THE RELAXATION OF REPRESENTATIVE STANDING IN ADMINISTRATIVE LAW: A SIDE-EFFECT OF CHARTERS OF RIGHTS?

• Author: Boughey, Janina

INTRODUCTION

It is incontrovertible that, across the common law world, the rules of standing in judicial review cases have relaxed since the 1970s. The most significant changes have been in relation to standing to represent public and group rights and interests: a trend that has been well explored by commentators. (1) It is also incontrovertible that many common law jurisdictions have adopted constitutional or statutory instruments that allow courts to review government action on the basis that it unlawfully or unreasonably limits fundamental rights. What is not clear is whether the two are connected, and if so, how.

The usual narrative about the interaction between bills of rights and administrative law is that the former has caused the expansion, "reformation", "righting", or "reinvention" of the latter. (2) In essence, the assertion is that judicially enforceable rights instruments that place rights-based limits on government power cause courts to shift their principal concern when reviewing administrative action from the question of whether the action is lawful to whether its impact on individuals is fair, overly burdensome, and justified. Arguments of administrative law's "righting" have largely focused on those limits that the law places on administrative decision making or the "grounds of review." The classic example is the shift from the impossibly restrictive Wednesbury unreasonableness standard of rationality to a proportionality test, which was clearly propelled by the adoption of human rights instruments in the UK, (3) Canada, (4) and--to the extent that proportionality review has taken hold there--New Zealand. (5)

The logic underpinning this "righting" hypothesis is clear (though the evidence of it is far less so). (6) It makes sense that an instrument that limits governments to acting consistently with rights, and confers authority on the courts to enforce those limits, would have the effect of causing the judicial review process to become more focused on individual rights. But standing has historically been concerned with the rights of individuals, and has by all accounts shifted away from this position to one where courts also recognize and can preference other interests, including collective and public interests. Some have submitted that bills of rights might have played a role in these developments, though analysis of how and why this may have occurred has been limited. (7) One possibility, advanced by Taggart, Rawlings, and Harlow to varying degrees, is that domestic and international human rights instruments have acted as a catalyst for a shift towards what Rawlings describes as an "American freeway" model of administrative law. (8) The model recognizes the legitimate role of civil society and interest groups in government processes via lobbying and consultation, which has filtered into participatory rights in judicial processes. (9) Taggart states that rights instruments have provided "legal pegs" upon which pressure groups have been able to "hang administrative law challenges". (10) He seems to suggest that it is the nature of the new constraints on administrative power that human rights instruments create that has led to increases in representative standing. The authors of Canada's leading administrative law text submit that the Canadian Charter of Rights and Freedoms (11) has added "further impetus" to the relaxation of standing by its clear "subjection of parliamentary will and executive power to the scrutiny of the regular courts" as well as by its protection of group rights. (12) These arguments are plausible, but none is explored in depth so as to be apparent how rights may have influenced the relaxation of representative standing. Nor is it clear how a bill of rights could have simultaneously shifted courts' attention from public wrongs to individual rights with respect to the legal limits placed on government power but had the opposite effect when it comes to the issue of who is entitled to ask courts to examine those limits.

The purpose of this article is to examine the relationship between bills of rights and standing through a comparative analysis of the development of public interest standing rules in three jurisdictions: the UK, Australia, and Canada. Of the three, Canada has the most extensive and longstanding bill of rights, and the only one that is constitutionally entrenched. (13) The UK has a statutory bill of rights enacted 16 years after the Charter. (14) Australia has no judicially enforceable rights instrument at the federal level. (15) Until the mid-1970s, all three shared a common approach to standing--albeit one characterized by confusion--which appeared to comprise "a hodge-podge of special instances and contradictions". (16) The first section of this article briefly outlines some central features of this approach. During the 1970s and early 80s a range of factors led each jurisdiction to diverge from the others, albeit only slightly in some respects. Sections two, three, and four examine these developments in the UK, Australia, and Canada respectively. By analyzing and comparing developments in standing across these jurisdictions, it is apparent that, despite the UK and Canada now having more generous standing rules for those representing public and group interests than Australia, their respective bills of rights have not been the principal drivers of this expansion. Nevertheless, it is possible that the Canadian Charter has hastened and perhaps exacerbated the process of relaxation in Canada, though not in the manner one might have predicted.

1. THE "SEMANTIC WASTELAND" OF STANDING AT COMMON LAW

   Standing did not develop as a unitary or freestanding principle of public law. Being sufficiently adversely affected by government action--be it legislative or administrative in nature--does not in itself give rise to a cause of action or right. Rather, standing was, and at common law in Australia and Canada still technically remains, (17) dependent on the remedy sought, so that a person with standing to seek one public law remedy would not necessarily have standing to seek others.

   The writs of prohibition and certiorari were historically available to remedy errors of inferior courts, and only parties to the impugned court proceedings could seek them. As the writs began being applied beyond courts, standing became an issue. (18) The case law was inconsistent. Some cases suggested that any person, including "strangers" could request the remedies, but unless the applicant was personally aggrieved, standing and access to remedies were discretionary. (19) However, there were very few cases in which courts exercised their discretion in favour of non-aggrieved persons. (20) The more coherent approach that dominated in fact was that a person must be "aggrieved" by (21) or have a "real interest in the decision" (22) in order to seek prohibition or certiorari. (23) With respect to mandamus, case law on standing where a duty was owed generally to the public as opposed to a particular person, or class of persons, was also inconclusive. By the 1960s, Thio argued that the weight of authority favoured a position where a person with a "substantial interest" in the performance of the duty, or who would suffer greater prejudice than an ordinary member of the public by non-performance, would have standing to seek the writ of mandamus. (24) Where an individual or group, as opposed to the Attorney General, sought to make a direct challenge to either legislation or government action by way of injunction or declaration from the courts, there is a longstanding requirement across the common law world that they either have a private legal right, which itself gives rise to an actionable wrong, or a "direct and special" or "sufficient" interest or injury that would be suffered as a result of the government action or enforcement of a law. (25)

   These terms--"special", "sufficient", "real", "substantial", "direct" interests, and "aggrieved person"--were used to describe standing thresholds for judicial review remedies across the common law world. They were imprecise and were applied inconsistently by courts both within and. between jurisdictions. (26) Thomas Cromwell, then an academic and now a justice of the Supreme Court of Canada, described the field and judicial attempts to distinguish the various tests as a "semantic wasteland". (27) In essence, it seems that all the tests were efforts to serve the same basic function, which was to limit public law remedies to persons who would actually suffer some real loss as a result of an unlawful act of government and prevent "busybodies" from bringing meddlesome claims. (28) However, "[o]ne man's busybody is, after all, another's concerned public interest applicant, legitimately invoking the judicial arm to restrain alleged executive illegality in pursuit of the collective desire for limited government." (29) So it may well have been destined that the tests would be applied inconsistently by different judges exercising discretion. Several justifications have been given for these limits, which have been well explored in literature and by courts. They include practical rationales such as preserving judicial resources, protecting the predictability of government decisions, and ensuring the quality of litigation, as well as rationales designed to serve higher constitutional principles, such as the need to protect the proper functioning of an adversarial system and to prevent courts from deciding hypothetical disputes. (30)

   The common purposes of the standing tests, and the lack of precision in the respective terms used to describe them, means it was probably inevitable that they would ultimately converge into a single concept in most jurisdictions, at least in practice. In the UK this merge was precipitated by statutory reforms to judicial review in 1978, which set a single standing test for all remedies of "sufficient interest". (31) The...