R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co

Facts

Remains of the Elizabethan Rose Theatre were found on a development site on Bankside in London. The Secretary of State for the Environment had power under the Ancient Monuments and Archaeological Areas Act 1979 to schedule a monument of national importance, and was asked to do so. He declined to schedule the site. A company, the Rose Theatre Trust, formed by interested persons to secure protection of the remains, applied for judicial review of that refusal.

History

The application was heard at first instance in the Queen's Bench Division by Schiemann J.

Issue

Whether the Trust had a sufficient interest under section 31(3) of the Senior Courts Act 1981 to bring judicial review of the Secretary of State's decision not to schedule the site.

Held

Application dismissed because the Trust, and the individuals behind it, had no sufficient interest in the matter.

Ratio

• Whether an applicant has a sufficient interest depends on the statutory framework under which the decision was taken, and where the statute gives members of the public no right to be consulted or heard on scheduling, individuals who are only concerned in the same way as others have no sufficient interest.
• A group of people who individually lack standing cannot acquire it by incorporating a company or forming an association, since the company has no greater interest than its members.

Key reasoning

• Sufficient interest is not a rule to be decided in the abstract but a mixed question of law and fact connected to the statute, and the 1979 Act gave certain parties, such as owners, rights and procedures but gave the public no participatory role in deciding what to schedule.
• The fact that the public as a whole has an interest in protecting national heritage does not give an individual or group a right to challenge decisions made by the minister on its behalf, as that duty rests with the Secretary of State.

Where it fits in the module

For FHS Administrative Law, Rose Theatre is the starred authority on section 31(3) and the debate about who may bring judicial review. It frames the contest between a restrictive, statute-focused approach to standing and a broader public interest approach that lets responsible pressure groups ensure that unlawful decisions do not go unchallenged. Students should compare it with later cases on public interest standing to see how the law evolved and what remains of the Rose Theatre approach.

Criticisms

• Linking sufficient interest to the statutory scheme rewards decisions that give the public no participatory rights, so the less accountable the statute, the harder it is to challenge unlawful action.
• Denying standing to a body formed specifically to protect the monument leaves no one able to challenge the minister's decision, which is inconsistent with a rule of law rationale for judicial review.
• The refusal to treat incorporation as a route to standing overlooks that organisations can be better placed than individuals to bring well-prepared challenges in the public interest.
• Later cases such as R v Inspectorate of Pollution, ex parte Greenpeace (No 2) [1994] 4 All ER 329 and R v Secretary of State for Foreign Affairs, ex parte World Development Movement [1995] 1 WLR 386 took a more generous approach and Rose Theatre is now regarded as unduly narrow.