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CONFIDENTIAL
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The critical question is to decide what human rights
we should have and the extent to which they are accorded legal protection. In this area the argument for the status quo is a strong one. The protection of purely public rights is safeguarded against the executive by the supremacy of the final judgement. If there is a related private law claim against the Crown the public law claim is backed up by the remedy of damages. If not, and there has been consequential loss in the interim, that is a hazard which individuals and companies have to face and accept. Incidents of citizenship and existence are sometimes unpleasant and onerous and, in this category, this is, relatively speaking, a minor and unlikely one. Such a situation will not happen very often given current practises as described above. If there is particular injustice it will be attacked in the legislature and the executive will be pressured into providing ex gratia compensation. If, on the other hand, interim relief is available against the Crown, it will delay and hamper the executive doing its job in a number of crucial cases where executive freedom is of paramount importance. It will not be cost effective to the community. If, going further, there is a new general remedy of damages in cases where judicial review succeeds, the direct and indirect costs to the community will be very substantial and the degree of hindrance to executive action will far outweigh the social benefits involved.]
CONFIDENTIAL
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