TNAG-1596-FCO40-2181-Constitutional-development-in-Hong-Kong-1988 — Page 64

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by repealing section 21 of the Crown Proceedings Act and replacing it with the following provision :

"Where in any proceedings against the Crown any such relief

is sought as might in proceedings between subjects be

granted by way of injunction

(a) the court shall not grant an injunction,

lieu thereof -

but may in

(1) in a case where the court is satisfied that it would

have granted an interim injunction if the proceedings had been between subjects, declare the terms of the interim

injunction that it would have made."

Although an interim declaration in such terms could not oblige the

Crown to take or refrain from taking action the Commission did not

doubt that the Crown would respect its terms as it does a final

declaratory order.

14.

Although a number of legal commentators have expressed support for the proposal it was strongly criticised by the majority

of the House of Lords when handing down their judgement in IRC V

Rossminster Ltd. [1980] AC 952. The United Kingdom Government

decided not to implement the proposal because of those criticisms.

15.

The comments of the majority of Law Lords were as follows

Lord Scarman :

"The second point on which I desire to comment is as to the possibility of an "interim declaration". Under existing

law only a final and conclusive declaration may be granted

by a court. This means that, where the Crown is defendant

or respondent, relief analogous to an interim injunction is

not available. Many commentators, including the Law

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