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Cite as: [1977] 3 All ER 70, [1978] AC 435, [1977] UKHL 5

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JISCBAILII_CASE_CONSTITUTIONAL

    Die Martis, 26° Julii 1977

    Parliamentary Archives,
    HL/PO/JU/4/3/1307

    HOUSE OF LORDS

    GOURIET AND OTHERS (RESPONDENTS)

    v.

    HER MAJESTY'S ATTORNEY-GENERAL (APPELLANT)

    GOURIET (RESPONDENT)

    v.

    POST OFFICE ENGINEERING UNION (APPELLANTS)

    GOURIET (RESPONDENT)

    v.
    UNION OF POST OFFICE WORKERS (APPELLANTS)

    [Consolidated Appeals]

    GOURIET (APPELLANT)
    v.

    UNION OF POST OFFICE WORKERS AND
    OTHERS (RESPONDENTS)

    Lord Wilberforce

    Lord Wilberforce
    Viscount Dilhorne
    Lord Diplock
    Lord Edmund-Davies
    Lord Fraser of Tullybelton


    MY LORDS,

    These appeals relate to certain orders made by the Court of Appeal in
    January 1977. The Attorney-General, Mr J. P. Gouriet, and the two Post
    Office Unions are each appealing against portions of these orders. It is diffi-
    cult to summarise at all accurately the exact issues at stake because the
    record is in a state of procedural confusion due to improvisations and changes
    of direction by the court and the parties. But, briefly, the issues which have
    emerged for decision by this House are:

    1. Whether, in spite of the refusal of the Attorney-General to consent to the
      use of his name in relator proceedings, Mr. Gouriet, as a private citizen, was
      entitled to come to the court and ask for an injunction against the Post Office
      Unions from soliciting interference with the mail to or with communications
      with the Republic of South Africa, and/or for a declaration that it would be
      unlawful for the Unions to take such action.

    2. Whether Mr. Gouriet's claim against the Post Office Unions to such in-
      junctions or declarations is maintainable or ought to be struck out.

    The present proceedings are interlocutory only, so that Mr. Gouriet should
    be allowed to go on with his action unless it is manifestly ill-founded in law.

    The facts are that Mr. Gouriet who, though supported by an association,
    appears simply as a citizen on 13th January 1977 discovered that the execu-
    tive of the Union of Post Office Workers (U.P.W.) had resolved to call on its
    members not to handle mail from this country to South Africa during the
    week starting at midnight, Sunday, 16th January. The General Secretary
    of the U.P.W., Mr. Tom Jackson, appeared on television that evening (13th)
    and said that the legality of such action had never been tested in the courts:
    the relevant laws dated from Queen Anne and were more appropriate for
    dealing with highwaymen and footpads. On 14th January the " Times " re-
    ported the passing of the U.P.W. resolution and also reported that the Post
    Office Engineering Union (P.O.E.U.) had said that they would instruct their
    members not to provide or maintain circuits to South Africa except in a
    matter of " life and death ".

    On 14th January (Friday) Mr. Gouriet applied to H.M. Attorney-General
    for consent to an action in the name of the Attorney-General at the relation
    of Mr. Gouriet against the U.P.W. for an injunction against soliciting or pro-
    curing any person wilfully to delay any postal package in the course of
    transmission between this country and South Africa. The Attorney-General
    refused his consent to this application in the following terms:

    " Having considered all the circumstances including the public interest
    " relating to the application for my consent ... I have come to the

    2

    " conclusion that in relation to this application I should not give my
    " consent."

    Mr. Gouriet thereupon issued a writ in his own name against the U.P.W. and
    immediately applied for an interim injunction against it in the terms men-
    tioned above. This application was supported by an affidavit deposing to the
    facts as I have stated them. After a hearing, Stocker J. dismissed the appli-
    cation on the ground that he had no power to make the order requested.
    I have no doubt that on the authorities he was perfectly correct in so doing.
    Mr. Gouriet appealed to the Court of Appeal which sat specially to hear the
    appeal on 15th January (Saturday). In the course of the argument the court
    expressed itself critically of the decision of the Attorney-General. Ultimately,
    the Court of Appeal allowed the appeal and granted an interim injunction as
    asked until Tuesday, 18th January. Then they gave the plaintiff leave to join
    the P.O.E.U. as a party and granted an injunction against that Union. This
    followed the wording of the Telegraph Act 1863, section 45, set out below.
    Thirdly, leave was given to add the Attorney-General as a defendant. The
    plaintiff did this and, following indications which had been given in the argu-
    ment, claimed against the Attorney-General a declaration that in refusing his
    consent to the plaintiff to bring relator proceedings the Attorney-General
    acted improperly and wrongfully exercised his discretion—I refer to this as
    Declaration X.

    On the resumed hearing on 18th January, the Attorney-General appeared
    and contested the court's right to review the exercise of his discretion. After
    substantial argument, the plaintiff conceded that he was not entitled to
    Declaration X. The Court of Appeal reserved judgment on the matters
    before it until 27th January. On that day judgments were given in which:

    1. By a majority (Lawton L.J. and Ormrod L.J.) it was held that the
      court had no power to review the decision of the Attorney-General in refusing
      consent to relator proceedings. Lord Denning M.R. held that the court had
      this power to review at least indirectly.

    2. By a majority (as above) it was held that, consent having been refused to
      bring relator proceedings, the plaintiff was not entitled to a permanent in-
      junction in the terms previously mentioned. Lord Denning M.R. dissented.

    3. All three members of the court held that the plaintiff could claim
      declarations in the form mentioned and that, pending a decision on this
      claim, the court could grant interim injunctions as sought. However, in fact,
      the court discharged the injunctions as being no longer necessary. The
      plaintiff had not, at this stage, asked for declarations, but the Court of Appeal
      gave leave for him to (re)amend his claim so as to do so. This he did. He
      also amended his claim against the Attorney-General so as to seek a declara-
      tion that notwithstanding his refusal to allow relator proceedings, the plain-
      tiff is entitled to proceed with his claim against the Unions for declarations
      and interim relief. The Unions and the Attorney-General were then treated
      as having applied to the court to strike out all the plaintiff's claims and such
      putative applications were dismissed. Leave to appeal to this House was
      then granted.

    This narrative shows that the proceedings involved a high degree of im-
    provisation, even of fiction. But this must not obscure the important real
    issues which underlie these hurried proceedings. These the parties to this
    appeal have fully and frankly argued, and our main task is to decide them.
    I shall make such observations as are necessary on the procedure at a later
    stage.

    It is, first, convenient to set out the statutory provisions relevant to the
    working of Post Office services. These are:

    (i) Post Office Act 1953, section 58(1):

    " If any officer of the Post Office, contrary to his duty wilfully
    " detains or delays, or procures or suffers to be detained or delayed,
    " any……..Postal packet [in course of transmission by post], he shall

    3

    " be guilty of a misdemeanour and be liable to imprisonment [for a term
    " not exceeding two years] or to a fine, or to both "

    (ii) ibid, section 68:

    " If any person solicits or endeavours to procure any other person
    " to commit an offence punishable on indictment under this Act, he shall
    " be guilty of a misdemeanour and be liable to imprisonment for a term
    " not exceeding two years ".


    (iii) Telegraph Act 1863, section 45:

    " If any person in the employment of the [Post Office]—wilfully or
    " negligently omits or delays to transmit or deliver any message ; or
    " by any wilful or negligent act or omission prevents or delays the trans-
    " mission or delivery of any message ; he shall for every such
    " offence be liable to a penalty not exceeding £20 " .

    It is necessary to say of these sections at this stage three things:

    1. There is no sense in which they can be said to be obsolete. Particularly,
      those in the Post Office Act 1953 are of modern, indeed recent, enactment
      and express the intention of Parliament as recently as 1969 when the Post
      Office Act 1969 was passed.

    2. The sections are perfectly clear as to their meaning without the need
      for judicial interpretation.

    This being so it is surprising and, I would say, regrettable that, after Mr.
    Jackson's expressed and broadcast doubts as to their applicability, oppor-
    tunity was not taken for an authoritative statement that they represent the
    law and that the law must be obeyed. If such a course had been taken, much
    of the difficulty which faced the Court of Appeal could have been avoided.

    3. There was no evidence before the judge of any actual breach of (a)
    section 58 of the Post Office Act 1953 or (b) section 45 of the Telegraph
    Act 1863. In any case such breach would not be by either of the defendant
    Unions, but by some employee of the Post Office.

    It is debatable whether any offence had been committed by the U.P.W.
    under section 68 of the Post Office Act 1953. The Union may have mani-
    fested an intention to " solicit or endeavour to procure " its members to com-
    mit an offence, but it could be contended, and it was so argued, that there
    was no evidence that they had done this by 14th January or by 18th January
    1977 and that until they did so there was no offence. These considerations
    are clearly relevant to the grant of injunctive relief.

    I proceed now to the main issue. This cannot be resolved, or under-
    stood, unless some preliminary matters are borne in mind.

    1. There is now no longer a claim that the Attorney-General's refusal
    of consent to relator proceedings was improper or that it can be reviewed
    by the court. This issue, originally presented as one of great constitutional
    importance, has disappeared from the case. The importance remains, but
    the issue has vanished. The Attorney-General's decision is accepted as, in
    the courts, unassailable. The prerogatives of his office are no longer attacked.
    All that Mr. Gouriet now claims is that the refusal of the Attorney-General
    to act does not bar him from acting. The Attorney-General and the Unions
    contend that it does.

    2. Parliament has conferred and by recent legislation reinforced a great
    degree of immunity from suit upon Trade Unions. The key provision is
    section 14 of the Trade Union and Labour Relations Acts 1974-76—which
    I shall call " the Acts of 1974-76 ".

    ' 14. Immunity of trade unions and employers' associations to actions
    " in tort.

    " (1) Subject to subsection (2) below, no action in tort shall lie
    " in respect of any act—

    " (a) alleged to have been done by or on behalf of a trade
    " union which is not a special register body


    4

    " (b)

    " (c) alleged to be threatened or to be intended to be done as

    " mentioned in paragraph (a) or (b) above ;

    "against the union ... in its own name, or against the trustees
    " of the union ... or against any members or officials of the union
    "... on behalf of themselves and all other members of the
    " union . . . ".

    " (2) " (Not relevant to the present case).

    It was no doubt because of the very wide immunity conferred by this
    subsection (which, as seems to have been overlooked, is not limited to cases
    where there is a trade dispute) that the plaintiff did not himself sue as a
    person, or attempt to bring in with himself as a plaintiff any person, who had
    any special interest in the transmission of mail or messages to South Africa
    or who was likely to suffer any special damage from non-transmission of
    such mail or messages. On the contrary the plaintiff has at all times dis-
    claimed having any interest in these matters apart from the interest which
    all members of the public have in seeing that the law is observed.

    1. Proceedings may be brought against a trade union " for any offence
      " alleged to have been committed by it or on its behalf" (section 2 (1) (d)),
      and a trade union may be sued in its own name on any cause of action
      other than such as are covered by section 14.

    2. There are special restrictions (section 17 of the Acts of 1974-76) upon
      the seeking of injunctions against trade unions—broadly directed against
      the seeking of " snap " injunctions in relation to trade disputes. I shall
      return to these provisions.

    3. There are severe restrictions upon proceedings against the Post Office.
      Although the Post Office is under a (public law) general duty to provide
      services, section 9 which imposes this duty concludes:

    " (4) Nothing in this section shall be construed as imposing upon
    " the Post Office, either directly or indirectly, any form of duty or
    " liability enforceable by proceedings before any court."

    And section 29 creates extensive immunity of the Post Office, its officers and
    servants, from proceedings in tort in relation to posts and telecommunications
    (see for an historical account of Post Office legislation Triefus & Co. Ltd- v.
    Post Office
    [1957] 2 Q.B. 352 per Hodson L.J.).

    To say therefore, as has been said with emphasis, that the plaintiff, or the
    public, " has a right " to the services of the Post Office, is a statement, which,
    if relevant at all in these proceedings against the unions, can only be
    accepted if " right" is given a reduced meaning not extending to a right
    capable of direct enforcement by the civil law.

    In the light of these enactments, and of argument as the case has pro-
    ceeded, Mr. Gouriet's claim has been narrowed and made specific. His
    only claim now is that he, as all other members of the public, has an interest
    in his enforcement of the law which entitles him to access to the courts from
    which he cannot be " immunised" by the Attorney-General's refusal to
    allow the use of his name. It is this claim which is at the centre of the case,
    and it requires first some discussion of the phrase " enforcement of the law ".
    The phrase is an emotive one, and one that atrracts rhetoric, so we must see
    what it means in the context.

    When Parliament decides to prohibit certain conduct (e.g. delaying the
    mail) it enacts legislation defining the prohibited act (e.g. Post Office Act
    1953, sections 58, 68). To violation or disregard of the prohibition it at-
    taches a sanction—prosecution as for a misdemeanour with a possible sen-
    tence of two years imprisonment. Enforcement of the law means that any
    person who commits the relevant offence is prosecuted. So it is the duty
    either of the Post Office itself, or of the Director of Public Prosecutions or
    of the Attorney-General, to take steps to enforce the law in this way. Failure
    to do so, without good case, is a breach of their duty (for a recent formula-
    tion of this duty see the statement of Sir H. Shawcross, A.G., (1951) in

    5

    Edwards, The Law Officers of the Crown (1964) p. 223) The individual, in
    such situations, who wishes to see the law enforced has a remedy of his own:
    he can bring a private prosecution. This historical right which goes right
    back to the earliest days of our legal system, though rarely exercised in
    relation to indictable offences, and though ultimately liable to be controlled
    by the Attorney-General (by taking over the prosecution and, if he thinks fit,
    entering a nolle prosequi) remains a valuable constitutional safeguard against
    inertia or partiality on the part of authority. This is the true enforcement
    process and k must be clear that an assertion of a right to invoke it is of no
    help to Mr. Gouriet here. His case is not based on the committal of offence
    plus a refusal to prosecute, it is based on a right to take preventive action
    in a civil court which could have been taken but was not taken by the Attor-
    ney-General in relator proceedings. This involves consideration of the " rela-
    tor action " and of the Attorney-General's part in it.

    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 properly be 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 inter-
    fere 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.

    An appeal was made to the Year Books to controvert this universally ac-
    cepted proposition. Examples can be found of cases, in early times, where
    subjects were allowed to assert in the courts rights of the Crown (see Year
    Books Series Vol. XVII, Ed. II, 1314-15, Selden Society ed. W. C. Bolland).
    But all these cases were cases asserting, through writs of quo warranto or
    analogous writs claims of a nature which in modern times came to be made
    by prerogative writs, or cases concerned with some proprietary right of the
    Crown: they were not cases of individuals asserting rights belonging to the
    public. No instance of this could be brought forward, whether in ancient or
    modern times.

    The plaintiff accepted that this was so but produced a number of argu-
    ments why this form of action should be departed from or modernised. The
    use of the Attorney-General's name was said to be fictional: the real claim-
    ant 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 of 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.

    It can be granted that in this, as in most of our law, procedural considera-
    tions have played a part. It was advantageous to make use of the name of
    the King so as to gain a more favourable position in the King's Courts and
    to avoid restrictions by which the King was not bound (see Robertson, Civil
    Proceedings by and against the Crown, p. 464). Moreover it may well be
    true that in many types of action, and under some Attorneys-General, the use
    of his name was readily granted—even to the point of becoming a formality.
    This was particularly the case in charity cases up to the time of Sir John
    Campbell, A.G. (see Shore v. Wilson (1839-42) 9 Cl. & F. 355, 407).


    6

    But the Attorney-General's role has never been fictional. His position in
    relator actions is the same as it is in actions brought without a relator (with
    the sole exception that the relator is liable for costs (A.G. v. lockermouth
    Local Board
    L.R. 18 Eq. 172, 176, per Jessel M.R.). He is entitled to see and
    approve the statement of claim, and any amendment in the pleadings, he is
    entitled to be consulted on discovery, the suit cannot be compromised with-
    out his approval; if the relator dies, the suit does not abate. For the proposi-
    tion that his only concern is to " filter out" vexations and frivolous pro-
    ceedings, there is no authority—indeed, there is no need for the Attorney-
    General to do what is well within the power of the court. On the contrary
    he has the right, and the duty, to consider the public interest generally and
    widely.

    It was this consideration which led to the well known pronouncement of
    the Earl of Halsbury L.C. in 1902, for the suggestion was being made that the
    court could enquire whether, when the Attorney-General had consented to
    relator proceedings, the public had a material interest in the subject matter of
    the suit.

    ". . . The initiation of the litigation, and the determination of the ques-
    " tion whether it is a proper case for the Attorney-General to proceed
    " in, is a matter entirely beyond the jurisdiction of this or any other
    " court. It is a question which the law of this country has made to reside
    " exclusively in the Attorney-General ". (L.C.C. v. Attorney-General
    [1902] A.C. 165, 168-9 per Earl of Halsbury L.C.: 170 per Lord
    Macnaghten).

    To limit this passage to a case where the Attorney-General has given his
    consent (as opposed to a case where he refuses consent) goes beyond legitimate
    distinction: it ignores the force of the words " whether he ought to initiate
    " litigation ... or not " (I.e. p. 168).

    It is the decision on the public interest that is binding whichever direction
    that takes. That a refusal is binding had never been contested ; that it was so
    was explicitly decided in firm terms in relation to the fiat in Ex parte Newton
    (1855) 4 E. & B. 869, a case cited to but not noticed by the Court of Appeal.

    My Lords, the propositions stated above, usually regarded as elemetary,
    are supported by too many authorities for citatio nto be possible. But I
    must deal briefly with some of the cases cited contra.

    The Attorney-General of the Duchy (ex, rel, Vermuden) v. Heath & Ors.
    (1690) Free. Ch. 13 was clearly not a case of a public right: the briefly
    reported holding that " the King's name is only made use of by the form of
    " the court ... the suit is not for the King's duty but the relator's interest"
    have no application to such a case. Shore v. Wilson ((1839-42) 9 Cl. & F. 355)
    was a charity case and contains two points of interest. The Attorney-General
    (Sir J. Campbell) said:

    " When there are private relators who wish to file an information in
    " respect of a charity, the Attorney-General cannot with propriety refuse
    " the use of his name, if there be an arguable question to be submitted to
    " a Court. The practice which I have followed, and which has been, I
    " believe, adopted by all my predecessors, has been, upon a certificate
    " by a gentleman at the bar saying that there is some question that may
    " fairly be submitted to the Court, not to stop inquiry, but to give the
    " sanction of our name " (p. 407).

    The Attorney-General in fact appeared separately as counsel for defendants
    Lord Brougham's comment on this (apposite in a case about Unitarians)
    "We distinguish the persons; you need not trouble yourself". Whether
    this was the correct view was later debated in A .-G v. Ironmonger's Company
    (1840) 2 B. 313, where the master of the Rolls (Lord Langdale) said that:

    " He did not recognise the relator as distinct from the Attorney-
    " General. That the suit was the suit of the Attorney-General, though
    " at the relation of another person upon whom he relied and who was
    " answerable for costs; and that he could only recognise the counsel
    " for the relator as the counsel for the Attorney-General, and could

    7

    " hear them only by his permission ; that the suit was so entirely under
    " the control of the Attorney-General that he might desire the Court to
    " dismiss the information, and that if he stated that he did not sanction
    " any proceeding, it would be instantly stopped ". (I.e. p.328).

    The Attorney-General (Sir J. Campbell) referred to Shore v. Wilson and
    apparently maintained his position, but it is certainly clear from Lord Lang-
    dale's judgment that, apart from the question of appearance by counsel, the
    Attorney-General and not the relators remains totally in control of the
    suit.

    Attorney-General v. Sheffield Gas Consumers Co. (1853) 3 De G. M. & G.
    304, is invoked for this passage:

    " Although the name of the Attorney-General is used, it is quite clear
    " that he has never been consulted, and that any advantage from these
    " litigations to the public is the last thing which those who have set it
    " on foot have thought of ". (p. 309).

    But this was argument by counsel and all that Lord Cranworth said was
    that agreeing that the case was in two parts, one of public nuisance and
    the other of private nuisance " in substance, I cannot but come to the con-
    "clusion that the Attorney-General, and the public here, are a mere fiction,
    " and that the real parties concerned are only those that were parties to the
    " first suit". Note the words " and the public ": what is " fictional " is the
    alleged public interest not the right of the Attorney-General to enforce a
    real public interest.

    Lastly, of English authorities, there is the confusing case of London As-
    sociation of Shipowners & Brokers v. London & India Docks Joint Com-
    mittee
    [1892] 3 Ch. 242 C.A. The P. & O. Company, one of the plaintiffs,
    not asserting any public right, and so not using the Attorney-General's name,
    was bound to prove special damage and was unable to do so. It had failed
    to establish its alleged rights and so its appeal was dismissed but nevertheless
    the court made a declaration of right in favour of the P. & O. The decision,
    and the observations of the Lords of Justices, gave clear support to the dis-
    tinction between private and public rights and to the necessity for the latter
    to be enforced by, or through, the Attorney-General. Whether the court,
    having dismissed the appeal, ought to have granted declaratory relief, whether,
    indeed, it would have done so if it had not had all the parties before it and
    if concessions and admissions had not been at the Bar (see per Bowen L.J.
    at p. 266) may be debatable, but the case throws no light on the nature of
    relator actions.

    The Master of the Rolls, in his judgment, invoked two cases from over-
    seas, Thorson v. Attorney-General of Canada (No. 2) (1974) 43 D.L.R. (3rd)
    I and Float v. Cohen (1968) 392 U.S. 83. The first of these recognises the
    English law on enforcement of public rights, but distinguishes it where
    constitutionality of legislation is involved. The second turns wholly upon
    the position under the U.S. Constitution and has no discussion of English
    authorities. These are unimpressive support.

    In contrast with these inconclusive passages I will cite one of many in
    which the contrary has been affirmed. In the Stockport District Waterworks
    Co. v. The Mayor, etc., of Manchester (1863) 9 Jurist N.S. 266 Lord West-
    bury L.C. said this:

    "... those are a few of the reasons which might be assigned, showing
    how desirable it is not to allow any private individual to usurp the right of
    representing the public interest. The only arguments which I am disposed
    > accept from those which I have heard today, are arguments founded
    upon the public interest, and the general advantage of restraining an in-
    corporated company within its proper sphere of action. But, in the present
    case, the transgression of those limits inflicts no private wrong upon
    these plaintiffs ; and although the plaintiffs, in common with the rest of the
    Public, might be interested in the larger view of the question, yet the con
    -

    8

    " stitution of the country has wisely intrusted the privilege with a public
    " officer, and has not allowed it to be usurped by a private individual ".

    That it is the exclusive right of the Attorney-General to represent the public
    interest—even where individuals might be interested in a larger view of
    the matter—is not technical, not procedural, not fictional. It is constitutional.
    I agree with Lord Westbury that it is also wise.

    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 very special character, and it is one in which the predominant position
    of the Attorney-General is a fortiori the general case.

    This is a 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
    v. Harris [1961] 1 Q.B. 74 ; or to cases of emergency—see Attorney-General v.
    Chaudry [1971] 1 W.L.R. 1614. It is one not without its difficulties and these
    may call for consideration in the future.

    If Parliament has imposed a sanction (e.g., a fine of £1), without an
    increase in severity for repeated offences, it may seem wrong that the courts
    —civil courts—should think fit, by granting injunctions, breaches of which
    may attract unlimited sanctions, including imprisonment, to do what Parlia-
    ment has not done. Moreover, where Parliament has (as here in the Post
    Ofiice Act 1953) provided for trial of offences by indictment before a jury,
    it may seem wrong that the courts, applying a civil standard of proof, should
    in effect convict a subject without the prescribed trial. What would happen
    if, after punishment for contempt, the same man were to be prosecuted in
    a criminal court? That Lord Eldon was much oppressed by these difficulties
    is shown by the discussions in Attorney-General v. Cleaver (1811) 18 Ves.
    Jun. 211.

    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—to which Devlin J.
    justly drew attention in Attorney-General v. Bastow [1957] 1 Q.B. 515, 519,
    and the exceptional nature of this civil remedy, point 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.

    There are two arguments put forward for permitting individual citizens
    to take this action.

    The first points to the private prosecution. All citizens have sufficient
    interest in the enforcement of the law to entitle them to take this step. Why
    then should this same interest not be sufficient to support preventive action
    by way of injunction—subject, it may be, to ultimate control by the Attorney-
    General? At one time I was attracted by this argument. But I have reached
    the conclusion that I cannot accept it.

    The Attorney-General's right to seek, in the civil courts, anticipatory
    prevention of a breach of the law, is a part or aspect of his general power
    to enforce, in the public interest, public rights. The distinction between
    public rights, which the Attorney-General can and the individual (absent

    9

    special interest) cannot seek to enforce, and private rights, is fundamental
    in our law. To break it, as the plaintiff's counsel frankly invited us to do,
    is not a development of the law, but a destruction of one of its pillars. Nor,
    in my opinion, at least in this particular field, would removal of the distinc-
    tion be desirable. More than in any other field of public rights, the decision
    to be taken before embarking on a claim for injunctive relief, involving as it
    does the interests of the public over a broad horizon, is a decision which the
    Attorney-General alone is suited to make (see Attorney-General v. Bastow
    U.S.).

    This brings me to the second argument. Surely, it is said, since the whole
    matter is discretionary it can be left to the court. The court can prevent
    vexatious, or frivolous, or multiple actions: the court is not obliged to grant
    an injunction: leave it in the court's hands. I cannot accept this either.
    The decisions to be made as to the public interest are not such as courts
    are fitted or equipped to make. The very fact that, as the present case very
    well shows, decisions are of the type to attract political criticism and con-
    troversy, shows that they are outside the range of discretionary problems
    which the courts can resolve. Judges are equipped to find legal rights and
    administer, on well-known principles, discretionary remedies. These matters
    are widely outside those areas.

    It is said that the Attorney-General can always be joined as a party—as he
    was here—and so can represent the public interest. There are clear objec-
    tions to making him a defendant: if he were so joined, he, and through him
    all members of the public, would be bound by the decision. But even if he
    appears as amicus curiae, what is gained? His presence as, presumably, a
    hostile or at least a non-supporting party cannot legitimise the plaintiffs'
    otherwise illegitimate claim to represent the public. Moreover, when he is
    there, either he objects to the proceeding in the public interest without giving
    reasons, in which case (unless the court over-rules him) nothing has been
    achieved beyond his refusal to allow relator proceedings: or he is obliged
    to state his reasons for objection and the court is able to review them. But
    this is contrary to the whole nature of his office and to the general principle
    that the court cannot review.

    There remain certain other arguments for the plaintiff's case which need
    consideration.

    1. Attention was drawn to the procedure of applying for prerogative writs.
      These are often applied for by individuals and the courts have allowed them
      liberal access under a generous conception of locus stand!. It was argued
      that analogy requires a similar and equally liberal right to bring relator
      actions. But the analogy is imperfect. The correct comparison is not be-
      tween the court to which application is made for the writ and a court before
      which an individual seeks to enforce a public right, but between the court
      exercising the prerogative power of controlling an abuse of authority or juris-
      diction and the Attorney-General under prerogative power considering
      whether the public interest will be served by a relator action. To allow un-
      restricted access of individuals—to any judge of the High Court—seeking
      enforcement of a public right would be to depart from analogy not to apply it.

    2. In so far as reliance was placed on observations of Lord Denning M.R.
      (concurred in by Lawton L.J.) in Attorney-General ex. rel. McWhirter v.
      Independent Broadcasting Authority
      [1973] Q.B. 629, 649, these were dicta
      in proceedings in which, ultimately, the Attorney-General consented to rela-
      tor proceedings. The court in fact held that an individual could not apply
      for an injunction against a breach of the law except with the fiat of the
      Attorney-General. Lord Denning went on to express the opinion obiter
      that a individual member of the public can apply for an injunction " if the
      " Attorney-General refuses leave in a proper case or improperly or unreason-
      " ably delays in giving leave, or his machinery works too slowly " (p. 649).
      There is no authority for this proposition and in my opinion it is contrary to
      principle. In any event none of the stated hypotheses apply in the present
      case.

    10

    3. The majority of the Court of Appeal sought, in effect, to outflank the
    refusal of the Attorney-General to relator proceedings by allowing declaratory
    relief to be claimed and by permitting this to be used as a basis for granting
    an interim injunction. This produced the remarkable result that the plaintiff
    was more successful at the interim stage than he could possibly be at the
    final stage for it was accepted that no final injunction could be claimed.
    This argument was based, as such arguments invariably are, upon the very
    wide words used in 0.15 r. 16 (formerly 0.25, r.5) and upon wide expressions
    extracted from different contexts (e.g., Viscount Radcliffe in Ibeneweka v.
    Egbuna [19641 1 W.L.R. 219, 224.) Since, as I understand, others of your
    Lordships intend to deal fully with this argument and with the authorities, I
    shall content myself with saying that, in my opinion, there is no support in
    authority for the proposition that declaratory relief can be granted unless the
    plaintiff, in proper proceedings, in which there is a dispute between the plain-
    tiff and the defendant concerning their legal respective rights or liabilities
    either asserts a legal right which is denied or threatened, or claims immunity
    from some claim of the defendant against him or claims that the defendant is infring-
    ing or threatens to infringe some public right so as to inflict special damage on
    the plaintiff. The present proceedings do not possess the required charac-
    teristic. The case on which so much reliance was placed by the plaintiff—
    Dyson v. Attorney-General [1912] 1 Ch. 158, was one where a person was
    affected in his private rights: if the issue of the form had been proceeded
    with, and a penalty levied, the levy would have been wrongful and Mr.
    Dyson would have had a right to recover it. A right is none the less a right,
    or a wrong any the less a wrong, because millions of people have a similar
    right or may suffer a similar wrong. On the other hand, the case in this
    House of L.P.T.B. v. Moscrop [19421 A.C. 332 is clear and strong authority
    that where there is no interference with a private right and no personal
    damage, declaratory relief cannot be sought without joining the Attorney-
    General as a party (s.c. as relator)—see pp. 334-5 per Viscount Maugham.
    In my opinion the law is clear, and rightly so, that only the Attorney-General
    —either ex officio or ex relatione can apply to the civil courts for injunctive
    relief against threatened breaches of the law. The present proceedings are
    misconceived and should have been struck out.

    Finally there is the case of the P.O.E.U. This Union was ordered to be
    joined as a defendant on 15th January 1977 and an interim injunction ex
    parte was granted at once, without any notice having been given to it. There
    was no evidence of any breach of the law having been committed, Mr.
    Jackson's statement was not made on its behalf, and there was no evidence of
    any intention except a hearsay statement, made without ascription of source,
    by the labour correspondent of The Times newspaper. No request was made
    to the Attorney-General for the use of his name in relator proceedings against
    this Union. No regard was paid to section 17(1) of the Trade Union and
    Labour Relations Act 1974 (as amended by the Employment Protection Act
    1975) which requires that if, in the opinion of the court, the Union would be
    likely to claim that it acted in contemplation of furtherance of a trade dispute,
    no injunction may be granted unless the court is satisfied that all reasonable
    steps had been taken to secure that notice of his application had been given.
    This section, an important one in this context, was disposed of by the Court
    of Appeal in a brief discussion, after the injunction had been granted, by
    saying that this has nothing to do with a trade dispute. That may be a
    debatable question.

    Complaint was made of this procedure by counsel for the P.O.E.U. before
    this House, and I must say, with all respect, that I think it was justified.
    Given the need for expedition, the granting of injunctions is a serious matter,
    and the purpose of section 17 is precisely to prevent hasty and ex parte
    applications being granted without the Union in question being heard.

    I would allow the appeals of the Attorney-General and of the two Union
    defendants. I would dismiss the appeal of the plaintiff. The plaintiff should
    pay the costs of the union defendants in this House. The costs below were
    ordered to be costs in the cause, and consequent on the plaintiff's claims
    being struck out will fall to be paid by the plaintiff.

    11

    Viscount Dilhorne

    MY LORDS,

    The announcement that the Executive Council of the Union of Post Office
    Workers (U.P.W.) had resolved to call upon its members to interfere with
    the passage of mail in the course of transmission between England and Wales
    and South Africa was made by the B.B.C. in the 9 o'clock news on television
    on Thursday the 13th January 1977. Immediately thereafter Mr. Jackson,
    the General Secretary of the Union was interviewed. He said that the legality
    of the proposed action which was to start at midnight on Sunday the 16th
    January, had not been tested in the courts and that the laws relating to it
    dated from Queen Anne and were more appropriate for dealing with high-
    waymen and footpads.

    The Times the next day stated that the 31 members of the Executive had
    unanimously decided to brave possible legal action under the Post Office Act
    and to boycott all telephone calls, mail and telegrams to South Africa the next
    week. Their action, the Times said, was taken in response to a call for
    " international solidarity " from the International Confederation of Trade
    Unions in the hope of influencing apartheid policy in South Africa. The
    Times referred to action being taken by other unions and reported that the
    Post Office Engineering Union (P.O.E.U.) had said that it would instruct its
    members not to provide or maintain circuits to South Africa except in a
    matter of " life and death ".

    The respondent, Mr Gouriet, does not claim to have any special interest
    in the passage of mail to and from South Africa. He does not assert that
    he would have suffered any loss or damage by the projected interruption of
    communications. His rights, if any, and interest were those enjoyed by every
    member of the public.

    Perhaps because he thought that Mr Jackson's challenge should be taken
    up and the legality of the proposed action tested in the courts, Mr Gouriet
    applied to the Attorney-General for his consent to the institution of an action
    in his name, a relator action, against the U.P.W. seeking an injunction to
    restrain the U.P.W. its servants or agents from soliciting or endeavouring to
    procure any person wilfully to detain or delay any postal packet in the
    course of transmission between this country and South Africa.

    During the afternoon of Friday the 14th January, the Attorney-General
    gave his decision. He refused his consent to the application, stating that he
    had considered all the circumstances, including the public interest.

    In the course of the judgment he delivered on the 27th January Lord
    Denning M.R. said that sections 58 and 68 of the Post Office Act 1953 were
    so clearly worded that he could see no reason for anyone to require the
    position to be tested in the courts. I agree. Though there may have been
    similar provisions in the days of Queen Anne, no sensible person could think
    that these sections passed in such a recent Act were either spent or obsolete ;
    nor could anyone reading section 58 (which applies only to officers of the
    Post Office) and section 68 have seriously thought that they were directed at
    highwaymen and footpads. Any doubts about the scope of these sections
    felt by Mr Jackson would have been speedily dispelled if he had sought the
    advice of any lawyer. If, when he gave his decision on the Friday, the
    Attorney-General had made a statement that if Mr Jackson or anyone
    solicited or endeavoured to procure any officer of the Post Office to detain
    or delay a postal packet, a criminal offence would be committed, that should
    have sufficed to dispel Mr Jackson's doubts and any doubts which had arisen
    in the minds of members of the U.P.W. in consequence of Mr Jackson's state-
    ments on television.

    That same afternoon Mr Gouriet started in his own name an action
    against the U.P.W. 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

    12

    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 the 15th January.

    In the course of the judgments delivered that day Lord Denning M.R.
    said that he thought that a breach of the criminal law was impending " directed,
    encouraged or procured by the Executive " of the Union ; Lawton L.J. said
    that there was ample evidence that by its resolution the Union had com-
    mitted an offence under section 68 of the Post Office Act and Ormord L.J.
    held that the Union was guilty of an offence under that section and that
    future breaches were threatened. Whether or not an offence had been
    committed by the passage of the resolution and its communication to the
    media with the result that members of the Union would be informed of it in
    lime to take action at midnight on the Sunday, it is not necessary to decide.
    If a member of the executive was indicted in respect of that, the question
    would fall to be decided by the jury. But there is no doubt that breaches
    of section 58 were clearly threatened.

    At the hearing on the Saturday Lawton L.J. 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. ".

    The court adjourned the hearing until the following Tuesday to enable the
    Attorney-General to be present and granted an interim injunction in the
    terms sought against the U.P.W.

    After judgment was given on the Saturday, Mr Newman, counsel for Mr
    Gouriet, asked and was given leave to join the P.O.E.U. as a defendant, and
    the statement of claim was amended to include a claim for an injunction to
    restrain the P.O.E.U. its servants or agents from counselling, procuring or
    inciting any person in the employment of the Post Office to do any of the
    acts made offences by sections 45 of the Telegraph Act 1863. An interim
    injunction in these terms was made against the P.O.E.U.

    Mr Saville, who appeared for both Unions, contended that this injunction
    should not have been granted. The affidavit sworn by Mr Gouriet in support
    of his application for an interim injunction against the U.P.W. exhibited the
    extract from the Times which stated what the P.O.E.U. was going to instruct
    its members to do. He contended that there was insufficient material before
    the court to entitle it in the exercise of its discretion to grant the injunc-
    tion.

    While I agree there was little information before the court for it to act on,
    I am not prepared to say that in all the circumstances it was insufficient. The
    question is now of little importance.

    Mr. Saville also took the point that the Court of Appeal had failed to
    comply with section 17(1) of the Trade Union and Labour Relations Act
    1974 which is in the following terms:

    '' Where an application for an injunction .... is made to a court
    " in the absence of the party against whom the injunction ... is sought
    " or any representative of his, and that party claims, or in the opinion
    " of the court would be likely to claim, that he acted in contemplation
    " or furtherance of a trade dispute, the court shall not grant the injunc-
    " tion . . unless satisfied that all steps which in the circumstances were
    " reasonable have been taken with a view to securing that notice of
    " the application and an opporunity of being heard with respect to the
    " application have been given to that party."

    The Court held that this section did not apply as there was no trade dispute
    falling within the definition in section 29(1) of the Act. Section 29(3) as
    amended by paragraph 6 of Part III of Schedule 16 of the Employment
    Protection Act 1975, provides that " There is a trade dispute for the purposes

    13

    "of this Act even though it relates to matters occurring outside Great
    " Britain " and Mr. Saville at the hearing the following week asserted that
    there was a dispute between the Government of South Africa as employers
    and other employers with trade unions in South Africa which came within
    the statutory definition of ' trade dispute'.

    The application of section 17(1) does not depend on whether there is in
    fact a trade dispute. It depends on whether in the opinion of the court
    it is likely that a party will claim that what was proposed was in con-
    templation or furtherance of a trade dispute. Here the only information
    before the court was that the action proposed was in response to a call for
    international solidarity in the hope of influencing policy on apartheid. I see
    no reason for concluding that in the light of this information the court
    should have formed the opinion that there would be a claim that the action
    proposed was in furtherance of a trade dispute. I therefore reject the con-
    tention that the court failed to comply with section 17 (1).

    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 the
    Master of the Rolls as a direct challenge to the rule of law, a statement with
    which I feel I must express my complete dissent.

    In the course of his judgment on the 27th January Lord Denning 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 L.J.
    and Ormrod L.J. 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's observations
    and those of Lawton L.J. on the Saturday to which I have referred 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 i\ 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 control and supervision by 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. Indeed such authority as there is points strongly in the
    opposite direction. In 1902 in the London County Council v. Attorney-
    General
    [1902] A.C. 165 Lord Halsbury said at p. 168:-

    " My Lords, one question has been raised, though I think not raised
    " here—it appears to have emerged in the Court below—which I confess
    " I do not understand. I mean the suggestion that the courts have any
    " power over the jurisdiction of the Attorney-General when he is suing
    " on behalf of a relator in a matter in which he is the only person who
    " has to decide those questions. It may well be that it is true that the
    " Attorney-General ought not to put into operation the whole machinery
    " of the first law officer of the Crown in order to bring into Court some
    " trifling matter. But if he did, it would not go to his jurisdiction ; it
    " would go, I think, to the conduct of his office and it might be made,
    " perhaps in Parliament, the subject of adverse comment; but what
    " right has a Court of law to intervene? If there is excess of power
    " claimed by a particular public body, and it is a matter that concerns
    " the public, it seems to me that it is for the Attorney-General and not
    " for the Courts to determine whether he ought to initiate litigation in
    " that respect or not ... In a case where as a part of his public duty
    " he has a right to intervene, that which the Courts can decide is whether

    14

    " there is the excess of power which he, the Attorney-General, alleges.
    " Those are the functions of the Court; but the initiation of the litigation,
    " and the determination of the question whether it is a proper case for
    " the Attorney-General to proceed in, is a matter entirely beyond the
    " jurisdiction of this or any other Court. It is a question which the law
    " of this country has made to reside exclusively in the Attorney-General.
    " I make this observation upon it, though the thing has not been urged
    " here at all, because it seems to me to be very undesirable to throw any
    " doubt upon the jurisdiction, or the independent exercise of it by the
    " first law officer of the Crown."

    In the same case Lord Macnaghten said that he entirely concurred in these
    observations. Although obiter, they nevertheless have great authority and in
    my opinion the view that refusal of consent to a relator action is an exception
    to the general rule and is subject to review by the courts must be rejected. It
    is because I think it undesirable that any judicial observations suggesting that
    the exercise by the Attorney-General of these functions and duties is subject
    to control, supervision and review by the courts should be left unanswered
    that I have ventured to make these observations.

    Mr.Gouriet's contention now is that the Attorney-General can only refuse
    his consent to the institution of a relator action if it is frivolous, vexatious or
    oppressive and that as the action for which he sought the Attorney-General's
    consent did not fall under any of these heads, the Attorney-General had
    acted improperly. The ancient cases to which we were referred show that
    there was a time when Attorneys-General freely gave their consent to such
    actions but since the days of Lord Eldon, Attorneys-General have exercised
    considerable control. The figures with which we were supplied show that
    over the last 25 years or so the number of applications for the Attorney-
    Generals consent has increased, and while a good percentage of them are
    refused, the number of such actions has also increased. A relator action is
    not something to be regarded as archaic and obsolete. The courts have jower
    to dismiss an action which is frivolous, vexatious or oppressive. If indeed the
    only purpose of requiring an application for the Attorney-General's consent
    was to give him the opportunity of saying in advance of the courts that an
    action was frivolous, vexatious, or oppressive, this function of his would serve
    little useful purpose. Again in my opinion this contention for which no
    authority was cited must be rejected. The Attorney-General did not in my
    opinion act improperly as now suggested on behalf of Mr. Gouriet.

    " There is no greater nonsense talked about the Attorney-General's duty "
    said Sir John Simon in 1925, "than the suggestion that in all cases, the
    " Attorney-General ought to decide to prosecute merely because he thinks
    " there is what the lawyers call ' a case '. It is not true and no one who has
    " held that office supposes that it is." However clear it appears to be that an
    offence has been committed, it is, as Sir Hartley Shawcross then Attorney-
    General said in 1951, the Attorney-General's duty "in deciding whether or
    " not to authorise the prosecution, to acquaint himself with all the relevant
    " facts, including, for instance, the effect which the prosecution, successful
    " or unsuccessful as the case may be, would have upon public morale and
    " order ".

    This approach which the Attorney-General should make when considering
    whether a prosecution should be started, is in my opinion the kind of ap-
    proach he should have made to the question of giving his consent to Mr
    Gouriet's application.

    In deciding whether or not to prosecute " there is only one consideration
    " which is altogether excluded " Sir Hartley Shawcross said, " and that is
    " the repercussion of a given decision upon my personal or my party's or the
    " Government's political fortunes ". In the discharge of any of the duties
    to which I have referred, it is, of course, always possible that an Attorney-
    General may act for reasons of this kind and may abuse his powers. One
    does not know the reasons for the Attorney-General's refusal in this case but
    it should not be inferred from his refusal to disclose them that he acted
    wrongly. For all one knows he may have attached considerable importance


    15

    to the fact that the injunction sought did no more than repeat the language of
    the sections of the Post Office Act. On the Friday he may indeed have
    thought that to start proceedings so speedily for an injunction which did no
    more than that, was not likely to serve any useful purpose and might indeed
    exacerbate the situation. Instances of applications by Attorneys-General to
    the civil courts for aid in enforcing the criminal law are few in number and
    exceptional in character. 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. " Are the
    " courts to stand idly by? " was the question he posed on the Saturday. On
    the 27th January he said: —

    " 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
    " he law becomes a dead letter."

    With great respect the criminal law does not become a dead letter if pro-
    ceedings for injunctions to restrain the commission of offences or for declara-
    tions 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 responsi-
    bility 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.

    There are a number of statutory offences for the prosecution of which
    the consent of the Attorney-General or of the Director of Public Prosecutions
    is required but apart from these offences, anyone can if he wishes start a
    prosecution without obtaining anyone's consent. The enforcement of the
    criminal law does not rest with the civil courts or depend on the Attorney-
    General alone.

    An enactment by Parliament defining and creating a criminal offence
    amounts to an injunction by Parliament restraining the commission of the
    acts made criminal. If the injunction in the Act is not obeyed—and in
    these days it frequently is not—the statute normally states the maximum
    punishment that can be awarded on conviction. If in addition to the enact-
    ment, an injunction is granted in the civil courts to restrain persons from
    doing the acts already made criminal by Parliament, an injunction which
    does no more than embody the language of the statute, has that any greater
    potency than the injunction by Parliament contained in the Act? An
    injunction in the terms sought when the application in this case was made
    to the Attorney-General does not appear to me to be one that can with any
    accuracy of language be regarded as ' enforcing the law '. Repetition is
    not enforcement. The granting of such an injunction merely imposes a
    liability to fine or imprisonment for contempt additional to the maximum
    Parliament has thought fit to prescribe on conviction for the same conduct.

    Great difficulties may arise if' enforcement' of the criminal law by injunc-
    tion became a regular practice. A person charged, for instance, with an
    oli'ence under section 58 or 68 of the Post Office Act 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? This
    question is not to my mind satisfactorily answered by saying that juries can
    be told to ignore certain matters. It was suggested that this difficulty might
    be overcome by adjourning the proceedings for contempt until after the
    conclusion of the criminal trial. If that was done, the question might arise

    16

    then as to the propriety of imposing a punishment in the contempt pro-
    ceedings additional to that imposed on conviction for the same conduct in the
    criminal court.

    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-

    An Attorney-General is not subject to restrictions as to the applications
    he makes, either ex officio or in relator actions, to the courts. In every case
    it will be for the court to decide whether it has jurisdiction to grant the
    application and whether in the exercise of its discretion it should do so. It has
    been and in my opinion should continue to be exceptional for the aid of the
    civil courts to be invoked in support of the criminal law and no wise Attorney-
    General will make such an application or agree to one being made in his
    name unless it appears to him that the case is exceptional.

    One category of cases in which the Attorney-General has successfully
    sought an injunction to restrain the commission of criminal acts is where
    the penalties imposed for the offence have proved wholly inadequate to deter
    its commission (See A .G. v. Sharp [1931] 1 Ch. 121: A.-G. v. Premier Line
    Ltd.
    [1932] 1 Ch. 303: A.-G. v. Bastow [1957] 1 Q.B. 514; and A.-G. v.
    Harris [1961] 1 Q.B. 74 where the defendant had been convicted on no less
    than 142 occasions of breaches of the Manchester Police Regulation Act
    1844).

    In A. G. v. Chandry (1971) 1 W.L.R. 1614 an injunction was granted at
    the instance of the Attorney-General in a relator action to restrain the
    defendant from using a building as a hotel without a certificate under the
    London Building Acts. There was a serious fire risk and it was not possible
    to secure the early hearing of a summons charging the defendant with a
    criminal offence in so using the building without a certificate. In those
    circumstances an interlocutory injunction was granted prohibiting the use
    of the building as a hotel until the necessary certificate was granted.

    I do not wish to suggest that the cases to which I have referred are the
    only types of cases in which the civil courts can and should come to the aid
    of the criminal law by granting injunctions at the instance of the Attorney-
    General but they, I think, serve to show that the exercise of that jurisdiction
    at the instance of the Attorney-General is exceptional.

    As after the hearing on the Saturday the proposed action by members of the
    Unions was called off, there was no occasion when the hearing was resumed
    for the grant of injunctions. The Court of Appeal allowed the statement of
    claim to be amended to add claims for declarations. I do not propose to
    spend time considering the terms of the declarations sought against the Unions.
    It suffices to say that they were that it would be unlawful for the Unions their
    servants and agents to do the acts made criminal by sections 58 and 68 of the
    Post Office Act 1953 and section 45 of the Telegraph Act 1863. The question
    for decision is not whether in the exercise of their discretion the Court of
    Appeal should have declared that what Parliament had made criminal was
    unlawful but whether the court had any jurisdiction to entertain Mr. Gouriet's
    application.

    That is the main question to be decided in this appeal and the main thrust
    of Mr. Gouriet's contention, which was it appears to me, accepted by the
    Court of Appeal, was that it was wrong in principle that the Attorney-General
    should by the refusal of his consent to a relator action, be able to block
    recourse to the civil courts when a widespread breach of the criminal law
    was threatened. There were frequent references in the course of the argument
    to the courts being " immunized " by his refusal. It has been asserted that
    the Attorney-General stands between members of the public and the courts

    17

    and by his refusal can deny access thereto. This would appear to be the
    basis for the Master of the Rolls' observation that his refusal of consent in
    this case was a direct challenge to the rule of law.

    It was also urged that if, as is undoubtedly the case, any person can start
    a prosecution for a criminal offence without, save in those cases where the
    consent of the Attorney-General or the Director of Public Prosecutions is
    required by statute, the consent of anyone, why should not any member of
    the public be entitled to apply to the civil courts for an injunction in an
    endeavour to prevent the commission of an offence? Why when the Attorney-
    General is not the only person who can start a prosecution, should he be the
    only person who can apply for such an injunction?

    The reply to this made on behalf of the Attorney-General and the Unions
    was that Mr. Gouriet was not qualified to act on behalf of the public to
    prevent injury to public rights and the courts had not jurisdiction to entertain
    his claim.

    Mr. Gouriet does not as I have said assert a private right of any kind.
    He does not claim that he would have suffered any loss or damage by reason
    of the interruption of postal services to and from South Africa. [f he had
    suffered any such loss or damage, he would have no cause of action against
    the Post Office or in tort against the Unions and their members (See the
    Post Office Act 1953 sections 9(4) and 29(1)).

    It is not necessary therefore to consider the long line of cases dealing with
    the rights of individuals to secure injunctions and declarations when their
    private rights are threatened though it is not without interest to note that in
    Springhead Spinning Co. v. Riley (1868) 6 Eq. 551 it was held that an injunc-
    tion could be granted at the instance of a person to prevent the commission
    of a crime if, but only if, that person would be damaged thereby. In that
    case Sir R. Malins V.C. said at p. 558:

    " if these acts amount to the commission of a crime only, it is clear
    " that this Court has no jurisdiction to restrain them. In the celebrated
    " case of Gee v. Pritchard " (2 Sw. 402, 413) " the object of which was to
    " restrain the publication of letters written by the plaintiff to the defendant,
    " Lord Eldon says ' The publication of a libel is a crime, and I have no
    " ' jurisdiction to prevent the commission of crimes, excepting, of course,
    " ' such cases as belong to the protection of infants where a dealing with
    " ' an infant may amount to a crime—an exception arising from the
    " ' peculiar jurisdiction of this Court' ",

    and

    " The jurisdiction of this Court is to protect property, and it will
    " interfere by injunction to stay any proceedings whether connected with
    " crime or not, which go to the immediate, or tend to the ultimate
    " destruction of property or to make it less valuable or comfortable for
    " use or occupation ".

    In London Association of Shipowners & Brokers v. London & India Docks
    Joint Committee
    [1892] 3 Ch. 242, it was held that the plaintiff company,
    the P. & O. Steamship Co., who had brought an action for a declaration that
    regulations made by the defendants in the purported exercise of statutory
    powers were invalid, had, to succeed, to show that they had suffered special
    damage by reason of the regulations. At p. 257 Lindley L.J. said: —

    " The Peninsular and Oriental Company, if aggrieved by the de-
    " fendants' regulations, have a clear locus standi as plaintiffs in an action
    " brought to have its grievances redressed. At the same time the Penin-
    " sular and Oriental Company is not like the Attorney-General, and is
    " not entitled to sue on behalf of the public for the purpose of preventing
    " the defendants from exceeding their statutory powers irrespective of
    " any particular injury to any particular individual. The Peninsular and
    " Oriental Company must show that it is itself aggrieved before it is
    " entitled to any declaration or relief in an action brought by itself.
    " Had this action been an information by the Attorney-General there

    18

    " would be no difficulty in declaring the regulations complained of not
    " to be binding on the public, and in granting an injunction to restrain
    " the Joint Committee from enforcing them".

    Despite these observations and similar observations by the other members
    of the Court and despite the fact that the appeal from the dismissal of the
    plaintiff's action was dismissed, the Court somewhat surprisingly granted a
    declaration, it would seem by consent.

    In Cutler v. Wandsworth Stadium [1949] A.C. 398 Lord Simonds, referring
    to the Betting and Lotteries Act 1934, observed

    " the sanction of criminal proceedings emphasise that this statutory
    " obligation, like many others which the Act contains, is imposed for the
    " public benefit and that the breach of it is a public, not a private wrong ".

    So here in my opinion the sanction of criminal proceedings in sections 58
    and 68 of the Post Office Act 1953 and in section 45 of the Telegraph
    Act 1863 was imposed for the public benefit and breach of them is a public
    and not a private wrong.

    That the Attorney-General can, if he thinks it in the public interest to do
    so, lake proceedings to prevent the commission of a public wrong is not
    disputed. As Professor Edwards said at p.268 in his book " Law Officers of
    the Crown " this aspect " of the Attorney-General's role as protector of
    public rights is of great antiquity ".

    An instance of its exercise is to be found in A.G. v. Bastow [1957] 1
    Q.B.514 where Devlin J. as he then was, said that a relator action was one
    over which the Attorney-General retains complete control. I venture to
    think that no one who has held the office of Attorney-General would agree
    with the view expressed by Ormrod L.J. in the present case that there is a
    fictional element in relator actions. While it is true that the conduct of the
    proceedings in such an action is left in the hands of the relator, it is in his
    hands as agent for the Attorney-General and its conduct is always under his
    control and direction.

    In that case Devlin J. cited the following observation of Jessel M.R. in
    A.-G. v. Cockermouth Local Board (1874) 18 Eq. 172 at p. 176:-

    " Except for the purposes of costs, there is no difference between an
    " ex officio information and an information at the relation of a private
    " individual. In both cases the Sovereign, as parens patriae, sues by
    " the Attorney-General."

    No useful purpose would I think be served by my referring to all the cases
    cited in argument. While the contention that if a private individual can
    start a prosecution, he should be able to take steps directed to preventing
    the commission of a crime appears at first sight attractive and logical, I do
    not find anything to support it in the decided cases. Dyson v. A.-G. [1911]
    1 K.B. 410 is not a case where the plaintiff was asserting a public right or the
    existence of a public wrong. He was seeking to protect himself. Ellis v.
    Duke of Bedford [1899] 1 Ch. 494 also was not a case where the plaintiffs
    were asserting a public right. They were growers who alleged that they had
    special rights under the Act relating to Covent Garden. The question for
    decision in that case was not that in this. There the only question was
    whether they could properly join as plaintiffs in one action. The granting
    of the declaration in the London Association of Shipowners case (supra)
    which appears to have been by consent, does not assist Mr. Gouriet.

    The conclusion to which I have come in the light of the many authorities to
    which we were referred is that it is the law, and long established law, that
    save and in so far as the Local Government Act 1922, section 222, gives local
    authorities a limited power so to do, only the Attorney-General can sue on
    behalf of the public for the purpose of preventing public wrongs and that a
    private individual cannot do so on behalf of the public though he may be
    able to do so if he will sustain injury as a result of a public wrong. In my

    19

    opinion the cases establish that the courts have no jurisdiction to entertain
    such claims by a private individual who has not suffered and will not suffer
    damage.

    If these conclusions are right, then when the Attorney-General gives his
    consent to a relator action, he is enabling an action to be brought which an
    individual alone could not bring. When he refuses his consent, he is not
    denying the right of any individual and barring his access to the courts for
    the courts have no jurisdiction to entertain a claim by an individual whose
    only interest is as a member of the public in relation to a public right. Con-
    sequently, any suggestions 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.

    There are a few other matters with which I desire to deal. I do not think
    that there is any true analogy between the giving of consent to relator actions
    and the issue of prerogative writs and we are not therefore in my opinion
    called upon to express views upon the correctness of the observations made
    as to the issue of mandamus in Reg. v. Commissioner of Police of the Metro-
    polis ex. p. Blackburn
    [1963] 2 Q.B.118.

    In A.-G. ex rel. McWhirter v. Independent Broadcasting Authority [1973]
    Q.B. 629 Lord Denning made some obiter observations to the effect that a
    member of the public can apply to the Court when the Attorney-General re-
    fuses leave in a proper case for the institution of relator proceedings. It fol-
    lows from what I have said that these obiter observations do not in my
    opinion correctly state the law. The courts cannot review the Attorney-
    General's decision and they have no jurisdiction to entertain an application by
    a member of the public which he alone can make, either ex officio or in a
    relator action.

    The majority of the Court of Appeal thought that the court had jurisdic-
    tion to make the declarations sought by virtue of R.S.C. Order 15 r.16 which
    is in the same terms as Order 25 r.5 made in 1883. It reads as follows :-

    " No action or other proceedings shall be open to objection on the
    " ground that a merely declaratory judgment or order is sought thereby,
    " and the Court may make binding declarations of right whether or not
    " any consequential relief is or could be claimed."

    It does not provide that an action will lie whenever a declaration is
    sought. It does not enlarge the jurisdiction of the court. It merely provides
    that no objection can be made on the ground only that a declaration is
    sought. In my opinion it provides no ground for saying that since 1883
    the courts have had jurisdiction to entertain an action instituted by a person
    other than the Attorney-General who does not claim that any personal right
    or interest will be affected and who is seeking just to protect public rights.

    In my opinion the Attorney-General was right in his contention that the
    court had no jurisdiction to grant the interim injunctions. It had no juris-
    diction to grant declarations or a final injunction in this suit by Mr. Gouriet.

    In conclusion, as I see it, we were asked not just to extend the existing
    law but to override a mass of authority and to say that long established law
    should no longer prevail. That is a question for the Legislature to consider
    and in the light of what I have said about the exceptional character of requests
    by the Attorney-General to the civil courts to come to the aid of the criminal
    law and of the occasions when that has been given, I must confess to con-
    siderable doubt whether it would be in the public interest that private indi-
    viduals such as Mr. Gouriet should be enabled to make such applications in
    cases where such interest as they have is in common with all other members
    of the public and when the object is the enforcement of public rights.

    For these reasons in my opinion the appeals of the Attorney-General and
    the Unions should be allowed and that of Mr. Gouriet dismissed. His claim
    should be struck out and, the Attorney-General not seeking costs in this
    House, Mr. Gouriet should pay the Unions' costs here in addition to the
    costs in the courts below which were ordered to be costs in cause.



    20

    Lord Diplock

    MY LORDS,

    At the heart of the issues in these appeals lies the difference between
    private law and public law. It is the failure to recognise this distinction
    that has in my view led to some confusion and an unaccustomed degree
    of rhetoric in this case.

    As the facts that have been narrated by my noble and learned friend Lord
    Wilberforce disclose, on Friday 14th January 1977 the Union of Post Office
    Workers (" UPOW ") was threatening to instruct its members to refuse to
    handle during the ensuing week any postal packets in course of transmission
    between England and the Republic of South Africa. That such conduct
    by the postal workers would constitute a criminal offence punishable upon
    indictment by imprisonment or a fine is, as Lord Wilberforce's citation of the
    relevant section of the Post Office Act 1953 shows, plain beyond argument.
    It is no less plain that if the UPOW were to carry out its proposal to instruct
    its members to " black " South African mail, the Union would itself commit
    a criminal offence punishable by indictment. So the situation on that Friday
    was that a powerful trade union was threatening to defy the criminal law
    and to endeavour to procure its members to do likewise in such a way as
    would result in inconvenience and, it may be, in some cases serious financial
    loss, to those members of the public who during the coming week might
    want to make use of the postal services between England and South Africa
    for the purpose of their business or personal affairs.

    It is understandable that, in the face of such a threat and the nationwide
    publicity that it had been accorded, the question should be put rhetorically,
    as it was by the Master of the Rolls in his interlocutory judgment of 17

    January: " Are the courts to stand idly by? ".

    Courts of justice do not act of their own motion. In our legal system it is
    their function to stand idly by until their aid is invoked by someone recognised
    by law as entitled to claim the remedy in justice that he seeks. Courts of
    justice cannot compel anyone to invoke their aid who does not choose to
    do so ; nor can they demand of him an explanation for his absention. That
    is why it is now conceded that the Attorney-General cannot be called upon
    to disclose his reasons for refusing on 14 January to authorise the bringing
    of proceedings in his name against the UPOW when so requested by Mr.
    Gouriet.

    So Mr. Gouriet if he wanted to achieve his purpose of preventing the
    UPOW from carrying out its threatened defiance of the criminal law had to
    proceed alone. The remedy originally sought by him was an injunction
    against the UPOW to restrain their threatened conduct. This was expressed
    in terms which followed closely the actual wording of section 68 of the Post
    Office Act, 1953. I will for the time being leave out of account the sub-
    sequent amendments and additions of fresh defendants to which Lord
    Wilberforce has referred ; for, in my opinion, the answer to the question,
    " Had the High Court jurisdiction to grant this relief upon the application of
    " a private citizen?", is decisive of this appeal; though later I shall deal
    briefly with the question whether the majority of the Court of Appeal were
    right in holding that the substitution of a claim for declaratory relief in place
    of the original claim for an injunction could make all the difference.

    Mr. Gouriet does not base his claim to either form of relief upon the
    ground that any private legal right either of his own or of any other
    individual would be infringed if the Post Office were to suspend for a week
    transmission of postal packets between England and South Africa. The
    Post Office, its officers and servants enjoy a special immunity from liability
    in private law. So long as the Post Office continued to be a department of
    government, carriage by post of packets entrusted to the Post Office by
    subjects was not undertaken pursuant to any contract. Acceptance for
    transmission to the addressee gave rise to no contractual rights. Triefus &
    Co. Ltd. v. Post Office
    [1957] 2 Q.B. 352. This exclusion of contractual

    21

    liability is preserved by section 9(4) of the Post Office Act 1969. Until 1947
    the Post Office enjoyed the Crown's immunity from liability in tort and this
    immunity in respect of anything done or omitted to be done in relation to
    a postal packet was expressly preserved by section 9 of the Crown Pro-
    ceedings Act 1947. When, by the Post Office Act 1969 the Post Office
    caused to be a department of state and became a separate public authority
    invested with statutory powers and duties, the same immunity from liability
    in tort was conferred upon it and upon its employees by section 29. So
    even apart from the comprehensive immunity from actions in tort that is
    conferred upon trade unions as such by section 14 of the Trade Union and
    Labour Relations Act 1974, there were insuperable obstacles in the way of
    Mr. Gouriet's asserting that the kind of conduct by post office workers that
    the UPOW was threatening to procure would result in the infringement of
    any right of his own (or of any other individual) that was enforceable in
    private law. The conduct would be criminal; it would cause great public
    inconvenience and harm, but it would not be in breach of any duty in
    contract or quasi-contract owed by the Post Office to the sender or addressee
    of any postal packet; nor would it give rise to any cause of action in tort.
    For the harm it caused there would be no remedy available in private law.

    The ordinary way of enforcing criminal law is by punishing the offender
    after he has acted in breach of it. Commission of the crime precedes the
    invocation of the aid of a court of criminal jurisdiction by a prosecutor.
    The functions of the court whose aid is then invoked are restricted to (1)
    determining (by verdict of a jury in indictable cases) whether the accused
    is guilty of the offence that he is charged with having committed and, (2) if
    he is found guilty, decreeing what punishment may be inflicted on him by
    the executive authority. In English public law every citizen still has the
    right, as he once had a duty (though of imperfect obligation), to invoke the
    aid of courts of criminal jurisdiction for the enforcement of the criminal
    law by this procedure. It is a right which nowadays seldom needs to be
    exercised by an ordinary member of the public, for since the formation of
    regular police forces charged with the duty in public law to prevent and
    detect crime and to bring criminals to justice, and the creation in 1879 of the
    office of Director of Public Prosecutions, the need for prosecutions to be
    undertaken (and paid for) by private individuals has largely disappeared ;
    but it still exists and is a useful constitutional safeguard against capricious,
    corrupt or biased failure or refusal of those authorities to prosecute offenders
    against the criminal law.

    Mr. Gouriet could have initiated a private prosecution against the
    UPOW ; but he would have had to wait until an offence under section 68
    of the Post Office Act 1953 had been committed ; and it is doubtful whether
    that could be proved until the officials of the Union had acted on the
    resolution by actually sending out to its members instructions to " black " all
    South African mail.

    So much for the ordinary way of enforcing the criminal law. There are,
    however, two procedures by which the aid of a court of justice may be
    anticipatively invoked before any crime, even inchoate, has actually been com-
    mitted. Both these procedures are exceptional and in some respects anoma-
    lous. Of the first, the power of a magistrate to bind over a person to be of
    good behaviour, I need say very little. It has its origin in the Justice of
    the Peace Act 1361 when the distinction between the executive and the
    judicial functions of these dignitaries was still blurred. The power was ex-
    tended to all courts of criminal jurisdiction by the Administration of Justice
    Act 1969, but it is debatable whether it should properly be classified as
    appertaining to criminal or to public law.

    The second exceptional procedure is that which has given rise to these
    appeals: the application to a court of civil jurisdiction for an injunction to
    restrain a potential offender from doing something in the future which
    although if done it would give the applicant no right to redress in private
    law, would nevertheless be a criminal offence.


    22

    My Lords, there is ample authority already cited by Lord Wilberforce that
    this procedure is undoubtedly available if applied for by the Attorney-General
    either ex officio or ex relatione; but it is no less anomalous than that of
    binding over to be of good behaviour a person who has not been proved to
    have committed any offence. It is in my view appropriate to be used only
    in the most exceptional of cases. It is not accurate to describe it as preventive
    justice. It is a deterrent and punitive procedure; but this is characteristic
    too of the enforcement of criminal law through the ordinary courts of
    criminal jurisdiction. The very creation by parliament of a statutory offence
    constitutes a warning to potential offenders that if they are found guilty by
    a court of criminal jurisdiction of the conduct that is proscribed, they will be
    liable to suffer punishment up to a maximum authorised by the statute.
    When a court of civil jurisdiction grants an injunction restraining a potential
    offender from committing what is a crime but not a wrong for which there
    is redress in private law, this in effect is warning him that he will be in double
    jeopardy, for if he is found guilty by the civil court of committing the crime
    he will be liable to suffer punishment of whatever severity that court may
    think appropriate, whether or not it exceeds the maximum penalty authorised
    by the statute and notwithstanding that he will also be liable to be punished
    again for the same crime if found guilty of it by a court of criminal jurisdic-
    tion. Where the crime that is the subject matter of the injunction is triable
    on indictment the anomalies involved in the use of this exceptional procedure
    are enhanced. The accused has the constitutional right to be tried by jury
    and his guilt established by reference to the criminal standard of proof. If
    he is proceeded against for contempt of court he is deprived of these
    advantages.

    I mention these matters, obvious though they may be, for two reasons.
    First, in justice to the Attorney-General against whom it has been hinted
    that there could be no reasons that were not partizan for his refusal to
    authorise the bringing of a relator action against the UPOW when asked to
    do so by Mr. Gouriet on 14th January. The matters I have referred to are
    juristic considerations proper to be taken into account, no doubt with others
    of a less juristic character, in determining whether the public interest was
    likely to be best served by resorting to this exceptional and anomalous pro-
    cedure for the enforcement of the criminal law.

    The second reason why they are important is that they are relevant to
    the distinction between an injunction in restraint of crime simpliciter and
    an injunction to restrain conduct which, although amounting to a crime, would
    also infringe some right belonging to the plaintiff who is applying for the
    injunction, which is enforceable by him in private law. The supercession
    of private revenge for wrongs by remedies obtainable from courts of justice
    and enforceable by the executive authority of the state lies at the common
    origin both of the criminal law and of the civil private law of tort. So
    from the outset there have been many crimes which at common law were
    private wrongs to the person who suffered particular damage from them as
    well as public wrongs ; and the policy of the law has been not to deprive
    the victim of a private wrong of his redress in civil private law against the
    wrongdoer merely because the wrongdoer is subject also to punitive sanctions
    under the criminal law for the same conduct; although until the recent
    abolition of the distinction between felonies and misdemeanours if the facts
    relied upon by the plaintiff as constituting a private wrong amounted also
    to the graver crime, a felony, the plaintiff was barred from proceeding with
    his civil remedy until after the wrongdoer had been prosecuted in a criminal
    court.

    In modern statutes whose object is to protect the health or welfare of a
    section of the public by prohibiting conduct of a particular kind, it is not
    infrequently the case that the prohibited conduct is made both a criminal
    offence and a civil wrong for which a remedy in private law is available to
    any individual member of that section of the public who has suffered damage
    as a result of it. So it creates a private right to be protected from loss or
    damage caused by the prohibited conduct.


    23

    For the protection of the private right created by such a statute a court
    of civil jurisdiction has jurisdiction to grant to the person entitled to the
    private right, but to none other, an injunction to restrain a threatened breach
    of it by the defendant. Upon the application for the injunction the issues
    are neither technically nor actually the same as they would be upon a subse-
    quent prosecution for the criminal offence once the threat had been trans-
    lated into action. They would still not be technically the same upon an
    application to the civil court to commit the defendant for contempt of court
    for breach of the injunction; though proof of commission of an offence
    would be a necessary step in the proof of the contempt where the only civil
    wrong involved was conduct prohibited by the penal provisions of the statute.
    This is a consideration that it would be proper for the court to bear in mind
    in exercising its discretion whether or not to grant an injunction is this type
    of case; but however sparingly it should be exercised, where the court is
    satisfied that grave and irreparable harm would otherwise be done to the
    plaintiff's private rights for which damages could not provide adequate
    compensation, it has undoubted jurisdiction to grant one.

    The words italicised in the last paragraph are important words for they
    draw attention to the fact that the jurisdiction of a civil court to grant
    remedies in private law is confined to the grant of remedies to litigants whose
    rights in private law have been infringed or are threatened with infringement.
    To extend that jurisdiction to the grant of remedies for unlawful conduct
    which does not infringe any rights of the plaintiff in private law, is to move
    out of the field of private into that of public law with which analogies may
    be deceptive and where different principles apply.

    There is nothing that I desire to add to what my noble and learned friends
    Lord Wilberforce and Viscount Dilhorne have already said about the exclu-
    sive right of the Attorney-General to represent the public interest in litigation,
    or about the development of the practice of his seeking ex officio or ex
    relatione
    a civil remedy by injunction against unlawful conduct that would
    cause public harm. I do desire, however, to comment briefly upon the
    exercise of the jurisdiction to grant a remedy by injunction on the application
    of the Attorney-General in cases where what makes conduct sought to be
    restrained is unlawful as well as harmful is because it constitutes a criminal
    offence. Resort to this jurisdiction is of respectable antiquity. It was first
    used in cases of public nuisance as a more effective and expeditious remedy
    than was provided by indictment or criminal information. Nevertheless the
    extension of its use to statutory offences is modern, and has hitherto been
    confined by the consistent practice of successive Attorneys-General to statutes
    whose objects are to promote the health, the safety or the welfare of the
    public and to particular cases under such statutes either where the prescribed
    penalty for the summary offence has proved to be insufficient to deter the
    offender from numerous repetitions of the offence, as in Attorney-General
    v. Sharp
    [1931] 1 Ch. 121, Attorney-General v. Premier Line Ltd. [1932] 1
    Ch, 303, Attorney-General v. Harris [1961] 1 Q.B. 74; or where the defen-
    dant's disobedience to the statutory prohibition may cause grave and irre-
    parable harm, as in Attorney-General v. Chaudry [1971] 1 W.L.R. 1614.
    The use of this procedure for the reasons I have already given ought not in
    my view to be extended beyond those limits.

    Finally I turn to the two propositions accepted by the majority of the
    Court of Appeal. The first was that despite the court's lack of jurisdiction
    to grant a final injunction otherwise at the suit of the Attorney-General, it
    could none the less grant in a suit by Mr. Gouriet alone, a declaration that
    the conduct threatened by the UPOW would be unlawful. The second was
    that pending the making or refusal of the declaration the court had jurisdic-
    tion to restrain the threatened conduct by interlocutory injunction. This
    second proposition was, however, dealt with extremely briefly in the judg-
    ments on 27th January. An interlocutory injunction had previously been
    granted. It was not then renewed and nothing in the arguments addressed
    to this House has persuaded me that there is any ground on which the
    proposition can be supported.


    24

    Authorities about the jurisdiction of the courts to grant declaratory relief
    are legion. The power to grant a declaration is discretionary; it is a useful
    power and over the course of the last hundred years it has become more and
    more extensively used—often as an alternative to the procedure by way of
    certiorari in cases where it is claimed that a decision of an administrative
    authority which purports to affect rights available to the plaintiff in private
    law is ultra vires and void. Nothing that I have to say is intended to
    discourage the exercise of judicial discretion in favour of making declarations
    of right in cases where the jurisdiction to do so exists. But that there are
    limits to the jurisdiction is inherent in the nature of the relief: a declaration
    of rights.

    The only kinds of rights with which courts of justice are concerned are
    legal rights ; and a court of civil jurisdiction is concerned with legal rights
    only when the aid of the court is invoked by one party claiming a right
    against another party, to protect or enforce the right or to provide a remedy
    against that other party for infringement of it, or is invoked by either party
    to settle a dispute between them as to the existence or nature of the right
    claimed. So for the court to have jurisdiction to declare any legal right it
    must be one which is claimed by one of the parties as enforceable against
    an adverse party to the litigation, either as a subsisting right or as one
    which may come into existence in the future conditionally on the happening
    of an event.

    The early controversies as to whether a party applying for declaratory
    relief must have a subsisting cause of action or a right to some other relief
    as well can now be forgotten. It is clearly established that he need not.
    Relief in the form of a declaration of right is generally superfluous for a
    plaintiff who has a subsisting cause of action. It is when an infringement of
    the plaintiff's rights in the future is threatened or when, unaccompanied by
    threats, there is a dispute between parties as to what their respective rights
    will be if something happens in the future, that the jurisdiction to make
    declarations of right can be most usefully invoked. But the jurisdiction
    of the court is not to declare the law generally or to give advisory opinions;
    it is confined to declaring contested legal rights, subsisting or future, of the
    parties represented in the litigation before it and not those of anyone else.

    The most direct authority of this House on the point is to be found in
    Moscrop v. London Passenger Transport Board [1942] A.C. 332 which Lord
    Wilberforce has already cited. In Dyson v. Attorney-General [1912] 1 Ch.
    158 the legal nature of the right that was in dispute between Mr. Dyson
    and the Commissioners of Inland Revenue was not discussed ; but on analysis
    the case is no exception to the rule I have stated. Mr. Dyson was not
    asserting a public right. He had been threatened by the Commissioners with
    what he claimed would be an unlawful demand for payment of money by
    way of a penalty if he failed to fill up a form. If in consequence of an
    unlawful demand he had paid the penalty he would have had a cause of
    action against the Commissioners to recover the amount of the penalty
    as money illegally demanded colore officit. See Morgan v. Palmer 2 B.
    and C. 729. Steele v. Williams 8 Ex. 625.

    Dyson v. Attorney-General was an example of a case where a large number
    of individuals in similar circumstances to those of Mr. Dyson would also have
    had the same private right as he had in respect of money demanded
    illegally under colour of office. There are other cases which were relied on
    by counsel for Mr. Gouriet in which declarations of a private legal right to
    which many people were separately entitled were made at the suit of one
    of the individuals entitled to it. I need not refer to them by name; they do
    not assist Mr. Gouriet. Apart from some obiter dicta in the McWhirter
    case [1973] Q.B. 629 to which Lord Wilberforce has already referred, there
    is no authority that the court has jurisdiction at the suit of a private
    individual as plaintiff to make declarations of public rights as distinct from
    rights in private law to which the plaintiff claims to be entitled. The court
    has jurisdiction to declare public rights but only at the suit of the Attorney-
    General ex officio or ex relatione, since as my noble and learned friends

    25

    Lord Wilberforce and Viscount Dilhorne have demonstrated he is the only
    person who is recognised by public law as entitled to represent the public
    in a court of justice.

    In my view the High Court has no jurisdiction to make any of the
    declarations now sought in the amended Statement of Claim. It should be
    struck out.

    Lord Edmund-Davies

    MY LORDS,

    Section 45 of the Telegraph Act 1863 provides that:

    " If any person in the employment of the company . . ."—which
    embraced the Post Office "wilfully or negligently omits or delays to
    " transmit or deliver any message; or by wilful or negligent act or
    " omission prevents or delays the transmission or delivery of any
    " message; ... he shall for every such offence be liable to a penalty
    " not exceeding £20 ".

    Section 58 of the Post Office Act, 1953, enacts that:

    (1) "If any officer of the Post Office, contrary to his duty, . . .
    " wilfully detains or delays, or procures or suffers to be detained or
    " delayed, any . . . postal packet [in course of transmission by post].
    " he shall be guilty of a misdemeanour and be liable to imprisonment
    " or to a fine, or to both: . . . ".

    And by section 68 of the same Act :

    " If any person solicits or endeavours to procure any other person to
    " commit an offence punishable on indictment under this Act, he shall be
    " guilty of a misdemeanour and be liable to imprisonment for a term
    " not exceeding two years ".

    During the British Broadcasting Corporation's television news relay on the
    evening of January 13th last, it was reported that the Executive Council of
    the Union of Post Office Workers (" U.P.W. ") had resolved that day to call
    upon its members to interfere with the passage of mail in the course of
    transmission by post between the Republic of South Africa and England
    and Wales. The accuracy of that report has never been challenged, and it
    clearly indicated a threat by the U.P.W. that its members would be called
    upon to commit breaches of section 58, as anyone who stopped for one
    moment to think should have realised. Certainly, the contrary has at no time
    been submitted to this House. Nevertheless, the news report was immediately
    followed by a televised interview with the general secretary of that Union,
    who, on being asked whether the action his executive council had resolved
    to take was unlawful, replied that the matter had never been tested in the
    courts, and that the relevant laws dated from Queen Anne and were more
    appropriate for dealing with highwaymen and footpads.

    This remarkable pronouncement led to prompt action in the High Court
    on Friday January 14th by a private citizen, Mr. John Prendergast Gouriet,
    who is the secretary of an organisation calling itself ' The National Associa-
    ' tion for Freedom '. Before then, there had appeared in ' The Times' that
    morning a report (the accuracy of which has again never been challenged)
    ending:

    " The Post Office Engineering Union instructed its members not to
    " provide or maintain circuits to the country [South Africa] except in
    " a matter of ' life or death'."

    It has to be said that the proposed action of the last-named trade union
    ("P.O.E.U.") constituted with equal clarity a threat to solicit or procure
    its members to commit breaches of section 45 of the Telegraph Act 1863.


    26

    Notwithstanding the wide dissemination through the public media of these
    pronouncements, no statement emerged from Government sources to dispel
    any doubts regarding their illegality. In these circumstances, at 12.45 p.m.
    that same Friday Mr. Gouriet asked the Attorney-General to consent to a
    relator action being brought in the cozurts against the U.P.W. because of its
    proposed breach of sections 58 and 68 of the 1953 Act. (We were told that
    no action was initially taken against the P.O.E.U. because the Telegraph
    Act 1863 was at that time overlooked). In the draft writ and statement
    of claim accompanying Mr. Gouriet's application to the Attorney-General
    he claimed against the U.P.W. :

    " An Order that the Defendant by itself its servants or agents or
    " otherwise be restrained 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 ".

    At 3.32 p.m. the Attorney-General replied:

    " Having considered all the circumstances including the public interest
    " relating to the application for my consent .... I have come to the
    " conclusion that in relation to this application I should not give my
    " consent".

    Mr. Gouriet thereupon promptly issued his writ and applied ex parte to
    Stocker J. in Chambers for an interim injunction against U.P.W. in the terms
    of the permanent injunction. Stocker J. expressed regret that he could not
    accede in the absence of authority establishing his jurisdiction to do so after
    the Attorney-General had refused his consent to a relator action. Mr. Gouriet
    appealed, and at a special meeting of the Court of Appeal on Saturday,
    January 15th, leave was granted to him to add the P.O.E.U. as second defend-
    ant and the Attorney-General as third defendant. Interim injunctions (to run
    until Tuesday, January 18th) were granted against U.P.W. and P.O.E.U.,
    and the statement of claim was amended to add a prayer for a declaration
    against the Attorney-General—

    " . . . . that in refusing his consent to the plaintiff to bring the above
    " relator proceedings the third Defendant acted improperly and wrongly
    " exercised his discretion ".

    Having sat on January 18th and two successive days, the Court of Appeal
    delivered their final judgments with commendable promptitude on January
    27th. They unanimously found that prima facie evidence had been adduced
    of an offence contrary to section 68 of the 1953 Act and that offences contrary
    to section 58 of that Act and section 45 of the 1863 Act were about to be
    committed. They also held unanimously that, notwithstanding the Attorney-
    General's refusal of consent to a relator action, the court had jurisdiction to
    make certain declarations against all three defendants; and, although none
    had been sought when the Attorney-General was approached, the matter
    has proceeded before your Lordships as if his consent had also been sought
    and refused in relation to such declaratory relief. The court also granted
    interim injunctions against the trade unions in support of the declarations,
    but Lawton and Ormrod L.JJ. held that they lacked jurisdiction to grant
    the final injunctions sought, whereas Lord Denning M.R. was for granting
    them.

    The Court of Appeal at the same time dismissed applications by each of the
    trade unions that the plaintiff's suit be dismissed under R.S.C. Order 18, r.
    19, as disclosing no reasonable cause of action. They also dismissed a similar
    application by the Attorney-General hi relation to an amended declaration
    sought that, notwithstanding his refusal to consent to relator proceedings,
    ... the plaintiff is entitled (a) to proceed with his aforesaid applications and
    " (b) pending the final determination of his aforesaid applications to obtain
    " relief by way of interim injunction".

    In the present proceedings before your Lordships' House, (a) the two trade
    unions are appealing against the rejection of their applications to strike out
    the statement of claim and against the declarations and interim injunctions

    27

    granted against them and they do so on the twofold grounds (i) that the Court
    of Appeal had no power to grant them save hi a relator action, which this is
    not, and (ii) that Mr. Gouriet's suit constituted an action in tort and, as such,
    was' prohibited by section 14(1) of the Trade Union and Labour Relations Act
    1974; (b) the Attorney-General is appealing against the dismissal of his
    application to strike out the statement of claim, and this on the ground that
    the Court of Appeal had no jurisdiction to grant any declarations or interim
    injunctions save in relator proceedings; finally, (c) Mr. Gouriet appeals
    against the Court of Appeal's refusal by a majority to grant him a final
    injunction against the two trade unions.

    During the ten days' hearing of these appeals in your Lordships' House a
    vast area has been covered, several scores of decisions have been cited and
    we have been taken back to the Year Books and to other ancient authorities.
    If at times the topics discussed seemed of a distinctly peripheral character,
    this is not surprising, for this House has been engaged in considering con-
    stitutional issues of great importance, and learned counsel have under-
    standably explored every avenue and turned every stone in their anxiety
    to ensure that the justice of the case, as each side sees it, is convincingly
    demonstrated. I desire to pay tribute to their zeal and ability and to the
    assistance which they have rendered, certainly to me.

    Relator proceedings

    The first, and main, issue arising in these proceedings was stated by the
    Attorney-General in this way :

    " In what circumstances (if any) is a person who has no interest in
    " the subject-matter of proposed proceedings, other than that general
    " interest which every member of the community has in seeing that its
    " laws are obeyed, competent to bring proceedings to restrain by
    " permanent injunction other persons from disobeying those laws which
    " the Attorney-General has been asked to give (and has declined to give)
    " his consent to relator proceedings seeking such a permanent
    " injunction? "

    One prefatory topic can, despite its basic importance be disposed of with
    comparative brevity. It raises the question whether the courts are at liberty
    to enquire into the manner in which an Attorney-General has responded to
    an application to consent to a relator action being brought, and it will be
    recalled that in the instant case Mr. Gouriet originally claimed but later
    revoked his request for a declaration that the Attorney-General "... in
    " refusing his consent . . . acted improperly and wrongfully exercised his
    " discretion ". Lawton and Ormrod, L.JJ. held that the Court had no right
    to enquire into such matter and at some stage Mr. Gouriet conceded this.
    Lord Denning, M.R., on the other hand, concurred only where the Attorney-
    General had consented. But he held (1977 1 W.L.R. 328B) that where, as
    here, consent is refused it is competent to the court to enquire into the
    acceptability of the Attorney-General's decision. But the legal position
    is otherwise, and it is difficult to understand what possible basis there can
    be for holding that the courts cannot investigate the propriety of the Attorney-
    General's saying " Yes ", but that they are free to scrutinise and adjudicate
    upon the propriety of his saying "No". And the point was long ago
    authoritatively dealt with in L.C.C. v. Attorney-General (1902 A.C. 165),
    where Lord Halsbury repudiated (at p. 168) " the suggestion that the Courts
    " have any power over the jurisdiction of the Attorney-General when he is
    " suing on behalf of a relator in a matter in which he is the only person who
    " has to decide ", and added:

    " It may well be that it is true that the Attorney-General ought not to
    " put into operation the whole machinery of the first law officer of
    " Crown in order to bring into Court some trifling matter. But if he
    " did, it would not go to his jurisdiction; it would go, I think, to the
    " conduct of his office, and it might be made, perhaps in Parliament, the
    " subject of adverse comment; but what right has a Court of law to
    " intervene? If there is excess of power claimed by a particular public

    28

    " body, and it is a matter that concerns the public, it seems to me that
    " it is for the Attorney-General and not for the Courts to determine
    " whether he ought to initiate litigation in that respect or not;
    ... the
    " initiation of the litigation, and the determination of the question whether
    " it is a proper case for the Attorney-General to proceed in, is a matter
    " entirely beyond the jurisdiction of this or any other Court. It is a
    " question which the law of this country has made to reside exclusively
    " in the Attorney-General".

    Lord Denning, M.R. was unfortunately mistaken in his view that Lord
    Halsbury had in mind only cases where the Attorney-General had granted
    consent, as the italicised words show. Nor is this the only decision on the
    matter, for, in relation to the closely analogous topic of the refusal of the
    Attorney-General's fiat to prosecute in criminal matters Lord Campbell CJ.
    held in Ex parte Newton (1855) 4 E. & B. 869 ; 119 E.R. 323, which was cited
    to the Court of Appeal, that the courts have no jurisdiction to review the
    Attorney-General's decision.

    In any event, for my part I see no grounds for questioning the propriety
    of the Attorney-General's decision in the present case, and such expressions
    in the Court of Appeal judgments as disclose a different conclusion seem to
    me regrettable. Indeed, the observations of my noble and learned friend,
    Viscount Dilhorne, speaking from experience as. a former principal law
    officer which has been shared by no other judge called upon to deal with this
    unhappy case, has demonstrated to my satisfaction that the Attorney-General
    may well have been fully justified in concluding that he ought not to give
    his consent.

    The point of cardinal importance that nevertheless remains is: assuming
    that the Attorney-General was entitled to decide as he did, does that preclude
    others who take a different view from seeking relief in the courts? For this
    purpose, we have to suppose that Mr. Gouriet's private legal rights have not
    been threatened or breached, and that although a public right is involved he
    has not suffered, and does not apprehend, any special damage over and above
    that sustained by the public at large. (If the circumstances are other than
    those predicated, a private citizen can sue in his own name and needs no
    consent from anyone before doing so: Springhead Spinning Co. v. Riley
    (1868) 6 Eq. 551). No right over and above that of the general public was
    asserted by Mr. Gouriet in his statement of claim or in the Court of Appeal,
    and even had the threatened disruption of the postal services arisen, the legal
    position is that, while section 9 of the Post Office Act 1969 lays down the
    general duties of the Post Office in relation to the efficient conveyance of
    postal packets and the provision of adequate telephone services, subsection (4)
    thereof provides that:

    " Nothing in this section shall be construed as imposing upon the
    " Post Office, either directly or indirectly, any form of duty or liability
    " enforceable by proceedings before any court."

    Nevertheless, in Mr. Gouriet's printed case to this House it is submitted
    (para. 23) that the nationwide threat to prevent breaches of Sec. 58 and 68
    of the Post Office Act, 1953, operated to confer upon all citizens a sufficient
    interest to bring the facts before the Court, and, furthermore (para. 24), "...
    " apart from his interest as a private citizen . . . [Mr. Gouriet] had a sufficient
    " interest as a member of the public entitled to use the services provided by
    " the Post Office Corporation as and when he so desired and for whose
    " protection the relevant criminal provisions of the statutes in point were
    " designed ".

    Although section 9(4) is clearly inconsistent with the existence of any
    " right" in this matter. Mr. Gouriet does undoubtedly possess the same
    " interest" as that of all citizens in the postal services being properly main-
    tained, and, furthermore, in the upholding of the rule of law if it is subjected
    to threats of widespread criminal conduct. In such circumstances, there are

    29

    those who, mistakenly or otherwise, would recall with something like yearn-
    ing the words of the Lord Chief Baron Abinger, who said in Deare v. Attorney-
    General
    (1835) I Y. & C. Ex. 197 at 208:

    " It has been the practice, which I hope never will be discontinued,
    " for the officers of the Crown to throw no difficulty in the way of any
    " proceeding for the purpose of bringing matters before a Court of
    " justice where any real point of difficulty that requires judicial decision
    " has occurred ".

    But in the circumstances had the court jurisdiction to entertain Mr.
    Gouriet's claim to any relief, whether by way of final injunctions, interim in-
    junctions declarations, or in any other manner? Stern language has been
    used to describe the sort of situation which it was said could arise were
    that question answered in the negative. Lord Denning said (329 G) that it
    meant that the Attorney-General and his predecessors and successors " can,
    " one after another, suspend or dispense with the execution of the laws of
    " England ". This sounds most alarming, but it has to be said that Attorneys-
    General have for generations possessed and exercised that very power in
    relation to criminal prosecutions, notwithstanding which the heavens have
    not fallen and the stars stay in their courses. That the Attorney-General
    could well have acted is beyond doubt; he could have acted ex officio or,
    as Mr. Gouriet asked, ex relatione. And since, as was held in Attorney-
    General
    v. Harris [1961] 1 Q.B. 74, he can act on his own account to prevent
    breaches of a criminal law which has proved ineffective in the past, he can
    surely also take steps of his own volition to prevent widespread breaches
    or to avert dire danger ; Attorney-General v. Chaudry [1971] 1 W.L.R. 1614.
    And if, for reasons which are wholly unknown to the apprehensive public,
    he declines, ought not one or more of their number to be entitled to take
    in the civil courts the salutary steps which he declines to take? It is true
    that any citizen can institute a private prosecution. But since that presup-
    poses that crime has already been committed, it affords no relief to those
    seeking to prevent its commission. So why deny the private citizen the right
    to do that which the Attorney-General refuses to do?

    So runs one argument advanced on Mr. Gouriet's behalf. But what is in-
    escapable is that in truth he is seeking to bring what is essentially a relator
    action without the Attorney-General's consent. And that he cannot do.
    The law is so firmly established as to form what Mr. Christopher French
    described as a " mould ", but one which he invited your Lordships to reshape
    or, failing that, to break. Can we do so? And, if so, ought we?

    It is certainly of considerable antiquity. In his seminal work (Law
    Officers of the Crown, 1964, pp. 286-295) Processor John Edwards discussed
    the ancestry of the modern relator action and the suggestion that it originated
    from the procedure whereby the Attorney-General, representing the Crown
    as parens patriae, would proceed by way of information to enforce rights
    of a charitable nature for the benefit of interested persons. Nowadays, he
    says, " In effect, a relator's action in form is simply a suit brought by the
    " Attorney-General at the relation, or instance, of some other person. Al-
    " though the Attorney-General is the nominal plaintiff in the action, in re-
    " ality the action is brought by the complainant. Once the consent of the
    " Attorney-General is obtained, the actual conduct of the proceedings is en-
    " tirely in the hands of the relator, who is responsible for the costs of the
    " action" (ibid. p. 288). These features led Ormrod L.J. to say ([19771 i
    W.L.R. 344D) that, "... there is a fictional element in these relator actions'.
    But the reality is that having consented, the Attorney-General nevertheless
    remains dominus litis. Contrary to certain observations in Attorney-General
    v. Sheffield Gas Consumers Co. (1853) 3 De G.M. & G. 304, the Attorney-
    General not only can, but does, scrutinise and criticise draft pleadings, and
    directs what interlocutory steps should be taken. And it is undoubted law
    that he can continue relator proceedings even though the relator has died, and
    that no compromise can be arrived at without his concurrence. His role is,
    accordingly, far from purely fictional, and it is not easy to see why Ormrod,
    L.J., described the relator procedure as " obsolete ". On the contrary, it
    remains a well nurtured, vigorous and useful plant.

    30

    My Lords, it has long been established that no citizen can of his own
    initiative sue in our courts on his own behalf save to assert and protect his
    private rights, or to repel a right asserted against him by another. No
    advantage would be served by referring to more than a small fraction of the
    many cases cited to your Lordships which demonstrate that such is the law,
    and most of them will be found usefully discussed in Professor de Smith's
    " Judicial Review of Administrative Action " (1973, 3rd Ed., p. 400 et seq.).
    In Stockport District Water Works Co. v. Mayor of Manchester (1863) 7
    L.T. (N.S.) 545, where a company incorporated for supplying Stockport with
    water filed a bill against a rival company, alleging that they were acting
    ultra vires and contrary to the public interest, but alleging no private injury,
    the bill was held demurrable and Lord Westbury, L.C. said (at p. 548):

    " I cannot see any private right which this incorported Stockport
    " company has in the matter. I do not see how the overleaping of their
    " limits by the Manchester Corporation inflicts any amount of private
    " injury upon the plaintiffs so as to entitle them to seek redress in a court
    " of justice .... But to the plaintiffs [the Manchester Corporation]
    " are certainly not responsible. The plaintiffs have no interest in their
    " action so as to maintain a complaint against them. The plaintiffs are
    " not qualified to represent the rights and interests of the public, and
    " in one of these two capacities the bill of the plaintiffs, if it can be
    " maintained, must be supported ".

    The Lord Chancellor remarked on "... how desirable it is not to allow
    " any private individual to usurp the right of representing the public
    " interest ", and concluded:

    " The only arguments which I am disposed to accept... are arguments
    " founded upon the public interest, and the general advantage of re-
    " straining an incorporated company with its proper sphere of action.
    " But in the present case the transgression of those limits inflicts no
    " private wrong upon these plaintiffs and although the plaintiffs in com-
    " mon with the rest of the public might be interested in the larger view
    " of the question, yet the constitution of the country has wisely entrusted
    " the privilege with a public officer, and has not allowed it to be usurped
    " by a private individual. I must therefore allow the demurrer

    Again, in Attorney-General v. Bastow [1957] 1 Q.B. 579 Devlin J. described
    the Attorney-General as " the only authority who has a right to bring a civil
    suit upon the infringement of public rights ".

    As against the foregoing, in Attorney-General ex rel. McWhirter v. Inde-
    pendent Broadcasting Authority
    [1973] 1 Q.B. 629, Lord Denning M.R.
    expressed obiter the view that, in the last resort, if the Attorney-General
    refused leave in a proper case or unreasonably delayed in dealing with a
    request for leave, a member of the public could apply for a declaration, at
    least, and, in a proper case for an injunction, joining the Attorney-General,
    if need be, as a defendent. Something must later be said about the accept-
    ability of that novel qualification of the general rule.

    But it is submitted for Mr. Gouriet that, whatever be the general rule,
    the true legal position is (and should now be declared to be) markedly
    different where the private citizen is seeking injunctive relief in a civil court
    to prevent the commission of crimes. The argument advanced may be thus
    summarised: (1) The private citizen, no less than the Attorney-General, can
    institute a private prosecution when a crime has been committed; (2) the
    Attorney-General can, hi a proper case, obtain an injunction to restrain the
    commission of crime where the defendant's behaviour has revealed the in-
    adequacy of the criminal law or where the situation is one of dire emergency,
    and such preventive remedy is more valuable than the purely punitive
    remedy of prosecuting after crimes have been committed; (3) where wide-
    spread crime is threatened and the public interest requires that speedy steps
    be taken to check this, the private citizen must be able to obtain an in-
    junction for that purpose if the Attorney-General for no discernible reason
    refuses to intervene.


    31

    I have to say that none of the grounds advanced on behalf of the Attorney-
    General and Trade Unions have satisfied me that in the circumstances
    predicated it must necessarily be in the public interest to deny such a claim
    by a private citizen. For example, it was urged that any change in the
    present law would open what were called the " floodgates " to a multiplicity
    of claims by busybodies. But it is difficult to see why such people should
    be more numerous or active than private prosecutors are at the present day,
    and they are few and far between, though this fact may be attributable in
    part to the power of the Attorney-General to enter a "Nolle prosequi"
    in any criminal case or to order the Director of Public Prosecutors to take
    it over and then to offer no evidence. It was also urged that the granting
    of an injunction could prejudice the subsequent jury trial of the wrongdoer,
    turning as it would upon a different standard of proof than that applied
    in the civil proceedings, and that great complications could arise if (an
    injunction having been granted, the breach of which could lead to a com-
    mittal for contempt and might, indeed, already have done so) the defendant
    was later tried and acquitted of the criminal charge. But exactly the same
    observations can be made at the present time in, for example, cases of
    public nuisances (which are crimes), in relation to which the Attorney-
    General not infrequently seeks and secures injunctions. And it would
    always be open to the Attorney-General himself to intervene and make
    representations in civil proceedings brought by a private individual if he
    considered that the public interest required him to do so.

    Be that as it may, there is nevertheless a massive body of law supporting
    the proposition that only the Attorney-General can seek and obtain injunctive
    relief in relation to criminal acts, whether threatened or committed, which
    do not also involve the invasion of private rights of person or property,
    though it is clearly desirable that he should take extreme care before deciding
    to exercise it. In Attorney-General v. Sharp [1931] 1 Ch. 121, 133, where
    the defendant had deliberately and persistently committed breaches of the
    Manchester Police Regulation Act 1844 in relation to the licensing of hackney
    carriages and had been fined 60 times in consequence and it was plain
    that he intended to pursue his illegal course of conduct, it was held that
    the court had jurisdiction to grant an injunction to the Attorney-General
    to restrain such conduct, Lawrence, L.J. saying (at p. 133):

    " [Defence counsel] contended that as the Act created a new liability
    " and prescribed the remedy, and as no interference with any right
    " of property was involved, the Court had no jurisdiction to grant an
    " injunction. The cases relied upon in support of this contention, such
    " as Cooper v. Whittingham (1880) 15 Ch.D. 501, Stevens v. Chown
    " [1901] 1 Ch. 894 and Institute of Patent Agents v. Lockwood [1894]
    " A.C. 347 are cases where the action was brought, not by the Attorney-
    " General suing on behalf of the public, but by some individual person
    " or body aggrieved by the breach of the statutory obligation. In such
    " cases, no doubt, the proposition relied upon by [defence counsel]
    " has an important bearing on the question whether the Court has
    " jurisdiction to grant an injunction, but in my opinion it has no
    " application to a case where the Attorney-General is suing on behalf
    " of the public. There is a large body of authority showing the distinction
    " between the two classes of cases ... It is firmly established that the
    " Court has jurisdiction to restrain an illegal act of a public nature
    " at the instance of the Attorney-General suing on behalf of the public,
    " although the illegal act does not constitute an invasion of any right
    " of property and although the Act imposing the new liability prescribes
    " the remedy for its breach ".

    In truth, the exclusive authority of the Attorney-General to sue in the civil

    courts in such cases derives from the public interest that the criminal law
    is respected and not flouted and is thus simply an illustration of the more
    general rule regarding the unique role of the Attorney-General, acting on

    behalf of the Crown as parens patriae. So it is that in Attorney-General v.

    Harris [1961] 1 Q.B. 74 Pearce LJ. said (at p. 92):

    " It is now firmly established that where an individual or public body
    " persistently breaks the law, and where there is no person or no sufficient

    32

    " sanction to prevent the breaches, these courts in an action by the
    " Attorney-General may lend their aid to secure obedience to the law.
    " They may do so whether the breaches be an invasion of public rights
    " of property or merely an invasion of the community's general right to
    " have the laws of the land obeyed ... the Attorney-General represents
    " the community, which has a larger and wider interest in seeing that the
    " laws are obeyed and order maintained."

    Although the majority of the Court of Appeal in the instant case accepted
    that they had no right to review the Attorney-General's refusal of consent to
    a relator action, they inconsistently held that where the proposed civil action
    aims at upholding the criminal law they can review such refusal and are free
    to express the view, for example, that " there is no discernible reason why
    " threatened breaches of the criminal law should not be declared illegal and
    " possibly restrained " (per Lawton, LJ. at 340 C), and, having done so, to
    allow the private citizen to proceed. Such a conclusion strikes at the roots
    of the Attorney-General's unique role, and it is backed by no more authority
    than that available to support the view expressed obiter in McWhirter's case
    (ante) that a private citizen may act if the Attorney-General unreasonably
    delays in giving his consent or refuses it in what was there described as " a
    " proper case ". It should be added that none of the circumstances there
    predicated have been shown to exist in the present case. And the trouble
    about opening that particular door is that it involves proceeding upon the
    basis that the Attorney-General is in no better position than any other citizen
    to decide what is best in the public interest. That is a mistake, as Pearce L.J.
    demonstrated in Attorney-General v. Harris (ante, at p. 92), for he frequently
    has sources of information not generally available and must bear in mind
    considerations which may be undervalued when one considers injury to the
    public merely in terms of immediate injury ; see also Edwards, pp. 222-3.

    The law being perfectly clear, does the public interest require that it be
    changed? All three members of the Court of Appeal sternly condemned the
    Attorney-General's conduct. He had acted " contrary to the whole spirit of
    " the law of England ", and, by refusing to explain his refusal, he had made
    " a direct challenge to the rule of law ". So said Lord Denning, M.R. (pp.
    322 FG and 328 CD), quoting Baggallay, L.J., who had said in Attorney-
    General
    v. Great Eastern Railway Co. (1879) 11 Ch. D. 449, at 500, that—

    " It is the interest of the public that the law should in all respects be
    " respected and observed, and if the law is transgressed or threatened to
    " be transgressed ... it is the duty of the Attorney-General to take the
    " necessary steps to enforce it, nor does it make any difference whether he
    " sues ex officio, or at the instance of relators ".

    But it is not the law that every criminal act must lead to a prosecution
    (Buckoke v. G.L.C. [1971] Ch. 655, per Lord Denning, M.R., at 668 DH), and,
    even if it were, the Attorney-General is unquestionably entitled to halt pro-
    secutions in the manner already indicated. In other words, it is ultimately a
    matter for his unfettered discretion. The Court of Appeal regarded the
    manner of its exercise in the present case as so inexplicable that, in the words
    of Lawton, L.J. (320 EF), "... until such time as there is some explanation
    " as to why the Attorney-General did not intervene, 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 " And yet lip-service was paid to the proposition that the
    Attorney-General's exercise of his discretion cannot be reviewed by the courts.
    For my part, I venture to reiterate by way of a contrast the striking fact that
    my noble and learned friend, Viscount Dilhorne, has expressed the affirmative
    view that the Attorney-General may well have acted in the public interest in
    withholding his consent. This highlights the undesirability of making the
    matter one of disputation in the courts, instead of in Parliament.

    Accepting as I do that the Attorney-General's discretion is absolute and
    non-reviewable, there was accordingly, in my judgment, no basis upon which
    the plaintiff should have been granted the final injunction he sought. It
    remains to be considered whether he should have been granted any relief
    or whether, as the three defendants submit, the proceedings should have

    33

    been dismissed as showing no reasonable cause of action. I accordingly
    turn to the question of whether Mr. Gouriet established his right to
    declaratory relief or to interim injunctions.

    Declaratory relief

    Although he failed to get his final injunction, the Court of Appeal, on its
    own initiative granted Mr. Gouriet the following relief:

    Against the first defendant (U.P.W.): " A declaration that it would
    " be unlawful for the 1st defendant by itself, its servants, agents or
    " otherwise to solicit or endeavour 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 ".

    Against the second defendant (P.O.E.U.): "A declaration that it
    " would be unlawful for the 2nd defendant by itself its servants or
    " agents or otherwise to counsel or procure or incite in any way whatso-
    " ever any person in the employment of the Post Office wilfully or
    " negligently to omit or delay to transmit or deliver any message in the
    " course of transmission between England and Wales and the Republic
    " of South Africa or by any wilful or negligent act or omission to
    " prevent or delay the transmission or delivery of any such message ".

    Against the third defendant (the Attorney-General): " A declaration
    " that notwithstanding the refusal of the 3rd defendant to consent to
    " relator proceedings the plaintiff is entitled (a) to proceed with his
    " aforesaid applications for declarations and (b) pending the final
    " determination of his aforesaid applications to obtain relief by way of
    " interim injunction ".

    It was said during the hearing of these appeals that the first and second
    declarations were pointless, in that they merely repeated the wording of
    section 68 of the Post Office Act 1953, and section 45 of the Telegraph Act
    1863 and that their sole effect, accordingly, was to declare that ' The law is
    ' the law'. But that is not to say that, even so, they served no useful
    purpose in a situation where the general secretary of the first defendant had
    cast doubt upon the meaning and applicability of current statutes and where
    no contrary indication was given.

    But the primary question is: Had the court jurisdiction to make them?
    The answer given by the Attorney-General may be simply stated and has a
    familiar ring: Whenever public rights are in issue, the general rule is that
    relief may be sought only by, and granted solely at the request of the
    Attorney-General. There are certain exceptions to the general rule, but
    none of them applies here. For example, there are statutory exceptions,
    such as section 222 of the Local Government Act 1972 which enables a
    local authority to institute civil proceedings for the promotion or protection
    of the interests of the inhabitants of their area (see Solihull Metropolitan
    B.C.
    v. Maxfern Ltd. [1977] 1 W.L.R. 127). And there are the familiar
    common law exceptions to the general rule, dealt with by Buckley, J., in
    Boyce v. Paddington Borough Council [1903] 1 Ch. 109, at 114, where a
    private right has also been invaded or special damage suffered.

    For the plaintiff, it is urged that the power of the court to grant declaratory
    relief is extremely wide. Although the power was granted to the Court of
    Chancery by the Court of Chancery Procedure Act 1852' it was R.S.C. Order
    25, rule 5, which in 1883 for the first time enabled declaratory relief to be
    granted whether or not any consequential relief was sought or could have been
    granted. Although the power was at first exercised sparingly, it was recognised
    no later than 1899 that it was an "innovation of a very important kind"
    (per Lindley, M.R., Ellis v. Duke of Bedford [1899] 1 Ch. 494, at 515). The
    decision of this House in Institute of Patent Agents v. Lockwood [1894]
    A.C. 347 that it had no power to make the declaration sought in that case
    is no authority on the jurisdiction conferred on the English Courts by
    O- 25, r. 5, and the identically worded Order 15 rule 16, which succeeded it.
    The availability of declaratory (as also, indeed, of injunctive) relief should

    34

    be approached on the footing that they are remedies, analogous
    to prerogative orders, which are governed by no fixed technical rules as to
    locus standi or jurisdiction, the question being left solely to the discretion
    of the court. And it is clearly entitled to make a declaration notwithstanding
    that the issue on which it is asked to adjudicate is (as here) the construction
    and effect of a criminal statute. Thus, in outline, ran the general submissions
    for Mr. Gouriet on this aspect of the case.

    In considering it, one may usefully begin with Dyson v. A.-G. [1911] 1K.B.
    410, and [1912] 1 Ch. 158, the case most strongly relied upon for Mr. Gouriet.
    Professor de Smith regarded the decision as the turning point in the
    development of declaratory relief (ibid., 428) a remedy which Lord Atkin
    once described as " one of the most valuable contributions that the courts
    " have made to the commercial life of this country " (Spettabile Consorzio
    Veneziano etc.
    v. Northumberland Shipbuilding Co. Ltd (1919) 121 L.T. 628
    at 635). Mr. Vinelott, Q.C., for the Attorney-General, on the other hand,
    stigmatised Dyson as a " red herring " introduced into these proceedings.
    Shortly stated, the facts were that the Commissioner of Inland Revenue issued
    to Dyson ( a taxpayer) a form and a notice requiring him under penalty to
    submit certain particulars. Relying on Ord. 25, r. 5, he sued the Attorney-
    General for declarations that the requisition was unauthorised and that he was
    under no obligation to comply with it inasmuch as it was ultra vires the
    Finance Act. The Court of Appeal granted the declarations sought, and
    Professor de Smith commented (ibid., 429), "... this was a case in which
    " the plaintiff had no ' cause of action ' that would have entitled him to any
    " other form of judicial relief; the threat to his interests created by the
    " unlawful demand that had been made upon him could be directly averted
    " only by the award of a binding declaration ". But it is noteworthy that
    the defendant against whom a declaration was sought was none other than
    the Attorney-General himself, concerning whom Cozens Hard, M.R., said
    ([1911] 1 K.B. at 415):

    " I start with this proposition, that the penalty which is threatened
    " to be enforced against the plaintiff is one which the Attorney-General
    " must sue for in this Court: Inland Revenue Regulations Act, 1890,
    " ss. 21 and 22. This suggests that the Attorney-General ought to be
    " liable to an action in so far as he threatens to enforce a penalty based
    " upon non-compliance with an unauthorised notice ".

    The fact is that, as Mr. Vinelott rightly submitted, Mr. Dyson (though only
    one among a very large number) had been threatened with penalties if he
    refused to comply with an invalid demand. He therefore had a special
    interest and thus a locus standi to institute what were, in effect, quia timet
    proceedings to protect his private rights, and this nonetheless because the
    different private rights of many others were similarly threatened. Dyson v.
    Attorney-General, in my judgment, does not justify the declaration granted
    on the Court of Appeal's initiative to Mr. Gouriet.

    While he is entitled to assert, on the authority of such further cases as
    Guaranty Trust v. Hannay [1915] 2 K.B. 536 and Eastham v. Newcastle
    United Football Club Ltd.
    [1964] 1 Ch. 413 that declaratory relief may be
    granted whether or not the plaintiff has a cause of action which might
    entitle him to consequential relief, the further submission advanced on
    Mr. Gouriet's behalf that every member of the public has a locus standi
    to apply for declarations through his public interest in having the law
    enforced is unsupported by any case cited to your Lordships, save the pre-
    viously cited observation of Lord Denning in McWhirter's case. On the
    contrary, of the three decisions quoted in Mr. Gouriet's printed case in
    support of his submissions, in Simmonds v. Newport, etc. Coal Co. [1921]
    1 K.B. 617 a mineworker successfully sought a declaration that he was
    entitled to have delivery of the statement containing detailed particulars
    of how his wages had been computed which under the Coal Mines Act,
    1911. mineowners were obliged to deliver at the peril of being fined in the
    event of defaulting; in Brownsea Haven Properties Ltd. v. Poole Corporation
    [1958] 1 Ch. 574 the owners of a hotel adjoining a certain road sought a
    declaration that an order made by the defendant corporation making it a

    35

    "one-way" street was ultra vires; and Thames Launches Ltd. v. Trinity
    House Corporation
    [1961] Ch. 197 related to declarations that on the true
    construction of the Pilotage Act 1913 the plaintiff company was entitled
    to navigate its vessels in the Port of London. In other words, in each case
    a declaration was sought in relation to a private right asserted by the
    suppliant for relief.

    L.P.T.B. v. Moscrop [1942] A.C. 332 is a conclusive authority against
    Mr. Gouriet's entitlement to declaratory relief. Mr. Moscrop, an employee
    of the London Passenger Transport Board, sought a declaration that certain
    conditions of his employment were unlawful. Rejecting that claim, Viscount
    Maugham said (at p. 344):

    " My Lords, I cannot call to mind any action for a declaration in
    " which (as in this case) the plaintiff claims no right for himself, but
    " seeks to deprive others of a right which does not interfere with his
    " liberty or his private rights ... It has been stated again and again,
    " and also in this House, that the jurisdiction to give a declaratory
    " judgment should be exercised ' with great care and jealousy' . . .
    " What special interest has the respondent to enable him to bring this
    " action? We are not here concerned with anything but his civil right,
    " if any, under the section. I think it plain that there has been no
    " interference with any private right of his, nor has he suffered special
    " damage peculiar to himself from the alleged breach ..."

    Lawton, L.J., said that the weighty opinions in Moscrop bore heavily upon
    him (339 B). But he concluded that they did not apply to the instant case,
    on the ground that, " what the plaintiff has asked this court to restrain
    " is a breach of the criminal law which will take away his own right to
    " use the facilities of the Post Office ". But as no such " right" exists,
    in my judgment the ratio decidendi of Moscrop applies in full force to this
    case. It was a decision of this House in complete conformity with a large
    body of long-established law, and it impels me to the conclusion that the
    plaintiff was entitled to none of the declarations granted and that his last-
    minute request for them should have been dismissed.

    Interim Injunctions

    Towards the end of a very long judgment, I seek to deal with this topic
    briefly. The stand taken in this regard by Lord Denning, M.R., was surely
    the only logical one; that is to say, if the plaintiff was entitled to injunctive
    relief at all, it should have been in a final form, failing which it should have
    been denied him in toto. Lawton LJ. apparently considered that section 14
    of the Trade Union and Labour Relations Act 1974 prohibited the court
    from granting a final injunction, but proceeded (339 CD), " If this court
    " has jurisdiction to grant the declaratory judgment for which the plaintiff
    " asks, I can see no difficulty about granting an interim injunction ", and
    Ormrod LJ. expressed himself similarly (346).

    The reliance by both learned Lords Justices on section 45(1) of the
    Supreme Court of Judicature (Consolidation) Act 1925 was, however, mis-
    placed, and created the startling situation that Mr. Gouriet was better off
    at the interlocutory stage than he could possibly have been at the conclusion
    of the proceedings. The provision by section 45(1), replacing section 25(8)
    of the Judicature Act 1873 and enabling the High Court to grant an injunc-
    tion " by an interlocutory order in all cases in which it appears to the court
    " to be just and convenient so to do ", dealt only with procedure and had
    nothing to do with jurisdiction. In North London Railway Co. v. Great
    Northern Railway Co.
    [1883] 11 QBD 30, Cotton LJ. said (at p. 39):

    " If it was intended to give the enormously increased power which it
    " is contended is given by this section "—section 25(8) of the 1873 Act—
    " it is remarkable that it empowers it to be done by interlocutory order.
    " It is said if it can be done by interlocutory order, of course it can be
    " done by a final order at the hearing of the cause or judgment; no
    " doubt that is true; but when the section only refers to interlocutory
    " orders and not to orders for injunction to be made at the hearing of

    36


    " the cause, is not the prima facie presumption that it did not intend to
    " give the right to an injunction to parties who before had no legal right
    " whatever, but simply to give to the Court, when dealing with legal
    " rights which were under its jurisdiction independently of this section,
    " power, if it should think it just or convenient, to superadd to what
    " would have been previously the remedy ... so that where there is
    " a legal right the Court may, without being hampered by its old rules,
    " grant an injunction where it is just or convenient to do so for the
    " purpose of protecting or asserting the legal rights of the parties."

    But the plaintiff having no legal right recognisable by the courts it follows
    that, however " convenient " to him the interim injunction were (and, indeed,
    despite their effectiveness, as events demonstrated), it has to be said that it
    was not " just" to grant them. The Court of Appeal was powerless in the
    matter, and erred in coming to the conclusion it did.

    Mr. Saville, Q.C., urged that, in any event and even assuming the existence
    of a general power to grant interim injunctions in such circumstances as
    those prevailing here, the second defendant (P.O.E.U.) was in a special
    position and that by virtue of section 17 of the Trade Union and Labour
    Acts, 1974-76, the court had no power to grant against them any inter-
    locutory injunction. This peripheral matter is being dealt with by others
    of your Lordships and I restrict myself to saying that I incline to accede
    to Mr. Saville's submission on this point and hold that for this additional
    reason also no interlocutory injunction should have been granted against the
    P.O.E.U. when the court sat on January 15th.

    This point naturally leads one to the final topic canvassed:

    The special position of Trade Unions

    Were it the case that Mr. Gouriet had, in general, a right to apply for the
    relief sought, the ultimate question is whether, even so, he would find himself
    barred by the special position of Trade Unions under our law. The Trade
    Union and Labour Relations Act 1974 provides by section 14 that—

    " (1).... no action in tort shall lie in respect of any act—
    " (a) alleged to have been done by or on behalf of a trade union
    " which is not a special register body .... against the union
    " .... in its own name, or against the trustees of the union
    " or against any members or officials of the union ....
    " on behalf of themselves and all other members of the union
    " . . . . "

    Section 29 of the Post Office Act 1969 further provides that no proceedings
    in tort shall lie against the Post Office, its officers and servants in relation to
    posts and telecommunications. It is hardly necessary to point out (a) that
    these provisions are not restricted to proceedings arising from or relating to a
    trade dispute, and (b) that they leave unaffected any liability of individual
    trade union members or officials to be proceeded against in relation to alleged
    breaches of the criminal law. Accordingly, had Mr. Gouriet proceeded
    by way of private prosecutions, the foregoing statutory provisions would
    have been irrelevant.

    Even were it the law that, despite the clear wording of section 9 (4) of
    the Post Office Act 1969 Mr. Gouriet possessed that " right to the facilities
    "provided by the Post Office" erroneously considered by Lawton and
    Ormrod, L. J J, to exist, any action to protect it or redress its breach is as much
    an " action in tort " as that brought in Ashby v. White (1703) 1 Smith's L.C.,
    13th Ed., 253 for interference with the plaintiff's right to vote at a Parlia-
    mentary election. It matters not that Mr. Gouriet, acting on legal advice,
    prudently abstained from adding a claim for damages to the relief sought,
    for in such cases " the law presumes damage " (per Lord Wright, M.R., in
    Nicholls v. Ely Beet Sugar Factory Ltd. [1936] Ch. 343, at 350.]


    37

    Conclusion

    The plaintiff is confronted by insurmountable difficulties. For either

    1. he is asserting a public right, which (since no private rights were invaded
      and he neither feared nor suffered any special damage in consequence) he cannot
      do without the concurrence of the Attorney-General in a relator action; or

    2. he is asserting a private right by means of an action in tort, and that is
      barred against the defendant trade unions by Section 14 of the Trades Union
      and Labour Relations Act 1974 and Section 29 of the Post Office Act
      1969.

    So clear and well-established is the law that those who regard it as ill
    serving the public interest must seek the aid of Parliament to remedy the
    position, for the massive and fundamental revision involved before such
    plaintiffs as Mr. Gouriet can be granted relief is beyond the proper capacity
    of your Lordships' House. We accordingly cannot accede to Mr. French's
    supplication to break the " mould ".

    For these reasons, I hold that the appeals of the Attorney-General and
    the two trade unions should be allowed and that of Mr. Gouriet dismis-
    sed.

    Lord Fraser of Tullybelton

    MY LORDS,

    These appeals raise a question of some constitutional importance as to
    whether the English courts have jurisdiction to entertain an action at the
    instance of a private person for an injunction to restrain threatened conduct
    because, and only because, it would constitute a criminal offence. The
    Attorney-General refused his consent to relator proceedings and the action
    has therefore been brought by the plaintiff, Mr. Gouriet, in his own name as
    a member of the public at large, not averring that the threatened conduct
    would cause him special damage or affect him in any way differently from
    any other private citizen who might wish to use the postal services between
    England and South Africa. He claims to be entitled to an injunction, or to a
    declaration, or to both, because he shares with every other citizen the right
    not to have those services interfered with by conduct that would be criminal.
    I shall assume for the moment that the plaintiff and other members of the
    public have a legal right to the services of the Post Office, although for
    reasons to be mentioned later I do not think that is correct.

    There are many reported decisions more or less adverse to Mr. Gouriet's
    contentions although we were referred to no decision that dealt exactly with
    the question that arises here. The general rule is that a private person
    is only entitled to sue in respect of interference with a public right if either
    there is also interference with a private right of his or the interference with
    the public right will inflict special damage on him—Boyce v. Paddington
    Borough Council
    [1903] 1 Ch. 109. And in Stockport District Waterworks
    Co.
    v. Manchester Corporation (1863) 9 Jurist 266, Lord Westbury L.C.
    referred, in a passage already quoted by my noble and learned friend Lord
    Wilberforce to the reasons why it is desirable " not to allow any private
    " individual to usurp the right of representing the public interest". There
    is also high authority to the effect that the Attorney General's decision
    whether or not to give his consent to relator proceedings in matters concerning
    the public is not subject to review by the courts—London County Council
    v. Attorney-General [1902] A.C. 165, 168, per Lord Halsbury. But if the
    court were to entertain an application for an injunction or a declaration in a
    matter of public interest, after the Attorney-General had refused his consent,
    it would be over-ruling his decision at least by implication, and if eventually
    it were to grant the application the over-ruling would be even plainer. The
    majority in the Court of Appeal accepted that Lord Halsbury's statement
    meant that the courts have no jurisdiction over the discretion of the Attorney-
    General whether he exercises it by giving or by withholding consent to relator

    38

    proceedings. That view of the law was not challenged in this House, and
    I think it is correct. It appears to me to provide strong support for the
    Attorney-General's contention in these appeals that he alone is entitled to
    represent the public interest.

    There have been a few cases in recent years in which the Attorney-General
    has obtained injunctions from the civil courts with the object of preventing
    criminal offences from being committed. In those cases the Attorney-
    General was acting to assert the interests of the public at large in seeing
    that Acts of Parliament are obeyed and the civil courts, at his invitation,
    came to the aid of the criminal courts for that purpose. Examples of such
    cases are Attorney-General v. Sharp [1931] 1 Ch. 121, Attorney-General v.
    Premier Line Limited [1932] 1 Ch. 303, Attorney-General v. Harris [1961]
    1 K.B. 74 and Attorney-General v. Bastow 1957 1 Q.B. 514. In all these
    cases the offenders had been repeatedly convicted of breaches of statutory
    provisions and they had continued their illegal conduct undeterred by the
    comparatively trivial penalties fixed by the statutes; that is to say the
    criminal law was being persistently and deliberately flouted. The position
    of the Attorney-General as representing the public interest was emphasised
    by the court and in Bastow, Devlin J., as he then was, said at page 519 that
    an injunction for breach of a public right could be granted by the court,
    " if the suit be by the Attorney-General, who is the only authority who has
    " a right to bring a civil suit upon the infringement of public rights." (my
    italics). In the Premier Line case Eve J., thought that if the action, which
    was for an injunction, had been commenced and prosecuted by the relator
    without the concurrence of the Attorney General it was " pretty clear " that
    he could not have succeeded. A case of a rather different type was Attorney-
    General v. Chaudry
    1971 1 W.L.R. 1614 where an injunction was granted in
    a relator action because of the urgent necessity of preventing the continued
    use of dangerous premises. In that case Lord Denning, M.R., at p. 1624
    said this:

    " Whenever Parliament has enacted a law and given a particular
    " remedy for the breach of it, such remedy being in an inferior court,
    " nevertheless the High Court always has reserve power to enforce the law
    " so enacted by way of an injunction or declaration or other suitable
    " remedy. The High Court has jurisdiction to ensure obedience to the
    " law whenever it is just and convenient so to do."

    If those words were intended to mean that the High Court had jurisdiction
    even in an action to which the Attorney-General was not a party, they were
    not necessary for a decision in that case, and in my opinion they were
    erroneous.

    Notwithstanding the authorities to which I have referred, it was argued on
    behalf of Mr. Gouriet that the court had jurisdiction to entertain an action
    such as this and that it ought now to exercise the jurisdiction for the first
    time. One argument relied on by the plaintiff, and accepted by Lord Denning
    M.R. in the Court of Appeal, was that where the Attorney-General will not
    take proceedings to obtain an injunction either ex proprio motu or ex
    relatione
    then, unless a member of the public can take proceedings himself,
    the courts are powerless to enforce the law. In my opinion this argument
    is fallacious because it overlooks the fact that the ordinary and primary
    means of enforcing the criminal law is by prosecuting an offender after he
    has committed an offence, and that the power of prosecution is in no way
    affected by the Attorney-General's refusal of consent to relator proceedings.
    The civil courts may indeed be powerless, in the absence of the Attorney-
    General's consent, to prevent, or attempt to prevent, the law from being
    broken, but the criminal courts retain their ordinary power to punish
    offenders.

    Moreover it cannot be assumed that an injunction, still less a declaration,
    will necessarily be obeyed when the penalities of the criminal law have
    failed or are thought likely to fail. On Saturday 15th January 1977, when
    the present case first came before the Court of Appeal, Lord Denning M.R
    thought that a breach of the law was " impending "([1977] 2 W.L.R. 318E)
    while Lawton L.J. at 319D and Ormrod L.J. at 321A thought that offences

    39

    had already been committed. It is immaterial for the present purpose which
    of those views were correct; whichever it was, there was no question of a
    repeated flouting of the law in defiance of convictions and the case is not
    in the same class as Harris and the others I have mentioned. As it
    happened the temporary injunction issued by the Court of Appeal on 15th
    January proved effective but it might not have done so. It did so probably
    because the threat to interfere with the mails had been accompanied by a
    statement by Mr. Tom Jackson, the General Secretary of the Postal Workers
    Union, the the law against interference dated from Queen Anne and had
    never been tested in the courts, the clear implication being that it was
    antiquated and of doubtful effect. Both the statement and the implication
    were plainly wrong and they were of course corrected by the Court of
    Appeal by reference to the Post Office Acts of 1953 and 1969 and the Tele-
    graph Act 1863. But it was not necessary to invoke the machinery of the
    courts to correct the statement; any person in authority could have clarified
    the legal position without difficulty. The temporary orders that were made
    on 15th January merely repeated the words of the Acts of Parliament, but
    it seems to me that an order which merely does that, without directly relating
    the words to the facts of the case, is not one that the court should pronounce.
    In the present case I recognize that it may have served a useful purpose by
    publicly and emphatically drawing attention to the terms of the Act but
    that is not the function of the courts. The only legal effect of the temporary
    injunction was to add the penalty for contempt of court to the penalty already
    existing under the Post Office Act 1953 for breach of section 68. I shall
    return in a moment to consider how far that is desirable. The present point
    is that the increased penalties could not guarantee that the law would be
    obeyed.

    The most substantial argument on behalf of the plaintiff was based upon an
    analogy between the alleged right of the private citizen to sue for an injunc-
    tion with the well established right of the private citizen to prosecute. Just as
    the Attorney-General's right and duty to prosecute after a crime has been
    committed does not exclude the private person's right to prosecute, so, it was
    said, his right to obtain an injunction to prevent a crime should not exclude
    the private person's right to an injunction. But the analogy is not exact
    because a private prosecution is always subject to the control of the Attorney-
    General through his power to enter a nolle prosequi, or to call in any private
    prosecution and then offer no evidence. By the exercise of these powers the
    Attorney-General can prevent the right of private prosecution being effectively
    exercised in any particular case. The need to obtain the Attorney-General's
    consent to relator proceedings is the means of enabling the Attorney-General
    to exercise an equivalent control in the public interest over a private applica-
    tion for injunctions against crimes. In relator proceedings the Attorney-
    General is dominus litis; his right of control is not a fiction but it can be made
    effective at any stage of the proceedings—see Attorney-General v. Cocker-
    mouth Local Board
    (1874) 18 Eq. 172, 176. Accordingly this argument for
    the plaintiff which at first seemed formidable is in my opinion not well
    founded.

    Even if the analogy between private injunctions and private prosecutions
    had been closer than it is, I would have been reluctant to accept the argument
    for the plaintiff. The use of injunctions to prohibit conduct, solely because
    it is criminal, is quite a recent development and it is one which is not without
    its dangers. The effect of an injunction issued in such circumstances is to add
    a discretionary penalty for contempt of court to the criminal penalty, which in
    the case of a statutory offence will have been fixed by Parliament. Further,
    breach of an injunction will be dealt with in the civil court by the judge
    alone, whereas in the criminal court the accused may be entitled to be tried
    by a jury. In a case that attracts publicity, punishment for breach of interdict
    might prejudice a subsequent jury trial. Conversely, if an injunction were to
    be refused because the civil court considered that the threatened conduct
    would not be a criminal offence, a subsequent prosecution for the same con-
    duct might be inhibited although it would have been justified on its merits.
    There are thus powerful reasons of a procedural nature for keeping injunctions
    against criminal conduct as such within narrow limits.


    40

    It was submitted on behalf of the plaintiff that the absolute discretion of the
    Attorney-General was limited to applications which were frivolous, vexatious
    or oppressive and that in any case not falling into one of those classes his
    discretion could be overruled by the courts. There is no authority for such
    severe limitation of his discretion, and in fact it would leave him no real
    discretion at all since the courts would in any event be bound to refuse such
    applications. It was faintly suggested that the jurisdiction of the court in such
    matters was comparable to the jurisdiction of the High Court of Justiciary in
    Scotland which can allow private prosecution without the concurrence of the
    Lord Advocate where such concurrence has been refused, see J. & P. Coats
    Limited
    v. Brown 1909 S.C. (J) 29. But there is no analogy, because the
    essential basis of the High Court's jurisdiction is that the crime alleged is a
    wrong towards the private prosecutor—see per Lord Justice-Clerk at p. 34.
    The only case in which jurisdiction has been asserted to entertain an action
    for induction or declaration in the public interest by a private person without
    the concurrence of the Attorney-General seems to be the Attorney-General
    ex rel. McWhirter
    v. Independent Broadcasting Authority [1973] 1 Q.B. 629.
    In my opinion there was no jurisdiction to grant the temporary injunction in
    that case, because at the stage when the temporary injunction was granted the
    Attorney-General had not given his consent to relator proceedings. For the
    reasons that I have given, I think that the majority of the Court of Appeal
    (Lawton LJ. and Ormrod L.J.) were right in holding, as they did, that the
    court had no jurisdiction to make orders for final injunctions as claimed in
    these proceedings. But all the members of the Court of Appeal held that
    they had jurisdiction to make declaratory orders dealing with the same issues
    as had originally been raised in the claims for the injunctions. It is therefore
    necessary to consider whether there is any relevant difference between injunc-
    tions and declarations. Before turning to the declarations sought against
    the trade union defendants, I should mention that which was added by
    amendment against the Attorney-General. I doubt whether it is properly
    described as being " against" the Attorney-General, but as he has taken no
    objection to the form of the declaration it is unnecessary to consider it further.
    At least it has served a useful purpose in facilitating his appeal to this House.
    The form of the declarations claimed against the trade union defendants in
    the amended pleadings was also criticised on the ground that they did no
    more than repeat the words of the Post Office Act 1953, section 68, and the
    Telegraph Act 1863, section 45. This criticism was in my opinion justified
    and I do not think that declarations in the terms claimed could have been
    made. But the real objection to them rests on grounds more fundamenal than
    their form.

    So far as these declarations are concerned, I cannot see how the court could
    have jurisdiction to make them when it does not have jurisdiction to grant
    the injunctions. The objection to the jurisdiction in respect of the injunctions
    is not based upon the nature of the order that is sought but upon the funda-
    mental fact that Mr. Gouriet lacks any title to represent the public interest.
    He must be just as much a usurper when he asks, in the public interest, for
    a declaration as when he asks for an injunction. There is of course no doubt
    that when private rights are in issue the courts have very wide power to make
    declarations defining the parties' rights—see Guaranty Trust Company of
    New York
    v. Hannay and Company [1915] 2 K.B. 536, and Ibeneweka v.
    Egbuna [1964] 1 WLR 219, 225, where Lord Radcliffe accepted that the
    power of the court in such matters was " almost unlimited ". But that wide
    power cannot avail the plaintiff in these proceedings because his action is not
    concerned with defining his private rights ; if it were, the action would be
    in my opinion an action in tort and as it is directed against a trade union
    it would fail by reason of section 14 of the Trade Union and Labour Relations
    Act 1974. For that reason the plaintiff has expressly disclaimed any special
    interest and has sued simply as a member of the public. In the field of
    public rights I find confirmation in several of the cases that were cited to
    us for my view that there is no difference in the extent of the court's juris-
    diction in actions by private persons according to whether the action claims
    an injunction or a declaration. Thus in London Passenger Transport Board
    v. Moscrop [1942] A.C. 332, which began as an action for a declaration and


    41

    an injunction, but in which the Court of Appeal had made only a declaration,
    this House did not distinguish between the remedies when it held that the
    plaintiff could not sue without joining the Attorney-General—see especially
    Viscount Maugham at p. 345. Similarly, in Institute of Patent Agents v.
    Lockwood
    [1894] A.C. 347 the pursuers were held not entitled to bring the
    action and no distinction was drawn between the conclusions for declarator
    and interdict. Nor was any such distinction made in the Stockport District
    Waterworks
    case supra.

    The case of London Association of Shipowners and Brokers v. London and
    India Docks Joint Committee
    [1892] 3 Ch. 242, might at first sight appear
    to support a wider power to make declarations but that is not really so. All
    the learned judges who took part in the decision thought the plaintiffs would
    only be entitled to a declaration if their private rights were being injured
    or threatened—see Lindley LJ. at p. 258 to 259, Bowen LJ. at p. 261 and
    Kay LJ. at p. 273. The only member of the court who thought that private
    rights had been infringed was Kay L.J. and the other two Lords Justices dis-
    missed the action and made a declaration only because they considered that
    it would be useful to set out concessions made by the defendants. Except
    for that rather special case, all the cases cited to us where declarations con-
    cerned with public rights were made at the instance of private parties suing
    alone were cases in which either their private rights were affected or they had
    suffered special damage by the infringement of the public rights. In Dyson
    v. Attorney General [1911] 1 K.B. 410 that is less obvious than in some other
    cases but the true basis of the action is I think stated by Cozens-Hardy M.R.
    at p. 414 in the first paragraph of his opinion. The plaintiff claimed that a
    notice had been served upon him by the Commissioners of Inland Revenue
    requiring him to deliver certain returns within 30 days subject to a penalty.
    The plaintiff's case was that the requirement in the form was illegal and
    unauthorised and he claimed " a declaration that he is not under any obliga-
    " tion to comply with the notice." No doubt other taxpayers could have
    made the same claim but the plaintiff was merely asserting his own right, and
    he did not purport to be acting on behalf of the public. The contrast with
    the Scottish case of Torrie v. Duke of Atholl 1 Macqueen 65, is instructive.
    The pursuers were three members of the public who asserted a public right
    of way. It was held in the Court of Session and in the House of Lords that
    they had a title to sue the action just because the law of Scotland, unlike the
    law of England, provided no other way in which the matter could be brought
    to trial—see per Lord Ordinary at p. 66 and Lord Chancellor at p. 73. So
    far as it is relevant at all to the instant appeals it therefore tends to support
    the Attorney-General's case.

    The result is that in my opinion the plaintiff's main case both on the in-
    junctions and the declarations fails. The failure of his case on the declaration
    implies also that the interim injunction should not have been granted. He
    could only succeed if your Lordships were disposed to embark upon an
    extensive re-shaping of relator procedure and, even if that would be within
    our judicial powers, I would be against doing anything of the sort. It
    seems to me entirely appropriate that responsibility for deciding whether to
    initiate preventive proceedings for injunction or declaration in the public
    interest should be vested in a public officer, and for historical reasons that
    officer is the Attorney-General. It is well established that he is not bound
    to prosecute in every case where there is sufficient evidence, but that when a
    question of public policy may be involved the Attorney-General has the duty
    of deciding whether prosecution would be in the public interest, see the state-
    ment by Sir Hartley Shawcross in 1951 quoted in Edwards' The Law Officers
    of the Crown
    p.223. It seems even more necessary that similar consideration
    should be given to the public interest before initiating preventive procedure
    for injunction or declaration. Enforcement of the criminal law is of course
    a very important public interest, but it is not the only one, and may not
    always be the predominant one. There may be even more important reasons
    of public policy why such procedure should not be taken at a particular
    moment, and it must be proper for the Attorney-General (acting of course

    42

    not for party political advantage) to have regard to them. He may have
    information that there is a good prospect of averting the threatened illegal
    conduct by negotiation. Or he may know that the time would be particularly
    inopportune for a confrontation. Or he may regard it as essential to leave
    the way clear for subsequent prosecution before a jury. The information
    before him may be confidential and, even if it is not, it may not be widely
    available to the public. For reasons of that sort I would be against stretch-
    ing the law to allow a member of the public to launch preventive proceedings
    without the consent of the Attorney-General. If the Attorney-General were
    to commit a serious error of judgment by withholding consent to relator pro-
    ceedings in a case where he ought to have given it, the remedy must in
    my opinion lie in the political field by enforcing his responsibility to Parlia-
    ment and not in the legal field through the courts. That is appropriate
    because his error would not be an error of law but would be one of political
    judgment, using the expression of course not in a party sense but in the
    sense of weighing the relative importance of different aspects of the public
    interest. Such matters are not appropriate for decision in the courts.

    I wish to refer to two other matters. The first is the propriety or other-
    wise of the interim injunction that was granted on 15th January 1977 against
    the Post Office Engineering Union. That Union was not originally a de-
    fendant when the matter came before the Court of Appeal on that date, and
    no application had been made to the Attorney-General to consent to the
    relator proceedings against it. No intimation of the proceedings had been
    given to the P.O.E.U. The affidavits did not depose to any threatened offence
    by it and the only reason for bringing it in seems to have been a reference
    to it in an article from The Times which was produced with Mr. Gouriet's
    affidavit. In that state of circumstances the information was not in my
    opinion sufficient to justify the order for an interim injunction against the
    P.O.E.U. I reach this opinion without relying at all upon section 17(1) of
    the Trade Union and Labour Relations Act 1974. That section provides
    that in certain circumstances the court shall not grant an injunction against
    a party in his absence unless satisfied that all reasonable steps have been taken
    to give notice to the party. The circumstances, so far as material, are that
    the absent party claims " or in the opinion of the court would be likely to
    " claim, that he acted in contemplation or furtherance of a trade dispute
    "...". I appreciate that the defendant unions are now claiming that their
    action was in contemplation of a trade dispute, but on the facts as they
    were known to the Court of Appeal I do not think that the court ought to
    have anticipated that such a claim would be made, even having regard to
    the wide definition of a trade dispute in section 29 of the 1974 Act as
    extended by the Trade Union and Labour Relations (Amendment) Act 1976,
    section 1(1).

    The other matter is that the plaintiff has in my opinion no legal right
    enforceable by proceedings before any court to enjoy the services of the Post
    Office. That seems to me to follow from the provisions of section 9(4) and
    section 29(1) and (2) of the Post Office Act 1969.

    For these reasons I would allow the appeals of the Attorney-General and
    of the trade unions.

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