Saturday 23 June 2012

A matter of contempt

Another notable event this week was the finding by His Honour Judge Barry Cotter QC that the Home Secretary was in contempt of court for not abiding by an undertaking given to release a man (Mr Lamari) from a UK Detention Centre by a specified date.  The story can be read at UK Immigration Barristers.and see also the article in the Telegraph.

This is the second time in legal history that a Minister of the Crown has been held to be in contempt of court.  The first occasion was in 1991 when the Secretary of State for the Home Office was held in contempt.  (At the time, the office was held by Mr Kenneth Baker).  This led to the important constitutional law decision by the House of Lords in M v Home Office  [1994] 1 AC 377; [1993] UKHL 5 - Lords Keith, Templeman, Griffiths, Browne-Wilkinson and Woolf.

In M v Home Office [1994] 1 AC 377: M was deported in alleged breach of an undertaking by the Home Secretary’s counsel not to remove him, and was not returned in breach of a court order to return him.  The Home Secretary was of the opinion that this mandatory interim injunction against him (as an officer of the Crown) had been made without jurisdiction.  The House of Lords held that although the Crown’s immunity from injunctions had been preserved (Crown Proceedings Act 1947), the Courts have jurisdiction to grant mandatory interim injunctions in judicial review against officers of the Crown.  In consequence of the breach of this injunction, while the Crown cannot be held in contempt of court, a minister exercising his power on behalf of the Crown can be.

The leading judgment in the case was that of Lord Woolf but Lord Templeman made a speech offering interesting observations about the relationships between the Crown as Monarch, the Crown as Executive, Parliament and the courts.  Lord Templeman noted:  "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."

Of course, in practice, it is not necessarily the Home Secretary who personally makes all the decisions but the law emphasizes here that the constitutional responsibility for the department rests with the Minister.

It is also interesting to look back to 1993 and note that the Appellate Committee of the House of Lords comprised five only.  Today, in the UK Supreme Court, it is far from uncommon for seven to sit and particularly so when the case involves constitutional issues (e.g. the recent Assange case - discussed here and here).  Are these large courts necessary?  That is a question for future consideration! 

Judgment: Read the judgment of Barry Cotter QC who sat as a Deputy Judge of the High Court - The judgment.  

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