THE basic principle that government should be subject to the ordinary law of the land lies at the bottom of the law of government contracts,1 both in respect of contracts made with governmental bodies generally and in respect of contracts made with central government (the Crown) in particular. Prior to 1947 the fiat (or leave) of the Attorney-General had to be obtained by a litigant who wished to bring an action for breach of contract against the Crown, but this special procedural protection for the Crown was abolished by section 1 of the Crown Proceedings Act 1947. Section 17 of the Act overcomes technical obstacles to suit which may arise if the department of central government which the plaintiff wishes to sue is not strictly a legal person (that is, if it is not incorporated). The 1947 Act has, therefore, removed procedural obstacles to suing central government for breach of contract.
MAKING OF CONTRACTS
The traditional attitude of the English common law to the making of contracts2 is embodied in the phrase 'freedom of contract': parties are entitled, subject to any relevant legal limitations, to make what contracts they like with whomever they choose, or not to contract at all. This common law principle applies as much to governmental contracting parties as to private individuals; and it applies as much to the statutory contracting powers of governmental bodies generally as to the common law contracting power of the Crown. This laissez-faire approach of the common law has had some very important consequences. The first is that as a general principle, the common law contracting power of the Crown has traditionally not been subject to judicial review. In this respect, it____________________