Thread by @GeorgePeretzQC

A couple of comments on this piece by @SBarrettBar.

https://twitter.com/sbarrettbar/status/1493604916593635330

To start, it isn’t particularly helpful - as Steve does - to conflate questions of standing in public law with questions of title to sue in private law.

In private law these are typically hard-edged (only the victim of a tort can sue on it; generally, subject to a statutory exception, only the parties to a contract can sue on it, etc).

In public law, though, they are not hard edged. You can see this for yourself by reading paras 16-29 of the judgment. judiciary.uk/wp-content/upl…

What are the relevant points made by the court about standing?

First, the court accepts that there are cases where public interest groups have standing, where the decision affects everyone, or a large class equally (see para 20).

Second, it observes that the cases where public interest groups (usually NGOs) have had standing have been cases where the NGO has a particular interest.

Third, the court quotes (at paras 24 and 25) passages from SC judgments that recognise that there are cases where (because an alleged public law error affects everyone) the court may allow standing to anyone in order to ensure that the rule of law is maintained.

As to the GLP position, you need to look carefully at what the court says at paras 53-59. This is in a context where the claim concerns the public sector equality duty (in which the Runnymede Trust (RT) is an NGO with a particular expertise).

The key paragraph is 59, where the court concludes that RT has standing as the “obviously better-placed claimant”.

Note the comparative nature of the assessment, and remember that standing isn’t hard-edged. The reason GLP didn’t have standing is because RT had a better claim. But that leaves open what the position would have been had RT not brought a claim (or not existed at all).

The previous paragraphs merely make the point that GLP can’t give itself standing by having wide objects (pretty obviously true, IMO).

The court also notes at 54 the Court of Appeal’s recent observation that the standing of bodies such as GLP in procurement cases may need reconsideration.

Pulling all this together, where are we?

It is I think fair to say that an obvious conclusion from the judgment is that it is impossible to say that the GLP (or similar) can sue anyone over any public law error. Steven is right about that. But that was always the case, as the authorities cited in the judgment make clear

The key point in the present case is that there was a better-placed entity which was able to bring, and had brought, a claim. That was enough to deprive GLP of standing - and it’s own articles of association couldn’t save it.

It leaves open questions of standing in cases where there is no alternative claimant (eg a person particularly affected, an association representing such people, or a specialist NGO).

And it is clear from the authorities that there are cases where (in effect) anyone can bring a claim because the issue is both important and affects everyone.

Whether this is an “existential threat” to GLP remains to be seen. In some cases it may decide to proceed by assisting a better-placed specialist NGO, or affected individual, rather than suing in its own name.

And in cases where there are no such bodies or people, that fact of itself will help it with standing (an argument not available to it in the present case) - as long as the public law issue is serious.

So though the judgment is unfavourable to GLP, the position is, I think, somewhat more nuanced than Steven suggests.

And it’s worth noting that, in general, the court is pretty unenthusiastic about public law challenges to appointment decisions: a context that somewhat colours its analysis of standing (which is *always* context-dependent).