40-
(d) Justificacion
The primary arguments in favour of the proposal fail to appreciate that ia undertaking any action the Government is not only subject to che Rule- of Law but also to political sanctions and is responsible to the Legislative Council and ultimately to the British Government.... In this respect, much of the justification for interia restraints upon the actions of individuals is inapplicable to Goverment actions.
In any event, the Government will always be Liable to pay Compensation to persoas affected if it
if it acts
acts illegally and, unlike the situation with many private defendants, the Government will have the resources to pay. Furthermore, if a plaintiff could show a raal risk that the Government was about to act So as to cause irreparable loss, the Court would have power to order an expedited hearing. Ia such circumstances appropriate case might be heard and determined within weeks of its commencement...
It
not
an
3
the was primarily for
above reasJus that the British Government determined
to implement the 1980 recommendation by the Law Commission. Nevertheless in New Zealand by a 1977 amendment to the Judicature Amendment Acti 1972 (N.Z.) a power was provided to
interim g-aat declaracions. From correspondence with the President of the N.Z. Court of Appeal it has been ascertained that interim" declarations have operated well in that jurisdiction although they have rarely been granted. The President notes that `In cases where interim declarations have been sought an expedited trial has been ordered instead.
most
4
Accordingly it is recommended that legislation should not be introduced to enable the High Court to grant interim declarations against the Crown.
Consultation.
5
vass
The Kempster Sub-committee canvassed the views of the Chief Justice, the judiciary, the Chairman of the Bar Association, each firm of solicitors in Hong Kong and the law faculty of Hong Kong University as well as the Attorney General, Registrar General, Crown Solicitor and Director of
The draft Annexed Legal Aid before producing its draft Bill.
has been circulated to the Law Society and the Bar Association as well as to Mr Justice Kempster and the Rules Committee for consideration. The Bar Association and the Law Society in general support the Bill. They also strongly support the proposal to
the High Court to declarations against the Crowd.
empower
make
interim