Rusbridger & Anor v Attorney General

The court may, in an exceptional case, make a declaration concerning the meaning of an Act of Parliament or incompatibility with Convention rights, but that jurisdiction is exercised sparingly. A claim challenging an Attorney General’s correspondence requires an identifiable decision or unlawful act; the absence of a prosecution does not itself establish one. Where amended relief raises points of general public importance that have not been fully argued, permission should not be refused merely because the court expresses no view on the merits. The matter may instead be remitted for proper consideration in the Administrative Court.

The appellants, a newspaper editor and journalist, wished to publish peaceful advocacy of a republican form of government. They sought declarations concerning the construction of section 3 of the Treason Felony Act 1848 in light of section 3 of the Human Rights Act 1998, and alternatively a declaration of incompatibility.

The Administrative Court refused permission for judicial review, holding that the Attorney General had made no reviewable decision and that the proposed claims were unarguable. Before the Court of Appeal, the challenge to the Attorney General’s acts or omissions was abandoned. The central issue became whether the amended declaratory claims should proceed.

1. Appeal and abandoned challenge. Permission to challenge the Attorney General’s acts or inaction was refused. His letters contained no decision, and no unlawful act arose merely because he had not prosecuted the appellants. The Administrative Court’s refusal on declarations 1 and 2 was therefore justified.
2. Declaratory jurisdiction. The court had jurisdiction to make a declaration as to the meaning of an Act of Parliament and, where appropriate, a declaration of incompatibility under section 4 of the Human Rights Act 1998. That jurisdiction was discretionary and would be exercised sparingly. The Attorney General would ordinarily be a formal respondent to such proceedings.
3. Unresolved statutory and Convention issues. The interaction between section 3 of the Treason Felony Act 1848, section 3 of the Human Rights Act 1998 and article 10 of the Convention had not been fully argued. The court expressed no view on the proper construction of the 1848 Act or on whether the proposed declaration should be granted.
4. Procedural consequence. The amended submissions raised points of general interest which ought to receive proper consideration. The matter was remitted to the Administrative Court for that purpose. The appeal was dismissed, the appellants were ordered to pay half the respondent’s assessed costs, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) — [2002] EWCA Civ 397 : appeal against refusal by the Administrative Court to grant permission for judicial review dismissed; amended declaratory issues remitted.
• Administrative Court — refused permission to apply for judicial review, holding that the challenge to the Attorney General disclosed no reviewable decision and that the remaining claims were unarguable.