Although the High Court and subsequently the Court of Appeal rejected it, the case is of continuing interest. The courts at both levels accepted that the prerogative power of the monarch to appoint whom he chose to be a Privy Counsellor was subject to judicial review, and that it was arguable – though incorrect – that it did not extend to appointing counsellors who were not British by birth. As a preliminary issue, however, the Attorney General submitted that the claim should fail because Makgill lacked stand to bring it: only the Attorney General himself, as guardian of the public interest, could bring such a question before a court of law.

The Chief Justice disagreed. Makgill, he said, “appears to have brought this matter before the court on purely public grounds without any private interest to serve, and it is to the public advantage that the law should be declared by judicial authority. I think the court should incline to the assistance, and not to the hindrance, of the applicants in such a case”. There was longstanding authority to support this approach to what is nowadays known as public interest litigation. In cases where an arguable breach of the law by the state itself has no identifiable victim, the courts have for centuries been willing on occasion to hear an applicant who has nothing personally to gain.

Not an open door

The preparedness of the High Court to consider whether the state has abused its powers at the instance of an applicant who has nothing personally to gain is one of the modern cornerstones of the rule of law. It is not an open door: for every individual or NGO that secures permission to apply for judicial review in the public interest, a good many are turned away. Some are considered to be busybodies, others lack what Lord Kenyon CJ once called “a very fair case”. But where an NGO or a concerned individual calls attention to what appears to be a real and serious abuse of government power, albeit one that does not directly affect them, the courts may call on the executive to explain itself and may intervene if the explanation does not stand up. In all such cases the court has to determine whether the particular claimant has a “sufficient interest” in the subject matter of the claim. The phrase itself is deliberately elastic, recognising that the public importance of an issue may sometimes be sufficient to compensate for the absence of a personal motive for litigating it, and that it is for the judges to work out who is entitled to be heard issue by issue.

A ‘kite-flying’ consultation?

In September 2013 Chris Grayling, as Secretary of State for Justice and Lord Chancellor, published a consultation paper dealing specifically with the judicial review process. The paper proposed to restrict the meaning of a sufficient interest to a “direct and tangible interest” in the outcome; in other words to wipe out two or more centuries in the course of which the courts have adjusted the gateway of judicial review to meet the needs of the rule of law by according standing not only to those acting for private advantage but occasionally in the public interest.

The blinkered attitude to public interest litigation was visible in the paper’s treatment of the 1995 Pergau Dam case. There the Foreign Secretary, Douglas Hurd, for overtly political reasons, proposed to go ahead with a subvention of £316m to Malaysia for a hydroelectric project which the Government’s Overseas Development administration had advised would be uneconomic, an abuse of the overseas aid programme and “a very bad buy”. The High Court held that the rule of law, the importance of the issue, the probable absence of challenge from any other source, the nature of the breach of the legality and the prominent and responsible character of the World Development Movement (WDM) combined to give it sufficient interest. On the substantive issue, the court held that the statutory power to provide assistance for the purpose of promoting development did not include promoting unsound development, which this incontrovertibly was. They struck down the decision. There was no appeal.

Could it be seriously contended that it would have been better had the WDM not been allowed to bring the issue before a court? The consultation paper cited the Pergau Dam decision as a prime example of challenges which ought not to happen especially since such challenges are “relatively successful compared to other judicial review cases”. The paper displayed no awareness that the law of standing has a long history and a principled purpose: to ensure, first, that government functions within the law; and, second, that within the law government retains full freedom of action.

Instead Grayling’s paper fudged the two distinct meanings of “public interest”. It proclaimed the principle that “Parliament and the elected government are best placed to determine what is in the public interest.” But public interest litigation does not mean litigation about what is in the public interest: it means litigation brought in the interest of the public as a whole in seeing the law upheld.

The history of such litigation includes interventions of the Child Poverty Action Group, Greenpeace and others. The power of the courts to intervene where an arguable misuse of power affects the public as a whole is, as Lord Reed said in the Supreme Court recently, an aspect of their function of protecting the rule of law.

Departments of State have on occasion welcomed public interest challenges as a means of clarifying the law. In 1990, for example, a consortium including Child Poverty Action Group and the National Association of Citizens’ Advice Bureaux challenged the way social security legislation was being interpreted and administered by the department and the independent adjudicators. The department did not contest their standing; the ruling helped everyone.

Following a barrage of criticism, including a sharp response from the judiciary, the proposal to restrict standing has now been dropped. Whether it was a serious proposal we may never know.

When meanings of “public interest” collide

One possibility the threatened advance of the constitutional bulldozer threw up was a revival of relator actions: proceedings authorised by the Attorney General in the public interest so as to cure the claimant’s lack of standing. The use of this power has become rare as public interest standing has developed, but it is a judge-made instrument for securing justice. The problem is that the Attorney General is both a custodian of the public interest in the observance of the law (and in that regard the Government’s legal adviser) and a government minister with political obligations of collective responsibility.

In 1977 John Gouriet and his Freedom Association tried to obtain an injunction  to stop the Union of Post Office workers boycotting mail destined for South Africa. Gouriet’s lawyers recognised that he had no personal standing and therefore needed the Attorney General’s authority to proceed. The Attorney General refused. In a memorable judgment, Lord Denning in the Court of Appeal held that if the Attorney General improperly refused his consent the court could proceed without it. Denning’s premise, at least, is not fanciful.

A refusal on the ground that it is not in the public interest for well-founded proceedings to be brought is entirely possible. It is here, however, that the two meanings of public interest collide. For the intending claimant, the public interest lies in maintaining the rule of law; for the Attorney General it will lie in an amalgam of legal and political considerations dominated by the interests of the government of which he or she is a member. The consequence is that the Attorney General, if asked to authorise a claim such as the Pergau Dam claim, may recognise, as the Government’s legal adviser, that the claim is entirely sound but decide as a member of the Government that it is not in the public interest for it to be litigated in open court.

An assault on the separation of powers

This is among the reasons why the courts have developed their own principles of standing, and why Parliament, recognising that it is for the courts to decide whom they will hear, has not – or not so far – attempted to restrict or defi ne what amounts to a sufficient interest for a judicial review claim. Grayling’s proposal was part of a renewed assault on the constitutional separation of powers.

Denning’s conclusion that if necessary the courts could proceed without the Attorney General’s consent is problematical. But if the court were to require the Attorney General to reach his decision about authorising the proceedings without regard to political considerations and with exclusive regard to the maintenance of the rule of law, it would at least give the concept of public interest a single and intelligible meaning dovetailing with the rule of law. Reliance on the Attorney General’s support would not work in the most critical class of case, where the decision under challenge is one for which the Attorney is responsible. When in 2006 the director of the Serious Fraud Office decided that it was in the public interest to discontinue the SFO’s investigation into possible corruption affecting British Aerospace’s arms dealings with Saudi Arabia, because Saudi Arabia had threatened to withhold its cooperation in combating terrorism within the UK if the investigation was pursued, the director had acted throughout in consultation with the Attorney General to whom he was answerable and the Attorney General in turn had consulted his ministerial colleagues. A group of NGOs led by Corner House Research challenged the director’s decision as an unlawful abdication of his duty to investigate serious crime but the House of Lords held that the choice made by the SFO director, with the Attorney General’s authority, was a legitimate choice between two competing public interests, the prosecution of crime and the safety of British citizens.

The lawsuit, however, crystallised two things. One was the complex of factors going to make up a government decision about where the public interest in relation to the investigation lay. The other was that unless disinterested groups like Corner House Research were able to bring as serious an issue as this before the courts, the public interest in the maintenance of the rule of law would be rendered impotent – for who, other than British Aerospace and the Saudi government, would have had a “direct and tangible interest” in the issue?

This is an abridged version of ‘Not in the Public Interest’ by Sir Stephen Sedley (London Review of Books, Vol. 36, No. 5, 6 March 2014).