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Public Interest Litigants in the Court of Session

Document Cited authorities 17 Cited in Related
Vincent
Published date01 May 2015
Date01 May 2015
DOI10.3366/elr.2015.0276
Pages248-253
<p>When Lords Hope and Reed reformed the law of standing in <italic>AXA General Insurance v Lord Advocate</italic> <xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p><a href="https://vlex.co.uk/vid/axa-general-v-u-818718353">[2011] UKSC 46</a>, 2012 SC (UKSC) 122 at paras 53–56 per Lord Hope; at paras 155–175 per Lord Reed.</p> </fn> they grounded that change firmly in constitutional principle. To restrict standing to those for whom a private right or interest is at stake was, in Lord Reed's view, “incompatible with the courts’ function of preserving the rule of law,” precisely because “[a] public authority can violate the rule of law without infringing the rights of any individual.”<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p><italic>AXA</italic> at para 169.</p> </fn> Thus, their Lordships agreed that (in public law judicial review cases at least) the time had come to consign the title and interest test to the dustbin. For Lord Reed, drawing a direct parallel with the approach taken in England and Wales, the correct terminology must now be standing, based on sufficient interest.<xref ref-type="fn" rid="fn3"><sup>3</sup> </xref><fn id="fn3"><label>3</label> <p>Para 171.</p> </fn> For Lord Hope, the words “directly affected”, construed broadly to include those acting with genuine concern for the public interest even in the absence of any private right or interest of their own, was appropriate.<xref ref-type="fn" rid="fn4"><sup>4</sup> </xref><fn id="fn4"><label>4</label> <p>Para 63.</p> </fn> A difference of terminology aside, it is clear that in terms of the substantive effect of this change the Scottish justices were as one: judicial review in Scotland would no longer be about private rights and individual grievances but (to borrow from Sedley J) about public wrongs and the maintenance of the rule of law.<xref ref-type="fn" rid="fn5"><sup>5</sup> </xref><fn id="fn5"><label>5</label> <p><italic>R v Somerset County Council and ARC Southern Ltd ex p Dickson</italic> <a href="https://vlex.co.uk/vid/r-v-somerset-county-804099449">[1998] Env LR 111</a> at 121 per Sedley J. </p> </fn> It would seem, however, that the Court of Session has so far pushed back against the public interest justification for judicial review that underpins this shift, restricting opportunities for public interest litigants to appear either as petitioners or as public-spirited interveners. This article seeks to explain that claim.</p> STANDING

The lines of resistance were first drawn by the Court of Session in Walton v Scottish Ministers,6

[2012] CSIH 19.

a statutory appeal7

Roads (Scotland) Act 1984, Sch 2 para 2.

 in which Mr Walton sought to challenge the validity of certain orders and schemes made by the Scottish Ministers relating to the construction of a new road network on the periphery of Aberdeen. In determining whether he was (in the language of the relevant statute) a “person aggrieved” and therefore entitled to raise proceedings, the Inner House held that Mr Walton had failed to demonstrate that the construction of the road had any substantial impact upon his interests, or would negatively affect his property. Moreover, the opinion went on to add that, had this been an exercise of the supervisory jurisdiction and not a statutory appeal, the court would have been minded to hold that Mr Walton lacked “sufficient interest” at common law, not least because of the considerable geographical distance between his property and the new route. If the narrow interpretation of Mr Walton's interests here looked like a subtle attempt to reintroduce the restrictions of the title and interest test under the guise of sufficient interest (the emphasis being placed on his rights, his interests), it was an attempt to which the Supreme Court, on appeal, gave short shrift.8

Walton v Scottish Ministers [2012] UKSC 44, 2013 SC (UKSC) 67 (henceforth “Walton (SC)”).

 Despite the fact that Mr Walton's entitlement to bring proceedings had not been contested by the Scottish Ministers, Lord Reed took the opportunity to reinforce the spirit and the implications of AXA. In pointed disagreement with the Inner House, his Lordship concluded that Mr Walton – who had demonstrated a genuine concern about the proposal, and who had been an active member in organisations concerned with the environment generally and with opposition to the new road specifically – ought to have had standing as a party with a sufficient interest, though those proceedings would likely have failed on their merits. The court's constitutional function of maintaining the rule of law, he said, could no longer be ignored in favour of “an approach which presupposed that the court's supervisory jurisdiction was to redress individual grievances.”9

Walton (SC) at para 90.

That a proper interpretation of AXA and Walton required the Court of Session to take a qualitatively different...

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