11.
"Where in any proceedings against the Crown any such relief
is sought as might in proceedings between subjects be
granted by way of injunction ...
.. the court shall not grant
an injunction .. but may in lieu thereof make an order
declaratory of the rights of the parties.
11
Accordingly, if the Crown was threatening to demolish an
allegedly illegal structure the courts could not order the Government
to desist by issuing an injunction. Instead, by section 16, the
Supreme Court could declare the legal position of the matter in
dispute and, if the Crown was in the wrong, might declare that the
Crown had no legal right to demolish the structure. Unlike an injunction, such a declaration would not be mandatory and would not legally oblige the Crown to desist. Nevertheless, the practical
effect would be the same for it is unthinkable that the Crown would
act contrary to the ruling of the courts and there is no known.
instance in Britain, Canada, Australia or Hong Kong where a
government has failed to abide by the terms of a "declaration".
12.
As "declarations" are definitive statements of the parties'
relevant legal rights they are, at present, only issued following a trial. There is not, at present, any way that a private citizen who might be affected by a pending Government action can obtain interim
relief to restrain the Government until his dispute with the Crown
can be brought to trial.
The 1976 English Proposal
13.
In its 1976 Report on Remedies in Administrative Law (Law.
Com. No. 73) the Law Commission of England expressed its view that
there should be some form of interim relief against the Crown. It proposed that in addition to the power to make a declaration in
proceedings against the Crown, there should also be "power to declare
the terms of an interim injunction which would have been granted between subjects." The Commission suggested that this should be done
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