It will be obvious that the state of the law as to proceedings against the Crown is in need of reform. The decision of the courts in the famous case of Dyson v. the Attorney-General (1911)I K.B. 410 that a subject might apply directly to the courts, without recourse to a Petition of Right, for a "declaration," i.e., a "declaratory judgment," as to whether the Crown was illegally invading his rights (in that case the question was whether the plaintiff was bound, under penalty, to answer certain questions contained in "forms" issued by the Revenue authorities), and that the courts could declare the action of the Crown illegal, was a great victory for the rights of the subject. But that decision was specifically made subject to the qualification that no such declaration could issue where the proper remedy was by Petition of Right. The advocates of reform of the law have therefore directed their agitation to two things (I) that the subject should no longer be dependent on the grace of the Executive where he conceives himself to have what amounts to a cause of action against the Crown, but should be enabled to sue the Crown in the same way as he can sue a fellow-subject ; (2) that the Crown, thus made directly suable, should be liable in tort. In some of the dominions and colonies, most notably in the Australian Commonwealth, this reform has long been effected by statute. In Scotland the law is equally enlightened. In
consequence of the strong feeling on the subject, to which the courts themselves have often given public expression, a committee was appointed by the lord chancellor in 1921 to investigate the whole subject and, subsequently, to draft a Bill to reform the law.
It did not report till six years later, namely in 1927, when its report took the form of a "Crown Proceedings Bill" embodying, among other things, the two main principles of reform indicated above. The draft Bill, however, is open to two serious objections: it preserves the prerogative in the matter of "Discovery" and it applies and incorporates the vicious provisions of the Public Authorities Protection Act. None the less it marks a real advance. Unfortunately there appears, at the time of writing, no prospect of this measure being adopted by the Government and there is no doubt that the encroaching bureaucracy are bitterly opposed to it.
See J. H. Morgan, Remedies against the Crown (1926) ; W. S. Holdsworth, "History of Remedies against the Crown," in Law Quarterly Review, vol. 38, p. 280 ; G. S. Robertson, The Law and Practice of Civil Proceedings by and against the Crown and Depart ments of the Government (1908) ; W. Clode, The Law and Practice of Petition of Right under the Petitions of Right Act, 186o (1887) ; Crown Proceedings Committee Report, Cmd. 2,842 of 1927.
(J. H. Mo.)