Against Public Interest Standing in Administrative Law: Exploring a Non-Individualist Constitutional Argument

Abstract

This paper considers public interest standing from one particular angle, namely the proper constitutional role of courts. Should public interest standing be opposed on the basis that it entails a constitutionally inappropriate political role for courts, or should it be supported on the basis that it is necessary for allowing the courts to discharge their constitutional law enforcement functions?Opposition to public interest standing on the basis that it entails a constitutionally inappropriate political role for courts tends to be associated with a narrow individualistic view of the role of courts in public law as protecting individual interests against unlawful government interference. That view is rejected by many, perhaps most, judges and commentators today, in favour of a broader view of the role of courts in public law as holding the government to account to the extent of enforcing legal limits and standards. The main argument in this paper is that those are not the only two positions available, because there is an alternative progressive basis for opposing public interest standing.