An approach quite opposite the individualist stance is close to an acceptance of Miles' so-called "communitarianism. " It allows the rights of the many to outweigh the rights of the individual so that the affected individual does not have the exclusive decision whether proceedings should be brought. The HL eschewed the traditional distinction between the different remedies available and the type of standing necessary and took as its touchstone the more liberal views for prerogative relief to which the standing for the injunction and declaration were then assimilated.
Their Lordships held that the courts should not take an unduly restrictive approach to questions of standing and that locus standi could not be considered in isolation from the legal and factual circumstances of the application. The broad notion of standing was confirmed in the subsequent decisions of R v HM Treasury, ex p Smedley and R v Foreign Secretary, ex p Rees-Mogg, where individuals were seen as having sufficient standing to question administrative activity.
In these cases, the individual could not be said to have suffered any damage over and above any section of the public at large by expenditure or the constitutional effect of ratifying the Maastricht treaty. Thus, any stand must have been made solely on a public-spirited concern for the public at large – a communitarian application of standing which is favourable in a diverse society. The courts have also accepted that a group representing an individual or a group of individuals has standing. The most obvious example of this is the case of R v Inspector of Pollution, ex p Greenpeace Ltd.
The environmental group challenged the decision of BNFL to discharge radioactive waste in a different manner than before, as the level of radiation surrounding the Sellafield plant in Cumbria was causing alarm. Otton J held that Greenpeace had standing to challenge the decision on account of the fact that the group was an entirely responsible and respected body with a genuine interest in having the issues raised, especially as it had 2500 supporters in the vicinity, who may not have had any other means to bring the matter to court if the applicant was denied locus standi.
As a result the group clearly had a "sufficient interest in the matter" to be granted standing. Greenpeace's numerous supporters suggested the possibility of the representation of the identifiable individuals being made on their behalf, and as such was not far removed from the involvement of the Attorney General himself. This case contrasts with the Rose Theatre Trust case where standing was rejected for a pressure group, which hoped to preserve the remains of a ruined theatre.
The reason for the decision was apparently that the group did not have any individuals whose interests would be harmed any more than loss of a fascinating artefact, furthermore the fact that the trust was set-up for the sole purpose of protecting the theatre lent it no credibility in terms of pedigree or work for the public at large. The distinction appears a little artificial as the amount of motivation necessary to establish a trust to protect a site demonstrates that those involved did have a particular interest in the issue.
It is possible that, as Cane has stated, that the decision was driven by policy considerations by Schieman J, for such issues as the desirability of allowing the city to thrive which may be hindered if developments are stopped on a regular basis if some kind of interest can be unearthed. This would suggest that such decisions are based on the discretion of the judiciary.
Whether such people are best-places to weigh the pros and cons of such decisions is debatable, especially in a pluralist society where there may be so many conflicting opinions as to what action would be the correct course. Despite the EOC case appearing to uphold the reliance on specific expertise, the CA seemed to disdain such a test. (R v Foreign Secretary, ex p World Development Movement) The applicants were held to have locus standi because of their expertise and interest in promoting and protecting aid to underdeveloped countries.
Furthermore in R v Somerset ex p Dixon the allocation of standing based on a "sufficient interest" on the part of the applicant may not need to be proven, rather that the assumption that the applicant is interested would have to be disproved. This is wholly consistent with the Bowman committee's proposal that there should be a presumption in favour of access, although this did not become an entry in the Civil Procedure (Amendment No. 4) Rules, (SI 2000 No. 2092) which Conford and Sunkin believed to be a missed opportunity.
The use of such a presumption may be inferred into the recent provision, or it may be ignored as it has been disregarded in an apparently deliberate manner. There are still strong indications that the individualist approach is prevalent in the English legal system. Even in ex p Dixon Sedley J confirmed the need for the applicant to be able to show a greater interest in the breach than the rest of the public to prohibit the intrusion if the busybody into the courts. Yet, this would conflict with ex p World Development Movement.
If there is jurisprudential, uncertainty as to the rules of standing it is questionable as to whether the rules of standing can be said to be in step with today's society, any rules, which are so reliant on discretion, cannot be said to be particularly valuable. Further confusion arose with the HRA 1998 with the test for standing under section 7 of the Act providing that only those classified as "victims" under Article 34 of the ECHR may make such claims in a national court. Subsection 7(3) specifically provides that the applicant will only have "sufficient interest" if he is a victim of that act.
The English court's current interpretation of sufficiency of interest is far broader than that of the 1998 Act, encompassing victims which do not satisfy the victim test. According to Miles, whilst "the English courts have identified several factors regarded as relevant to standing" and emphasised the importance of "vindicating the rule of law", there has been no articulation of a coherent "theory of standing to guide their application of the sufficient interest test, or to analyse precisely what the rule of law demands".
Furthermore Lord Lester has expressed concern that different standing tests may apply depending on whether the argument is based on ordinary common law principles; common law principles matching or embodying common law rights; directly effective EC law; Convention rights; or a combination of one of these four. The public interest arguments have received little support from the European Court, as general rule individuals cannot bring actions in the public interest based on abstract arguments that legislation or public practice generally tend to violate particular rights, this is consistent with the position in domestic law.
However groups have no standing in representation in public interest actions which, is treated a little more leniently, if ambiguously, by the English judiciary. What is certain, as with England, that if a group can show that it is acting on the specific instructions of identified victims, then those individuals, if they have victim status, will be regarded as the true applicants on whose behalf the whole group is acting. However, cases such as Donnelly v UK suggest that the Court will allow victims to make abstract arguments, which exceed the limits of their personal interest.
The Commission held that an individual applicant could complain about administrative practices as a whole, if he could bring evidence of it and his being a victim of it. Finally, the Convention now permits third party intervention before the Court. Originally, there was no provision for intervention of anyone who was not party to the action except other states.
The Court has taken a very broad view of who may be a "person concerned" as per Article 362, permitting interest groups to make written submissions in "several cases", however the new rules of court make it perfectly clear that only "exceptional cases" will result in leave being given for participation in the oral hearings. The contention that the Convention test for standing should be applied in the domestic courts is strongly denied by Miles who states that "it is not necessary for compliance with article 13 [to provide as effective remedy before a notional remedy for those whose rights have been violated] that a domestic system grant standing to victims to the exclusion of all other applicants.
International human rights instruments are intended to set a minimum level of protection – a floor not a ceiling. In no sense would a state which adopted a broader standing test contravene its international obligations under the convention. " That is to say, that if the domestic courts use a wider test of standing that the Convention requires then a greater percentage of the public may be able to use the review procedure, which is certainly admirable in a plural and diverse society.
The HRA 1998 is still growing into its role in this respect. Yet, it may have significant implications for the standing test as it can be found today. Any effect is likely to exclude groups who would like standing as opposed to admitting more or retaining the current stance, which would be unpopular with groups that wish to bring public interest actions. Given the demands placed on court time it is understandably necessary to limit the number of applications for judicial review at an early stage.
Generally it is accepted that standing plays this role, despite Le Seuer and Sunkin's submission that the ease and cheapness of making a written submission may give the individual with an unlikely claim have an attempt almost for the sake of it: "it is at least plausible that that the cheapness of the process encourages, rather than deters, misconceived applications.
" In Konrad's ideological "open system," there would be no need to curtail the numbers of application that proceeded to the full hearing stage, but the domestic courts have to struggle with a limited budget and volume of personnel which would never be described as ideal. If therefore it is accepted that there must be some curtailment made to the number of claims made to dissuade the busybody from attempting to make a claim, then standing begins to look appealing.
The current application of the test in domestic proceedings appears to be consistent with a communitarian standpoint, which must be admirable in a diverse society. It appears, however, that the majority of applications are decided using a large amount of judicial discretion in a casuistic basis which may be the only way in which the plural nature of society is observed, yet there must be concern as to whether the judiciary are actually in tune with certain aspects of this dynamic.
Perhaps the general slackening of the standing requirements in the past century show the gradual changes which society has undergone in those years. If this is the case then the test for standing is more relevant than it is often regarded as being, the fact that there remain some contentious cases is natural. Even in a diverse society limits have to be set which inherently has borderline cases which will be strongly contested, but the line has to be drawn somewhere.