The petitioner sought judicial review of a decision to allow the boxer Mike Tyson to visit the UK.
Held: The Immigration Rules conferred no express or implied rights on third parties such as the petitioners. A review was refused.
Lord Clarke the issues of title and interest to sue on a broad and flexible basis: saying: ‘Two things require, in my judgment, to be noted about that dictum. In the first place (Lord Dunedin) was recognising the difficulty and, indeed, inappropriateness of seeking to provide any fixed definition of the concept of title to sue. Secondly, the dictum, though it has stood the test of time, was uttered in times well before the huge development of administrative law and judicial review that has occurred in recent decades. The key elements, therefore, of the dictum, namely ‘some legal relation which gives him some right which the person against whom he raises the action either infringes or denies’ must be given a content and a meaning which keep them abreast with those developments. Where questions of title to sue arise in a situation where a Minister is exercising a function, the search is, in my opinion, to be focussed on the scope and the purpose of the statute or other measure under which he is purporting to act to discover who, in law, has the right to challenge an act or decision taken by the Minister in the exercise of that function if that act or decision is not to his liking. The fact that the act or decision is not to his liking does not per se qualify a person with title to challenge. Some legislation and its related measures, having regard to their purpose and function, will, no doubt, confer a right of challenge on individual members of the public as a whole, but it is a fallacy to suppose that because of the public interest in ministers acting lawfully and fairly that public interest by itself confers on every member of the public a right to challenge a Minister’s act or decision. Matters must go further, in my judgment, and the individual or body seeking to challenge the Minister’s act or decision must show that, having regard to the scope and purpose of the legislation, or measures, under which the act is performed, or the decision is made, he or they have had such a right conferred upon them by law, either expressly or impliedly.’
And: ‘That approach to questions of title to sue was applied by Lord Clyde in the case of Scottish Old People’s Welfare Council, Petitioners [1987 SLT 179] where his Lordship, under reference to the supplementary benefits legislation, with which he was concerned in that case, said at p. 185: ‘The purpose of the legislation is to make state benefit available to any member of the public who may qualify for it and it is not unreasonable to see the duty of the proper administration of the legislation as a duty owed to the public. On that basis it can be concluded that any member of the public has at least a title to sue and the only question remaining would be whether he has an interest to do so.”
‘In my judgment the petitioners were in no different a position from any other member of the public in that respect. The scope and function of the legislation, and the rules, did not provide a legal nexus between the petitioners and the Secretary of State when he was exercising his discretion under them.’
Judges:
Lord Ordinary (Lord Clarke)
Citations:
2000 SC 527
Cited by:
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.
Scotland, Judicial Review
Updated: 02 May 2022; Ref: scu.393384
