Standing in Public Law Cases

Posted On: 24 June 2010

Author: Jonathan Mitchell QC

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This is a written version of Jonathan Mitchell QC's talk to the Scottish Public Law Group annual conference on 7 June 2010 and is also published at http://www.jonathanmitchell.info/2010/06/13/standing-in-public-law-cases/

Standing in Public Law Cases

A note on vocabulary; I take the word 'standing' from English law to wrap up both title and interest to sue; and 'locus standi' is simply the Latin for standing.

Standing in Public Law Cases

It is a truth almost universally acknowledged that the Scottish law of title and interest to sue in public law matters is over-restrictive and in need of reform. It seems to me, indeed, that this area of law is obsolete and unfit for purpose; that is simply a polite way of saying that it is in a mess. There is not universal agreement on this: the few who seem to think that our rules of standing are actually adequate seem for the most part to be members of the College of Justice. Yet it is that group who are responsible for the law being in the state it is in.

I wish to put, and answer, three questions as to this teenager's-bedroom-like mess:

• How did things get into this state?
• What is hidden underneath the debris?

• How can it get cleaned up?

 How did things get into this state?

On 14 December 1906 the first U-boat was commissioned into the Imperial German Navy. Twelve days later, the world's first feature film was released. Between these dates, Lord Ardwall gave his opinion in the case of Swanson v Manson, 1907 SC 426. The Imperial German Navy and black-and-white silent film have passed into history. Yet this opinion remains, the leading Scottish authority on the principles to be applied to the question: when does a petitioner have an 'interest' which the law will recognise in bringing proceedings for judicial review. The answer to that question is decided by much the same test as in private law: if the question involves the rights or the status of the petitioner, there is interest to sue; but if not, not.

The leading case on 'title' to sue is of similar age: D & J Nicol v Dundee Harbour Trustees, 1915 SC (HL) 7. In a much-quoted passage, Lord Dunedin said this:

"By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest. Though the phrase "title to sue" has been a heading under which cases have collected from at least the time of Morison's Dictionary and Brown's Synopsis, I am not aware that any one of authority has risked a definition of what constitutes title to sue. I am not disposed to do so, but I think it may fairly be said that for a person to have such title he must be 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."

This is judge-made law, made long before modern concepts of public law had been dreamed of. It is often said that modern public law does not rely on ancient authorities. Yet we see here a reliance on a tract of authority of great antiquity. Swanson had in fact nothing whatsoever to do with public law; it was an action for reduction of a will. D & J Nicol appears to be a public law case; yet the concepts and language are those of private law. The pursuers had the right to complain of the allegedly ultra vires actings of a local authority not as citizens, but because they were a business which paid rates. Would Lord Dunedin have held that a Lithuanian day-labourer had that right? The language of his opinion is the language of property rights, of private law.

Scots law as to standing is judge-made, yet it has not been consistently developed by the judiciary. There are occasional ventures into modernity, of which Wilson v IBA 1979 SC 351 particularly deserves a mention for its early recognition that campaigners had both title and interest to complain of activities which affected likely voting patterns; their interest in law coming from their political interest in broadcasting, and not from any good it might do them as persons. Lord Ross there said:

"In Scotland I see no reason in principle why an individual should not sue in order to prevent a breach by a public body of a duty owed by that public body to the public".

This in principle would apply to both title and interest. And there are a number of cases in which the 1906 concept of pecuniary rights or status has been broadened. But on the whole the law has remained fixed as it was when it was first effectively noticed, a legal version of Schrödinger's cat. It is not systematically helpful that there are cases in which a liberal approach has been taken to be set against cases in which a restrictive approach has been taken. Potential petitioners require some degree of confidence that they will be listened to. To quote Frances McCartney of the Environmental Law Centre

"...a lack of clarity can be a barrier if only in respect of the uncertainty raised, and the fear of wasting campaign resources by being turned away on what groups will perceive as a 'technicality'."

Forbes v Aberdeenshire, 2010 CSOH 1, was immediately followed by AXA General Insurance v Scottish Government, 2010 CSOH 2. What advice can anyone give a potential petitioner as to the attitude the court is likely to adopt, in the face of such radically different judgements?

(Continued...... To read full article please click on the link at the top of the page.)