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Published online by Cambridge University Press: 02 January 2018
‘Today, therefore, the controlling factor in determining whether the exercise of a prerogative power is subject to judicial review is not its source but its subject matter.’ So uttered Lord Scarman, expressing the view of the majority of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case). The Attorney General, in deciding whether to institute proceedings for the enforcement ofa public right, exercises a power vested in him by virtue of the royal prerogative. This power, it was previously held, was ‘absolute and non-reviewable’. The question now arises as to whether the Attorney General’s discretionary powers are embraced within that category of prerogative powers whose subject matter renders them amenable to judicial review, or whether they remain beyond judicial scrutiny.
2. Per Lord Scarman in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 407.
3. Per Lord Edmund-Davies in Gouriet v Union of Post Office Workers [1978] AC 435 at 512.
4. A phrase coined by Rt Hon S. C. Silkin QC, MP, whilst Attorney General during the Gouriet case supra See Vol 12 Bracton Law Journal 32.
5. Gouriet v Union of Post Office Workers [1978] AC 435.
6. Ibid.
7. The exertion of improper pressures or the insuperation of his role can also compromise his constitutional independence. The latter seems to have occurred in the recent Peter Wright case in which the government was reported to have taken the decision not to prevent publication of confidmtial information in the book ‘Their Trade is Treachery’ without consulting the senior hw officer, arguably interfering in his constitutional role. See The Times, 4 December 1986.
8. HC 393 of 1971–2, Report from the Select Committee on Parliamentary Questions indicating the limits of the conventional remedy for mal-administration. In 1971, of the questions tabled for oral answcr, only about one-third were actually answered. The Report also identified the party system as restricting the efficacy of the principle of ministerial accountability, Ibid, p 89.
9. Cappalletti ‘Vindicating tie Public Interest through the Courts: A Comparativist's Contribution’. Access to Justice 3 (1979) 514.
10. This seems to be confirmed by the infrequent use made by office-holders of the ex officio proceedings.
11. The slowness of the Attorney General's response to a request that he should lend his name to relator proceedings was criticised in the Court of Appeal in A-G (ex rel McWhirter) v Independent Broadcasting Authority [1973] QB 629.
14. Supra n 9.
13. The employment of the US federal class action is controlled by the certification procedure which serves to establish (int. al) that the class plaintiff is a proper person to represent the class.
14. For example, Franks v Bowman Transportation Co, 424 US 747 (1976).
15. Perhaps the most infamous example of this is the Cabinet Instruction of 6 August 1924, made public after the Campbell case, which stated: ‘No prosecution of a political character should be undertaken without the prior sanction of the Cabinet being obtained.’
16. Wade [1978] LQR 5 and Mercer [1979] PL 214 comment adversely on the Attorney General's refusal to sanction the proceedings proposed by Mr Gouriet. Gouriet then attempted to bring the suit in his own name. See Gourict v Union of Post OfJe Workers note 5 supra.
17. [1986] PL 220.
18. Rules of locus standi, although somewhat relaxed since the introduction of the new RSC Ord 53, would probably prime facie prevent an individual with merely the abstract interest of securing compliance with the law from challenging the exercise of the Attorney General's discretion. The House of Lords, however, in R v IRC, ex p National Federation of Self Employed and Small Businesses Ltd [1981] 2 WLR 722 does not seem to have closed the door entirely on the possibility of such a suit where exceptional circumstances might justify the intervention of the court, Lord Roskill, in denying that as a general proposition a taxpayer could have locus standi to challenge the tax assessment of another taxpayer, stated: ‘Theoretically … it is possible to envisage a case where because of some grossly improper pressure or motive the (Inland Revenue) have failed to perform their statutory duty to a particular taxpayer or class of taxpayers. In such a case … judicial review might be available to other taxpayers,’ (at 757). Lord Wilberforce concurred as to this exceptional kind of case in which standing 10 sue, otherwise lacking, could be granted by virtue of the gravity of the breach of duty alleged (at 730). See also Lord Fraser of Tullybelton at 742 for the possibility of a judicial review at the instance of a ‘private Attorney General’ where what was alleged was ‘excepticmnally grave or widespread illegality’. Assuming that these dicta are of general application they suggest that locus standi may be merits-related in the limited circumstances of a seria)us breach of duty. Such an exception may be sufficiently wide to allow the courts considerable discretion as to its application.
19. [1902] AC 165.
20. [1902] AC 165 at 168–9.
21. Note 5 supra.
22. See per Lord Wilberforce [1978] AC 435 at 478–9; Lord Dilhorne, at 488; Lord Edmund-Davies at 506; and Lord Fraser of Tullybelton at 518–9.
23. [1978] AC 435 at 479.
24. Ibid, at 512.
25. Ibid, at 488.
26. Per Lord Wilberforce, ibid. at 483.
27. Saltpetre Case (1607) 12 Co rep 12; Laker Airways Ltd v Dept of Trade [1977] QB 643; R v Allen (1862) 1 B& S 850.
28. Christopher French QC at [1978] AC 435 at 464.
29. Although R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 QB 864 - in which the Divisional Court had purported to control the abuse of a prerogative power- had been decided it had not, at the time of the Gouriet case, received acclaim as a ‘landmark’ case. This notoriety was achieved after the decision of the House of Lords in the GCHQ case. (See for example the remarks of Lord Scarman at 407 and per Lord Roskill at 418).
30. See per Lord Dilhorne [1978] AC 435 at 489, himself a former law officer, and the concurring opinion of Lord Edmund-Davies, ibid, at 506.
31. Council of Civil Seruire Unions v Minister for the Civil Service [1985] AC 374; also for example R v Secretaly of State for Foreign & Commonwealth Affairs, ex p Everett (1987) Times, 10 December.
32. [1985] AC 374 at 418.
33. Blackburn v A-G [1971] 1 WLR 1037; Re Molyneaux [1986] 1 WLR 331.
34. R v Secretary of State for Foreign & Commonwealth Affairs v Trawnick (1985) Times, 18 April (DC), and 21 February 1986 (CA).
35. In Hanratty v Lord Butler (1971) Times, 12 May the discretion was thought to be absolute.
36. Per Bork J, Vander Jagt v O'Neill 226 App DC 14 at 26–27. These limits prevent the determination of'political questions'.
37. [1964] AC 763 at 809–10.
38. Interestingly, in the field of statutory controls on immigration, the House of Lords has recently held that the decision whether or not to grant leave to enter and remain in the UK as an immigrant does not, in general, involve justiciable issues since it is largely of a discretionary nature, R v Home Secretary, ex p Bugdaycay [1987) AC 514, at 537; also R v Home Secretary, ex p Sivakumaran [1988] 2 WLR 92.
39. R v Secretary of State for Foreign & Commonwealth Affairs, ex p Everett (1987) Times, 10 December.
40. Parl Debs, 4s Vol, 118 Cols 360–361.
41. Ibid, Cols 376–377.
44. Law Oficers of the Crown (1964) p 190.
43. HC Debs, Vol 177, cols 686–7.
44. Appearing before the Lyrlskey Tribunal. Minutes of Evidence p viii 1 November 1948. See Edwards, Law Officers of the Crown p 302.
45. Vol 12 Bracton Law Journal p 37.
46. De Smith, Judicial Reuieu of Administrative Action (4th edn, 1980) p 77.
47. Cmnd 4060 p 73.
48. The Rt Hon S. Silkin QC MP, as Attorney General, gave an account to the House of Commons for his refusal to lend his name to the relator proceedings proposed by Mr Gouriet, HC Debs, Vol 483, cols 1702–3, 27 Jan 1977.
49. [1964] AC 40.
50. (1985) 101 LQR 180.
51. See now R v Secretary of State for Foreign & Commonwealth Affairs, ex p Everett (1987) Times, 10 December.
52. In the Wensleydale Peerage case (1856) 5 HLC 958 the Committee of Privileges decided that the grant of a life peerage carried with it no entitlement at common law to sit and vote in Parliament notwithstanding that this had been the Crown's purpose in granting the honour in this case. Although corruption was not an issue here, it may be that the case provides some guidance as to the competence of the Upper House power to question the entitlement of an individual who had procured his peerage by corrupt means.
53. The ouster of judicial review in cases involving considerations of national security is discussed in R v Home Secretary, ex p Ruddock [1987] 2 All ER 518 at 524.
54. Before the House of Cominons the Attorney General explained (see note 43 supra) that the proposed action was premature as measures had only just been taken to prevent the occurrence of the proposed breach of the law, and it was too early to ascertain whether these had failed. Morever, Gouriet's proposed action was thought to be inflammatory and might provoke the trades unionists down the road to martyrdom. Furthermore, the proposed use of the civil law to enforce the criminal law was not warranted in the circumstances; nor was it thought appropriate to intervene at an early stage in an industrial dispute by means of an action in the courts.
55. Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.
56. Council for the Civil Service Unions v Minister for the Civil Service [1985] AC 374.
57. Per Lord Diplock [1985] AC 374 at 411.
