Campbell v
Attorney General

8:48Mr Bowen KC: jurisprudence that underpins it. The rule of law provides that public power needs to be exercised lawfully, number one. Number two, the mean ability turns on subject matter, never on the source post CCSU or on who holds the power. Accountability to parliament, effectively neutralised you will have seen in the divisional courts, a decision but for Gouriet, it was found quite clearly by the lower court that that was not a good reason, not to find the matter justiciable.

9:36Mr Bowen KC: And accountability to parliament is no substitute we say for proper legal accountability. The fourth, where competence is weakest and what I mean by that is where it's an area where the judges think that the executive has more competence to consider the question, the answer is that the law adjusts the intensity of review rather than withdrawing the potential grown. And that's the whole argument about paragraph 57 of the judgement, where of course from

10:15Mr Bowen KC: your pre-reading you will have seen that there has been a fundamental shift by the government on that because they've effectively conceded that J57 subject of course to your law chips and your ladyships is not the correct way legally to proceed in this case but he has an alternative case which is that the standard of review is then so much higher that whichever way you skin that particular, nearly said cap, whichever way you look at it in either J57 terms or the alternative case, we say it's really effectively tantamount to an immunity

10:57Mr Bowen KC: anyway. And then the fifth constitutional fundamental access to court, so the court of course is inherent and part of the rule of law and my final point on this section 13 contains no words at all, no exclusionary language to suggest that there is some form of parliamentary approval to oust the jurisdiction, the supervisory jurisdiction of the administrative court.

39:24Mr Bowen KC: We have then of note at 43 through to 46 of the judgement, 43 being at page 156 onwards. Decision of the House of Lords in CCSU established that just dishability of a decision taken in the exercise of a public power depends on the nature and subject matter of the power rather than its source and the source of the power is of course the office and so we say that if I'm right about characterizing justification for the immunity as the office, that there's

40:04Mr Bowen KC: a mismatch with CCSU, thus decisions taken in the exercise of prerogative powers cannot be said for that reason alone to be non-justiciable. And here of course we are in the land of a statutory power where the general rule, and you get this from Lord Bingham in Mohit and Lord Justice Lloyd in Data Fin, for that reason alone non-justiciability. For Lord Scarmon the question whether the exercise of a power is justiciable depended on whether its subject matter is one on which no court can adjudicate.

40:46Mr Bowen KC: And of course this area is an area which is plainly and obviously an area which can be adjudicated upon. It happens very regularly in circumstances where the fiat is given, 407B being the relevant part of CCSU, Lord Roskill gave some examples of non-justiciable powers, those relating to the making of treaties, the defense of the realm, the prerogative of mercy, the grant of honors and the dissolution upon them. And one by one of course many of those have toppled and the law has moved up and down

41:20Mr Bowen KC: particularly in relation to the prerogative of mercy. We very recently in terms of the grant of honors had a case called Ranger which came out just a few days ago which was a successful judicial review of the stripping of an honor and the decision I think of Mrs. Justice Leeven as she I think then was. So this is an area where there has been a lot of flexibility or a lot of development and at the core of what we say is that the court is going to need to look very long and

42:00Mr Bowen KC: very hard at saying that there should be no shift from Gouriet. So I've got just 44. Since CCSU the appness or otherwise of a particular subject matter for judicial decision has remained a central preoccupation in the case law. The courts have continued to regard certain subject matters as inappropriate for judicial determination for institutional and constitutional reasons but they've tended to give effect to these conclusions by limiting or modifying the grounds on which the decision can be challenged

42:38Mr Bowen KC: or by according a broad margin of discretion or ascribing particular weight to the view of the decision maker rather than by categorizing the decision as non-justiciable simplicity.

1:48:56One of the points made in my learning friend's written case, a paragraph 27.

1:49:03The Court: Do you accept that they do seem to be saying that it is because of it being the Attorney General that it is immune because he is the first law officer of the Crown, we can't possibly disagree with him, but I thought you had moved away from saying that it is because he is

1:49:25the Attorney General that it makes it immune.

1:49:28Mr Crow KC: Our argument in this court is not that that is the only reason for finding the power under

1:49:36section 13 immune from review. That seems to be the reason why they say that these decisions are not.

1:49:43Mr Crow KC: That is right.

1:49:44Yeah.

1:49:45The Court: And they are certainly not applying the test of the nature of the decision.

1:49:49Mr Crow KC: No. No, no.

1:49:51And this case has moved away from judicial.

1:49:53Mr Crow KC: Yes. Yeah.

1:49:55It has.

1:17:10aren't their powers of the judge to then sit with somebody else or to apply or a special

1:17:17The Court: advocate for instance could I ask you a separate question that is this section 13 to my mind it was the Attorney General a wide discretion which can include various international factors or political reasons but there will be examples there will be occasions on which none of those issues arise at all and as I understand it even on those occasions when none of those factors are in play the respondents contend that the decision of the Attorney General

1:17:54is not just a justice of even when there's absolutely no reference at all to any political

1:18:01Mr Bowen KC: matter is that the way it are there are such cases where there is nothing yeah I mean well there's an Irish case called Johnson where which I think ultimately went came came here at first instance the council for the Northern Irish Attorney General specifically said I'm not going to rely on the common law immunity and the judge was extremely grateful and said well thank you we'll look at it but the normal is not answerable to parliament or to the to

1:18:39Mr Bowen KC: the devolved assembly that doesn't have to be a member of the devolved assembly yeah he as I understand the Irish position then this was an Irish case or a Northern Irish case but the because of the way the legislation is set up there's more there's an argument that there should be more restraint in Ireland because of the relationship between the decision maker either the advocate the Attorney General or the name of the post eludes me at the moment

1:19:23Mr Bowen KC: is answerable to the assembly whereas here there's not really any practical question at all of a decision in an individual inquest case being looked at in Parliament parliamentary

1:19:38scrutiny of something like this just will not happen and that that's that that's that's

1:19:43The Court: but in the point raised by my lord is is one that can't be addressed by a court because a court couldn't construct an immunity which was confined to quotes ordinary cases I think on to extraordinary cases the cases where the attorney was considering factors going beyond those listed in 13 1 B the common law can have immunity or no immunity it can't

1:20:22have an immunity that is specific to the applicability of factors going beyond those listed

1:20:36Mr Bowen KC: in the statute provision legislation could do that but I don't think a court I mean agreed and that's why so many immunities have fallen Jones and Kaney the expert witness case Hall and Simons the you know the Rondell and Worsley follow-up got rid of immunity for people like me speaking in court and making a terrible hash of it but we can now all be sued we used to be protected it's an absolute decision there's a there's a there's a there's a right

1:21:10Mr Bowen KC: line here if the bright line is to be it's only through the generosity of the attorney that I will give my fear and if I don't give my fear there's nothing you can do about it is just an extremely binary and unattractive position when the point made against me or not against me sorry that the point in terms of testing the argument the political point that's called it can be dealt with in individual cases and they're going to be rare cases I

1:21:47mean a case like night I mean how often does 9/11 come along God willing and fortunately

1:21:52The Court: not real but doesn't judicial review commonly involve decisions made by government that involve sensitive of course it's called absolutely criteria but that isn't an argument that there should be no judicial review correct I mean in all these cases we've got elements of legal principle mixed in very commonly with very sensitive political decision making and how is it dealt with by deferring exactly yes at the moment I'm struggling to see why section

1:22:36The Court: 13 or the Attorney General's decision that has to be made whether or not to allow an inquest why that is any different from many other decisions made by government which equally as far as I can see would have the same mix exactly that's exactly what we say which is

1:23:02a buried away in the note that I have abandoned about a bastard a mr. bone before before you

1:23:07The Court: continue could it could I just pass it still fresh in my mind I agree with Lord Reid that one shouldn't construct two different standards but what the question I was asking was basically to see the implications of having immunity that is the implication which has to be faced up to the implication of having an immunity is that even if there are no political or

1:23:31international elements at all in the decision making of the Attorney General there's no

1:37:50House of Lords and maybe maybe now is actually a time for me to move on and to look at that

1:38:03Mr Bowen KC: say clearly that the argument the ratio what was necessary to justify the decision and the decision that was at the the the sole issue in the House of Lords was standing and whether or not absent the fear or absent consent I should say Mr. Gouriet could go on his own

1:38:38and the answer is that he couldn't but he couldn't it was nothing to do with the immunity it was to do with the fact that he didn't have any locust and I know and you would say that remains remains the case we don't we don't touch the heart of Gouriet yeah that's what ground 1a is all about ground 1a is only an individual cannot go to a civil court the declaration or an injunction to enforce the criminal law you would say that is the ratio of Gouriet and that is good law today as it was then exactly and what we're talking about

1:39:23is over to dicta yeah reasons that may be regarded as influential in coming to that

1:39:32Mr Bowen KC: particular decision all right and just on that point I need to take you immediately

4:01The Court: Can I just ask you, if I may, how would you articulate the ratio of Gouriet?

4:10Mr Crow KC: The ratio of Gouriet is that because the Attorney General has the authority to decide whether it is in the public interest or proceedings to be brought to enforce a public right, so to speak, in the absence of his, now her, authority, a private individual cannot proceed because allowing that to happen would involve indirectly what the Court can't do directly, which is to overturn the refusal by the Attorney. It's quite a long answer, but I think that captures the roots to verdict, so to speak.

5:04The Court: Well, you're including the reasoning as part of the rural principle laid down. I think you've already conceded that you could define the ratio more narrowly, as you would see it, and therefore that's a matter for us as to how we define the ratio, I guess. Oh, absolutely. Absolutely. You have asked for a mission. It might be said to be rather a special case in that what was sought was a remedy against a private body rather than a public body, the post office union.

5:53The Court: And it's a very special procedure for one citizen to be able to enforce the criminal law against another citizen through private proceedings. Now, at that time, pre the IRC case, although public rights would normally have been enforced through prerogative writs, even those to qualify logostandai, you would have to show some particular right or interest of yours that was affected. Now, and what's said, there are quite a lot of dicta in Gouriet about the Attorney as guardian of the public interest and so forth.

7:02The Court: Post the IRC case, it might be said that the idea of standing in public law has developed much more broadly. And for example, in environmental cases, it's now not uncommon for private individuals to bring proceedings in the public interest. But one could say that some of the dicta now look in their breadth seem rather dated. But that might not affect how compelling they are in the particular in relation to the context that was actually before the House in that case.

7:50Mr Crow KC: Yes, well, I'm grateful and I wouldn't dissent from any of that. One might only add to two riders, well, possibly three. One is that quite a few environmental claims one sees now try using, you know, are increasingly based on human rights convention criteria in a separate box. The other thing I just wanted to pick up, and it's not a sort of a linguistic quibble, your logic refers to enforcing the criminal law. There were some exchanges yesterday when my learned friend was on his feet that appears to proceed.

8:30Mr Crow KC: I don't know if this is my misunderstanding on the basis that a related action actually involves criminal proceedings.

8:39The Court: No, I understand it doesn't. But it's still it's an exceptional procedure to obtain an injunction to prevent your fellow citizen from infringing the criminal law.

8:49Mr Crow KC: Absolutely. No, I'm entirely certain that.

1:49:58Mr Bowen KC: before I consider this submission it is necessary to deal with the subsidiary point taken by the Lord advocate he submitted that notwithstanding the language of order 53 rule 1 2 the court has no jurisdiction to grant a private citizen a declaration save in respect of a private right or wrong and he relied on the house's decision in Gouriet declaration is of course a remedy developed by the judges in the field of private law Gouriet's Gouriet's case is authority

1:50:28Mr Bowen KC: for the proposition that a citizen may not issue a writ claiming a declaration or other relief against another for the redress of a public wrong unless he can persuade the attorney general on his in quotes relation to bring the action the case has nothing to do with the prerogative jurisdiction of the high court and it was decided before the introduction of the new order 53 at a time when a declaration could not be obtained by a private citizen unless he could show as in a claim for an injunction that a private right of his was

1:51:02Mr Bowen KC: threatened or envisaged the new order has made the remedy available as an alternative or in addition to a prerogative order its availability has therefore been extended but only in the

1:51:12field of public law where a prerogative order may be granted etc so there that is Lord Scarman

11:05Lord Reed: Can I just observe that a point is being emphasized here by Lord Wilberforce, and it's also emphasized by Lord Diplock, is that in a related case, the litigant is actually the attorney. It's not the person who seeks the attorney general's consent. So, and Lord Diplock makes a point that, well, it's made by Earl of Halsbury here, the initiation of legislation is a matter entirely for the attorney. As Lord Diplock says, the court doesn't compel people to litigate.

11:49Lord Reed: Now, our case, it might be said, is different from that because of the way in which the statute is expressed.

11:59Mr Crow KC: Well, we would submit with respect that the Section 13 is essentially an identical relationship because it is a case in which there is no a priori right to apply to the High Court to reopen an inquest.

12:22Lord Reed: No, but the application, there are two alternatives, the application can be made by the attorney, or it can be made under the authority of the attorney.

12:31Mr Crow KC: Exactly.

12:32Lord Reed: In the latter case, who is the litigant?

12:36Mr Crow KC: I apprehend the name on the claim form would be the name of the applicant, not the attorney.

12:44Lord Reed: Yes, and he would, yes, that's what one would think. Well, if that's so, then it's different from the situation being described by Lord Wilberforce and Lord Diplock and Earl of Halsbury.

12:56Mr Crow KC: But with respect, it is different only as a matter of procedure. It's just a question of whose name is on the claim form. The point of substance is that there is no right to bring the claim unless the attorney has said yes.

13:09The Court: Well, that goes against the passage that you just read out at 2036, that it's not just giving his name, his position is not fictional. He's entitled to see and approve the statement of claim, has to be consulted on discovery. But he doesn't have, if he gives his fiat for a Section 13 application, I don't think he or she has that continuing involvement in the litigation.

13:41Mr Crow KC: The attorney would not have a continuing involvement, although one would imagine that the grounds upon which a claim can be brought in the High Court by an individual with authority are the grounds that the attorney general approves. So in that sense, the initiation and the contours of the litigation are dictated by the attorney at the outset. But the point of substance that we're urging on you is that both in respect of related proceedings and relation to Section 13,

14:15Mr Crow KC: the person who wants to bring proceedings in the High Court has no right to do so unless the attorney says so. And the ratio, as I say, what I'm trying to get at in relation to Gouriet is that the ratio is necessarily built upon the premise that the attorney's refusal of consent is not something the court can overturn directly. And therefore, they cannot allow somebody to go ahead without it, because that would be to overturn the attorney's refusal indirectly.

1:52:55The Court: But I could see your point if there was no Section 13, or if all Section 13 said was the Attorney can apply to the court-- to the High Court to reopen an inquest. And the Attorney decided not to, and somebody challenged that. And then you might say, that's entirely in the Attorney's decision. She doesn't have to give an account to anybody. But does it make a difference that the statute confers on somebody the ability to apply to the Attorney for a fiat, which

1:53:42The Court: can be granted or refused? And that is an administrative decision that the Attorney takes, deciding an application that somebody has made pursuant to that statute.

1:53:57That's what bothers me.

1:54:00Mr Crow KC: And I'm grateful to you for raising it, my lady. But our answer to that would be based on what I said when we were looking at the question of what the test the Attorney must apply. And the answer has got to be that the Attorney must apply the same test. She must ask herself the same question, irrespective of whether she is deciding to bring the proceedings herself or giving authority to someone else to do it. There can't be two different tests. It's got to be the same question.

1:54:33And so the--

1:54:35The Court: Well, I'm not certain I agree with that. I mean, you can't compel somebody, as you say, to bring proceedings. I'm not quite sure why the test has to be the same. If one of the factors is if the Attorney says, I'm not going to bring the application myself, the principle is you can't compel him or her to do so.

1:54:54And so I'm not certain why there should be identity of tests.

1:55:00Mr Crow KC: Because the question is the same. The question is, should proceedings be brought to the High Court, inviting the High Court to exercise its jurisdiction over the Coronial Court? So the test-- I mean, the point your logic just put to me might hypothetically be a sort of response to the argument I was advancing as to why the test should not be amenable to review. My argument is-- well, one of the points we have made is you can't make somebody be a plaintiff if they

1:55:33Mr Crow KC: don't want to be. Part of the answer to that might be, well, in a case where somebody's applied for authority, we would not be telling somebody-- the Court would not be telling somebody to be a plaintiff against their will. We'd be allowing somebody to be a plaintiff who wants to be. So I take your logic's point as a sort of partial answer to that. The response, though, to that would be that, as I say, the test that the attorney has to exercise, the test that the attorney has to apply,

1:56:10Mr Crow KC: is to decide whether it is in the public interest that proceedings be brought in the High Court, irrespective of who's going to bring them. Is it in the public interest that those proceedings get brought? And there can't be a different test depending on whether, as I said, somebody has knocked on the attorney's door and said, will you bring the proceedings? Or knocked on the door and said, can I bring the proceedings? It's got to be the same question that the attorney is answering,

1:04:32Lady Rose: You say entirely at large, so do you then say it doesn't have to be exercised for -- the power doesn't have to be exercised for the purpose for which it was conferred. You say that there are no factors which the Attorney could take into account which it

1:04:51would be improper or irrelevant for her to take into account?

1:04:56Mr Crow KC: Those questions are, my lady, if I may say so, relevant questions if the purpose of asking them is can the Court make an inquiry in relation to those points and rule on those questions? And the whole argument that we are presenting to you is that those are not questions that

1:05:18the Court gets to ask because this is a discretion which is immune.

1:05:24Lord Stephens: And what is the nature of the decision that makes it immune? Because I conceive of circumstances where the factors which the Attorney General has taken into account are perfectly pedestrian, not political at all, but absolutely no bearing whatsoever on international relationships or anything else. And you submit that that decision is completely immune? Yes.

1:05:51Mr Crow KC: And why? Can I get to that -- the answer to that is 1B in the schema that's being presented to you. Can I build up to it rather than giving a brief preview now? It may lose some of its impact otherwise. It is a compound -- the reason I don't want to give you a sound right now is that it is a compound answer involving several considerations and just dropping in a one line

1:06:27now is not going to help.

1:06:30The Court: It has been described by the Law Commission as somewhat anonymous and also by the Divisional Court.

1:06:36Mr Crow KC: These words have been used and you will make of them what you want.

1:06:42Lady Rose: Just going back to my question, suppose the Attorney gets a request for a fiat. She goes to her legal advisor and says, what do you think about this? Is it all right for me to take into account this point or should I try and put that out of my mind? Is the legal advisor to say to her, doesn't matter, whatever you think, throw some dice, pick a card, any way you take the decision, it's fine, it can't possibly be unlawful because it's not open to be reviewed by the court.

1:07:15Is that what you're saying?

1:07:17Mr Crow KC: The answer to your question, my lady, is that the court doesn't get to inquire into that. I'm not suggesting it would be a good idea if the Attorney rolled the dice or flipped a coin. But the only question that you are grappling with is does the court get to inquire into that and rule on it? And hypothesizing what are unlikely scenarios doesn't help answer that analytical question. We've just got to look at it as a point of principle, first of all by just looking at

1:07:54Mr Crow KC: what the law now is, which is what does Gouriet actually do, and secondly, going up to my Lord Stephen's question on 1B, irrespective in a sense of what Gouriet says, is this

1:08:09one of those powers that should be immune from review? So if I can just -- >> Can you understand -- sorry. Sorry. No.

1:08:19Lord Stephens: My understanding is that your submission is that even if the Attorney General throws

1:08:25a dice, that is not subject to any supervision by the courts.

1:08:32Mr Crow KC: That is the inevitable consequence of a decision which is not reviewable.

1:08:36Yeah.

1:08:37The Court: I mean, if the Prime Minister chose his chance to review Exchequer by rolling a dice, that's his prerogative.

1:08:44Yes.

1:08:45Mr Crow KC: And there are some decisions which are amenable and others which aren't, and the formation of a government is -- >> To be honest, as I say, one can hypothesize unattractive situations, but one of the factors -- we are all -- well, so I tell my clients -- we are all lawyers. Our mindset is to assume there's always got to be a legal answer. There doesn't always have to be a legal answer. But one of the factors which we will get to -- and I'm not suggesting it's the only one,

1:09:18Mr Crow KC: but one of the factors we'll get to -- is political accountability. It crops up repeatedly in the case law. My name alone in France says, well, political accountability and judicial review are not mutually exclusive, which is true, but it is a factor. And I have done exactly what I said I didn't want to, which should not be one factor which we'll come to. But as I say, I guess obviously you can put to me hypothetical unattractive situations and say, well, just can't the court do anything about it?

1:09:55There are some things the court can't do.

1:09:57The Court: And are you -- I'm sorry if you've already done this and I haven't absorbed it, but are you going to explain to us why you say this decision is of a non-justiciable character? I'm not clear at the moment.

1:10:13No.

1:10:14Mr Crow KC: You say it's not because it's the attorney. Is it some sort of constitutional separation of powers? When we get there, yes, it's not -- well, it's not solely because it's the attorney. There is a combination of factors. I want to get to Shergill and deal with justiciability later because that is the argument under 1B. That should the law regard this as a decision which is not reviewable. Before we get to that, I would just like you to listen to our playing out what the law

1:10:56Mr Crow KC: currently is. Because if you are going to come to the view that this is a reviewable decision, our submission is that you're overturning Gouriet. If that's where you get, fine, you are the Supreme Court, you can do that. But if you're going to do that with respect, you need to do it with a clear-sighted view

1:11:13of what the law currently is.

1:18:54That's all we wanted.

1:18:55Lord Burrows: I was a bit suspicious about these arguments, about silence of Parliament can be taken as indicating some sort of purpose or intention behind what they're doing. I mean, would you accept that it's not a straightforward argument?

1:19:14Mr Crow KC: It's not a winner on its own, I completely agree, absolutely. My definition is not interpreting something Parliament has said.

1:19:23So I quite agree, it has some attenuated force, but it is with respect a point. So we then turn on to the main issue, the first main issue, which is what is the current law?

1:19:41Lord Burrows: I mean, it would be a more powerful point if Parliament had actually considered the

1:19:46matter, or if a government white paper or something of a kind had considered the matter.

1:29:35Mr Crow KC: First, I may have mentioned briefly yesterday, but I'll just put it in place now. It is the case that political accountability does not of itself preclude judicial review. I'm not suggesting it does, but it's a factor. Second point is my learned friend said, "Well, political accountability doesn't really make any difference here because Parliament isn't going to sit down and sort of conduct a judicial review of the Attorney General's refusal of Section 13,"

1:30:13Mr Crow KC: which is sort of true as far as it goes, but it doesn't actually meet the point of political accountability. The concept of political accountability is that someone is answerable in Parliament and dismissible in relation to their public office decision-making. To talk about political accountability doesn't mean that Parliament is going to sit down and sort of act as an administrative court and scrutinize an individual decision, although maybe they're a committee might.

1:30:44Mr Crow KC: But the point about political accountability is that somebody is answerable in the sense that they can be questioned and made to respond in Parliament.

51:09The Court: Your second point at page 3523, the Court of Appeals seems to be placing some emphasis on the identity of the decision-maker.

51:21Mr Crow KC: Yes, absolutely. And you're going to come to that. We will come to that. I mean, as I say, the headline point, so to speak, is that our submission on 1(b), should Section 13 remain (b), immune from review, is not founded solely on the identity of the attorney. We do not say the identity of the attorney as the decision-maker is an irrelevance because she has a unique constitutional position, and I'll develop that. You're right to pick that up, and I'm grateful because it will form part of that, part of the argument.

51:59Mr Crow KC: But the Augustine anticipation of that, we're not suggesting that that is the only book we need to hang our case on.

52:09Lord Stephens: And does the Prime Minister have a unique constitutional position?

52:14Mr Crow KC: Undoubtedly, but in an entirely different way.

52:18Lord Stephens: I wonder if the uniqueness of the position. I mean, certainly the Prime Minister has been subject to judicial view on numerous occasions.

52:24Mr Crow KC: Oh, absolutely. Yeah, yeah. No, I absolutely accept that.

55:14jurisdiction independent of the Human Rights Act?

55:28The Court: I think the argument might-- I mean, whether that's correct or not, whether you can use the Human Rights Act in supplementing judicial review applications isn't the main point that it would seem-- it might be said against you-- it would seem odd to say, well, in that circumstance, it is justiciable what the attorney general's decision not to give his consent, his or her consent.

56:00Whereas once you repackage it under the Human Rights Act, that all becomes justiciable.

56:06Mr Crow KC: Well, with respect, it's not a question of repackaging. It is actually a question of proper legal classification. A claim under the Human Rights Act is just that. It is a statutory right that's being pursued. Judicial review is not a statutory right. It is an invocation of the court's supervisory jurisdiction, which exists at common law. They have entirely separate jurisprudential bases. And with respect, I would invite you not to get confused as to the issue you are deciding,

56:38Mr Crow KC: merely by the fact that Human Rights Act claims might procedurally come up in court in the form of a judicial review claim.

56:46That is a procedural accident, in a sense.

56:49The Court: See what's taking place in a judicial review claim relying upon the Human Rights Act is that the decision of the attorney general is unlawful. And that's exactly the same. It's a species of unlawfulness.

57:05And it's a reviewable.

57:07Mr Crow KC: It's not a reviewable decision in the sense that it is not an invocation of the court's supervisory jurisdiction by way of judicial review. It is an invitation to the court, effectively to make a declaration that the person's convention rights have been violated. It is the invocation of a statutory remedy under Section 7. And the legal test applied would be whether the act impugned was incompatible with Article 2 or Article 8 or whatever it might be.

57:41Mr Crow KC: And you would be basing the court that bases judgement on the relevant case law under, for example, Article 2. Whereas if it's a supervisory jurisdiction, you fall back on common law principles of judicial review of law, excessive jurisdiction, and arrested it.

1:14:15Lady Rose: Isn't the right, rather, the right to have a proper lawful decision by the attorney as to whether or not to grant the fiat because the result of refusing the fiat is to preclude access to the court. It's not a right of access to the court. It's a right to a proper decision by the attorney to whether or not to exercise the discretion. And it's that that has to be reviewable.

1:14:54Mr Crow KC: No. And can I just take three more steps before fully answering that?

2:00:49Can I just turn to issue 2, which is the--

2:00:52The Court: I do apologize, Mr. Coe. I do apologize. But I haven't quite picked up your answer to Lady Rose's question. That is, is that a right to have a proper lawful decision by the attorney general?

2:01:09And your single word reply was no.

2:01:14Mr Crow KC: And that is because, in a sense, it's part of the answer to my Lord Burroughs question. Because to ask-- to pose the question in that way, our submission falsifies the analysis. Because essentially, what is being said is, do you, the person asking for the attorney general to make a decision, do you have a sufficient interest in a decision which is itself reviewable? Simply to say-- to repose the question, is the decision reviewable? By asking, do you have a right for it to be taken lawfully?

2:01:55Mr Crow KC: It's really asking the same question in different language. So we would submit that the true question is, is it a reviewable decision? If the answer to that question is no, then the answer to the question, is there a right for that decision to be taken in a rational way, the answer to that question is no.

2:02:21There is no right to that.

2:02:23The Court: So this is an instance where Parliament appears to confer on people the ability, to put it neutrally, to apply for a fiat to the attorney. But then no right to ensure that the decision, whether to exceed or not to that request, has been taken lawfully. Well, to use the word lawfully, in a sense-- Well, all right, not upping the ante then. Taken rationally and taking into account only relevant factors

2:03:03and not taking into account irrelevant.

2:03:05Mr Crow KC: Your relationship is described, is the consequence of a decision not being reviewable? Yes.

2:03:10Right.

1:56:42Lord Burrows: Can I just ask you-- I mean, you've made a big play about there being no rights involved. I understand the concept of private law rights. Can you just tell me what your conception of public law

1:56:58right is?

1:57:01Mr Crow KC: Um, well, no, I don't think I could.

1:57:06Well, and I don't feel I need to answer with respect if I--

1:57:11The Court: Well, I think you've given an example where there's a statutory right given in relation to whether or not there is a statute that confers a right. So presumably, you've got in your mind situations where a statute does confer rights. Yeah, even though we're not talking necessarily about private law rights being given by the statute. No. But I'm just left with a slightly unclear vision

1:57:40as to what is meant by a public law right.

1:57:45Mr Crow KC: Well, in a sense, as I say, I hope this isn't impertinent. But I can't give you a comprehensive answer because the submission we are making is based on the assertion of an absence of any private or public right, which is conceded. I don't have to encapsulate for you what a public law right would look like if it was there. My submission is advanced on the basis of concessions expressly made in the written case that there is no private right, there is no public right,

1:58:20and inquests don't determine legal rights.

1:58:23The Court: I mean, I was puzzled by what that concession actually meant, but anyway.

1:58:27OK.

1:58:29Mr Crow KC: I mean, I've probably made this point, and I apologize if I'm repeating myself. But the structure in section 13 starts from the A priori position before you get to any statute. Nobody has a right to ask for an inquest to be reopened. Inquests are statutory things. The only basis upon which anybody can ask a cause to tell a coroner to reopen an inquest is a pure product and therefore subject to the section 13 regime. So until the attorney has said, yes, you can,

1:59:11Mr Crow KC: there isn't a right.

1:59:13No right is being invoked.

1:59:15The Court: But I don't know whether it becomes-- if one was to say, well, a public law right is where anybody with a sufficient interest could bring judicial review proceedings, we are then just in a circular question as to whether this is within the scope of judicial review or not. But I don't think the answer to that

1:59:39is whether or not there's a public law right.

1:59:42Mr Crow KC: Well, with respect, I think that the question of whether or not somebody has a sufficient interest to give them lock a stand-eye to complain about something that is reviewable is an entirely separate question. We're not here talking about lock a stand-eye to bring judicial review proceedings. We are talking about whether or not judicial review proceedings can be brought at all by anybody. So the question-- with respect, you should not be answering the question about whether or not

2:00:09Mr Crow KC: there can be judicial review by reference to what the lock a stand-eye would look like if there couldn't be judicial review.

2:00:16That would be tail wagging dog, excellent.

2:00:20The Court: There are lots of rights, which are not private law rights, but which exist either a common law or under statute. Yes. I think of procedural rights, rights in the criminal process, rights in civil processes.

1:25:11And that is why if we look at Mr. Justice Earle's judgment in Newton, if we go over,

1:25:24The Court: sorry, on page, um, one, eight, just make sure that I understand you, you say that Lord

1:25:32Campbell's, uh, proposition is that even if the attorney general does absolutely nothing

1:25:41Mr Crow KC: there's nothing that can be done, no, no, he does say that if, if the attorney doesn't exercise his discretion, um, then, um, uh, the court, sorry, so the second paragraph of Lord Campbell, I completely agree in thinking that a prob, a probable cause being shown, the attorney general next debited or to grant his fear, but he is to exercise what is in the nature of a judicial function, if he refused to hear and consider the application or fit,

1:26:13we should compel him by mandamus to hear and consider it. So he's not completely immune.

1:26:18Mr Crow KC: Well, what is immune from review is an exercise of the discussion. What all the court says there is if there's an refusal to exercise, the court will say, get on with it. It's your duty. But what he repeatedly says is that the, the, the juris, the discretion, having been exercised, we cannot review his decision. The court cannot interfere.

1:26:45So the judgment is with respect, absolutely clear.

30:33Mr Bowen KC: Ground 1A, ground 1A I think I've dealt with sufficiently, ground 1B. This is whether we should depart from it under the practice state. If Gouriet Bynes' report should depart from it, written case -- so Mr. Crowe knows what our case is. It's in writing 87 to 102, earring bundled 48 to 53. The test to apply set out, obviously, in the '66 practice direction, depart when it appears right to do so, Austin and Soddock, 24 to 25, paragraph number, page 1172 to 1173.

31:32Mr Bowen KC: The attorney accepts the court may consider departure in this case. The Law Commission, page 39 of the bundle, paragraph 58 of our case, the departure test posits an unlawful exercise of the power, an improper motive, a misreading of section 13, ignoring obviously relevant evidence to ask whether it's defensible that the court should be unable to say so. So that's really my single sentence that I summed it up. Is it really -- should it really be part of our system now that a statutory right such

32:10Mr Bowen KC: as this with a plain and obvious error is simply beyond reach of judicial review?

32:16That's enough in itself to justify departure and to modernize the system post-Gouriet.

36:15Mr Bowen KC: It'll be in the written case, everything's in the written case, Milady. So the reasoning, if it is analogous, and if the Law Commission are correct, then that would rather suggest that the same arguments relate to this case, and you should follow the lead of the Law Commission. The reasoning is not peculiar to contempt. They say it exacerbates the constitutional concerns. The judicial review is an important constitutional safeguard. You get that, and this might be the answer to you, Milady, page 7184, tab 228.

37:10Mr Bowen KC: The immunity, they say, is outdated and anomalous, reading the judgment itself at, I think, paragraph 44. You can review the DPP, you can review... That's Kebelin, you can review the director of the serious fraud office, that's Cornerhouse. The judiciary themselves were part of a very large consultation, and I think the president of the family division and other important figures also supported the move away from an immunity in relation to contempt, and you get that at page 7761.

37:50Mr Bowen KC: In the instant case, the Law Commission gave its stance without ambiguity, and it's this. The proposition that the attorney general is or should be immune from review by the courts was seen as outdated and certainly did not find purchase with consultees. We agree with the divisional court in Campbell that immunity from judicial review is now anomalous.

38:13The report, that's paragraph 8.104 at 7763, and then almost finally, Parliament is very

46:34Mr Crow KC: I'll revisit that tomorrow. Third point that I think is, at least to some extent, common ground, is this. If the court reaches the conclusion that the exercise of the attorney's power under Section 13 is amenable to review, the parties agreed that the appropriate test would not be the dishonesty, malefied days, or exceptional circumstance test, which the divisional court borrowed from Kebilene, but would be review on the usual judicial review grounds.

47:12Mr Crow KC: I think the difference between my line and friend and I is the intensity of the review that would be appropriate rather than the grounds. The only other preliminary point we were going to observe is that obviously one of the possible issues you will be grappling with is whether to depart from House of Lords' precedent. We've included in our written case paragraphs 69 to 72 some reminders on the approach this court takes to overturning previous decisions.

47:45Mr Crow KC: We apprehend that you will be familiar with your own jurisprudence on that, and we weren't going to address you orally unless you particularly pleaded with us to do so.

47:55I was going to move on straight away to the two.

47:58The Court: Can I just, just before you do, the third common ground, you say that the difference between you lies in the intensity of the review. It wasn't clear to me that your opponent was really saying much about the intensity of the review. It may be that in the written argument you've picked something up, but I had rather taken it that both parties were saying there will often be very sensitive matters on which one

48:31would allow a large margin of discretion.

48:34Mr Crow KC: I came away from reading my line and friend's case with the same impression, but something he said on his feet suggested otherwise, but he hasn't developed that.

48:43So I think the parties are going to have to rest their case on the written argument.

48:50The Court: So there's no difference, really? If there is, I haven't heard it.

24:01Mr Bowen KC: grounds 4 and 9, the grounds you find at ground 1 starts at 227 of the bundle, and there are five grounds, and it goes on for quite a long time, and I'll get there, but the short point there is these are errors of at least two, if not three, of those grounds, are errors of law, allegations of illegality, the wrong test, grounds 1 and 2, not understanding 13-1b

24:36in the way that it is meant to be understood, and then a reasons challenge.

16:10Mr Bowen KC: 50. The access to justice fundamental constitutional concept is the relevant cases are unison, paragraph 66 at page 5012, and paragraph 78-80 at 5015, and the short point there is that we say parliament has created a jurisdiction in the High Court, put an executive gateway before it, we claim no entitlement to the fit or the ultimate order, we claim that the decision closing the gateway must be lawful, it's as simple as that. Section 13 contains no express exclusion of review, privacy international shows the importance

17:00Mr Bowen KC: of clear legislative language in any asserted conclusion, that's 83-84 of our written case, and as Lord Lloyd Jones put it, the words used, quote, in that case, do not make provision with sufficient clarity for the exclusion of the review jurisdiction of the High Court

17:23in respect of errors of law, and that's paragraph 166 of privacy international, and you find

28:30I'm sorry to interrupt, but I'm concentrating on the powers of the Attorney General.

28:35Lord Stephens: Can he take into account in deciding whether to issue his fiat the potential effect on

28:43international relations?

28:51Mr Bowen KC: It's a crucial question. It's a crucial question and I would rather come back to that when you have... There is an easy answer, I was about to give you and there's no little note, which is that if the answer, and it's if, if the answer was yes, fine, articulate it, put it in the letter, nothing. There is nothing in the correspondence to say that the reason that this can't be or that the opportunity to reopen it can't get through the gate is because of the very point

29:27that your Lordship makes. So you accept the possibility as I understand it?

29:34Mr Bowen KC: I will advisedly accept at the moment that if it comes into the public interest, as long as it's looked at in parallel with the statutory provisions proper, then yes it would be difficult

29:47to say that the Attorney General can't turn his mind to that issue at all.

29:52Lord Stephens: And then how does a court deal with a situation where the Attorney General is relying upon some public interest or political matter or some international matter?

30:03How does the court judge that?

30:06Mr Bowen KC: Well, every case is going to turn on its own facts. So and that's what you get from, what your Lordship is talking about here is justiciability and shirgill and limbs one and two are shirgill. So you look at the subject matter of the issue and it's with respect far too binary to simply say is it a yes or a no question because it will depend enormously. If in truth what this case is about is undisclosed dialogue between our government and their government for goodness sake do not open Pandora's box, do not open it, we do not want that.

30:51Then they have to, if they're going to give reasons they have to articulate them. Now that in itself, the latter itself opens Pandora's box.

31:03Mr Bowen KC: Well in that case, well if that's the case, then instead of the law of modern judicial review developing in line with all of the cases particularly the GLAN refer to, then we're going back. We're going back to Gouriet, we're saying that the only member of the government, the only public official who has the benefit of complete secrecy is the Attorney General.

31:30There are all sorts of decisions taken by government which aren't judicially reviewable.

31:35Mr Bowen KC: Yeah, I accept that, I accept that. But we say that 13(1)(b) there should not be a blanket immunity which is what we've got at the moment. Every case is looked at individually and yes of course there may be some cases, and who knows I suppose this could be one, where there was something going on in the background which we're completely unaware of and responsibly in taking into account the public interest the Attorney General could justify what he did.

32:16Mr Bowen KC: But once they give reasons, they've got to be adequate and they've got to be transparent. And what all we've got in this case is an absence of public interest factors, but now it's come in at the end of Mr. Crow's case where they rely on it, they rely precisely

1:02:31Mr Bowen KC: form of process and can I just we haven't I mean you've probably as I've been talking you've probably read it but can I just read out for the benefit of everybody else apart from anything else is what 13 1 B actually says so 13 order to hold investigation this section applies where on application by or under the authority of the Attorney General the High Court is satisfied as respects a coroner either a that he refuses on neglects to hold an inquest which ought to be held or be where an inquest or an investigation

1:03:02Mr Bowen KC: has been held by him whether by reason of fraud rejection of evidence irregularity proceedings insufficiency of inquiry the discovery of new facts or evidence or otherwise it is necessary or desirable in the interest of justice that an investigation or the case may or as the case may or must be be by another investigation should be held so there we have ascertainable legal standards and the constituent parts of the general test which remains broad is

1:03:50Mr Bowen KC: in the interest of justice to open something up but in asking the decision maker in asking

1:03:58the question takes into account that range of factors so that is a country mile away

1:32:57Mr Bowen KC: the principle appropriate to this application as interpreted in the authorities to identify the principle appropriate to this application just bear with me the single question is whether the interest of justice make a further inquest either necessary or desirable the interests of justice as they arise in the colonial process are undefined but dealing with it broadly it seems to us elementary that the emergence of fresh evidence which may reasonably lead

1:33:38Mr Bowen KC: to the conclusion that the substantial truth of how an individual met his death was not revealed at the first inquest will normally make it both desirable and necessary in the interest of justice for a fresh inquest to be ordered the decision is not based on problems of process unless the process adopted at the original inquest has caused justice to be diverted or for the inquiry to be insufficient what is more it's not a precondition to an order

1:34:05Mr Bowen KC: for a further inquest that this court should anticipate that a different verdict to the one already reached will be returned if a different verdict is likely in the interest of justice will make it necessary for a fresh inquest to be ordered but even when significant fresh evidence may serve to confirm the correctness of the earlier verdict it may sometimes nevertheless be desirable for the full extent of the evidence which tends to confirm the correctness of

1:34:35Mr Bowen KC: the verdict to be publicly revealed without minimizing the importance of a proper inquest into every death where a national disaster of the magnitude of the catastrophe which occurred at Hillsborough on the 15th of April 1989 has occurred quite apart from the pressing entitlement of the families of the victims of the disaster for the public revelation of the facts there is a distinct and separate imperative that the community as a whole should be satisfied that even if belatedly the truth should emerge of course that is that has enormous

1:35:18Mr Bowen KC: resonance in relation to this case mr. Campbell has a very very legitimate basis for at least having the discussion with the administrative court through his counsel and that at the moment he has been completely deprived of he accepts that the answer might be no he

32:44Mr Bowen KC: Right, I'll come on to that, I'll come on to that when we look at the test. But before we do, crucial to our analysis is that even in the sofard as it is an area which is either, well if it's non-justiciable I can't get away from that, but if it's a case where there appears to be some political electricity, let's put it that way, but the ground of appeal is an error of law, then as I understand the public law universe, there is no margin, there's no margin for that.

33:34Mr Bowen KC: So the ability of the court to set a high threshold relates to judgments which are, let's call them evaluative, a Wednesbury challenge for instance, not an error of law challenge. If in this case Mr. Stanage is correct in ground one, two and three that there were errors of law, then those errors of law mean that a court should be able to oversee a process and the supervisory jurisdiction should prevail.

20:29Mr Bowen KC: It was only Gouriet that made them support the immunity. And rather unfortunately, they went with respect, we say, a little too far, when they then made it a little bit worse by saying if they're wrong, the hill is still extremely steep anyway. Paragraph 57, you can't get near it, and you can't get near it unless you can show dishonesty. As we all know, when you've thumbed through thousands of pages desperately looking for something in a private law case that will satisfy misfeasance or some form of deliberate

21:10Mr Bowen KC: talk, the evidence is never very rarely available. This is a point that I'm sort of segueing into ground two here, that if the requirement is either 57, if you were to reinstate it, which is of course a possibility, or something which I'll just go to and respond to the case for a minute, 5.3 from memory, page 72, in so far as this court considers it right to depart from such precedent, the basis upon which any judicial review might hereafter be allowed to proceed in any given case should

22:00Mr Bowen KC: reflect the specific nature of the function. The Attorney General is discharging an exercise of the power under Section 13, and particularly since the Attorney General is exercising a specially confirmed, he calls it a PIF, a public interest function, the courts should in practice adopt a highly restrained and deferential approach in reviewing any decision taken in the exercise of that power. Applying that approach to the present case would inevitably result in permission being

22:29Mr Bowen KC: refused, so there's the permission point, so they're dressing up in different clothes, paragraph 57.

22:39If that's what happens, Gouriet is effectively reinstated through the back door.

11:47Mr Bowen KC: It just doesn't happen. Fourth, and this is deference, institutional restraint and legal supervision can coexist, and this answers the issue that started with the question from Lord Stevens. National security, diplomatic protection, the prerogative of mercy, and many others, and you find more of this in our written case, illustrate how the courts can respect executive competence whilst retaining judicial review powers where appropriate, and I'll just give

12:26Mr Bowen KC: you a few examples. The first is Rehman or Raymond, that starts, the law report starts at 5490 of the Bumble. The relevant paragraph is 31 at 5467, it was a House of Lords decision. It was the question, or rather it was stated in the context of a terrorism, an area which is extremely sensitive, far more sensitive than the Coronial one, that political judgments are justiciable, but a given great weight is the phrase that was used, so that's just another way of saying deference, and the entire debate is covered in great detail in our case,

13:19Mr Bowen KC: and particularly in GLAN's submissions. Abbasi, paragraph 106, that's a very well-known case both in relation to international law and the Human Rights Act, but there were also challenges based upon legitimate expectation,

13:40Finley, and another common law ground which escapes me, and... So what's the page number for Abbasi?

13:49Mr Bowen KC: Yeah, Abbasi, the page number is 3629. In fact, I will call, that's the only one I'll call up, 3,069. And from memory it's 1063, so this was a Guantanamo Bay case, and the mother of one of the gentlemen residing there who was British, was worried about him, and they wanted foreign office assistance, and the international law argument failed, the convention argument failed, but at little 3, the foreign office has discretion whether to exercise the right, which it undoubtedly

14:37Mr Bowen KC: has to protect British citizens, it is indicated in the ways explained what a British citizen may expect of it, the expectations are limited, and the discretion is a very wide one, but there is no reason why it's decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to a legitimate expectation, so irrationality

14:58was the other ground.

15:01The Court: That's also a case where one might have thought there would be sensitivities as to the relations

15:07between us and a different state.

15:10Mr Bowen KC: Yes, sensitivities between us and the American jurisdiction, consider the extent to which some action might be taken on his behalf, and that would seem unlikely itself to impinge on any forbidden area, so you can have in the context of a court can look at a non-justiciable area in the context of looking at something which is justiciable, so you get both, and

1:27:39wasn't about maybe I mean times going on so maybe we should move on a minute and look

1:27:43Lord Reed: at Gouriet in the in the House of Lords but it occurs to me mr. Byrne that it may be worth bearing in mind that the context of decisions like Gouriet was one where courts always virtually always sat in public and if material was to be withheld from disclosure there had to be public interest immunity certificate and if in a case like the present the attorney were acquired to justify his refusal of a fiat and could not in the public interest publicly

1:28:46Lord Reed: disclose the reasons yeah then inevitably he would the case would be lost and that result would not be one that was in the public interest but because of the human passing of the Human Rights Act we've had to introduce the closed material procedures which have enabled material

1:29:15to be disclosed without it being disclosed in public through a special object yeah and

1:29:24Mr Bowen KC: that may be that change in the context may be of some relevance and it is and that's well I without such clarity I think I was making that point earlier on that the processes are sufficiently flexible not only for other interested people persons to to to approve or resist but also flexible enough to to protect the interests of the state or the interest of the public by making sure that certain information is not disseminated and it may well I I'm afraid I don't practice in the SIAC areas I'm not immediately familiar with

1:30:03Mr Bowen KC: it but I suspect it it would be surprising if it was the case that it can only happen

1:30:10can it only happen in a human rights case in a common law in a common law jurisdiction

1:30:15The Court: presumably it's equally available I will find out the answer that there was legislation following the ACHMED case in this court I think it was the very first case this court heard was ACHMED which said there was no common law power to allow closed material procedures and Parliament responded by introducing I think a general legislative power to to to

1:30:41hold a closed material hearing I mean that the note I'm just we pass on by Mr. Fairgreen

1:30:48Mr Bowen KC: the common the common law is sufficiently flexible to deal with all of these issues

1:30:52and then quotes a case called Osborne I think it says Osborne no I'm afraid it doesn't

1:30:58The Court: deal with this particular issue but I think you might want to check but I think it's an

1:31:02act of Parliament post dating the ACHMED case in about 2010 or so all right okay well that's

1:31:09Mr Bowen KC: something at the moment I'm afraid I'm not able to really help you but could I just return to my note and see what other issues I need to cover so yeah can I take you to I mean it may well be that in the light of what we've been discussing I can take this quickly but

1:31:29paragraph 10 this is what we've fed in relation to the test itself sorry just forgive me this

1:31:40Lord Stephens: is yeah I can help you the relevant legislation is part two of a Justice and Security Act

44:17There can't be a go here.

44:18The Court: I must say I'm not necessarily at that place. There are things like the grant of permission to apply for judicial review, which if it's refused can be appealed to a higher court. If it's granted, you can't appeal against the grant of permission to apply for judicial review. I don't think you just fight the judicial review. It slightly goes back to what we were discussing at the beginning of the day as to whether there's any factors that the Attorney can take into account when deciding whether to

44:56The Court: grant the fiat, which cannot then be taken into account by the high court. But if their factors are co-extensive, then I'm not sure why you would need to have judicially reviewable grant of the fiat.

45:13You just go to the high court and argue it out.

45:15Mr Crow KC: Well, in that case, can I come back to that tomorrow because, as I say, taking what was said in paragraph 110 of the Appellant's case, we understood that we were in the same place as they on this point. And Milano Friend's response to the question of whether the high court could take into account policy matters, I think, fluctuated in the course of his oral submission. If your leadership is concerned about that being acceptable common ground, can I revisit

45:45that tomorrow, having given it some further thought?

45:46Lord Reed: Yes, I think that's a good idea. I mean, it occurs to me, also, the case I mentioned this morning of Durham was an attempt to judicially review the grant of the initiation of a prosecution. And the court's answer was, well, if there's something wrong with a prosecution, you raise that in the course of the criminal proceedings. Whereas the Cornerhouse case is concerned with a refusal to bring a prosecution where there is no alternative remedy.

46:18So they're not necessarily on all fours.

46:24Mr Crow KC: Point taken. And if I can come back to it, either it's not common ground or even if it is common ground, it's not acceptable common ground. I'll revisit that tomorrow.

2:25:12Mr Bowen KC: the point that comes out in the EDI case. The next quick point, which I called don't reinvent the wheel, is the point relating to where the law already is. Now, this is at 130-- in the section at 103 to 105 of our written case. And the essential point is that the analogy is a clear one between a decision not to provide the fiat, where there is no alternative remedy, and a decision not to prosecute. Now, one example-- well, I think I referred to it in my opening.

2:26:01Mr Bowen KC: And you see it. And I think the most important paragraph for your note is paragraph 23 of the Manning case of Lord Bingham. And in that case, which was a not to prosecute case, the ordinary rules of judicial review applied. And even though there was a very steep hill in terms of the intensity of review, that meant that-- and there, the legal error was predominantly reasons-- that the court looked long and hard at the material. It wasn't knocked out on justiciability.

2:26:36Mr Bowen KC: And that's exactly what should happen in a case like this, when there's a decision not to grant the fiat. So there is the analogy. So we say there is clear asymmetry. So it's not common ground at all between us, the tests. They're both susceptible to judicial review. But the reason that Lord Stain explains very clearly in "Kebelene" is that he was not intending to apply the same standard of review to those two different types of decision.

1:46:16The Court: But this is in the context of margin of appreciation.

1:46:21Mr Crow KC: It is.

1:46:23The Court: There was no question about jurisdiction.

1:46:26Mr Crow KC: No, I accept that. That is the context in which these things were being said. But in our submission, it does provide a template for considering whether it is a subject that the court should engage with at all.

1:46:42Lord Reed: I mean, if you think about the cases that have been to do with deprivation of nationality on the grounds in the assessment of the Secretary of State, it's conducive to the public good. Now, that's an extremely broad public interest assessment and it's being reflected in the cases, BEGM, C3 and so on, in a very wide degree of margin of appreciation, if you like. They've not been human rights cases, but they've been under the supervisory jurisdiction.

1:47:16Lord Reed: But actually, they've been statutory appeals, I think, is where they've come to us. But the court has taken account of the institutional and constitutional aspects in deciding how much weight it should attach to the Secretary of State's assessment.

1:47:35Mr Crow KC: I accept that. And I quite agree that that is the context in which the Schwidler issue was being discussed. And I entirely accept that that is one of the tools, yes, for determining the margin of appreciation in relation to something that is reviewable. So I take all of that, my lords and my ladies. But we do urge the court that the question you are grappling with, in a sense, it is what we would ask you respectfully to consider whether Shergill does provide the appropriate test,

1:48:14Mr Crow KC: because it wasn't, in fact, addressing specifically the question of the court's supervisory jurisdiction in administrative law. But as I said in response to my Lord Reid, if we did have to box ourselves within one of the Shergill categories, we would certainly say it was category one.

1:48:36The Court: Just to give another example, in addition to that given by Lord Reid, and that is the GCHQ case, where the issue was national security. Yes. And that was amenable to review, but on very limited grounds. So constitutionally, the government's primary obligation is to maintain the security of the United Kingdom. And it didn't prevent the House of Lords in that case from considering further reviewing that decision.

1:49:14Mr Crow KC: And I entirely accept that.

1:50:04The Court: You can certainly take into account on hearing a judicial review application, that the decision was taken by the Attorney General. And you can certainly take into account. But I was thinking in practical terms. What reasoning, public law reasoning, would arise? One of the examples you've given is that there's great pressure on the colonial courts. And therefore, it's in the public interest not to have a whole series of further inquests. I can't yet understand why that isn't capable

1:50:43The Court: of just being either accepted or rejected. And so the great weight would be given to the view of the Attorney General as to the pressure on the courts and simply articulated. In fact, I could see a sort of standard letter being drafted, which hopefully would be crafted to each individual case. But anyway-- But would reasons have to be given?

1:51:18Mr Crow KC: As a matter of law, no. That is one of the factors that goes into the question of-- and it is sometimes said-- and there was the alfired passport case, wasn't there, where the statutory regime didn't require reasons to be given. The court decided that fairness did require reasons to be given in the particular circumstances. So you've got to look at the particular circumstances. Clearly, the statute does not require the Attorney to justify the refusal of authority.

1:52:03Mr Crow KC: Would the common law impose an obligation on the Attorney to explain why she has decided that somebody should not trouble the court to try troubling the coroner's court? And the answer we would urge on you is that the common law would not impose a duty to give reasons in that situation, because the Attorney-- it comes back to the fact that the Attorney is dealing with a situation where the claimant has no rights. It's not enforcing or invoking any rights.

1:52:40Mr Crow KC: There is no right to ask the High Court to tell a coroner to reopen an inquest. It's a pure statutory construct, and it exists subject to the statutory regime.

2:15:44Mr Bowen KC: if-- and this is ground two-- the hill is a steep one. So all we're asking for is the right to access the court in the normal way applying ordinary public law principles, where you get before a specialist judge who has the ability to refuse relief on discretionary grounds. Permission can be refused. There are all sorts of checks and balances in the system, which will protect the public interest, while at the same stage, having a balance between individual rights and the inevitable and important

2:16:41Mr Bowen KC: the essential concept of protecting the state. As in all of the big private law battles that we're all familiar with, immunities have fallen one by one. In every case, the policy, the now famous return to basic principles in Robinson, for instance, which is sweeping away policy in order to, when you're having those debates about whether or not public authorities have duties of care, there is a real analogy here. And what the state and the public authorities always

2:17:25Mr Bowen KC: say is, well, there's a fear of a flood of claims. And I don't, I'm sure, need to remind you, Lordships, about all of the famous judgments about where judges have said one by one, different generations of judges have said, well, that those fears are that there's no evidence behind them. It's alarmism, and floodgates, and defensiveness, and all of that material has really now gone by the board. So what Mr. Crow is doing is trying to bring into the public law jurisdiction

2:17:57Mr Bowen KC: exactly what has been jettisoned in the private law jurisdiction or area. So there's no concern on that front. If one looks at the question of what we are asking for as a matter of jurisdiction, and it is ruled out, as it has been ruled out according to the divisional courts approach, that completely closes the door. There's no prospect. It's just like the Lord's stain. This is paragraph 103 to 105 of our case in relation to the approach to decisions not to prosecute,

2:18:50Mr Bowen KC: and the decisions to prosecute, that there is no alternative remedy. So if the court adopts the appellant's contentions, there will remain a discretion. There will be no flood of claims. But because the divisional court left it really as a question of jurisdiction in terms of there being simple non-justiciability, the most irrational and perverse acts, as I've already said, are simply beyond reach. And that just cannot be an acceptable way to proceed when Parliament itself has expanded

2:19:46Mr Bowen KC: the ability by enabling inquests to be reopened.

2:19:56And that just simply can't be right.

5:02Mr Bowen KC: by the Attorney General, but it has yet to be looked at by any court. So what I will be urging on you, because I think Mr Crow may well be taking an alternative position, is that even if we succeed on the legal issue, of course this case is no use to Mr Campbell himself unless there is a remittal back for permission, so we will if necessary be going into the reasons why this should have a practical impact as well as a legal and academic one. So those two issues you see at page 15 and they are whether the decision of the Attorney

5:57Mr Bowen KC: General, and I will go to that in due course, is amenable to review at all and if so on what grounds. The order that we seek is modest, it is to allow the appeal, set aside the refusal of permission and declare that 13(1)(b) is amenable to judicial review on ordinary public law grounds

Mr Bowen KC: The relief we seek, I’ve addressed you on already. It’s narrow. It relates only to this type of case, not the type of case that REDRESS, in terms of consent to prosecute major human rights abuses under the international jurisdiction.

The Court: So the relief you seek is for us to remit this to the Divisional Court to consider whether to grant permission for judicial review of the Attorney’s refusal to grant the fiat.

Mr Bowen KC: Yes, exactly.

Lord Reed: Thank you very much indeed, Mr Bowen. Can I just check with Mr Crow? If we are in favour of the appellant, do you agree we simply remit to the High Court?

Lady Simler: Can I just… I think your case says we can take the decision ourselves. But in light of your…

[Brief overlapping exchange and an inaudible passage in the supplied transcript.]

Mr Crow KC: I think we have said what we said in our case. This is in our submission an entirely plain case which can be dealt with as the Divisional Court dealt with it. But clearly, you have jurisdiction to remit.

Lord Reed: Thank you very much, Mr Crow. Well, we’re grateful to counsel for all the assistance we’ve been given. We have quite a lot of points to think about now. We’ll take time to consider our judgment and let you have it when we can.

1:03:58the question takes into account that range of factors so that is a country mile away

1:04:08The Court: from the material for the types of cases that my friend it seems to me that interest of justice which is the test it relates to the Pacific Coroniel investigation doesn't relate to the interests of international relationships or the interests of political decisions and just adding to that how would they even come before the High Court attorneys given the Fiat I just don't see where those political considerations are going to come in to give you a concrete example if one thinks about the facts of the corner house case where because

1:04:48The Court: the attorney was compelled to justify his decision he had to disclose the fact that the Saudi government had threatened to withhold cooperation in the encounter terrorism from the UK now that he attorney had treated that as material consideration because the withholding of Saudi cooperation encountering terrorism would place the safety of British citizens at risk but that wouldn't have anything to do with the interests of justice it's not a factor that the court could properly take into account under 13-1b so if it's a relevant

1:05:40The Court: factor at all which is the question that or Stevens was asking earlier this morning if it's something which would be relevant to his decision whether to grant a Fiat but it wouldn't be relevant to the court's decision whether a fresh inquest was in the interest of justice and it might be said that if the attorney is compelled to justify withholding

1:06:07the Fiat by disclosing that kind of information that in itself is damaging to the public interest

1:06:16Mr Bowen KC: on certain facts of course I can see that that might be the case but does that concern justify a complete blanket immunity Lord Nichols in a series of cases I think Phelps to start with and then I think some of the social welfare cases talks about never being an extremely unattractive word you know courts don't really like to say all cases at all stage in the future there will be no possibility of a judge supervising this decision I mean that is a

1:06:51very unattractive position particularly the point cuts both ways you know this isn't necessarily

1:06:57The Court: a point against you sorry sorry isn't it's not necessarily a point against you my hearing the the only point I'm making is that it is a binary matter either one either the the attorney can be compelled to justify his decision to a court or he cannot if he can then there are going to be cases of the kind I just put to you where it might be damaging to the public interest on the other hand if he's not then you can say that in itself could be damaging

1:07:42to public interest in other ways yeah I accept that what I was it may well be that we get

59:48factors relevant to the Attorney General's decision and I most certainly didn't say the

59:54The Court: second okay well but putting it another way would you say that if the high court is if the Attorney General gives his authority and the high court is looking at whether there should be a new inquest and applying section 13 one B can the high court take into account matters of international sensitivity as a counterweight to factors that might point towards an investigation can the high court say I see that there may be some new evidence maybe there was some irregularity but nonetheless because of the problems that reopening all

1:00:53The Court: this would involve for UK it is not necessary or desirable in the interest of justice that

1:01:02another investigation should be held is that something that the high court can take into

1:01:07Mr Bowen KC: account physical look on my right silence on my left I am very tempted to say yes because at that stage of course my whole argument based upon the rule of law etc points number one to five of my constitutional fundamental list have really been met because I'm before a judge I'm before a judge there's a process I'll be a permission hearing there are appeals the whole gamut of judicial review is then open that is a completely different scenario to the gate just remaining closed on the secret say so of the Attorney General so it may well

1:01:57Mr Bowen KC: be that therefore my answer my my my own gateway to heaven in relation to Lord Stevens question is that those difficult issues are then articulated as openly as they can be and there will be procedures to the court to set the camera etc that all happens once the fear has been given but that crucial issue about whether the fear is given has to be subject to some form of process and can I just we haven't I mean you've probably as I've been talking

2:17the judicial review jurisdiction exists in the normal way.

2:22Mr Bowen KC: In relation to the Lord Stephen's politics question, and also I think Lady Rose about the extent to which policy or political issues can be raised by the High Court judge. The answer, we think, is 13-2 of the act at page 339 of the bundle. And that reads, the High Court may, so this follows directly on from 13-1b. The High Court may order an investigation under part one of the Coroners and Justice Act to be held into the death either one by the coroner concerned,

3:08Mr Bowen KC: or two by a senior coroner, etc. And B, order the coroner concerned to pay such costs, etc. Now that appears to us to be a broad discretion to either grant or refuse a new inquest. The word may really gives him an open canvas, or him or her, sorry, an open canvas to be able to take account of whatever political or policy issues there are, let's call it the Pandora box point. And then there are more than enough procedural mechanisms, some of which were mentioned by Lord Reed in relation to either immunity

3:52Mr Bowen KC: certificates, or the point made by Lord Stevens in relation to the piece of legislation, the name of which escapes me. So, accordingly, public interest factors can be taken into account through that broad power post fiat. And of course, on that basis, it must be something that the Attorney General can turn his mind to, but it's by no means a trump card. It's all part of the general mix, and what we say is that the public interest comes in as a component of the test that's applied at both stages.

4:35Mr Bowen KC: The fiat stage is reasonable probability, etc.

4:41And then in front of the high court judge is the full gamut of the 13B criterion.