TNAG-1596-FCO40-2181-Constitutional-development-in-Hong-Kong-1988 — Page 66

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16.

Viscount Dilhorne :

"No interim declaration can be made, and while I do not

wish to express an opinion on the point, I doubt very much

whether it would be advisable that the courts should have

power to grant one affecting the Crown which would have

much the same effect as an interim injunction."

On the other hand Lord Diplock, the proposal's sole

supporter, stated :

"My Lords, this case serves once again to draw attention to

what, for my part, I regard as a serious procedureal defect

in the English system of administrative law it provides

no means of obtaining interlocutory relief against the

Crown and its officers. The useful reforms effected by the

amendment to the Rules of Court by substituting new Order

53 for the old system of prerogative orders, could not

overcome this procedural defect, which would require primary legislation. Such legislation has been recommended in the Report of the Law Commission on which the revision

of Order 53 was based. It is greatly hoped that the

recommendation will not continue to fall upon deaf

parliamentary ears.'

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The Sub-committee's Reasons

17.

Despite the views expressed by the majority in the

Rossminster Case and the United Kingdom Government's apparent

rejection of the English Law Commission's proposal, the Kempster

Sub-Committee recommended that the Supreme Court of Hong Kong should be empowered to make interim declarations against the Crown. recommendation subsequently was supported by both the Bar Committee

and the Council of the Law Society.

This

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