Monday, 2 September 2019

Notable cases (7) ~ M v Home Office

M v Home Office [1993] UKHL 5, [1993] 3 WLR 433, [1994] 1 AC 377 was decided by the House of Lords in 1993.  The appeal gave rise to issues of constitutional importance.  The case concerned the breach of an injunction requiring the return to the UK of M who had been removed to Zaire. A finding of contempt was made against the Home Secretary, then Mr Kenneth Baker MP, but only in his official capacity and not his personal capacity. For the first time, a Minister of the Crown was held in contempt of court.

The House of Lords (Lords Keith, Templeman, Griffiths, Browne-Wilkinson, Woolf) rejected the proposition that the courts did not have power to enforce the law against a Minister of the Crown. Applications for judicial review were not 'proceedings against the Crown' for the purposes of the Crown Proceedings Act 1947: accordingly injunctive relief against a Minister or officer of the Crown is available in judicial review.

The most detailed speech
was given by Lord Woolf but the speech of Lord Templeman provides a useful summary of the position:

"Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law. The expression "the Crown" has two meanings: namely the Monarch and the executive. In the 17th century Parliament established its supremacy over the Crown as Monarch, over the executive and over the judiciary. Parliamentary supremacy over the Crown as Monarch stems from the fact that the Monarch must accept the advice of a Prime Minister who is supported by a majority of Parliament. Parliamentary supremacy over the Crown as executive stems from the fact that Parliament maintains in office the Prime Minister who appoints the ministers in charge of the executive. Parliamentary supremacy over the judiciary is only exercisable by statute. The judiciary enforce the law against individuals, against institutions and against the executive. The judges cannot enforce the law against the Crown as Monarch because the Crown as Monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown. A litigant complaining of a breach of the law by the executive can sue the Crown as executive bringing his action against the minister who is responsible for the Department of State involved, in the present case the Secretary of State for Home Affairs. To enforce the law the courts have power to grant remedies including injunctions against a minister in his official capacity. If the minister has personally broken the law. the litigant can sue the minister, in this case Mr. Kenneth Baker, in his personal capacity. For the purpose of enforcing the law against all persons and institutions, including ministers in their official capacity and in their personal capacity, the courts are armed with coercive powers exercisable in proceedings for contempt of court.

In the present case, counsel for the Secretary of State argued that the judge could not enforce the law by injunction or contempt proceedings against the minister in his official capacity. Counsel also argued that in his personal capacity Mr. Kenneth Baker the Secretary of State for Home Affairs had not been guilty of contempt.

My Lords, the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War. For the reasons given by my noble and learned friend Lord Woolf and on principle, I am satisfied that injunctions and contempt proceedings may be brought against the minister in his official capacity and that in the present case the Home Office for which the Secretary of State was responsible was in contempt. I am also satisfied that Mr. Baker was throughout acting in his official capacity, on advice which he was entitled to accept and under a mistaken view as to the law. In these circumstances I do not consider that Mr. Baker personally was guilty of contempt. I would therefore dismiss this appeal substituting the Secretary of State for Home Affairs as being the person against whom the finding of contempt was made." [End of speech].

The case is also notable for the dictum by Lord Justice Nolan in the Court of Appeal - "The proper constitutional relationship of the executive and the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is."

No comments:

Post a comment