Interim Relief Against the Crown
| Date | 01 January 1987 |
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb02565.x |
| Published date | 01 January 1987 |
JAN. 19871
NOITS
OF
CASES
105
The
N.C.B.’s
decision to litigate on this matter when the legal
chips lay technically very much in its favour may yet return to
haunt B.C. under its new Chairman who may well wish to adopt a
less confrontational style than his predecessor.
WILLIAM
M.
REES*
INTERIM RELIEF AGAINST
THE
CROWN
IN
R.
v.
Secretary
of
State for the Home Department, ex parte
Herbage’
Hodgson J. demolished a myth but exposed an underlying
conceptual weakness in our public law. His Lordship held that an
interim injunction, and by implication other interim relief, is
available against a Crown servant in judicial review proceedings
under R.S.C., Ord. 53. This conflicts with the widely held belief,
derived from section 21(2)
of
the Crown Proceedings Act 1947 that
interim relief is not available against either the Crown or a Crown
servant.* Section 21(1)
of
the Act forbids injunctions against the
Crown itself and section 21(2) forbids injunctions and other
remedies “having like effect,’’ against Officers
of
the Crown
including ministers and Crown servants. Section 21(2) has been
held to apply even to Crown servants exercising statutory powers
conferred upon them personally, thus distinguishing the injunction
from the prerogative
order^.^
Certiorari, prohibition and mandamus
are not available against the Crown as such, but will
lie
against
ministers exercising statutory powers specifically conferred upon
them.4
The
Herbage
case is of considerable constitutional significance.
Hodgson J.’s decision means that a speedy interim remedy is now
possible in respect
of
alleged abuse
of
power by the central
government. Without interim relief there is the possibility
of
serious injustice.
For
example in
R.
v.
Secretary
of
State for the
Home Department,
ex
parte Kirkwoods
Mann
J.
relying on section
21(2) held that interim relief by way
of
certiorari was not available
to
prevent the applicant being extradited
to
California (where he
faced the death penalty) pending consideration
of
his case by the
European Court of Human Rights. The Law Commission had
recommended that interim relief should be available against Crown
*
Faculty
of
Law, University
of
Exetcr.
’
(19861 3
All
E.R.
209.
*
Cf.
Aldous and Alder,
Applications for Judicial Review,
pp.42-3, 70-71.
’
Merricks
v.
Heothcote Amory
(19551
Ch.
567;
Harper
v.
Home Secretary
(19551
Ch.
238
at least when acting in their official capacity. See de Smith,
Constitufional
&
Administrative
Luw,
5th
ed.
by Street
&
Brazier
(1985) p.635.
‘
See de Smith,
Judicial Review of Administrative Action,
4th ed. by
J.
M.
Evans
(1980)
at
385,
445446,
553-555.
In the case
of
mandamus, the duty in question must not
be owed exclusively
to
the Crown. See
R.
v.
Special Purposes Commissioners of the
Income
Tux
(1888) 21
Q.B.D.
314.
Wade,
Administrafive Law
(5th ed.,
1982),
p.605.
Crown Proceedings Act
1947, s.40(5).
’
[1984] 2
All
E.R.
390.
See
[1984]
P.L.
539. (1986)
5
C.J.Q.
218.
To continue reading
Request your trial