R v Foreign Secretary, ex p. World Development Movement [1995] 1 WLR 386

Key point
  • On the issue of standing, this case summarises the factors that are relevant to the assessment of whether an applicant has sufficient interest to apply for judicial review
  • On the issue of improper purpose/illegality, it was for the court to decide whether the Secretary’s conduct was within the purpose of section 1(1) of the Overseas Development and Co-operation Act 1980
Facts
  • s1(1) Overseas Development and Co-operation Act 1980 gave the Secretary of State the power to contribute financial aid to foreign countries “for the purpose of promoting the development or maintaining the economy [of that country, or] … to furnish any person or body with assistance, whether financial, technical or of any other nature”
  • The Foreign Secretary granted aid to a Malaysian entity for the construction of a hydro-electric power station on the river Pergau – it later transpired that the project would cost more than expected, and was a ‘very bad buy’
  • Fearing an adverse effect on the UK’s credibility if he was to pull out of the contribution, the Secretary decided to nonetheless approve support for the project
  • World Development Movement Ltd (WDM) sought judicial review of the Secretary’s decision to grant the aid and the decision to refuse the withholding of outstanding payments
  • WDM is a non-partisan pressure group dedicated to improving the quantity and quality of British Aid
Issues
  • Did WDM have sufficient interest/standing to make the challenge?
  • Did the Foreign Secretary act with improper purpose by providing state aid?
Held (Divisional Court)
  • Application granted; WDM had sufficient interest to apply for judicial review and the Foreign Secretary had acted illegally
Rose LJ

Sufficient interest

  • “The authorities referred to seem to me to indicate an increasingly liberal approach to standing on the part of the courts during the last 12 years. It is also clear from Federation. that standing should not be treated as a preliminary issue, but must be taken in the legal and factual context of the whole case…”
  • ‘Furthermore, the merits of the challenge are an important, if not dominant, factor when considering standing. In Professor Wade’s words in Administrative Law, 7th ed. (1994) , p. 712 : “the real question is whether the applicant can show some substantial default or abuse, and not whether his personal rights or interests are involved.”’
  • There seem to me to be a number of factors of significance in the present case:
    1. the importance of vindicating the rule of law, as Lord Diplock emphasised in Federation;
    2. the importance of the issue raised, as in Child Poverty Action Group ;
    3. the likely absence of any other responsible challenger, as in Child Poverty Action Group and Greenpeace Ltd. (No. 2) ;
    4. the nature of the breach of duty against which relief is sought (see per Lord Wilberforce, at p. 630D, in Federation);
    5. the prominent role of these applicants in giving advice, guidance and assistance with regard to aid; and
    6. a sincere concern for constitutional issues, as laid down in Rees-Mogg given that WDM has “national and international expertise and interest in promoting and protecting aid to underdeveloped nations”

Improper purpose

  • “Whatever the Secretary of State’s intention or purpose may have been, it is, as it seems to me, a matter for the courts and not for the Secretary of State to determine whether, on the evidence before the court, the particular conduct was, or was not, within the statutory purpose” p.401H
  • “The Secretary of State is, of course, generally speaking, fully entitled, when making decisions, to take into account political and economic considerations such as the promotion of regional stability, good government, human rights and British commercial interests. In the present case, the political impossibility of withdrawing the 1989 offer has been recognised since mid-April of that year, and had there, in 1991, been a developmental promotion purpose within section 1 of the Act of 1980, it would have been entirely proper for the Secretary of State to have taken into account, also, the impact which withdrawing the 1989 offer would have had, both on the United Kingdom’s credibility as a reliable friend and trading partner and on political and commercial relations with Malaysia. But for the reasons given, I am of the view, on the evidence before this court, that there was, in July 1991, no such purpose within the section. It follows that the July 1991 decision was, in my judgment, unlawful” p.402E-G
Commentary
  • This case gathers and synthesises all of the precedents on standing in public law since the Federation case
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