Colleagues,
In a quick read of the Supreme Court decision in the Miller case, it seems to me that it has an impact of the rule, set out in the House of Lords decision in the Gouriet case, that an Attorney-General's decision to refuse to grant his or her fiat
to relator proceedings cannot be reviewed by the courts because the Attorney General is accountable to parliament.
On the accountability principle, in Miller, at [33], the Supreme Court said:
Thirdly,
the Prime Minister’s accountability to Parliament does not in itself justify the conclusion that the courts have no legitimate role to play. That is so for two reasons. The first is that the effect of prorogation is to prevent the operation of ministerial
accountability to Parliament during the period when Parliament stands prorogued. Indeed, if Parliament were to be prorogued with immediate effect, there would be no possibility of the Prime Minister’s being held accountable by Parliament until after a new
session of Parliament had commenced, by which time the Government’s purpose in having Parliament prorogued might have been accomplished. In such circumstances, the most that Parliament could do would amount to closing the stable door after the horse had bolted.
The second reason is that the courts have a duty to give effect to the law, irrespective of the minister’s political accountability to Parliament. The fact that the minister is politically accountable to Parliament does not mean that he is therefore immune
from legal accountability to the courts.
The underlined bits suggest to me that a decision by the A-G to refuse to grant his or her fiat relator proceedings is, theoretically at least, subject to judicial review. Indeed, the last quoted sentence in para [33], seems to echo what Lord Denning said in
the Court of Appeal in Gouriet when he held that the A-G Samuel Silkin's decision to refuse to grant John Gouriet his fiat to relator proceedings could be, and should be, reversed. Of course, the House of Lords held otherwise.
A second point, more in the form of an observation than anything else, is that it is my understanding that one of the reasons for
the non-justiciability of the A-G's decision to refuse to grant of his or her fiat is that the A-G in the UK is more a legal officer than a politician because he or she is not involved in the day-to-day political fray. However, having watched part of Geoffrey
Cox's performance in the House today where he called the current parliament a "disgrace" and, I think, referred to the the opposition as "turkeys", was very much the performance of a politician than that of a legal officer.
I would note on this that in Australia in
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998),
although the High Court unanimously confirmed the application of Gouriet
rule in the Australian context, several members of the court inferred that the
Gouriet rule be inappropriate in Australia precisely because the A-Gs here have, by their own admission, a far more political role than do their British counterparts.
I would welcome any corrections or comments on the above.
Peter