R v Environment Secretary, ex p. Rose Theatre Trust [1990] 1 QB 504

Key point

  • It was held that a member of the public can will only have sufficient interest to apply for judicial review if the statute under which the decision was taken by the public authority concerned gives him/her a greater right or expectation than any other citizen

Facts

  • The remains of the historical Rose theatre were discovered
  • The Rose Theatre Trust (R) was set up to preserve it and make it accessible to the public
  • R applied to the Environment Secretary (ES) for the theatre to be listed in the Schedule of Monuments made under s1 of the Ancient Monuments and Archaeological Areas Act 1979
  • ES rejected the application giving reasons that the site was not under threat and that listing the site might give rise to claims for compensation

Issue

  • Did R have sufficient interest to challenge the decision of ES?

Held (Queen’s Bench, High Court)

  • Appeal dismissed; R did not have sufficient interest

Schiemann J

  • Based on Federation, “the decision not to schedule is one of those governmental decisions in respect of which the ordinary citizen does not have a sufficient interest to entitle him to obtain leave to move for judicial review.”: p. 521
  • A person cannot obtain a sufficient interest by writing a letter to the Secretary of State, the fact that the Secretary of State sent a reply should not give sufficient interest either as to sanction such an argument might cause the decision makers to be less helpful to the general public: p. 521
  • He acknowledged that his decision “may well leave an unlawful act by a minister unrebuked and indeed unrevealed” but stated that “the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated. Parliament could have given such a wide right of access to the court but it has not done so.”: p. 522
  • To determine whether there is sufficient interest, “the court will have to look at the matter to which the application relates … and the statute under which the decision was taken … and decide whether that statute gives that individual expressly or impliedly a greater right or expectation than any other citizen of this country to have that decision taken lawfully.”: p. 522

Commentary

  • Although Greenpeace has never been expressly overruled, it was not followed in preceding cases: in Greenpeace (No. 2) Otton J expressly refused to follow it on the ground that different facts were concerned and in Dixon Sedley J criticised Schiemann J’s interpretation of Federation
  • Schiemann J’s judgment can be critcised as a wrong reading of the majority opinion in Federation, which emphasised the narrow standing was due to the legislative context
  • This case endorses a individualist model of standing focused on protecting personal rights rather than a communitarian model focused on protecting the public interest