Access to justice in public law contexts is mediated by several procedural rules, including standing and permission requirements, which reflect a concern to confine judicial review to cases that properly warrant the governmental costs of public law litigation. However, in addition to these universal checkpoints, which are a well-known feature of the judicial review terrain, Parliament has historically entrusted to the Attorney General a distinct gatekeeping role in relation to a subset of public law proceedings which require that law officer’s consent, or “fiat”, before they may be brought. Section 13 of the Coroners Act 1988 is a clear example. It provides that an application to the High Court to quash an inquest finding and order a fresh investigation may be made only by, or with the authority of, the Attorney General, thereby assigning to the law officer a “public interest” function at the threshold of a judicial process. This blog explores whether it would be appropriate for a public interest function of this nature to be examined by way of an application for judicial review under any circumstances, given that the UK Supreme Court has indicated it will hear competing arguments about this in the near future.

There are five parts to the analysis below. In the first, I summarise the background to the appeal on its way to the Supreme Court. In the second, I outline why amenability to review can coherently be accepted while keeping the grounds and intensity of review appropriately restrained. In the third, I consider some Northern Ireland jurisprudence from a largely comparative viewpoint. In the fourth, I widen the comparative lens by touching on some perspectives from Australia and Canada. In the fifth, I return to the specific questions before the Supreme Court and suggest why, to my mind, a context-sensitive approach to reviewability is likely to provide the most attractive basis for deciding this appeal.

R (Campbell) v His Majesty’s Attorney General for England and Wales

The proceedings at first instance arose from an attempt to reopen an inquest into the death of Geoffrey Campbell, who was killed in the North Tower of the World Trade Centre on 11 September 2001. A 2013 inquest recorded that his death was caused by the collapse of the Tower following the deliberate impact of an aircraft, as part of an Al-Qaeda attack. The claimant, his brother, sought to advance an alternative hypothesis and relied upon what he characterised as fresh evidence not before the coroner. However, the point of law under dispute goes beyond the factual particulars of the case. As mentioned above, section 13 of the 1988 Act provides that an application to the High Court may be made only by the Attorney General, or under the Attorney General’s authority, and the claimant therefore sought that authority. The request was considered by the Solicitor General, exercising the Attorney General’s functions under section 1(1) of the Law Officers Act 1997, and was refused. A claim for judicial review followed, raising as a preliminary matter whether such a refusal can be reviewed at all.

The Divisional Court held that, by virtue of stare decisis, this category of law officer public interest decision is immune from judicial review. The court regarded itself as unable to depart from the binding effect of Gouriet v Union of Post Office Workers [1978] AC 435 and several other precedents. It also indicated, in the alternative, that even if amenability were accepted, the grounds of review available would be very narrow. The Supreme Court has granted permission on two questions: first, whether the refusal is amenable to judicial review at all, and secondly, if it is, on what grounds.

Reviewability & Restraint

Although the Divisional Court considered itself bound to treat section 13 decisions as falling within a category of public interest functions that are immune from review, it nonetheless addressed what would follow if that premise were incorrect (see paragraph [57] in particular). In so doing, it outlined an approach that would preserve a residual legality jurisdiction while keeping the likely incidence of successful challenges exceptionally low, in a manner that would sit comfortably with the modern treatment of justiciability since Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

The underpinning logic is straightforward. Section 13 establishes a statutory gateway to the High Court, but it does so in language that is notably sparse. It requires authority “by or under” the Attorney General, without specifying criteria by reference to which authority must be granted or refused. That drafting choice can be read naturally as conferring a wide evaluative judgement on the law officer, rather than creating a scheme of tightly defined conditions apt for close judicial oversight. The interpretive consequence is not that the decision is beyond legal analysis, but that the law operates at the level of outer limits rather than by way of granular supervision.

The alternative reasoning canvassed in the first instance judgment suggests a familiar response to that interpretive point. Judges could treat the correct analogue as those domains in which courts accept review in principle but intervene only on tightly confined grounds because, inter alia, the decision-maker’s role requires a multi-factorial and polycentric assessment of the public interest, and because the institutional costs of routine litigation could be considerable. The Divisional Court recognised, in this respect, the language of “highly exceptional” intervention that has long been used in relation to prosecutorial discretion, and on the formulation associated with R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326 and R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60. Review, if available, would not operate as a vehicle for re-arguing the merits of whether a fresh process ought to occur.

On this approach, the grounds available would be narrowly defined and non-intensively applied. The Divisional Court would have limited them to dishonesty, mala fides and exceptional circumstances. The important point, in the current context, is the structure of this analysis. It shows that it is possible to accept amenability without undermining the statutory function Parliament has assigned. The standard procedural rules that apply to all judicial reviews, coupled with a deliberately thin conception of the grounds of review, would screen out inappropriate challenges at an early stage, while preserving the possibility of intervention if a particular refusal were legally indefensible.

A Close Comparator: Northern Ireland

Comparisons with Northern Ireland necessitate important caveats, but they remain instructive. The Attorney General for Northern Ireland is constitutionally distinct in ways that bear directly upon arguments about political accountability. The devolution settlement requires that all of the Attorney General for Northern Ireland’s functions be exercised independently of any other person, and the office-holder is institutionally remote from the ordinary cycle of legislative questioning. Although the relevant statute contemplates participation in Assembly proceedings to the extent permitted by standing orders, no such standing orders were ever agreed and laid, with the practical result that appearances occur only by committee invitation. I have previously argued (in a 2018 Public Law article and in my 2022 monograph at pp.195-199) that accountability forum dynamics are of central importance in this field, and that judicial abstention arguments must be treated with caution where they proceed on assumptions about political accountability that may not, in practice, hold water.

The contrast with Westminster is important, if not decisive, for present purposes. The Attorney General for England and Wales is ordinarily a parliamentarian and is thus exposed to various modes of parliamentary engagement, including written and oral questions from members of the House to which they belong, as well as various forms of committee participation. However, those mechanisms do not, as a matter of constitutional routine, operate as a means of testing the legality of public interest decisions in individual cases. Scrutiny tends instead to address policy, performance, and broad constitutional practice, albeit with occasional exceptions. One such exception is illustrated by the 1924 Campbell controversy, wherein the Prime Minister, James Ramsay MacDonald, was forced to resign after covering up the pressure he and his Cabinet colleagues had placed upon the Attorney General, who acceded by dropping a prosecution that had been commenced against the proprietor of a communist newspaper.

Notwithstanding this asymmetrical backdrop, the Northern Ireland case law should be read less as a consequence of uniquely limited political scrutiny, and more as a demonstration that courts can treat a law officer’s public interest gateway functions as amenable to review while tailoring the grounds for review, and their intensity, to constitutionally appropriate boundaries. That proposition can be seen with particular clarity in the coronial context, where the relevant statutory function is closely analogous to the section 13 gateway now before the Supreme Court.

Northern Ireland courts have proceeded on the basis that the statutory power of the Attorney General for Northern Ireland to direct a fresh inquest is amenable to review, while insisting upon a measured approach to intensity in particular. Section 14 of the Coroners Act (Northern Ireland) 1959 empowers the Attorney General for Northern Ireland herself to direct a fresh inquest where, in her opinion, it is “advisable” to do so. It seems that this evaluative expression has given rise to a relatively hands-off judicial approach, in that recent case law suggests a settled assumption of restrained reviewability.

In Re Burns’ Application [2022] NIQB 18, the applicant sought to challenge the refusal of the then Attorney General for Northern Ireland to direct a fresh inquest into the 1972 killing of Thomas Aquinas Burns, where the original inquest in 1973 had returned a verdict of misadventure. Humphreys J treated the reviewability point as clearly arguable in this jurisdiction by reference to earlier precedents, notwithstanding the prominence of Gouriet in the English line of authorities. He emphasised that any review would be of the “light touch” variety given the breadth of the statutory language, while still granting leave on conventional public law grounds that fastened on misdirection and material considerations.

In Re Soldier A & C’s Application [2025] NICA 64, the Attorney General for Northern Ireland had directed a fresh inquest into the 1972 death of Joseph McCann, with the applicants, who were soldiers involved in the incident, seeking to challenge the Attorney’s decision by way of judicial review. The Court of Appeal granted leave on an arguable ground and proceeded throughout on the basis that the section 14 function was, in principle, reviewable, while simultaneously treating the discretion as broad and the standard of review as restrained. The court’s case-management response also reflected the wider statutory and political environment, including the effect of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, pending its repeal and/or replacement, on the practical ability of a new inquest to proceed.

Another particularly notable illustration arises from Re Bunting’s Application [2023] NIKB 43, which concerned not a section 14(1) decision per se, but the statutory mechanism for allocating responsibility for that decision where national security material is said to be in play. The applicant, the widow of Ronald Bunting who was murdered in 1980, challenged a decision of the Secretary of State for Northern Ireland to certify under section 14(2) that there was relevant information which, if disclosed, might be against the interests of national security. The legal consequence of such a certification, per section 14(3), is that the decision on whether a fresh inquest is “advisable” transfers from the Attorney General for Northern Ireland to the Advocate General for Northern Ireland. The applicant’s concern was that the substantive decision should not be taken by a UK Government law officer. The court rejected the submission that the claim was premature and held that it raised a substantive legal issue about the decision-making mechanism under the 1959 Act which ought to be resolved in the public interest. The office of Advocate General for Northern Ireland is held concurrently with that of Attorney General for England and Wales, and the readiness to treat this allocation dispute as justiciable may be difficult to reconcile with the broadest claims of categorical immunity that have arisen in the ongoing Campbell appeal.

Wider Comparators: Australia & Canada

Some comparative reinforcement may be drawn from Australia too. Groves has observed that Attorneys General in that jurisdiction also retain privileged roles as gatekeepers to public law litigation, and highlighted the constitutional difficulty of regarding such functions as reliably insulated from political and governmental pressures. His discussion, drawing on Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, cautions against overconfidence in the infallibility of the Attorney General “as an apolitical defender of the public interest”. While the jurisdictional context is obviously different, the healthy scepticism expressed by our common law relations does strengthen the general idea that public interest labelling need not be treated as an automatic and impregnable barrier to legal accountability.

Canada offers a further point of comparison, though the constitutional setting is clearly different again. A legislative proposal currently before the Canadian Parliament would remove the requirement for Attorney General consent before charges can be brought for hate propaganda offences, with the stated aim of “streamlining the process for law enforcement to more effectively address such cases”. This particular gatekeeping function is less directly analogous to section 13, of course, but the reform proposal is worth noting nonetheless for what it suggests about the perceived challenges of vesting public interest based filtering powers in a law officer rather than a court.

Context-Sensitive Reviewability

It is open to the Supreme Court to recognise amenability in principle, while ensuring that the court’s supervisory role remains disciplined by the relevant statutory language and the constitutional context to the statutory function in question. This is particularly so where the function operates as a statutory gateway to the High Court and therefore engages the constitutional concern for access to justice emphasised in and exemplified by R (UNISON) v Lord Chancellor [2017] UKSC 51, [2020] AC 869. There are competing arguments to be weighed up. On the one hand, the principle of access to justice might be thought to point towards robust reviewability. On the other, the sparsely framed terms of the statutory discretion conferred upon the Attorney General by Parliament, together with the unique lineage of that office, points towards restrained reviewability.

Recent commentary has already made the case, in different ways, for treating categorical immunity as the wrong analytical starting point. Luo has argued consistently with the alternative reasoning prefigured by the Divisional Court that “islands” of immunity for the Attorney General’s public interest functions are increasingly difficult to reconcile with the modern law of judicial review. Holbrook, writing in the contempt context, has explained the Law Commission’s consultation-led recommendation that all contempt-based public interest decisions of the Attorney General should be judicially reviewable; a conclusion which is underpinned by the strong support of various consultees as well as the Commission’s view that fears of routine or abusive litigation are unlikely to be realised given the permission filter and the limited remedial consequences of most judicial review applications.

Casey’s analysis supplies an important counterweight and helps to identify what a context-sensitive settlement would need to respect. He emphasises that the Attorney General’s discretionary public interest powers have historically been constrained by constitutional conventions and by a professional culture of legality internal to the office. On his account, these factors structure the constitutional role by fixing an expected understanding of the law officer’s responsibilities, including the expectation that politically partisan or expedient considerations will not be allowed to displace independent legal judgement. Those constraints are then reinforced by the prospect of political consequences where conventions are perceived to have been breached, and Casey’s account of the historical record is directed towards illustrating how that disciplining effect has operated in practice.

Cumulatively, these analyses suggest that there are broadly accommodating answers to the questions before the Supreme Court. First, the Divisional Court’s alternative analysis should be adopted. A refusal of authority under section 13 should be amenable to judicial review in principle for the reasons developed before that court, which are reinforced by the additional comparative and conceptual points above. Secondly, that recognition of amenability should be matched by a context-sensitive standard of review. Amenability in principle would secure the value of legality. Restraint in respect of grounds and intensity would demonstrate an appropriate degree of institutional respect and acknowledge the continuing relevance of political constitutionalism in this space. In my view, such an approach is plainly to be favoured over one grounded in categorically context-blind deference. It is normatively desirable that the judiciary should be prepared to review a law officer’s public interest gatekeeping decisions with restraint. It is undesirable that they should refuse to review them under any circumstances imaginable. Never say never.

Dr Conor McCormick is a Reader in the School of Law at Queen’s University Belfast. The author is grateful to Professor Gordon Anthony, Dr Paul Scott and Dr Leah Trueblood for reviewing an earlier draft of this post.

(Suggested citation: C. McCormick, ‘The Attorney General and Residual Legal Accountability’, U.K. Const. L. Blog (25th February 2026) (available at https://ukconstitutionallaw.org/))