The Weekly Law Reports 10 March 1995

386
|1995|

[QUEEN'S BENCH DIVISION] A

* R E G I N A v. S E C R E T A R Y O F S T A T E F O R F O R E I G N A N D
C O M M O N W E A L T H A F F A I R S , Ex parte W O R L D D E V E L O P M E N T
MOVEMENT LTD.

1994 Nov. 9, 10 Rose L.J. and Scott Baker J.

B
CrownMinisterStatutory powersProvision of assistance to overseas
countriesAid and trade provisionUnited Kingdom Government
offering financial assistance to build hydro-electric power station in
MalaysiaSecretary of State advised proposal uneconomic
Secretary of State authorising assistance because of earlier offer
Whether lawfulOverseas Development and Co-operation Act 1980
(c. 63), s. 1(1)
Judicial ReviewApplicant's interestGovernment ministerProvision *-
of aid to overseas countryClaim by a non-partisan pressure
group that minister acted unlawfullyWhether having "sufficient
interest"Whether discovery necessary for fair disposal of case
Whether time for applying for relief to be extendedSupreme
Court Act 1981 (c. 54), s.31(3)R.S.C, Ord 24, rr. 3, 8;
Ord. 53, r. 3(7)
In 1988 a British consortium sought aid and trade provision ^J
("A.T.P.") under section 1(1) of the Overseas Development and
Co-operation Act 1980' for a project to construct a hydro-electric
power station on the Pergau river identified by the Malaysian
Electricity Authority as a priority. In November the consortium
submitted a formal application with indicative costs of 315m. to
the Overseas Development Administration ("O.D.A."). In January
1989 they produced a firm contract proposal of 316m. with a
United Kingdom content of 195m. In early March 1989 an
O.D.A. appraisal mission sent to Malaysia reported back to
London, where the United Kingdom Government made an oral
offer to the Malaysian Government of A.T.P. support up to
68-25m. for the project, conditional on a full economic appraisal.
On 20 March the appraisal mission reported that at the
consortium's price of 316m., the economic viability of the project
was "marginal." On 31 March the consortium informed the F
O.D.A. that their budget estimate was 397m., and on 4 April
the O.D.A. minuted that the project was no longer marginal but
clearly uneconomic. On 17 April the United Kingdom Government
submitted to the Malaysian Government a formal written notice
of offer based on 316m. with an indication of willingness to
discuss the possibility of further assistance. In February 1990 the
O.D.A. completed a further economic appraisal which concluded Q
that at 397m. the project would be a "very bad buy" and a
burden on Malaysian consumers. Despite O.D.A. advice that the
project was an abuse of the aid programme in the terms that it
was an uneconomic project and was not a sound development
project, on 26 February the Secretary of State for Foreign and
Commonwealth Affairs, who took the view that withdrawal of
the offer already made would adversely affect the United
Kingdom's credibility, decided to approve A.T.P. support for the H
project and on 8 July the United Kingdom and Malaysian
Governments signed a financial agreement for A.T.P. support.
The applicants, a company limited by guarantee which acted as a
non-partisan pressure group dedicated to improving the quantity
and quality of British aid to other countries, sought an assurance
from the Secretary of State that no further funds for the project

1
Overseas Development and Co-operation Act 1980, s. 1(1): see post, p. 390E.
 The Weekly Law Reports 10 March 1995

1 W.L.R. Reg. v. Foreign Sec, Ex p. World Movement Ltd. (D.C.)

^ would be furnished, but he refused to give such an assurance. The
applicants sought judicial review of the Secretary of State's
decision to grant A.T.P. funding and to refuse to withhold
outstanding payments.
On the question whether the applicants had sufficient interest
within section 31(3) of the Supreme Court Act 19812 and R.S.C.,
Ord. 53, r. 3(7),3 and on the application:
Held, granting the application, (1) that since standing went to
B jurisdiction it was not to be treated as a preliminary issue but was
to be taken in the legal and factual context of the whole case;
that the merits of the challenge were an important, if not
dominant, factor when considering standing and that significant
factors pointing to the conclusion that the applicants had sufficient
interest within section 31(3) of the Supreme Court Act 1981 and
R.S.C., Ord. 53, r. 3(7) were the importance of vindicating the
P rule of law, the importance of the issue raised, the likely absence
of any other responsible challenger, the nature of the breach of.
duty against which relief was sought and the prominent role of
the applicants in giving advice, guidance and assistance regarding
aid (post, pp. 395E-396A, 403E).
Reg. v. Inland Revenue Commissioners, Ex parte National
Federation of Self-Employed and Small Businesses Ltd. [1982] A.C.
617, H.L.(E.); Reg. v. Secretary of State for Social Services,
D Ex parte Child Poverty Action Group [1990] 2 Q.B. 540, C.A. and
Reg. v. Secretary of State for Foreign and Commonwealth Affairs,
Ex parte Rees-Mogg [1994] Q.B. 552, D.C. applied.
(2) That it was for the court to determine on the evidence
whether particular conduct was within the purpose of the Act of
1980, but, once it was determined that the conduct was within the
statutory purpose, the weight to be given to competing factors
was a matter for the Secretary of State; that the power under the
k Act to furnish assistance related to economically sound
development, and where contemplated development was so
economically unsound that there was no economic argument in
its favour, there was no material distinction between questions of
propriety and regularity on the one hand and questions of
economy and efficiency of public expenditure on the other; that,
although the Secretary of State was fully entitled when making
p decisions whether to grant assistance under the Act of 1980 to
take into account political and economic considerations and to
consider the impact on the United Kingdom's credibility of
withdrawing an offer already made, on the evidence no
developmental promotion purpose within section 1 of the Act of
1980 existed in July 1991, and the Secretary of State's decision
was therefore unlawful; and that on the facts delay was no bar to
relief and in any event the general importance of the matter was
G good reason for extending time within R.S.C., Ord. 53, r. 4 and
delay provided no basis in itself for refusing relief under section
31(6) of the Supreme Court Act 1981 (post, pp. 401H^M)2A,
C ^ 0 3 A , B-C).
Per Rose L.J. Whilst discovery in judicial review proceedings
can be made under R.S.C., Ord. 24, r. 3, which will, by virtue of
Ord. 24, r. 8 be refused if it is not necessary for disposing of the
case fairly, the Secretary of State's letter to the Foreign Affairs
" Committee in conjunction with the summaries of the departmental
minutes exhibited in evidence provided an effective answer to the
claim for discovery and as there was no basis for questioning the
accuracy of the summaries, which was a necessary prerequisite
for obtaining discovery of original documents, discovery of the
minutes was not necessary (post, pp. 396B-C, 397F-H).
2
Supreme Court Act 1981, s. 31(3): see post, p. 392G.
3
R.S.C., Ord. 53, r. 3(7): see post, p. 392H.
 The Weekly Law Reports 10 March 1995

Reg. v. Foreign Sec, Ex p. World Movement Ltd. (D.C.) |1995|

The following cases are referred to in the judgments: A
Hanks v. Minister of Housing and Local Government [1963] 1 Q.B. 999; [1962]
3 W.L.R. 1482; [1963] 1 All E.R. 47
Reg. v. Governor of Brixton Prison, Ex parte Soblen [1963] 2 Q.B. 243; [1962]
3 W.L.R. 1154; [1962] 3 All E.R. 641, C.A.
Reg. v. Her Majesty's Treasury, Ex parte Smedley [1985] Q.B. 657; [1985]
2 W.L.R. 576; [1985] 1 All E.R. 589, C.A.
Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self- g
Employed and Small Businesses Ltd. [1982] A.C. 617; [1981] 2 W.L.R.
722; [1981] 2 All E.R. 93, H.L.(E.)
Reg. v. Inner London Education Authority, Ex parte Westminster City Council
[1986] 1 W.L.R. 28; [1986] 1 All E.R. 19
Reg. v. Inspectorate of Pollution, Ex parte Greenpeace Ltd. (No. 2) [1994]
4 All E.R. 329
Reg. v. Monopolies and Mergers Commission, Ex parte Argyll Group Pic. /-.
[1986] 1 W.L.R. 763; [1986] 2 All E.R. 257, C.A.
Reg. v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte
Rees-Mogg [1994] Q.B. 552; [1994] 2 W.L.R. 115; [1994] 1 All E.R. 457,
D.C.
Reg. v. Secretary of State for Social Services, Ex parte Child Poverty Action
Group [1990] 2 Q.B. 540; [1989] 3 W.L.R. 1116; [1989] 1 All E.R. 1047,
C.A.
Reg. v. Secretary of State for the Environment, Ex parte Islington London
Borough Council (unreported), 19 July 1991; Court of Appeal (Civil
Division) Transcript No. 761 of 1991, C.A.
Reg. v. Secretary of State for the Home Department, Ex parte Ruddock [1987]
1 W.L.R. 1482; [1987] 2 All E.R. 518

The following additional cases were cited in argument:

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] ^
1 K.B. 223; [1947] 2 All E.R. 680, C.A.
Bromley London Borough Council v. Greater London Council [1983] 1 A.C.
768; [1982] 2 W.L.R. 62; [1982] 1 All E.R. 129, C.A. and H.L.(E.)
Chief Constable of the North Wales Police v. Evans [1982] 1 W.L.R. 1155;
[1982] 3 All E.R. 141, H.L.(E.)
Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997; [1968]
2 W.L.R. 924; [1968] 1 All E.R. 694, C.A. and H.L.(E.) F
Pepper v. Hart [1993] A.C. 593; [1992] 3 W.L.R. 1032; [1993] 1 All E.R. 42,
H.L.(E.)
Reg. v. Ealing London Borough Council, Ex parte Times Newspapers Ltd.
(1986) 85 L.G.R. 316, D.C.
Reg. v. Essex County Council, Ex parte C. [1993] C.O.D. 398
Reg. v. Lord Chancellor, Ex parte Law Society, The Times, 25 June 1993,
D.C. G
Reg. v. Secretary of State for Education, Ex parte S., The Times, 26 January
1994; Sedley J.; The Times, 20 July 1994; Court of Appeal (Civil
Division) Transcript No. 959 of 1994, C.A.
Reg. v. Secretary of State for Education and Science, Ex parte Inner London
Education Authority (1985) 84 L.G.R. 454, D.C.
Reg. v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte
Ross-Clunis [1991] 2 A.C. 439; [1991] 3 W.L.R. 146; [1991] 3 All E.R. H
353, H.L.(E.)
Reg. v. Secretary of State for Health, Ex parte Hackney London Borough
Council (unreported), 20 April 1994, D.C.
Reg. v. Secretary of State for the Environment, Ex parte Hammersmith and
Fulham London Borough Council [1991] 1 A.C. 521; [1990] 3 W.L.R. 898;
[1990] 3 All E.R. 589, D . C , C.A. and H.L.(E.)
Reg. v. Secretary of State for the Environment, Ex parte Rose Theatre Trust
Co. [1990] 1 Q.B. 504; [1990] 2 W.L.R. 186; [1990] 1 All E.R. 754
 The Weekly Law Reports 10 March 1995
389
1 W.L.R. Reg. v. Foreign Sec, Ex p. World Movement Ltd. (D.C.)
A Reg. v. Secretary of State for the Home Department, Ex parte Brind [1991]
1 A.C. 696; [1991] 2 W.L.R. 588; [1991] 1 All E.R. 720, H.L.(E.)
Reg. v. Somerset County Council, Ex parte Fewings [1995] 1 All E.R. 513
Reg. v. Swale Borough Council and Medway Ports Authority, Ex parte Royal
Society for the Protection of Birds (1990) 2 Admin.L.R. 790
Rex v. Brighton Corporation, Ex parte Shoosmith (1907) 96 L.T. 762, C.A.
Save Britain's Heritage v. Number 1 Poultry Ltd. [1991] 1 W.L.R. 153; [1991]
B 2 All E.R. 10, H.L.(E.)
Sydney Municipal Council v. Campbell [1925] A.C. 338, P.C.
Westminster Corporation v. London and North Western Railway Co. [1905]
A.C. 426, H.L.(E.)

APPLICATION for judicial review.

By a notice of motion dated 24 June 1994 the World Development
Q Movement Ltd. applied pursuant to leave given by Auld J. on 24 June
1994 for judicial review of a decision by the Secretary of State for Foreign
and Commonwealth Affairs of 15 July 1991 to make a grant under the
Overseas Development and Co-operation Act 1980 in respect of the
funding of the Pergau Dam in Malaysia, and a decision of 29 April 1994
by which he refused to withhold outstanding payments made under that
Act to fund the building of the dam. The relief sought was orders of
D certiorari to bring up and quash those decisions, an order of prohibition
to prevent the Secretary of State from making further payments out of aid
funds for the Pergau Dam project, a declaration that the grant was and
payments made in pursuit of the decision were unlawful, and such further
or other relief as might be found just. The grounds upon which relief were
sought were, inter alia, that the Secretary of State decided, because of
commitments given by the United Kingdom Government to overrule a
recommendation by the Overseas Development Administration accounting
officer based on elaborate appraisal and which was supported by the
Minister for Overseas Development that providing funds for the Pergau
project would not be consistent with the prudent and economical
administration of the aid and trade provision, that the Public Accounts
Committee in its report of 30 March 1994 had presumed that expenditure
F on the project was regular and therefore complied with the relevant
legislation and sought confirmation that legal advice had been taken, that
the applicants had objected in writing to the Minister for Overseas
Development and in written evidence submitted in February 1994 to the
Foreign Affairs Committee that the Pergau project was funded only
because aid policy was subordinated to other commercial and foreign
Q policy priorities, that the Secretary of State, appearing before that
committee, gave in evidence as his reasons for overriding the advice and
assessments which were against going ahead with the grant the fact that
the Government had given its word and that there were real British
business interests at stake, and that on 29 March 1994 the applicant's
solicitor wrote to the Secretary of State seeking an assurance that no
further funds would be furnished for the project and that on 29 April he
H refused to give such an assurance.
The facts are stated in the judgment of Rose L.J.
Nigel Pleming Q. C. and Owen Davies for the applicants.
Stephen Richards for the Secretary of State.
ROSE L.J. There is before the court an application by the World
Development Movement Ltd. for judicial review of two decisions of the
 The Weekly Law Reports 10 March 1995
390
Rose L.J. Reg. v. Foreign Sec, Ex p. World Movement Ltd. (D.C.) |1995|

Secretary of State for Foreign and Commonwealth Affairs in relation to A

aid to fund the Pergau Dam in Malaysia. The initial decision to grant aid
was made on or shortly before 8 July 1991. The application refers to
15 July, which was the date of a press release in relation to the matter,
but nothing turns on the precise date.
In early 1994 there were proceedings in public before the House of
Commons Public Accounts Committee and Foreign Affairs Committee
which led the applicants' solicitors to seek an assurance from the Secretary "
of State that no further funds would be furnished. On 29 April 1994 the
Secretary of State refused to give such an assurance, and that is the second
decision which is challenged.
By the notice of motion the applicants seek to have both decisions
quashed and an order preventing further payments from being made. But
it may be that the applicants will be content with a declaration that the c
July 1991 decision to make a grant was unlawful.
In the course of the hearing before this court there have been four
issues: first, whether the applicants have standing to make the application;
secondly, whether disclosure should be ordered of two minutes from
Sir Tim Lankester, Permanent Secretary in the Overseas Development
Administration ("O.D.A."), to Baroness Chalker, the Minister of Overseas
Development, dated 5 and 7 February 1991; thirdly, whether the July 1991
decision was lawful; fourthly, what is the appropriate relief, if any, taking
delay into account. As to the second issue, the court refused disclosure
during the hearing and indicated that reasons would be given later.
Before addressing the issues, it is necessary to set them in the context
of the relevant legislation and the timetable of material events. Section 1(1)
of the Overseas Development and Co-operation Act 1980 is in these terms: E
"The Secretary of State shall have power, for the purpose of
promoting the development or maintaining the economy of a country
or territory outside the United Kingdom, or the welfare of its people,
to furnish any person or body with assistance, whether financial,
technical or of any other nature."
F
The subsection is ungrammatical in that it is unclear what verb is intended
to govern "welfare," and it appears that the word "of " has been omitted
after the word "development." But that is presently immaterial.
The argument before this court has centred on whether the grant in
question was "for the purpose of promoting the development" of Malaysia.
The relevant history is that, during the 1960s, the Malaysian
Government identified on the Pergau River a potential site for a hydro- ^
electric power station. In April 1988 an Australian company carried out a
feasibility study for a dam there. In September 1988 two British companies,
Balfour Beatty and G.E.C., indicated to the Department of Trade and
Industry ("D.T.I.") their interest in the site. In the autumn of 1988 the
Malaysian Electricity Authority identified the Pergau site as a priority. In
October 1988 the British consortium told the D.T.I, that they would be H
seeking, in relation to Pergau, aid and trade provision ("A.T.P."), which
accounts for about 5 per cent, of the overseas aid fund disbursable under
section 1 of the Act of 1990. In November 1988 the consortium submitted
a formal application for A.T.P. and gave "indicative costs" totalling
315m. to the O.D.A., and in January 1989 produced what was said by
the National Audit Office to be a "firm contract proposal" of 316m.,
with a United Kingdom content of 195m.
 The Weekly Law Reports 10 March 1995
391
1 W.L.R. Reg. v. Foreign Sec, Ex p. World Movement Ltd. (D.C.) Rose L.J.

A. In early 1989 the D.T.I, advised the O.D.A. to send an appraisal

mission to Malaysia. On 6 March 1989 the consortium repeated the figure
of 316m. From 13 to 15 March 1989 an O.D.A. appraisal mission was in
Malaysia, the brevity and timing of that mission being described later by
Sir Tim Lankester as "a lamentable slip." On 14 March there was a
telephone report to London from the appraisal mission. On 15 March the
then Prime Minister, Mrs. Thatcher, met Dr. Mahatir, the Prime Minister
" of Malaysia, in London and made an oral offer of A.T.P. support of up
to 68-25m. for the Pergau project, conditional on a full economic
appraisal. That figure was the O.E.C.D. minimum figure of 35 per cent.
of the 195m. portion of the total which was eligible for United Kingdom
and European Community official support.
On 20 March the appraisal mission reported that, at the consortium's
Q price of 316m., the economic viability of the project was "marginal." On
31 March the consortium informed the D.T.I, and O.D.A. that the
budgetary estimate of the Pergau project was 397m., that is 25 per cent.
higher than previously stated. On 14 April an O.D.A. economist minuted
that in the light of this figure "Pergau was no longer a marginal project:
clearly it now was uneconomic . . . "
On 17 April a formal written notice of the Pergau offer was sent to the
D Malaysian Government. Sir Tim Lankester described the position then
facing the United Kingdom as a "dilemma," presenting four options: (i) a
formal offer of 397m., which was inconceivable on the economic view
which had been taken; (ii) withdrawing the offer, which was politically
impossible; (iii) confirming an offer at 316m., which was not tenable in
view of the price rise; and (iv) making an offer based on 316m., but with
an indication of willingness to discuss the possibility of further assistance.
Option (iv) was chosen by ministers.
In February 1990 the O.D.A. completed a further economic appraisal
and concluded that the Pergau project would, at 397m., be "a very bad
buy," and a burden on Malaysian consumers. In April an O.D.A.
economist minuted that, on all available estimates, which included a
World Bank appraisal, Pergau appeared "markedly uneconomic." In
October 1990 the O.D.A. concluded that Pergau would not be an
economic proposition until the year 2005 at the earliest, and that
Malaysian consumers would pay 100m. more for their electricity over
Pergau's 35-year life than if cheaper alternatives were pursued. Sir Tim
Lankester was of the view that the Pergau project "was unequivocally a
bad one in economic terms."
G In January 1991 the O.D.A. completed a further economic appraisal
which priced the Pergau project at 417m., which would predicate A.T.P.
funding of 108m., and confirmed the conclusion that the project should
be postponed. On 5 February 1991 Sir Tim Lankester sent a minute to the
O.D.A. minister advising against proceeding. This minute described the
economic case against Pergau in the following terms:
H "this project should not be implemented for the foreseeable future.
There were much cheaper ways of producing electricity in Malaysia
for many years to come . . . this was not a marginal project such that
the economics could be readily set aside in favour of commercial and
political consideration. The proposed assistance of 108m. was by
any standards very substantial indeed. O.D.A. needed to look in all
its projects for a positive return to the recipient country's economy.
With such a large amount at stake, it was all the more important not
 The Weekly Law Reports 10 March 1995
392
Rose L.J. Reg. v. Foreign Sec, Ex p. World Movement Ltd. (D.C.) [19951

to finance knowingly a bad investment. Implementing Pergau now A

would impose a cost penalty to the Malaysian economy of over
100m., compared with alternative gas turbine projects. Thus, far
from aid contributing to the development of Malaysia, it would at
best be offsetting the extra cost of choosing Pergau."
On 7 February a further minute was sent by Sir Tim Lankester
requesting a specific ministerial direction, if there was to be expenditure B
on Pergau. That minute included the following, by reference to Sir Tim
Lankester:
"[He] . . . had looked again at the papers to see whether there were
any material counter arguments to be set against the clear economic
case against the project . . . he saw no serious counter arguments."
He concluded: C
"Supporting the project with aid funds would not in his view be
consistent with policy statements by ministers to Parliament about
the basic objectives of the aid programme and the way aid funds are
managed, which is also the context in which Parliament voted aid
moneys. Nor did the project meet well-established criteria by which
public investments should be assessed." D
The accounting officer's view was that the Pergau project was "an
abuse of the aid programme in the terms that this is an uneconomic
project" and that "it was not a sound development project."
On 26 February the Foreign Secretary, against that advice, took the
decision to approve A.T.P. support for the Pergau project and gave
the appropriate direction to Sir Tim Lankester on 4 July. On 8 July the E
United Kingdom and the Malaysian Governments signed the financial
agreements for A.T.P. support for the Pergau project. On 12 July the
Pergau contract was signed by the British consortium and the Malaysian
Electricity Authority. On 15 July there was a press release. It was headed:
"Britain provides 306m. soft loan to Malaysia." It referred to the project
"to design and construct a 600-megawatt hydro-electric power station on
the Pergau river." One of the notes for editors was in these terms:
"The soft loan will be part-financed from the British Aid and Trade
Provision (A.T.P.) which is designed to support development projects
which are of interest to British industry."
Later the cost to the United Kingdom rose to 234m.
I turn now to the issues earlier identified. As to standing, section 31(3) Q
of the Supreme Court Act 1981 provides:
"No application for judicial review shall be made unless the leave
of the High Court has been obtained in accordance with rules of
court; and the court shall not grant leave to make such an application
unless it considers that the applicant has a sufficient interest in the
matter to which the application relates."
H
R.S.C., Ord. 53, r. 3(7) provides: "The court shall not grant leave
unless it considers that the applicant has a sufficient interest in the matter
to which the application relates."
The affidavit of Mr. Jackson, the applicants' campaign co-ordinator,
describes the applicant company. It is a non-partisan pressure group, over
20 years old and limited by guarantee. It has an associated charity which
receives financial support from all the main United Kingdom development
 The Weekly Law Reports 10 March 1995
393
1 W.L.R. Reg. v. Foreign Sec, Ex p. World Movement Ltd. (D.C.) Rose L.J.
A charities, the churches, the European Community and a range of other
trusts. About 60 per cent, of its total income comes from members and
supporters. The council of the applicants has cross-political party
membership, and, indeed, historically, a Member of Parliament from each
of the three main political parties has sat on the council. There are 7,000
full voting members throughout the United Kingdom with a total
supporter base of some 13,000. There are 200 local groups whose
" supporters actively campaign through letter writing, lobbying and other
democratic means to improve the quantity and quality of British aid to
other countries. It conducts research and analysis in relation to aid. It is a
founder member of the Independent Group on British Aid, which brings
academics and campaigners together. It has pressed the British
Government, the European Union, the banks and other businesses for
Q better trade access for developing countries. It is in regular contact with
the O.D.A. and has regular meetings with the minister of that department,
and it makes written and oral submissions to a range of select committees
in both Houses of Parliament. It has run all-party campaigns against aid
cuts in 1987 and 1992.
Internationally, it has official consultative status with U.N.E.S.C.O.
and has promoted international conferences. It has brought together
D development groups with the O.E.C.D. It tends to attract citizens of the
United Kingdom concerned about the role of the United Kingdom
Government in relation to the development of countries abroad and the
relief of poverty abroad.
Its supporters have a direct interest in ensuring that funds furnished
by the United Kingdom are used for genuine purposes, and it seeks to
g ensure that disbursement of aid budgets is made where that aid is most
needed. It seeks, by this application, to represent the interests of people in
developing countries who might benefit from funds which otherwise might
go elsewhere.
If the applicants have no standing, it is said that no person or body
would ensure that powers under the Act of 1980 are exercised lawfully.
For the applicants, Mr. Pleming submitted that the respondent himself, in
^ a written statement of 2 March 1994, has expressly accepted that the
matter is "clearly of public and parliamentary interest." It cannot be said
that the applicants are "busybodies," "cranks" or "mischief-makers." They
are a non-partisan pressure group concerned with the misuse of aid
money. If there is a public law error, it is difficult to see how else it could
be challenged and corrected except by such an applicant. He referred the
G court to a number of authorities: Reg. v. Inland Revenue Commissioners,
Ex parte National Federation of Self-Employed and Small Businesses Ltd.
[1982] A.C. 617, in particular the speech of Lord Wilberforce, at p. 630E,
and the speech of Lord Diplock where there appears this passage, at
p. 644:
"It would, in my view, be a grave lacuna in our system of public
H law if a pressure group, like the federation, or even a single public-
spirited taxpayer, were prevented by outdated technical rules of locus
standi from bringing the matter to the attention of the court to
vindicate the rule of law and get the unlawful conduct stopped. The
Attorney-General, although he occasionally applies for prerogative
orders against public authorities that do not form part of
central government, in practice never does so against government
departments. It is not, in my view, a sufficient answer to say that
 The Weekly Law Reports 10 March 1995
394
Rose L.J. Reg. v. Foreign Sec., Ex p. World Movement Ltd. (D.C.) |1995|

judicial review of the actions of officers or departments of central A

government is unnecessary because they are accountable to Parliament
for the way in which they carry out their functions. They are
accountable to Parliament for what they do so far as regards efficiency
and policy, and of that Parliament is the only judge; they are
responsible to a court of justice for the lawfulness of what they do,
and of that the court is the only judge."
Mr. Pleming also referred to Reg. v. Monopolies and Mergers Commission,
Ex parte Argyll Group Pic. [1986] 1 W.L.R. 763. Sir John Donaldson M.R.,
when referring to the provision of Ord. 53, r. 3(7), said, at p. 773:
"The first stage test, which is applied upon the application for
leave, will lead to a refusal if the applicant has no interest whatsoever
and is, in truth, no more than a meddlesome busybody. If, however, Q
the application appears to be otherwise arguable and there is no other
discretionary bar, such as dilatoriness on the part of the applicant,
the applicant may expect to get leave to apply, leaving the test of
interest or standing to be re-applied as a matter of discretion on the
hearing of the substantive application. At this second stage, the
strength of the applicant's interest is one of the factors to be weighed
in the balance." D
There is a reference to Professor Wade's work on Administrative Law,
5th ed. (1982), pp. 587-591, to which I shall come later.
Mr. Pleming also referred to Reg. v. Secretary of State for Social
Services, Ex parte Child Poverty Action Group [1990] 2 Q.B. 540, where
that group were held to have a sufficient interest or standing. He referred
also to Reg. v. Inspectorate of Pollution, Ex parte Greenpeace Ltd. (No. 2)
[1994] 4 All E.R. 329, in particular to passages in the judgment of
Otton J., at pp. 350 and 351, which it is unnecessary to read. Finally on
this aspect, he invited the court's attention to Reg. v. Secretary of State
for Foreign and Commonwealth Affairs, Ex parte Rees-Mogg [1994] Q.B.
552, 562A, where Lloyd L.J. delivering the judgment of the Divisional
Court (comprised of himself, Mann L.J. and Auld J.), accepted that the F
applicant had standing "because of his sincere concern for constitutional
issues." The question of lawfulness being for the court, Mr. Pleming
submitted that the court in its discretion should accept the standing of the
applicants. If they cannot seek relief, he said, who can? Neither a
government nor citizen of a foreign country denied aid is, in practical
terms, likely to be able to bring such a challenge.
For the respondent, there is no evidential challenge to the applicants' "
standing. Mr. Richards made submissions on sufficiency of interest, not
with a view to preventing the court from considering the substantive issue
as to the validity of the decision, but because sufficiency of interest goes
to the court's jurisdiction: see per Woolf L.J. in Reg. v. Secretary of State
for Social Services, Ex parte Child Poverty Action Group [1990] 2 Q.B. 540,
556E-F. The applicants, Mr. Richards submitted, are at the outer limits of H
standing. He submitted, and indeed Mr. Pleming accepted, that neither
the applicants, nor any of its individual members, have any direct personal
interest in funding under the Act of 1980, but they seek to act in the
interest of potential recipients of aid overseas. Mr. Richards submitted
that this is too remote an interest to be sufficient, and he contrasted
Greenpeace members, some of whom, as Otton J. pointed out, were liable
to be personally directly affected by radioactive discharge.
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A Mr. Richards accepted that the requirements of standing will vary

from case to case and that the court may accord standing to someone who
would not otherwise qualify, where exceptionally grave or widespread
illegality is alleged. He referred in Reg. v. Inland Revenue Commissioners,
Ex parte National Federation of Self-Employed and Small Businesses Ltd.
[1982] A.C. 617 to that part of Lord Diplock's speech at p. 637D, which
shows that his comments, at p. 644E-G, which I have read are obiter. He
referred to the speeches of both Lord Wilberforce, at p. 633B, and Lord
Fraser of Tullybelton, at p. 646G, to the effect that a United Kingdom
taxpayer's interest, which is no more than that of taxpayers in general, is
insufficient to confer standing, save in an extreme case. If no United
Kingdom taxpayer could raise the matter, this not being an exceptional
case, the applicants, submitted Mr. Richards, cannot be in a better
Q position.
It is to be observed, in passing, that there are dicta since Ex parte
National Federation of Self-Employed and Small Businesses Ltd. which are
in favour of according standing to a single taxpayer in an appropriate
case: see Reg. v. Her Majesty's Treasury, Ex parte Smedley [1985] Q.B.
657, per Slade L.J., at 670B, and per John Donaldson M.R., at p. 667F.
There is, submitted Mr. Richards, "a certain tension" between what
D Lloyd L.J. said in Reg. v. Secretary of State for Foreign and Commonwealth
Affairs, Ex parte Rees-Mogg [1994] Q.B. 552, 562 and what Sir John
Donaldson M.R. said in Reg. v. Monopolies and Mergers Commission,
Ex parte Argyll Group Pic. [1986] 1 W.L.R. 763, 774A. The rules of
standing should not, submitted Mr. Richards, be allowed to evolve further
so as to embrace the applicants.
g For my part, I accept that standing (albeit decided in the exercise of
the court's discretion, as Sir John Donaldson M.R. said) goes to
jurisdiction, as Woolf L.J. said. But I find nothing in Reg. v. Inland
Revenue Commissioners, Ex parte National Federation of Self-Employed
and Small Businesses Ltd. [1982] A.C. 617 to deny standing to these
applicants. The authorities referred to seem to me to indicate an
increasingly liberal approach to standing on the part of the courts during
F the last 12 years. It is also clear from Ex parte National Federation of Self-
Employed and Small Businesses Ltd. that standing should not be treated as
a preliminary issue, but must be taken in the legal and factual context of
the whole case: see per Lord Wilberforce, at p. 630D, Lord Fraser, at
p. 6 4 5 D and Lord Scarman, at p. 653F.
Furthermore, the merits of the challenge are an important, if not
, dominant, factor when considering standing. In Professor Wade's words
in Administrative Law, 7th ed. (1994), p. 712: "the real question is whether
the applicant can show some substantial default or abuse, and not whether
his personal rights or interests are involved."
Leaving merits aside for a moment, there seem to me to be a number
of factors of significance in the present case: the importance of vindicating
the rule of law, as Lord Diplock emphasised [1982] A.C. 617; the
H importance of the issue raised, as in Ex parte Child Poverty Action Group
[1990] 2 Q.B. 540; the likely absence of any other responsible challenger,
as in Ex parte Child Poverty Action Group and Ex parte Greenpeace Ltd.
(No. 2) [1994] 4 All E.R. 329; the nature of the breach of duty against
which relief is sought (see per Lord Wilberforce, at p. 630D, in Ex parte
National Federation of Self-Employed and Small Businesses Ltd.); and the
prominent role of these applicants in giving advice, guidance and assistance
with regard to aid: see Ex parte Child Poverty Action Group [1990] 2 Q.B.
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540, 546H. All, in my judgment, point, in the present case, to the A

conclusion that the applicants here do have a sufficient interest in the
matter to which the application relates within section 31 (3) of the Supreme
Court Act 1981 and Ord. 53, r. 3(7).
It seems pertinent to add this, that if the Divisional Court in Ex parte
Rees-Mogg [1994] Q.B. 552, eight years after Ex parte Argyll Group Pic.
[1986] 1 W.L.R. 763, was able to accept that the applicant in that case
had standing in the light of his "sincere concerns for constitutional issues,"
a fortiori, it seems to me that the present applicants, with the national
and international expertise and interest in promoting and protecting aid
to underdeveloped nations, should have standing in the present application.
As to disclosure of the two minutes in February 1991, it was common
ground that in judicial review proceedings general discovery is not
available, as it is in a writ action under Ord. 24, rr. 1 and 2, that an C
application can be made under Ord. 24, r. 3, which by virtue of Ord. 24,
r. 8 will be refused if discovery is not necessary for disposing of the case
fairly, and that the judgments of the Court of Appeal in Reg. v. Secretary
of State for the Environment, Ex parte Islington London Borough Council
(unreported), 19 July 1991; Court of Appeal (Civil Division) Transcript
No. 761 of 1991 are pertinent. In that case, Dillon L.J. said: D
"In Reg. v. Secretary of State for the Home Department, Ex parte
Harrison, The Independent, 21 December 1987; Court of Appeal
(Civil Division) Transcript No. 1246 of 1987, this court . . . accepted
two submissions of Mr. Laws, which are referred to as his 'narrower
argument' and his 'wider argument.' The wider argument is stated to
have been that an applicant is not entitled to go behind an affidavit g
in order to seek to ascertain whether it is correct or not unless there
is some material available outside that contained in the affidavit to
suggest that in some material respect the affidavit is not accurate.
Without some prima facie case for suggesting that the affidavit is in
some respects incorrect it is improper to allow discovery of documents,
the only purpose of which would be to act as a challenge to the
accuracy of the affidavit. With that I would, in general, agreeand
indeed the decision binds us. But I would add the qualification that if
the affidavit only deals partially, and not sufficiently adequately, with
an issue it may be appropriate to order discovery to supplement the
affidavit, rather than to challenge its accuracy. That must depend on
the nature of the issue."
G
The narrower argument referred to in that passage is not relevant for
present purposes.
McCowan L.J. said:
"The second matter which emerges from the authorities is that
unless the applicant in judicial review is in a position to assert that
the evidence relied on by a minister is false, or at least inaccurate, it H
is inappropriate to grant discovery in order to allow the applicant to
check the accuracy of the evidence in question."
Mr. Pleming submitted that the evidence for the respondent in the
affidavit of the respondent himself, and of Mr. Manning, demonstrates,
particularly when compared with the far fuller summaries of the minutes
exhibited elsewhere in the evidence, that the affidavit summaries are at
 The Weekly Law Reports 10 March 1995
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A best incomplete, and at worst misleading. The material evidence is, in

these terms, in paragraph 4 of the Secretary of State's affidavit:
"The accounting officer of the Overseas Development Administration
told me that, given its price, the project was premature by several
years and that the extra cost of building it now could well exceed the
value of the large sum of British taxpayers' money which the project
g required."
Mr. Manning's affidavit at paragraph 35 is in these terms:
" . . . Sir Tim Lankester advised that the provision of aid funds for
Pergau would not be consistent with his responsibility to ensure that
aid funds were administered in a prudent and economic manner, and
that he would wish to have instruction from the minister or from the
C Secretary of State if O.D.A. were to incur expenditure on the project."
Mr Pleming submitted that it is no sufficient answer to a claim for
discovery to make a bare assertion that the summaries provided are
accurate and complete. The court should exercise its power, which is not
enjoyed by House of Commons committees, to compel disclosure. This,
he submitted, was not a fishing exercise or a "Micawber" application and
D discovery was sought in relation to only two documents. If the summary
of the minutes provided to the Foreign Affairs Committee was accurate
and complete, there was no reason why the minutes should not be
disclosed. If it was inaccurate, the minutes should be disclosed.
Mr. Richards, at the outset of his submissions, drew the court's
attention to the terms of a letter dated 11 May 1994, sent by the
respondent personally to the Foreign Affairs Committee, which contained
the unambiguous assurance that the summaries of the minutes which had
been provided to that committee and which are, or will be, exhibited to
affidavits before this court, are "full and accurate." He submitted that, in
the light of Ex parte Islington London Borough Council, there was no basis
for going behind the evidence or the summaries and looking at the minutes
themselves.
F In my judgment, although the affidavits of the respondent and of
Mr. Manning give manifestly incomplete summaries of the minutes (to
which indeed neither of them refers) and of the advice tendered to the
Secretary of State, the respondent's letter of 11 May 1994 provided, in the
circumstances of this case, an effective answer to the claim for discovery
when taken in conjunction with the summaries of the minutes exhibited
^ elsewhere in the evidence. There appeared no basis, looking at this total
picture, for questioning the accuracy of those summaries, which, in the
light of Ex parte Islington London Borough Council, seems to be a necessary
prerequisite for granting discovery of original documents. Furthermore,
the summaries, in my view, provided the applicants with highly valuable
ammunition to which it seemed unlikely that the minutes themselves
would materially add. I was, therefore, wholly unpersuaded that disclosure
H of these minutes was necessary for the fair disposal of the issues in this
case. It was for these reasons that we indicated at an earlier stage that
disclosure would not be ordered.
I turn to the merits of the substantive application. Mr. Pleming
submitted that the power conferred by section 1(1) of the Act of 1980 is
limited to the purpose imposed by the subsection, namely, in the present
circumstances, for promoting development. This, he submitted, is
concerned with the authorisation of assistance, not projects. The correct
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test is: did the Secretary of State decide to furnish the Malaysian A
Government with financial assistance for the purpose of promoting
development? Accordingly, he submitted, if aid is to be granted, projects
have to be "sound development projects." The Pergau Dam was not.
It is common ground that a power exercised outside the statutory
power is unlawful. This may be the consequence of an error of law in
misconstruing the limits of the exercise of the power, or because the
exercise is ultra vires, or because irrelevant factors were taken into
account.
In the present case Mr. Pleming submitted that the power to furnish
assistance is not absolute or unfettered, but could only be exercised to
advance the purposes for which it was conferred. The principle is correctly
summarised by Professor Wade in Administrative Law, 7th ed. (1994),
p. 413: "statutory powers, however, permissive, must be used with Q
scrupulous attention to their true purposes and for reasons which are
relevant and proper."
A political purpose can taint a decision with impropriety: see per
Glidewell J. in Reg. v. Inner London Education Authority, Ex parte
Westminster City Council [1986] 1 W.L.R. 28 and Reg. v. Governor of
Brixton Prison, Ex parte Soblen [1963] 2 Q.B. 243, 302, where
Lord Denning M.R. said, in relation to the decision to deport: D
"If it was done for an authorised purpose, it was lawful. If it was
done professedly for an authorised purpose, but in fact for a different
purpose with an ulterior object, it was unlawful."
In the present case, as Mr. Richards rightly points out, there is no
"professedly" improper purpose.
Before considering the way in which Mr. Pleming developed his
argument, it is convenient to set out the material parts of the respondent's
evidence on which he relied. The Secretary of State's affidavit deals with
matters in the second half of paragraph 2 and paragraphs 3 and 4, all of
which I will read:
"2. . . . In exercising these powers, careful consideration is
therefore given to whether a proposal for assistance does indeed F
promote one or more of these purposes. Subject to this, I also regard
it as perfectly properand indeed essential given my general
responsibilities as Secretary of Stateto take into account other
wider political and economic considerations, such as the promotion
of regional stability, good government, human rights or British
interests. ^
"3. . . . Throughout the decision-making process in which I was
involved, I considered that I was dealing with a development project,
that is to say a project whose purpose was to help Malaysia to carry
out its plans for addressing its energy needs and thus promote the
country's economic development. This was fundamental to my
thinking.
"4. In reaching a decision on the provision of assistance, I also H
had to take into account two additional considerations. On the one
hand, I was aware that formal offers of financial support had already
been madeand renewedto the Malaysian Government, which
clearly regarded this project as a key element of their programme for
addressing their substantial power requirements. I took the view that
the withdrawal of the offer to provide assistance would affect the
United Kingdom's credibility as a reliable friend and trading partner
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A and have adverse and far-reaching consequences for our political and
commercial relations with Malaysia. On the other hand, the price of
the project, on which the initial offer of aid was made, had risen
significantly."
There then follows a summary of the advice given to him, and then:
"This advice raised important questions of the economy and efficiency
B of public expenditure which I took fully into account in reaching my
decision. Neither he, nor any other official, advised me that there
would be any impropriety or illegality in providing assistance to the
project."
Mr. Manning's affidavit deals with the matter in paragraph 32:
"The Principal Finance Officer noted that according to methodol-
ogy which O.D.A. had developed for assessing projects, one might
contest whether Pergau would contribute to the development of
Malaysia, because of cheaper alternatives, and therefore whether the
financing of it was ultra vires the Overseas Development and Co-
operation Act. He believed however that that would be a difficult
position to sustain in legal terms for a power project which was likely
D to be successfully implemented in producing electricity for which
there was expected to be demand. In the view of the Principal Finance
Officer, it was important that the Secretary of State, in exercising his
powers under the Act, had in mind that the project would benefit
Malaysia in terms set out in section 1 of the Act. The Principal
Finance Officer concluded that, provided the Secretary of State did
so, he would not advise that expenditure on Pergau infringed the
E requirements of propriety or regularity, so long as Treasury authority
were obtained and proper estimates provision taken."
Paragraph 35 of Mr. Manning's affidavit I have already read.
Paragraph 36 is in these terms:
"As the Secretary of State informed the Foreign Affairs Committee
P in February 1994, legal advice was not sought by Sir Tim Lankester
or the Principal Finance Officer. Nevertheless, they carefully
considered the question of whether finance for the project would
offend against propriety and regularity, as well as against prudent
and economical administration, and concluded that it would not. No
suggestion was made by officials that any illegality would arise if
ministers were to approve the project."
/">
Mr. Pleming submitted that, in the light of that material, the Secretary
of State was motivated by purposes which were not permitted by the
statute, that his decision was made in reliance upon irrelevant facts and
matters and in defiance of relevant considerations and advice, in particular
to the effect that the project was not sound economic development and
was not made for a purpose within section 1. The crucial question, as it
H seems to me, is whether there was, indeed, a purpose within the Act of
1980.
Mr. Pleming drew attention to the rationale of the A.T.P. since its
inception in 1977, which has apparently been to provide finance for sound
development projects, which are also of commercial and industrial
importance to Britain. He submitted that it has not been suggested by the
Government, until this case, that financial aid can lawfully be given in
support of a project which does not satisfy the test of being sound
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economic development. He drew attention to the statement by the Minister A

for Overseas Aid to Parliament of February 1988, which refers to "sound
developmental projects," to the A.T.P. guidelines (applicable in 1991),
which refer to sound investments which are financially viable and likely to
bring economic benefits to the recipient country, and to the "Observations
by Government" in the second report of the Foreign Affairs Committee
1986 to 1987, where in paragraph 4 appears this: "There is one objective,
which is the promotion of development. This is . . . entirely compatible ^
with also serving political, industrial and commercial interests." In
paragraph 7 appears this: "We support activities which are technically
sound, financially viable and will bring economic benefits."
He referred also to the 1987 Public Expenditure White Paper which
referred to A.T.P. as being used to "help finance projects that are
economically, financially and technically sound and are also of industrial Q
and commercial importance to the United Kingdom." He referred to Sir
Tim Lankester's evidence to the Public Affairs Committee, that the
purpose of the A.T.P. programme is to support sound developmental
projects.
Financial assistance, submitted Mr. Pleming, does not promote
development if it is known to be a contribution to a project which does
not satisfy the test of sound economic development. The provision of D
economic goods, such as energy, regardless of cost and economic
soundness, is not by itself enough to constitute financial assistance for
"the purpose of promoting development." That this was Sir Tim
Lankester's view is, he submitted, supported by passages in the minutes of
5 and 7 February, which I have already read out. In particular,
Mr. Pleming placed emphasis on the words of the minute of 5 February, g
which reads: "far from aid contributing to the development of Malaysia,
it would at best be offsetting the extra cost of choosing Pergau."
In the minute of 7 February, Mr. Pleming stresses the words: "The
project was an abuse of the aid programme in the terms that this is an
uneconomic project."
It is not suggested, points out Mr. Pleming, by the respondent in his
affidavit, that Sir Tim Lankester's opinion and advice were other than F
correct. The provision of A.T.P. for a purpose known by the Government
not to be "sound economic development," submitted Mr. Pleming, could
not be within section 1, and, in the absence of any evidence that financial
assistance would be likely to promote development, there is no room for
any wider perspective, such as that which the Secretary of State refers to
having taken into consideration. The reason or motive, submitted ^
Mr. Pleming, was political or diplomatic, namely that the Prime Minister
had given an undertaking in March 1989 that Britain would provide
A.T.P. support, and to go back on that word would be detrimental to the
interests of Britain, British companies and British workers. Section 1,
submitted Mr. Pleming, confers no power to make decisions on such a
basis.
Mr. Richards submitted that the decision to furnish assistance in H
connection with the Pergau project fell squarely within the power conferred
by section 1(1). In particular: (a) it was furnished for a purpose specified,
namely a developmental purpose, and (b) the Secretary of State was
entitled to take account of wider political and economic considerations. It
is common ground that assistance must be furnished for the relevant
purpose. But, submitted Mr. Richards, there is no real distinction between
"assistance" and "project," because in the absence of exceptional features,
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A if the project is for promoting development, the assistance must be also.

It is also, it has to be said, common ground that a decision-maker can
take into account political and commercial considerations, provided that
there is a sufficient substantive power within section 1 of the Act of 1980.
Mr. Richards submitted that this decision was taken by the Secretary
of State personally and his thinking is of decisive importance in
determining the purpose for which the assistance was furnished. The
" Secretary of State plainly considered, from the terms of his affidavit, that
the assistance was for a developmental purpose, and he also took into
account additional considerations. Mr. Richards submitted further that
the applicant's argument that an unsound development cannot furnish a
purpose within section 1 should be rejected. First, because the word
"sound" does not appear in the Act. What the statute requires is a
C developmental purpose within the broad terms of section 1(1), and the
statutory power cannot be limited by the adoption of "soundness" by an
A.T.P. scheme or anything else. Secondly, submitted Mr. Richards, the
Secretary of State (the decision-maker) took the view that the project was
for a developmental purpose, and that Sir Tim Lankester's concerns raised
"important questions of the economy and efficiency of public expenditure."
_ The project was of undoubted benefit because it met a need for electricity,
and it does not negative a purpose within the section that that need could
have been met in other ways. He submitted that the Malaysian
Government were committed to the project, that the only effect of the
grant of aid was to bridge the gap between the cost of Pergau and other
cheaper means of generating electricity, and that this did not give rise to
a cost penalty. He referred to paragraph 32 of Mr. Manning's affidavit,
E which I have already read.
Mr. Richards further submitted that the sole purpose for which
assistance was furnished was the developmental purpose. The wider
political and economic considerations taken into account by the Secretary
of State were not "purposes" for which assistance was furnished, but were
"considerations" that the Secretary of State was entitled to take into
p account. Alternatively, if the wider "considerations" are to be regarded as
"purposes" for which assistance was furnished, the existence of subsidiary
purposes does not invalidate the decision, provided that those subsidiary
purposes are not themselves irrelevant considerations. As to this part of
Mr. Richards's submission, which, as he accepted, does not avail him
unless he succeeds in showing that there was a development purpose
within section 1, I confess to experiencing the same difficulty over
G semantics, which obviously troubled Megaw J. in Hanks v. Minister of
Housing and Local Government [1963] 1 Q.B. 999, 1020, and Glidewell J.
in Reg. v. Inner London Education Authority, Ex parte Westminister City
Council [1986] 1 W.L.R. 28. However, it is not disputed that the weight of
competing factors (or whatever noun is applied to them) is a matter for
the Secretary of State, once there is a purpose within section 1 of the Act.
H For my part, I am unable to accept Mr. Richards's submission that it
is the Secretary of State's thinking which is determinative of whether the
purpose was within the statute and that therefore paragraph 3 of his
affidavit is conclusive. Whatever the Secretary of State's intention or
purpose may have been, it is, as it seems to me, a matter for the courts
and not for the Secretary of State to determine whether, on the evidence
before the court, the particular conduct was, or was not, within the
statutory purpose.
Vol. I
19
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As to the absence of the word "sound" from section 1(1), it seems to A

me that, if Parliament had intended to confer a power to disburse money
for unsound developmental purposes, it could have been expected to say
so expressly. And I am comforted in this view by the way in which the
successive ministers, guidelines, Governments and White Papers, identified
by Mr. Pleming, have, over the years and without exception, construed
the power as relating to economically sound development. That also,
judging from his minutes, was the view of Sir Tim Lankester in 1991,
when he alone advised the Secretary of State. I add, parenthetically, that
I do not overlook paragraph 36 of Mr. Manning's affidavit, but there is
no affidavit before this court from Sir Tim Lankester.
As to Mr. Richards's submission that the dam was of undoubted
benefit because it met the need for electricity, this, as it seems to me, begs
the question of whether there was a need for energy generated at c
substantially greater cost than by any other means, and the Malaysian
Government's determination to go ahead with the scheme does not, as it
seems to me, advance the argument. Such a determination is no doubt a
necessary prerequisite for the granting of any overseas aid.
Accordingly, where, as here, the contemplated development is, on the
evidence, so economically unsound that there is no economic argument in
favour of the case, it is not, in my judgment, possible to draw any material
distinction between questions of propriety and regularity on the one hand
and questions of economy and efficiency of public expenditure on the
other. It may not be surprising that no suggestion of illegality was made
by any official, or that the Secretary of State was not advised that there
would, or might be, any illegality. No legal advice was ever sought.
The Secretary of State is, of course, generally speaking, fully entitled, E
when making decisions, to take into account political and economic
considerations such as the promotion of regional stability, good
government, human rights and British commercial interests. In the present
case, the political impossibility of withdrawing the 1989 offer has been
recognised since mid-April of that year, and had there, in 1991, been a
developmental promotion purpose within section 1 of the Act of 1980, it p
would have been entirely proper for the Secretary of State to have taken
into account, also, the impact which withdrawing the 1989 offer would
have had, both on the United Kingdom's credibility as a reliable friend
and trading partner and on political and commercial relations with
Malaysia. But for the reasons given, I am of the view, on the evidence
before this court, that there was, in July 1991, no such purpose within the
section. It follows that the July 1991 decision was, in my judgment, ^
unlawful. This, of course, serves to reinforce the conclusion already
indicated, that the applicants have standing.
The final question is as to relief. It is not suggested by Mr. Richards
that delay is a bar. That is unsurprising, as no press release was issued, as
is apparent, until after the relevant agreements had been signed. It was
not until earlier this year that material matters could be known to the H
applicants: Sir Tim Lankester gave evidence to the House of Commons
Public Accounts Committee on 17 January; the Secretary of State gave
evidence to the Foreign Affairs Committee on 2 March, and the
proceedings were instituted in April. In any event, the general importance
of the matter may itself be a reason for resolving the substantive issues,
even where there has been delay: see per Taylor J. in Reg. v. Secretary of
State for the Home Department, Ex part Ruddock [1987] 1 W.L.R. 1482.
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A For my part, I am entirely satisfied that there was good reason within
R.S.C., Ord. 53, r. 4 for extending time, and that the delay here provides
no basis in itself for refusing relief under section 31(6) of the Supreme
Court Act 1981. As I indicated at the outset, the applicants would
apparently be content with a declaration if the respondent agreed to take
appropriate steps to make good the deficiency in the overseas aid budget.
It is common ground, if Scott Baker J. agrees with my reasoning and
" conclusions, that unravelling of some sort will be necessary, but the precise
form of that unravelling is not a matter for the court. It was therefore
agreed, in the course of submissions, that discussions would take place
between parties and that further argument might be necessary as to the
form of relief.
For the moment, I content myself with saying that, for the reasons
Q given, I would grant a declaration that the challenged decision of the
Secretary of State for Foreign and Commonwealth Affairs in July 1991
was unlawful.

SCOTT BAKER J. I agree that, in making the grant, the Secretary of

State acted unlawfully and that this application should succeed for the
reasons given by Rose L.J.
D When the decision was made in July 1991, there was nothing in aid
terms to justify the use of public money for the Pergau project. The
Secretary of State's power to provide financial assistance under section
1(1) of the Overseas Development and Co-operation Act 1980 was not
triggered. Had it been, that would have brought into play the opportunity
for the Secretary of State to take into account political and wider
economic considerations, such as British commercial interests. But it was
not.
On the question of standing, I have had no difficulty in concluding
that the World Development Movement Ltd. has established a sufficient
interest to clothe the court with jurisdiction to hear this application.

Declaration granted with costs.

F Liberty to apply for further relief.
Leave to appeal refused.

Solicitors: Bindman & Partners; Treasury Solicitor.

[Reported by ALISON SYLVESTER, Barrister]

G