NOTES OF CASES
| Published date | 01 January 1978 |
| Date | 01 January 1978 |
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb00787.x |
NOlTES
OF
CASES
GOURIET
:
THE
CONSTITUTIONAL
ISSUE
THE principle
of
the Rule of Law requires not
only
that the law
should apply to everyone--citizen and state, rich and poor, powerful
and weak-but also that there should
be
effective legal remedies for
use where there
is
a
breach of the law. The Rule
of
Law does not
cease
to operate merely because the law is broken-rime exists in
all
societies-but it
is
violated
if
someone is able to break the law
openly and with impunity because legal remedies do not exist or
because he is too powerful for them to be applied to him. The case of
Gouriet
v.
Union
of
Post Ofice Workers
raised the question
of
how
far the Rule of Law operates in contemporary Britain.
The
Facts
On January
13, 1977,
the executive of the Union of Post Office
Workers (U.P.W.) held a meeting and decided, in response to a request
for solidarity from the International Confederation of Free Trade
Unions (I.C.F.T.U.), to
call
upon their members not to handle mail
destined for South Africa for one week starting on midnight, Sunday,
January
16.
Such action would clearly have been an offence under
the Post Office Act
1953.
Section
58
of
this
Act makes it an offence
for
any Post Office employee wilfully to detain
or
delay the mail and
under section
68
it is an offence for any person to solicit or endeavour
to procure any person to commit this offence. The decision
of
the
U.P.W. was broadcast on the nine o’clock news on BBC Television
on
the night
of
January
13
and immediately afterwards Mr. Tom
Jackson, general secretary
of
the U.P.W., was interviewed and it was
put
to
him
that the proposed action was unlawful. He replied that
its legality had never been tested in the courts and that the relevant
laws dated from the time
of
Queen Anne and were more appropriate
to dealing with highwaymen and footpads.
Mr. John Gouriet heard the broadcast and interview. He consulted
his solici~tors and on Friday, January
14,
he applied to the Attorney-
General for consent for a relator action against the U.P.W. for an
injunction restraining them from soliciting or procuring any person
wilfully to delay any postal package in the course
of
transmission
between this country and South Africa. A few hours later on the
same day the Attorney-General refused permission without giving
any reasons other than that he had considered all the circumstances
including the public interest.
Mr. Gouriet then issued a writ in his
own
name against the U.P.W.
and applied for an interim injunction against it in the terms mentioned
above. The application was rejected by Stocker J. Mr. Gouriet
appealed to the Court
of
Appeal (Lord Denning M.R., Lawton and
Ormrod L.JJ.) which sat specially on Saturday, January
15
to hear the
58
Jan.
19781
NOTES
OF
CASES
59
The
Issues
The most important constitutional and administrative law issues
raised in this case were (i) whether
a
private citizen has standing to
apply in his
own
name for an injunction
(or
a declaration) for a
violation of the criminal law when he is not Concerned to any greater
extent than other citizens; and
(ii)
whether the court
can
review
a decision of the
Attorney-General
refusing consent for
a
relator
action.
It is desirable to say something about
locus
stundi
at the outset in
order
to
provide
a
background for the decisions given by the courts.
The basic principle of
locus
standi
(standing) is that a person with no
interest has
no
right to apply for an injunction or declaration: busy-
bodies and trouble-makers are not allowed to come before the courts.
This basic principle was not, however, in issue in the case: Mr.
Gouriet clearly had an interest-along with
all
other citizens-in
postal
communications being kept open with South Africa. He had
no special connection with South Africa but no one can be
certain
in advance that he
will
not want to communicate with someune in
another country or that someone in that country will not want to
communicate with him.
There is, however, a subsidiary principle of
locus
stundi,
according
to which it is not enough for the applicant to have
an
interest; he
must have a special interest. By this is meant that he must have
an interest greater than that of the ordinary citizen.
This
Mr.
Gouriet did not claim. It was this subsidiary principle of
locus
stundi
which was in issue in the case.
The second main issue in the
case
concerned the Attorney-General‘s
powers with regard to relator actions. It is generally said that the
problem of a person with an interest, but no
special
interest, who
wishes to apply for a declaration or injunction
can
be solved by
means of a relator action. The Attorney-General has standing to
obtain a declaration or injunction in any
case
affecting the public at
large and the relator aotion is a mas by which the private citizen
can
“borrow” his superior standing. The citizen has to obtain the
consent
af
the Attorney-General for the action to be brought in his
name.
If
this is granted, the problem of standing is solved and,
though the Attorney-General has power to
control
the proceedings,
the relator
(as
the applicant
is
called) usually has
a
fairly
free
hand.
In
this
way, it is said, the Rule of Law
is
upheld, because action
can
be
taken either by the Attorney-General of his
olwn
motion
ex
oficio
or
by a private citizen using the name of the Attorney-General. But
what if the Attorney-General refuses to ad himself and refuses his
consent for a relator action?
Can
the
court
review his decision and
either order
him
to give his consent or allow
his
consent to be
dispensed with?
1
The labour law issues are discussed below
c+!
pp.
63-67.
2
It is not suggested that historically the
the
“
basic principle,” only that it is logically subsidiary.
subordinate principle
”
evolved after
60
THE
MODERN
LAW
REVIEW
[Vol.
41
The
Decision
of
the Court
of
Appeal
At the hearing on January
15
the Court of Appeal granted an
interim injunction against the U.P.W. in the terms sought; a
similar
injunction was
also
granted against another union, the Post
Office
Engineering Union (P.O.E.U.). The injunctions were obeyed and the
boycott was
called
off.
At the resumed hearing on January
18
the
court heard the Attorney-General and counsel for the other parties at
length and then gave
an
interlocutory judgment in which it expressed
its opinion on the issues raised.
The first issue was whether the court could review the Attorney-
General‘s decision not to allow a relator action. It was accepted by
all three members of the court that review was not possible in the
sense that the Attorney could not be ordered to permit relator pro-
ceedings.
It
was also accepted by at least two members
of
the court,
Lawton and
Ormrod
L.JJ., that the Attorney-General cannot be
required by the court to give his reasons for ref~sing.~ It was, how-
ever, stated by Lord Denning
M.R.
and by Lawton L.J. that the
court could consider whether there was good reason for the Attorney-
General‘s refusal and,
if
there was not, it could allow the plaintiff
to continue the action without the need to use the Attorney-
General‘s name as nominal plaintiff.
Since
there was a slight difference of emphasis between these two
members
of
the court on this point, it is desirable to state clearly
what each said. Lord Denning said4 that the court could consider
whether irrelevant matters had been taken into account
or
whether
the Attorney-General had failed to take relevant matters into account:
it
could also consider whether he had misdirected himself. In other
words, the classic grounds of judicial review could be applied.
Lawton L.J., on the other hand, said that where,
so
far
as
the court
could
see,
“there
is
no
discernible reason why threatened breaches
of
the criminal law should not be restrained
”
the court would allow
the plaintiff to proceed.5
If
the Attorney-General then chose to reveal
reasons which had not
been
discernible to the
court,
the court would
reassess the situation in the light
of
these new factors and decide
accordingly. Although Lawton
L.J.
formulated his opinion more
cautiously, it is clear that both views involve the court in judging
the rightness of the Attorney’s decision. For this reason, Lord Denning
was correct in saying that it involved “indirect” review
of
the
Attorney-General’s action.
Ormrod L.J. did not reach his decision on this basis. In some ways.
his judgment was even more radical: he considered that since the
plaintiff, as a member
of
the public, could prosecute the unions for
offences under the relevant Aots
of
Parliament once the threatened
acts were committed, he was entitled to claim a declaration in his
3
At [1977]
1
All
E.R.
721j and 726h
respectively.
There is
no
doubt that
Lord
Denning also
accepted
this.
4
[1977]
1
All
E.R.
716a-b.
5
[1977]
1
All
E.R.
726c-d.
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