In July 2025, the Divisional Court in R (Campbell) v Attorney General [2025] EWHC 1653 (Admin), held that “there is a category of functions of the Attorney General which are immune from review on any ground”. In November, the Supreme Court granted Mr Campbell direct leave to appeal.

In the meantime, the Law Commission of England and Wales (also in November) published the first part of its report and recommendations on reform to contempt of court laws (Contempt of Court: Report (Part 1) on Liability (2025) Law Com No 423). It recommends that, although under the current law contempt decisions by the Attorney General (AG) would not seem to be judicially reviewable following the Divisional Court’s ruling in Campbell, the law should be changed and those decisions should be reviewable.

The decision in Campbell and judicial review of decisions by the AG has been a recent topic of debate on this blog (D Luo, “The Anomalous Islands of Public Interest Functions Immune from Judicial Review” (14 October 2025); C Casey, “The Attorney’s Bridle: The Constitutional Convention Disciplining the Attorney General’s Discretionary Powers” (20 October 2025)). This piece aims to contribute to that conversation by explaining the Law Commission’s recommendation and some of the views it received during consultation.

The Law Commission’s review of contempt laws

The AG plays a constitutional role in protecting the administration of justice. They may bring contempt proceedings. They issue media advisory notices to remind publishers to keep contempt laws in mind when reporting on matters where proceedings are or may become active. Perhaps most notable in the AG’s role is that, under section 7 of the Contempt of Court Act 1981, when proceedings are active and a publication contains potentially prejudicial material, then (unless the court acts of its own volition) proceedings for what is called “strict liability contempt” may only be brought by or with the consent of the AG.

In its consultation paper, published in July 2024 (Contempt of Court (2024) Law Commission Consultation paper No 262), the Commission asked consultees about possible reforms to the role of the AG in the context of contempt. The paper presented provisional proposals for reform that arose as a result of concerns that the political character of the AG – being both a Government minister and the senior legal advisor to the Government – may give rise to the possibility of actual or apparent bias in decisions as to whether to bring or consent to contempt proceedings. The paper referred to the work of Dr John McGarry (J McGarry, “The Attorney General and contempt of court – some political and constitutional concerns” (2023) 44 Legal Studies 352). McGarry highlighted possible conflicts of interest on the part of the AG by drawing attention to circumstances in which the AG did not bring contempt proceedings against senior government politicians for publications made during the course of active proceedings, which could have amounted to contempt by publication.

The Commission considered two issues in addition to whether decisions of the AG should be subject to judicial review: whether the contempt function currently exercised by the AG should be removed or passed to an alternative body, and whether the consent requirement to bring proceedings should be retained.

In its recent report, the Commission recommended that the AG should retain the public interest contempt function as they are well suited to the role and have the experience needed to determine whether it would be in the public interest to bring contempt proceedings. Additionally, it concludes, there are no other suitable alternative bodies that could carry out the contempt function.

Second, the Commission recommended that the consent requirement should be retained. It took the view that the requirement for consent by the AG to bring proceedings for contempt by publication when proceedings are active protects the right to freedom of expression: the consent requirement limits the number of contempt applications that could otherwise be brought against publishers.

Judicial review of the Attorney General’s contempt decisions

The most significant recommendation made by the Commission with respect to the role of the AG in contempt proceedings is that all contempt decisions made by the AG should be judicially reviewable.

In its consultation paper, published prior to the decision in Campbell, the Commission considered the relevant case law. It said that although in Gouriet v Union of Post Office Workers [1978] AC 435 (HL) (at 512 per Lord Edmund-Davies), the House of Lords maintained that “the Attorney-General’s discretion is absolute and non-reviewable” by the courts, later case law (Mohit v Director of Public Prosecutions of Mauritius [2006] UKPC 20; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374) suggested that some decisions, including those made under statutory powers, may be judicially reviewable.

The Commission did not make provisional proposals on the issue but instead invited responses to an open question of whether decisions by the AG should be judicially reviewable. It noted that immunity from judicial review “exacerbates the constitutional concerns surrounding [the AG’s] contempt role” and that the possibility of judicial review “is an important constitutional safeguard” which would “mitigate the risk that decision-making is politicised”. The Commission also emphasised that “susceptibility to judicial review enhances administrative decision-making, ensures good governance by holding the Executive to account, and improves public confidence in Executive power”.

During consultation, the Commission heard strong support for contempt decisions by the AG being open to review by the courts. The Family Division of the High Court, in a response submitted by the President of the Family Division, the senior judge of the Court of Protection and a working group including members of the judiciary at all levels within the Family Court, told the Commission:

The Attorney General’s decision to consent or not to bring contempt proceedings should be subject to judicial review. The decision is made by a Minister and should be subject to safeguards to ensure that all decisions have been made procedurally correctly, are lawful and are reasonable. The law (and society) has moved on since the cases cited from the House of Lords. Challenging the Attorney General’s decision in relation to whether or not to bring contempt proceedings is really no different from any other administrative law challenge to a Ministerial decision. Judicial review is an important example of the separation of powers in action.

The Bar Council told the Commission that immunity of the AG from judicial review “is somewhat anomalous” given that prosecutorial decisions made by the DPP may be judicially reviewed. Numerous other consultees were in favour of reviewability, telling the Commission that, for example, it is “necessary to enhance accountability” and “ensure that decisions by the AG are not politically motivated”, and that “it would be prima facie contrary to the rule of law if areas of Government activity, members of the Government or those exercising governmental power were immune from judicial review”.

Some opposed the possibility of judicial review, concerned about the potentially large number of frivolous claims or claims by people purporting to act in the public interest. Among them, the Commission received a response from the Attorney General’s Office, which is the ministerial department that supports the Law Officers in the exercise of their functions. The response was sent with the agreement of the Law Officers, the AG at the time being Lord Hermer KC. The AGO resisted the suggestion, arguing that immunity from judicial review “reflects the unique constitutional role of the Law Officers when taking [contempt] decisions” and that “any change to this position could have significant broader ramifications” for other areas of decision-making, by, for example, calling into question the reviewability of the Law Officers’ other public interest functions.

In its report, the Commission addressed these concerns directly. First, its recommendation only applies to contempt matters, and “statutory reform that renders one category of decisions reviewable need not affect decision-making or reviewability in relation to any other category”. Moreover, “the fear that making contempt decisions by the AG judicially reviewable would open the floodgates so as to inundate courts and erode the protection afforded by the AG to freedom of expression is”, the Commission said, “unlikely to be realised”. The Commission was:

not concerned that problematic consequences will result if decisions on contempt by the AG were to become judicially reviewable. It appears more likely that courts would infrequently grant permission and, more rarely still, interfere with a decision. Furthermore, even a successful application for judicial review does not allow a court to substitute its own decision for the AG’s and would not necessarily result in the AG changing their decision.

Despite these limits of judicial review, the Commission remained “convinced of the value of the supervisory jurisdiction of the courts: it will disincentivise politically motivated decisions and remedy concerns about apparent or actual bias in decision-making”.

The consultation paper was published prior to the Divisional Court’s decision in Campbell and the Commission’s view at that point was that at least some contempt decisions of the AG could already be judicially reviewable. For example, the Commission reached the view that consent decisions made by the AG under section 7 of the Contempt of Court Act 1981 were judicially reviewable and that “this is constitutionally acceptable because courts are simply enforcing the powers conferred by Parliament”.

The subsequent report, however, noted that after the Divisional Court’s decision, there is more certainty and it would appear that decisions of the AG to bring or refuse to bring contempt proceedings are not judicially reviewable.

However, the Commission nevertheless concluded that immunity from review by the courts is “outdated” given the modern landscape of public law. It is “anomalous” given that decisions made by other prosecutorial authorities such as the Crown Prosecution Service and Serious Fraud Office are subject to judicial review. Furthermore, it “did not find purchase with consultees”.

The Commission therefore recommended that all contempt decisions made by the AG should be judicially reviewable. Specifically:

“The following decisions made by the Attorney General should be judicially reviewable:

(1) decisions to grant or refuse consent for another person or body to institute proceedings for contempt by publication when proceedings are active; and

(2) decisions to institute or decline to institute contempt proceedings for contempt by breach of court order or undertaking, contempt by publication when proceedings are active, contempt by disrupting proceedings, or general contempt”.

Due to the terms of reference of the Commission’s project on contempt laws, it emphasised that its recommendation concerning judicial review “is limited to decisions of the AG in relation to contempt of court” and that “the AG exercises a number of unique functions which are not under consideration”, on which the Commission could not comment.

The road ahead

The Commission makes recommendations for law reform which require implementation by the Government, taking legislation through Parliament. The Government may or may not elect to implement the recommendations.

In the meantime, the Supreme Court in Campbell will determine two issues:

“(1) Is the exercise of the Attorney General’s power to allow or refuse to allow an application to be made for an inquest to be re-opened amenable to Judicial Review?

(2) If so, on what grounds may the Attorney General’s exercise of that power be reviewed?”

Given the appeal that now sits with the Supreme Court, we can expect some clarity on the reviewability of decisions by the AG and possibly before the Government takes a position on implementation of the Law Commission’s recommendation on the reviewability of the AG’s contempt of court decisions.

I am grateful to Professor Alison Young for comments on a draft of this post.

Marianne Holbrook is a Legal Assistant in the Criminal Law Team at the Law Commission of England and Wales

(Suggested citation: M. Holbrook, ‘Should Decisions of the Attorney General be Judicially Reviewable?’, U.K. Const. L. Blog (10th December 2025) (available at https://ukconstitutionallaw.org/))