The Gazette 1977

APRIL 1977

GAZETTE

Court was not entitled to inquire into them; and that if his decision was wrong he was answerable to Parliament alone. He applied for the declaration now claimed against him to be struck out. The two trade unions applied under R.S.C., Ord. 18, r. 19(1) (a) to strike out the writ and statement of claim against them on the ground that as the Attorney-General alone could seek an injunction in a Civil Court to prevent a threatened breach of the law, and as he had refused to do so, the plaintiffs pleadings disclosed no reasonable cause of action. At the end of the hearing the declaration sought against the Attorney-General was provisionally amended to claim that notwithstanding his refusal to consent to relator proceedings, the plaintiff was entitled to proceed with his claim for final injunctions against the two unions: Held, allowing the appeal, (1) (per Lawton and Ormrod L.J.J.) that the Attorney-General's exercise of his discretion to refuse his consent to the bringing of relator proceedings in his name could not be reviewed or questioned by the Courts. Per Lord Denning M.R. Where the Attorney-General refuses his consent to relator proceedings in a matter which appears plainly to threaten a breach of the criminal law, to the prejudice of the public as a whole, and declines to give his reasons for his refusal, the Courts are entitled to review the exercise of his discretion, not directly but indirectly, by allowing the complainant to come to the Court himself, and to grant him an injunction, and, if need be, a declaration. The Attorney-General has no prerogative by which he alone can say whether or not the criminal law should be enforced in the Courts. Per Lawton L.J. I cannot accept that the Attorney- General in relation to law enforcement through the Civil Courts is the sole arbiter of what is the public interest. (2) That where the Attorney-General's consent to relator proceedings had been refused, the Court was not without jurisdiction to provide a remedy; it could allow a member of the public, who did not claim any special interest of his own but who asserted that other persons or bodies were threatening to commit acts in breach of the criminal law enacted in Acts of Parliament, which would, if carried out, affect the rights of the public, including his own, to use the facilities of the Post Office, to apply to the Court for a declaratory judgment against the intending infringers that the apprehended action would be unlawful; and if the plaintiff had claimed a declaration against the unions, the Court could in the exercise of its equitable jurisdiction grant him an interim injunction pending the final determination of any application for a declaration; that the Court had therefore had jurisdiction to grant the interim injunction; but that as it had been effective to restrain the proposed postal boycott it could now be discharged. (3) But (per Lawton and Ormrod LJJ.) that so long as the plaintiff was unable to add the Attorney-General as plaintiff in relator proceedings, he could not obtain final injunctions against the trade unions; and as his pleadings claimed only that relief the writ and statement of claim would have to be struck out, unless he amended them to include a prayer for declaratory judgments that it would be unlawful for the unions to counsel or solicit their members wilfully to delay or omit to transmit any postal packet or message between this country and South Africa. Per Lord Denning M.R. If the Court can grant a declaration I see no reason why it should not grant a final 6 9

RECENT ENGLISH CASES (a) Attorney-General; Relator Actions Gouriet v. Union of Post Office Workers and Others — Court of Appeal — Lord Denning M.R., Lawton and Ormrod LJJ. By Sections 58 and 68 of the Post Office Act 1953 and Section 45 of the Telegraph Act 1863, as amended, it was an offence punishable by imprisonment or fine for persons engaged in the business of the Post Office wilfully to delay or omit to deliver postal packets and messages in the course of transmission and for any person to solicit or endeavour to procure any other person to commit such an offence. On Thursday, 13 Jan. 1977, it was publicly announced that the executive council of the Union of Post Office Workers (U.P.W.) had unanimously resolved to call on its members not to handle mails to South Africa during the week beginning at midnight on Sunday the 16th, in response to a call from the International Confederation of Free Trade Unions to its member unions for protest action against the South African government's policy of "apartheid"; and on the Friday, the press reported that similar action was proposed by other British trade unions, including the Post Office Engineering Union (P.O.E.U.). On Friday the 15th, shortly before 1 p.m., the plaintiff applied to the department of the Attorney-General for his consent to act as plaintiff in relator proceedings for an injunction to restrain the U.P.W. from soliciting or endeavouring to procure any person wilfully to detain or delay any postal packet in the course of transmission between England and Wales and the Republic of South Africa. A draft writ and statement of claim had been prepared. At about 3.30 p.m. the Attorney-General stated that "having considered all the circumstances including the public interest" he had concluded that he should not give his consent to the application. The plaintiff thereupon issued the writ of summons in his own name and applied to the Judge in Chambers for afinal injunction. The Judge refused the order on the ground that in the absence of any reported authority on the point he had no jurisdiction to grant the relief where the Attorney-General had refused his consent. The plaintiff appealed, and the Court of Appeal was convened on the Saturday to hear him. The Court granted him an interim injunction in the terms asked for against the U.P.W. It also gave him leave ex parte to join the P.O.E.U. as defendants and also to join the Attorney-General as a defendant, the injunction to run until 10.30 a.m. on Tuesday the 18th or such other time as the Attorney-General might be able to attend to assist the Court. In face of that order the proposed boycott by Post Office employees did not take place. On the resumed hearing the plaintiff had amended his pleadings to claim permanent injunctions against both trade unions and a declaration that the Attorney-General by refusing his consent had acted improperly and wrongfully exercised his discretion. The Attorney-General attended, and stated, inter alia, that by virtue of his special office and functions, the prerogative vested in him on behalf of the Crown, and by long established constitutional practice his discretion to consent or refuse to act as plaintiff in relator proceedings was absolute and could not be reviewed by the Courts; that he did not have to give his reasons, and that the