Judicial review where the Attorney General refuses to act: time for a change

‘Today, therefore, the controlling factor in determining whether the exercise of a prerogative power is subject to judicial review is not its source but its subject matter.’ So uttered Lord Scarman, expressing the view of the majority of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case). The Attorney General, in deciding whether to institute proceedings for the enforcement ofa public right, exercises a power vested in him by virtue of the royal prerogative. This power, it was previously held, was ‘absolute and non-reviewable’. The question now arises as to whether the Attorney General’s discretionary powers are embraced within that category of prerogative powers whose subject matter renders them amenable to judicial review, or whether they remain beyond judicial scrutiny.