TNAG-1596-FCO40-2181-Constitutional-development-in-Hong-Kong-1988 — Page 71

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36.

The Herbage Case The preceding discussion has been based

upon the premise that, at present, an individual is not able to obtain interim relief against the Crown to restrain a pending Government action until a trial. This premise, was recently challenged by a decision of a single English judge in R v Secretary

of State for the Home Department ex p. Herbage (1986) 3 All E.R. 209.

37.

The judge stated that although it had been accepted since 1947 that the Crown Proceedings Act denied individuals the right to obtain injunctions against the Crown he queried whether this was so.

38.

More importantly, he ruled that recent legislative amendments introduced in the United Kingdom (being the same

provisions that will be introduced in Hong Kong by clause 21K of the Supreme Court (Amendment) Bill 1987) had the effect of permitting an individual to obtain an injunction against an officer of the Crown in "judicial review" proceedings; i.e. in general terms, proceedings whereby the court tests the validity of an administrative action.

The judge added that that provision, in conjunction with the Rules of the Supreme Court, permitted interim injunctions to be made against officers of the Crown in judicial review proceedings whilst retaining the immunity of the Crown itself established by the Crown Proceedings

Act.

39.

In reaching this conclusion the judge noted the Law Commission's proposal for interim declarations and stated that the

amendments introduced by the 1981 Act (which coincidentally were

recommended by the Law Commission in its Report on Administrative Remedies) "partially achieves, though by a different route, the Law

Commission recommendation that interim relief should be available

against an officer of the Crown".

40.

The significance of this recent development, which occurred

after the Kempster Sub-committee made its recommendations, is that

there may be no need to introduce a general remedy of interim

declarations against the Crown. The Herbage Case is a decision by

only a single judge and it is still in doubt whether his

interpretation of the law is correct in England and, in any event, it

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