Joanna Bell: A Long-Neglected Case with Some Important Lessons about Standing
It seems fair to say that the literature on standing in English administrative law has focused very heavily on a particular kind of problem: a public authority is placed under a legal duty, the fulfilment of which is intended to benefit, not any one individual but, the public as a whole or a subsection of it. The applicant is an individual or an NGO who applies for judicial review. She bases her claim to have a ‘sufficient interest in the matter to which the application relates’ and thus standing on her ability to represent the interest of the public in having the duty performed. In what circumstances ought the court to recognise such an applicant as having standing? It is well-known that, in recent decades, the courts have made use of a ‘liberal’ approach to this problem which will readily enable them to hear arguable cases.
This problem, and the body of case law which has accumulated on it, has been so much at the forefront of the minds of legal scholars that it has come to shape the story which is told in certain portions of the literature about the very nature of standing in administrative law. This post will focus on two versions of this story in particular. According to the first, we have now reached the stage in which we can say that it is possible to draw a line between, on the one hand, private law and human rights law and, on the other, administrative law on the basis of the approach to standing used therein. While the former usually make use of a ‘rights-based’ approach, which requires the claimant to show that she, personally, holds the right entitling her to have the duty of the defendant performed, there is no room for this approach in administrative law which is ‘not at base about rights… [but] about wrongs.’ According to the second, the story of the development of standing in modern administrative law is the story of the courts further and further opening the doors to judicial review. It is tempting, therefore, to think of the natural end-point to which administrative law will progress as being a system of open standing.
Looking back through the law reports at the case law which has accumulated on standing, however, reveals very clearly that the problem of representative standing is not the only type of problem with which the courts have had to grapple. This post will focus on one long-neglected case – R v Birmingham City Council, ex parte Millard & Connolly (1994) 26 HLR 551 (QB) – in which the courts addressed a very different set of issues. Although, at first sight, this case may seem very narrow it is, on further reflection, an extremely important and illuminating decision. Millard & Connolly is a cautionary tale about constructing narratives about the general nature of standing in administrative law with only a small subset of the case law in mind. Because of this, furthermore, it provides a powerful corrective to the two stories about standing alluded to above.
Millard & Connolly
In 1987, the Secretary of State for Social Security, making use of statutory powers, enacted a piece of secondary legislation known as the Housing Benefit (General) Regulations. These Regulations had many purposes. One was to place local housing authorities under a series of procedural duties – including a duty to conduct a review of quantum – in relation to the calculation and payment of housing benefit to eligible individuals. The Regulations specified that these procedural duties were owed to a specific class of individuals: those who were ‘affected’ by a payment of housing benefit. There is some discussion in Millard & Connolly as to what, precisely, this term meant. For present purposes, however, it suffices to note that the court was satisfied that the clear intention of the Regulations, in the vast majority of cases, was that the duties were to be owed to one individual and one individual only: the recipient of housing benefit.
Millard & Connolly is an interesting case because the applicants seeking judicial review were not recipients of housing benefit. They were, rather, the private landlords of recipients of housing benefit. When the decision was taken to reduce the quantum of benefit to be paid to their tenants, the applicants incurred financial loss and sought judicial review proceedings. They sought to rely, in the course of their legal challenge, on the procedural duties of the local housing authority contained in the 1987 Regulations. These duties, argued the landlord, required the authority to undertake a review of the quantum of benefit to be paid to their tenants, something the authority was repeatedly refusing to do.
Against this background, an important question arose for resolution: did the landlords have standing to rely on these legal duties? As a matter of English law, issues of standing are governed by section 31(3) of the Senior Courts Act 1981 which requires the court to satisfy itself that the applicant has a ‘sufficient interest in the matter to which the application relates.’ The court in Millard & Connolly incurred no real difficulty in concluding that the private landlords:
…ha[d] no sufficient interest either to complain as to the quantum of the benefit under the statutory scheme, or to intervene by way of judicial review. To permit [them] to mount such a challenge in all the circumstances would be to defeat the statutory scheme… The applicants were not entitled to review of the quantum of housing benefit which they sought. Only the tenant had the right to such a review.
Because, in other words, the Regulations made clear that the housing authority’s procedural duties were owed to the recipient of housing benefit, standing to rely on those duties in legal proceedings was properly limited to the recipient. A private landlord did not have standing to rely on a cluster of statutory duties which purported to create a personal legal relationship between housing authority and benefit-recipient to which she was not a party.
Given the statutory context, the court’s conclusion in this regard was surely the right one. As just noted, the court considered that to recognise the landlords as having a sufficient interest to rely on the procedural duties would be to ‘defeat the statutory scheme.’ It ought to be noted that this is true not only in a dry, conceptual sense but also in a richer, more normative and practical sense. In the first place, Parliament had explicitly decided that responsibility for creating secondary legislation to implement the housing benefit regime ought to lie with the Secretary of State and the court was rightly wary to undermine the arrangement which the Secretary of State envisaged in the absence of a very good reason. There were probably, furthermore, very good practical reasons for which the Secretary of State had decided to confine the procedural duties of local housing authorities to recipients of housing benefit; the resources of local housing authorities are extremely scarce and the 1987 Regulations were likely the product of a conclusion that endless resources could not be spent on ensuring the correctness of a decision in every single case and so resources ought to be directed to further review only at the behest of the most vulnerable – those eligible for housing benefit.
Some Important Lessons about Standing
What is to be learnt from Millard & Connolly? In the first instance it might be thought that this is just a case concerning the proper approach to the 1987 Regulations and, thus, not a lot. On further reflection, however, there are a number of important lessons embedded in the case concerning standing in administrative law generally.
One point which emerges very clearly from Millard & Connolly is a reminder that there are different kinds of problem with which courts must grapple in deciding matters of standing within administrative law, and that not all cases turn on the representative standing issue discussed in the introduction. Thus Millard & Connolly was not a case in which the applicant sought to enforce a legal duty designed to protect the public as a collectivity or a subsection of it and in which she based her claim to have a ‘sufficient interest’ in her ability to represent the interests of the public. It is, rather, a case in which a cluster of individuals sought to rely in legal proceedings on a statutory duty enacted for the purpose of protecting another group of individuals. Millard & Connolly thus comes as something of a health warning: in telling the story of the nature of standing in administrative law it is important not to focus only a particular kind of standing problem and the case law which deals with that problem. The issues with which courts grapple are complex and they are diverse and it will be important for an account of standing that it captures this.
In a closely related way, another point of importance about Millard & Connolly is that it serves as a powerful corrective to some of those stories about standing which have been developed with a disproportionate focus on the representative standing problem. Take, for instance, the idea that there is a clear distinction between the ‘rights-based’ approach to standing used in ‘individual-regarding’ areas of law such as private law and human rights law, and the court’s approach to standing in the ‘public-regarding’ field of administrative law. Millard & Connolly is a clear rejoinder to this idea. Strikingly, the court therein made use of an approach to standing very closely analogous to the ‘rights-based’ approach commonly used in private law. This can be helpfully illustrated by recourse to a contract case called Brushmoor. In this case, a company assigned its rights under a contract to a third party and later sought to rely on those rights in legal proceedings. The court had no difficulty concluding that the company lacked locus standi to do so; at the point of assignment the third party held the rights correlative to the defendant’s contractual duties and, accordingly, the third party alone had standing to rely on those duties in court. There is a clear analogy between Millard & Connolly and Brushmoor: in both, the court regarded standing to rely on the legal duty of the defendant as being confined to the individual who personally held the legal right which was correlative to that duty.
In a similar way, consider again the idea that the story of standing’s development in administrative law is the story of the judicial door becoming more and more open. Millard & Connolly again shows why this story is very difficult to accept. While it is certainly the case that the courts have, in recent years, given close consideration to the issue of how best to ensure broad access to judicial review for the purpose of enforcing legal duties enacted to protect the public as a whole, this does not mean that we are heading to a state of affairs in which any applicant in judicial review proceedings will be permitted to rely on any legal duty. The interconnectedness of administrative law doctrine and legislation is one thing which will prevent this: we can never foreclose the possibility that the logic of an administrative scheme will require that standing to rely on a legal duty in legal proceedings be cut off to all but the intended beneficiary of the duty.
By way of concluding it is worth pausing to note that, while this post has been focused on drawing out some of the implications of Millard & Connolly for how we think about standing within administrative law, there are lessons to be learnt from this case too about administrative law’s nature more generally. Carol Harlow & Richard Rawlings famously wrote that ‘behind every theory of administrative law there lies a theory of the state.’ In a similar way, it might be said that underlying every approach to standing is an understanding of the nature of the legal doctrines of administrative law. Thus, many of the most influential writings on standing are predicated on important ideas concerning administrative law’s nature including, for instance, the idea that administrative law is normatively and conceptually grounded in a concern for the public, rather than individual, interest.
The drawing out of these grander implications is a task for another day. For now, it is proper to end by noting that Millard & Connolly serves as a reminder to scholars of administrative law across all jurisdictions of the importance of developing accounts of administrative law doctrine which properly take account of the complexity and variety of the legal issues with which judges must grapple therein.
Joanna Bell is a Fellow and Lecturer in Public Law at St John’s College, University of Cambridge. Her research focuses especially on the nature of administrative law doctrine.