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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
    1. Godden v Hales (1686) 11 St Tr 1165
    2. The Bill of Rights 1689
    3. Attorney-General v De Keyser's Royal Hotel [1920] All ER 80; [1920] AC 508
    4. Laker Airways Ltd v Department of Trade [1977] 2 All ER 182; [1977] QB 643.
    5. R v Secretary of State for the Home Department, ex parte Fire Brigades Union and Others [1995] 2 AC 513; [1995] 2 WLR 464.
    6. R v Allen (1862) 121 ER 929
    7. China Navigation Company Ltd v Attorney-General [1932] 2 KB 197
    8. R v Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 All ER 770; [1967] 2 QB 864
    9. Hanratty and Another v Lord Butler of Saffron Walden (1971) SJ 382
    10. Gouriet v Union of Post Office Workers and others [1977] 3 All ER 70; [1978] AC 435.
    11. Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935; [1985] AC 374.
    12. R v Foreign Secretary, ex parte Everett [1989] 2 WLR 224
    13. R v Secretary of State for the Home Department, ex parte Bentley [1993] 4 All 442
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Gouriet v Union of Post Office Workers and others [1977] 3 All ER 70; [1978] AC 435.

LORD WILBERFORCE....A relator action, a type of action which has existed from the earliest times, is one in which the Attorney General, on the relation of individuals (who may include local authorities or companies), brings an action to assert a public right. It can be properly said to be a fundamental principle of English law that private rights can be asserted by individuals, but that public rights can only be asserted by the Attorney General as representing the public. In terms of constitutional law, the rights of the public are vested in the Crown, and the Attorney General enforces them as an officer of the Crown. And just as the Attorney General has in general no power to interfere with the assertion of private rights, so in general no private person has the right of representing the public in the assertion of public rights. If he tries to do so his action can be struck out.....

Mr Gouriet accepted that this was so but produced a number of arguments why this form of action should be departed from or modernised. This use of the Attorney General's name was said to be fictional: the real claimant was the individual, who has to bear the costs. The introduction of the Attorney General was a matter of practice and procedure, the subject of judicial invention; what the courts have invented, the courts can change. The Attorney General has no real part to play in these proceedings; his functions are limited to ensuring that the action is not frivolous or vexatious. It is time to discard these fictions, or at least to remould the action for use in modern times.

My Lords, apart from the fact that to accept this line of argument would mean a departure from a long, uniform and respected series of authorities, so straining to the utmost the power of judicial innovation, in my opinion it rests on a basic misconception of the Attorney General's role with regard to the assertion of public rights....

From this general consideration of the nature of relator actions, I pass to the special type of relator action with which this appeal is concerned. It is of a very special character, and it is one in which the predominant position of the Attorney General is a fortiori the general case.

This is the right, of comparatively modern use, of the Attorney General to invoke the assistance of civil courts in aid of the criminal law. It is an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty (see Attorney General (on the relation of Manchester Corpn) v Harris) or to cases of emergency (see Attorney General v Chaudry). It is one not without its difficulties and these may call for consideration in the future.....

These and other examples which can be given show that this jurisdiction - though proved useful on occasions - is one of great delicacy and is one to be used with caution. Further, to apply to the court for an injunction at all against the threat of a criminal offence, may involve a decision of policy with which conflicting considerations may enter. Will the law best be served by preventive action? Will the grant of an injunction exacerbate the situation? (very relevant this in industrial disputes). Is the injunction likely to be effective or may it be futile? Will it be better to make it clear that the law will be enforced by prosecution and to appeal to the law-abiding instinct, negotiations, and moderate leadership, rather than provoke people along the road to martyrdom? All these matters...point to the matter as one essentially for the Attorney General's preliminary discretion. Every known case, so far, has been so dealt with; in no case hitherto has it ever been suggested that an individual can act, though relator actions for public nuisance which may also involve a criminal offence have been known for 200 years.

VISCOUNT DILHORNE....Gouriet started in his own name an action against the UPW seeking an injunction in the same terms and applied to Stocker J in chambers for an interim injunction in the same terms. His application was refused, Stocker J holding that he had no jurisdiction to grant it when the Attorney General had refused his consent to a relator action. Mr Gouriet promptly appealed and his appeal was heard by the Court of Appeal the next day, Saturday 15 January.

In the course of the judgments delivered that day Lord Denning MR said that he thought that a breach of the criminal law was impending, 'directed, encouraged or procured by the executive of the UPW'; Lawton LJ said that there was ample evidence that by its resolution the union had committed an offence under s.68 of the Post Office Act 1953 and Ormrod LJ held that the union was guilty of an offence under that section and that future breaches were threatened....

At the hearing on the Saturday Lawton LJ ([1977] 1 All ER 696 at 705) said that he could see no good legal reason for the Attorney General's refusal of consent though he could conceive of many political reasons for his decision. He went on to say that until there was some explanation of his refusal "then on the face of it his failure to do so must have been for some reason which was not a good reason in law"....

On the Saturday the statement of claim was also amended to include a claim for a declaration that the Attorney General had acted improperly in refusing his consent to relator proceedings and had wrongly exercised his discretion. At the hearing the following Tuesday the Attorney General's refusal to give his reasons for withholding his consent was regarded by Lord Denning MR as a direct challenge to the rule of law, a statement with which I feel I must express my complete dissent....

Lord Denning MR said that he accepted that the court could not enquire into the giving of consent by the Attorney General to the institution of a relator action but in his opinion his refusal of consent could be reviewed by the courts. Lawton and Ormrod LJJ did not agree. On the last day of the hearing Mr Gouriet abandoned his contention that the courts had power to review the Attorney General's exercise of his powers but, in view of Lord Denning MR's...and the importance of the question, I feel I should say something with regard thereto.

The Attorney General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to the control and supervision of the courts. If the court can review his refusal of consent to a relator action, it is an exception to the general rule. No authority was cited which supports the conclusion that the courts can do so....

In the Court of Appeal a number of observations were made as to the inability of the courts to 'enforce the law' if the Attorney General refused his consent to an application for such an injunction. A breach of the law was impending according to Lord Denning MR. "Are the courts to stand idly by?" was the question he posed... On 27 January he said ([1977] 1 All ER 696 at 717):

"If he [the Attorney-General] does not act himself or refuses to give his consent to his name being used then the law will not be enforced. If one Attorney-General after another does this, if each in his turn declines to take action against those who break the law, then the law becomes a dead letter".

With great respect the criminal law does not become a dead letter if proceedings for injunctions to restrain the commission of offences or for declarations that certain conduct is unlawful are not brought. The criminal law is enforced in the criminal courts by the conviction and punishment of offenders, not in the civil courts. The jurisdiction of the civil courts is mainly as to the determination of disputes and claims. They are not charged with responsibility for the administration of the criminal courts. The question "Are the courts to stand idly by?" might be supposed by some to suggest that the civil courts have some executive authority in relation to the criminal law. The line between the functions of the executive and the judiciary should not be blurred....

Great difficulties may arise if 'enforcement' of the criminal law by injunction became a regular practice. A person charged for instance with an offence under s 58 or s 68 of the Post Office Act 1953 has the right of trial by jury. If before he commits the offence, an injunction is granted restraining him from committing an offence under those sections and he is brought before the civil courts for contempt, his guilt will be decided not by a jury but by a judge or judges. If he is subsequently tried for the criminal offence, might not the finding of guilt by a judge or judges prejudice his trial?....

Such considerations may have been present to the mind of the Attorney General when he considered Mr Gouriet's application on the Friday and may have provided valid grounds for his refusal of consent. Whether they did so or not one does not know but I have mentioned them as they seem to me to suffice to show that even if good legal reasons for his decision were not immediately apparent the inference that he abused or misused his powers is not one that should be drawn....

Consequently, any suggestion that his refusal constitutes a challenge to the rule of law appears to me to be entirely misconceived, and though views may differ as to where the balance of public interest lies, it should not be lightly assumed that his refusal of consent in a particular case was unjustified and not grounded on considerations of public interest.