R v IRC, ex p. National Federation of Self-Employed [1982] AC 617

Key point

  • In an application for judicial review, with the exception of cases where it is clear that the applicant has no sufficient interest, the merits of the case must be examined by the court at hearing to determine whether the applicant has sufficient interest
  • Applicants need not raise a specific right or detriment to apply for judicial review, thus representative standing is permitted in English law

Facts

  • Casual print workers in London’s Fleet Street was found to have committed tax avoidance but were granted a tax amnesty by the Inland Revenue (IR) on the condition that they registered for tax
  • The National Federation of Self Employed (NFSE) argued that the IR had exceeded its power or if it had the power, exercised it improperly, by granting an amnesty, and sought a declaration or mandamus order
  • In the Divisional Court, leave was initially granted but at the hearing, but during the hearing the Court held that NFSE did not have sufficient interest as require RSC Order 53 Rule 3(7)
  • In the Court of Appeal, standing was again considered as a preliminary point and it held that NFSE had sufficient interest as a representative of taxpayers
  • The IR appealed to the House of Lords

Issue

  • Did NFSE have sufficient interest?

Held (House of Lords)

  • Appeal allowed; NFSE did not have sufficient interest
  • The Divisional Court was right to have granted leave, but should have held that there was no sufficient interest during the hearing stage only upon a full consideration of the factual and legal context
  • On the facts, there was no ultra vires or unlawful behaviour by the IR and thus NFSE had no sufficient interest to apply for judicial review

Lord Wilberforce

On standing in general

  • It was unfortunate that standing was decided as a preliminary point without consideration of the merits in the Divisional Court and Court of Appeal
  • In simple cases where it is clear early that the applicant has ‘no interest at all, or no sufficient interest’, leave to apply can be refused
  • In other cases the question of sufficient interest must be considered in the ‘legal and factual context’ and not in the abstract, this entails examining the powers and duties of the public authority, the position of the applicant, and the breach said to have been committed: p. 630B

On the current case

  • “As a matter of general principle I would hold that one taxpayer has no sufficient interest in asking the court to investigate the tax affairs of another taxpayer or to complain that the latter has been under-assessed or over-assessed: indeed, there is a strong public interest that he should not. and this principle applies equally to groups of taxpayers: an aggregate of individuals each of whom has no interest cannot of itself have an interest.”: p. 633A
  • “That a case can never arise in which the acts or abstentions of the revenue can be brought before the court I am certainly not prepared to assert, nor that, in a case of sufficient gravity, the court might not be able to hold that another taxpayer or other taxpayers could challenge them. Whether this situation has been reached or not must depend upon an examination, upon evidence, of what breach of duty or illegality is alleged.”: p. 633B
  • He then goes on to examine the law and facts to determine whether there was a breach or illegality, and he concluded that there was not and thus there was no sufficient interest

Lord Roskill

  • It may be that only in cases of  “exceptionally grave or widespread illegality” sufficient interest can be proven by a single taxpayer to challenge the tax assessment of another: p. 647

Lord Diplock (minority approach)

On sufficient interest generally

  • At the permission stage, if “on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case”, then there would be sufficient interest and leave should be granted: p. 644A

On the current case

  • At the threshold (permission) stage, if NFSE could prove a “prima facie case of reasonable suspicion that the board in showing a discriminatory leniency”, he would hold that it had sufficient interest
  • “if, in the instant case, what at the threshold stage was suspicion only had been proved at the hearing of the application for judicial review to have been true in fact (instead of being utterly destroyed), I would have held that this was a matter in which the federation had a sufficient interest”
  • “It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.”: p. 644

Commentary

Representative standing

  • Prior to Federation, a person makes a claim based on personal interest: for mandamus the person had to show a specific legal right, for certiorari and prohibition orders there had be individual detriment, this is known as “personal standing”
  • The majority held that a specific right or detriment is not a necessity to establish sufficient interest if there was a particularly serious and grave illegality, thus allowing for “representative standing”
  • Lord Diplock’s approach was wider as he thought that the mere presence of an arguable case of illegality at the leave stage, and proof of that illegality at hearing will demonstrate sufficient interest
  • Lord Diplock’s approach was followed by later cases rather than the majority’s

Standing at different stages

  • In applications for judicial review, the court must first grant permission for the application to be made (i.e. leave to apply) before the case can progress on to a full hearing
  • Based on Lord Wilberforce’s judgment, standing became a two-stage process, to be considered at both the permission and full hearing stages: even if leave was granted, standing can still be denied at the hearing stage upon a full examination of the merits of the case
  • A criticism of this case is that the House conflates the issue of standing with merits, it might have been more useful to keep standing as a distinct concept