain an injunction to stop the Union of Post Office Workers boycotting mail destined for South Africa. Gouriet’s lawyers recognised that he had no personal standing and therefore needed the attorney-general’s authority to sue. The attorney-general, Sam Silkin, refused his consent and turned up in person to submit that his decision was final and beyond judicial review. He found himself before an incandescent Court of Appeal which included Lord Denning and Lord Justice Lawton. In a judgment memorable not only for its rhetoric but for the spoof law report it generated, Denning held that if the attorney-general improperly refused his consent the court could proceed without it.[*]
Denning’s premise, at least, is not fanciful. A refusal on the ground that it is not in the public interest for well-founded proceedings to be brought is entirely possible – indeed it was Silkin’s ground for refusing to authorise Gouriet to sue in his name. It is here, however, that the two meanings of public interest collide. For the intending claimant the public interest lies in maintaining the rule of law; for the attorney-general it will lie in an amalgam of legal and political considerations dominated by the interests of the government of which he or she is a member. The consequence is that the attorney-general, if asked to authorise a claim such as the Pergau Dam claim, may recognise, as the government’s legal adviser, that the claim is entirely sound but decide, as a member of the government, that it is not in the public interest for it to be litigated in open court.
This is among the reasons why the courts have developed their own principles of standing, and why Parliament, recognising that it is for the courts to decide whom they will hear, has not – or not so far – attempted to restrict or define what amounts to a sufficient interest for a judicial review claim. Grayling’s proposal was thus rather more than an attempt to adjust court procedures: it was part of a renewed assault on the constitutional separation of powers.
Denning’s conclusion that if necessary the courts could proceed without the attorney’s consent is, however, problematical. A legislative roadblock on public interest claims may mean that the court cannot simply decide to entertain such proceedings in the absence of the attorney-general’s fiat. But it does not mean that the court cannot require the attorney-general to reach his decision about authorising the proceedings without regard to political considerations and with exclusive regard to the maintenance of the rule of law. Such a course would at least have the virtue of disaggregating his inconsistent roles; it would also give the concept of public interest a single and intelligible meaning dovetailing with the rule of law.
But reliance on the attorney-general’s support would not work in the most critical class of case, where the decision under challenge is one for which the attorney is responsible. In 2006 the director of the Serious Fraud Office decided that it was in the public interest to discontinue the SFO’s investigation into possible corruption affecting British Aerospace’s arms dealings with Saudi Arabia, because Saudi Arabia had threatened to withhold its co-operation in combating terrorism within the UK if the investigation was pursued. The director had acted throughout in consultation with the attorney-general, to whom he was answerable, and the attorney-general in turn had consulted his ministerial colleagues. A group of NGOs, led by Corner House Research, challenged the director’s decision as an unlawful abdication of his duty to investigate serious crime, and in the High Court, before a panel of two lord justices of appeal, they succeeded. The House of Lords, not long before its transmutation into the Supreme Court, reversed the decision, holding that the choice made by the director of the SFO, with the attorney-general’s authority, was a legitimate choice between two competing public interests: the prosecution of crime and the safety of British citizens. But the lawsuit itself crystallised two things. One was the complex of factors going to make up a government decision about where the public interest in relation to the investigation lay. The other was that, unless disinterested groups like Corner House Research were able to bring as serious an issue as this before the courts, the public interest in the maintenance of the rule of law would be rendered impotent – for who, other than British Aerospace and the Saudi government, would have had a ‘direct and tangible interest’ in the issue?
[*] The case (the work of Marcel Berlins) was Grenouille v. National Union of Seamen, in which Denning grants a frog an injunction to stop trade-union militants picketing its pond.