39-
Interia declarations against the Crown The Attorney General's view
2
The Attorney General is opposed to the introduction of interim declaracions
as a Temedy available against the
Crown fo: 4 reasons :
(a)
Co
be
Of
to
incerim
IRC
V
law.
Constitutional In a recent United Kingdom' case where the desirability declaracious was considered (Reg. Ex.o. Rossminster [1980] A.C. 952) majority of the House of Lords opposed the concept on the basis that it would permit the Judiciary to interfere in the functions of the Government and, in any
event, the present powers of the Courts in relation to Government actions were adequate. The point was made that by judicial review the Courts determine the rights of the parties and could ultimately declare the Government's actions
contrazy Nevertheless, this was merely adjudication. If the Courts were permitted to restrain the actions of the Government then
then they would have usurped partially the
the powers of the Government and altered the constitutional balance. This is 2 significant point particularly in view of the undertakings given in the Sino-British Joint Declaration.
(b) Public interest There are occasions, most dramatically in war time but frequently in peace time, when the Government is required to act expeditiously and decisively. If the Government's freedom to act in such circumstances was subject to even temporary! restraint
public interest
be could It is jeopardised.
essential for the
the
-
Government to have the freedom to respond to major and minor crises.
Court
day
in
..
(c) Legal - As noted above a "declaration" is a definitive statement of the relative rights of the parties. Interim orders usually are granted upon the application of one party and without hearing the case for the other. From
a legal perspective several commentators have noted the absurd posture. of. &
"declaring оде interlocutory, proceedings that an applicant has certain rights and upon a later day that he has Cot".
little.' present consideration has been given to the legal effect of granting an interim declaration or as to the criteria upon which they should be
These granted.
aspects would require considerable clarification before the proposal could proceed.
At