Matthew Campbell, R (on the application of) v His Majesty’s Attorney General for England and Wales

Decisions of the Attorney General exercising certain public-interest functions may be immune from judicial review. The relevant question depends on the nature and subject matter of the function, not whether its source is statutory or prerogative. The immunity extends to functions which make the Attorney General a gatekeeper to proceedings intended to enforce the law or otherwise protect the public interest, where the function is conferred specifically on the Attorney General. A refusal of authority under section 13(1)(b) of the Coroners Act 1988 falls within that category. Alternatively, if such a decision were reviewable, intervention would be confined to dishonesty, bad faith or an exceptional circumstance.

The claimant, the brother of a man killed in the World Trade Centre on 11 September 2001, sought authority under section 13(1)(b) of the Coroners Act 1988 to apply to the High Court for the quashing of an inquest finding and a fresh investigation. The Solicitor General, exercising the Attorney General’s function, refused the application.

The claimant brought judicial review proceedings on grounds including error of law, irrationality, inadequate reasons and unreasonable treatment of fresh evidence. The Administrative Court directed a preliminary hearing on whether the refusal was justiciable. The central issue was whether the Attorney General’s statutory gatekeeping function under section 13(1)(b) was immune from judicial review.

1. Decision. The challenged refusal was held not to be justiciable. Permission to apply for judicial review was refused.
2. Under [1985] 1 AC 374, justiciability depends on the nature and subject matter of the public power rather than its source. Modern authority often addresses constitutional concerns by restricting the grounds of review or according the decision-maker a broad margin, rather than by treating a power as wholly immune.
3. Nonetheless, the nineteenth-century authorities and Gouriet established a category of Attorney General functions which are categorically immune from review. The Court of Appeal’s decision in Gouriet treated non-reviewability as part of its ratio, and the House of Lords’ reasoning treated the immunity as extending beyond relator actions to a wider class of public-interest functions.
4. The later decisions in Edey and ex p. Taylor confirmed that the immunity applies to modern judicial review and to statutory as well as prerogative functions. The court followed ex p. Taylor under judicial comity and was not convinced that it was wrong.
5. The relevant class includes powers to bring or authorise proceedings in the public interest, making the Attorney General a gatekeeper to the court. Section 13(1)(b) of the Coroners Act 1988 is specifically and exclusively conferred on the Attorney General and performs that gatekeeping role. It therefore falls squarely within the non-justiciable category.
6. Alternatively, applying the approach in Kebilene, any review would be limited to dishonesty, bad faith or an exceptional circumstance. None of the pleaded grounds alleged such a matter.