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[HOUSE OF LORDS] |
In re M. |
[On appeal from M. v. HOME OFFICE] |
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Crown - Minister - Contempt of court - Applicant refused asylum - Application for leave to move for judicial review of decision to proceed with removal - Request to Home Office not to remove applicant pending hearing of application - Home Office's failure to prevent removal - Interlocutory order to return applicant to United Kingdom - Minister's decision not to comply with order - Whether minister or Home Office amenable to contempt jurisdiction - Whether minister's non-compliance with interlocutory order amounting to contempt |
Judicial Review - Crown - Injunctive relief - Applicant refused asylum - Application for leave to seek judicial review of decision to proceed with removal - Interlocutory order to return applicant to United Kingdom - Whether jurisdiction to grant |
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The applicant, a citizen of Zaire, came to the United Kingdom in September 1990 seeking political asylum. His claim was rejected by the Secretary of State, and in March 1991 his application for leave to move for judicial review of that decision was refused. He was notified that he would be removed to Zaire on the evening of 1 May 1991, and on that day, shortly before the time at which his removal was due to be effected, he made a renewed application to the Court of Appeal for leave to move. Immediately following the dismissal of the renewed application, fresh solicitors and counsel acting for him applied to the High Court for leave to move for judicial review on allegedly fresh grounds. Garland J. indicated that he wished the applicant's departure to be postponed pending consideration of the application, and he understood counsel for the Secretary of State to have given an undertaking to that effect. Counsel had no such instructions and did not appreciate that he had conveyed such an effect to the judge. Home Office officials concerned with the applicant's departure failed to disembark him or to intercept his onward flight from Paris to Zaire. During the night of 1 May, the judge, being informed of the applicant's removal, made an ex parte order requiring the Secretary of State forthwith to procure the applicant's return to the jurisdiction of the High Court and to ensure his safety pending such return. The order gave the Secretary of State liberty to apply to the judge on the morning of 2 May to vary or discharge the order. On notice of the order, Home Office officials made arrangements for the return of the applicant later that day. During the afternoon, the Secretary of State was informed of the situation. Being satisfied that the underlying decision as to asylum was correct, and in reliance on legal advice that the judge's order, being a mandatory interim injunction against an officer of the Crown, had been made without jurisdiction so that, rather than complying with it, he might apply for its discharge as soon as possible, he cancelled the return arrangements. On his application on 3 May, the judge set the order aside. In committal proceedings instituted by the applicant against the Home Office and the Secretary of State in respect of breaches of the undertaking not to remove him and of the order requiring his return, Simon Brown J. held that, since the Crown's immunity from injunction was preserved by section 21 of the Crown Proceedings Act 1947, neither it nor its departments, ministers or officials acting in the course of their duties could be impleaded for contempt of court. He accordingly dismissed the motion. The Court of Appeal by a majority allowed in part an appeal by the applicant, holding that the Secretary of State personally had been guilty of contempt. |
On appeal by the Secretary of State and cross-appeal by the applicant in respect of his application against the Home Office:- |
Held, dismissing the appeal and cross-appeal subject to variation of the order made by the Court of Appeal, (1) that even prior to the Crown Proceedings Act 1947 an action could be brought against an officer of the Crown personally in respect of a tort committed or authorised by him although he had been acting in his official capacity, and he had not been entitled to plead Crown immunity; that injunctions, including interlocutory injunctions, could be granted and that section 21 of the Act of 1947 did not prevent an injunction being granted in a situation in which it could have been granted prior to the Act; that, historically, orders of prohibition and mandamus had regularly been granted against the Crown or officers of the Crown acting in their official capacity and that section 31(2) of the Supreme Court Act 1981, on its natural interpretation, gave jurisdiction to the court on applications for judicial review to grant injunctions, including |
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interim injunctions, against ministers and other officers of the Crown, although that jurisdiction should only be exercised in limited circumstances; and that, accordingly, Garland J.'s order granting an interim injunction against the Secretary of State had been properly made (post, pp. 395A-B, D-396C, 409G-410A, 413B, 416A-B, 422E-F, H, 423E-F). |
Merricks v. Heathcoat-Amory [1955] Ch. 567 and Reg. v. Secretary of State for Transport, Ex parte Factortame Ltd. [1990] 2 A.C. 85, H.L.(E.) considered. |
(2) That, although a finding of contempt of court could not be made against the Crown directly, such a finding could be made against a government department or a minister of the Crown in his official capacity; that the finding should accord with the body against which the order breached had been made, which in the case of judicial review would normally be the minister; that, while a finding of contempt could be made against a minister personally where the contempt related to his own default, the injunction had appropriately been granted against the minister in his official capacity as Secretary of State for the Home Department and it was the department for which he was responsible that had been guilty of contempt; and that, accordingly, the Secretary of State for the Home Department should be substituted as being the person against whom the finding of contempt was made (post, pp. 395A, D-396C, 424D-E, 425E-426B, 427B-D, E-F). |
Decision of the Court of Appeal [1992] Q.B. 270; [1992] 2 W.L.R. 73; [1992] 4 All E.R. 97 varied. |
The following cases are referred to in the opinion of Lord Woolf: |
Adams v. Naylor [1946] A.C. 543; [1946] 2 All E.R. 241, H.L.(E.) |
Attorney-General v. Times Newspapers Ltd. [1992] 1 A.C. 191; [1991] 2 W.L.R. 994; [1991] 2 All E.R. 398, H.L.(E.) |
Company, In re A [1981] A.C. 374; [1980] 3 W.L.R. 181; [1980] 2 All E.R. 634, H.L.(E.) |
Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374; [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935, H.L.(E.) |
Harper v. Secretary of State for the Home Department, The Times, 18 December 1954; [1955] Ch. 238; [1955] 2 W.L.R. 316; [1955] 1 All E.R. 331, C.A. |
Isaacs v. Robertson [1985] A.C. 97; [1984] 3 W.L.R. 705; [1984] 3 All E.R. 140, P.C. |
Merricks v. Heathcoat-Amory [1955] Ch. 567; [1955] 3 W.L.R. 56; [1955] 2 All E.R. 453 |
Reg. v. Commissioners of Customs and Excise, Ex parte Cook [1970] 1 W.L.R. 450; [1970] 1 All E.R. 1068, D.C. |
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. Kensington and Chelsea Royal London Borough Council, Ex parte Hammell [1989] Q.B. 518; [1989] 2 W.L.R. 90; [1989] 1 All E.R. 1202, C.A. |
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Reg. v. Licensing Authority Established under Medicines Act 1968, Ex parte Smith Kline & French Laboratories Ltd. (No. 2) [1990] 1 Q.B. 574; [1989] 2 W.L.R 378; [1989] 2 All E.R. 113, C.A. |
Reg. v. Lords Commissioners of the Treasury (1872) L.R. 7 Q.B. 387 |
Reg v. Secretary of State for the Home Department, Ex parte Herbage [1987] Q.B. 872; [1986] 3 W.L.R. 504; [1986] 3 All E.R. 209 |
Reg v. Secretary of State for the Home Department, Ex parte Phansopkar [1976] Q.B. 606; [1975] 3 W.L.R. 322; [1975] 3 All E.R. 497, D.C. and C.A. |
Reg. v. Secretary of State for Transport, Ex parte Factortame Ltd. [1990] 2 A.C. 85; [1989] 2 W.L.R. 997; [1989] 2 All E.R. 692, H.L.(E.) |
Town Investments Ltd. v. Department of the Environment [1978] A.C. 359; [1977] 2 W.L.R. 450; [1977] 1 All E.R. 813, H.L.(E.) |
The following additional cases were cited in argument: |
Attorney-General v. Butterworth [1963] 1 Q.B. 696; [1962] 3 W.L.R. 819; [1962] 3 All E.R. 326, C.A. |
Attorney-General v. English [1983] 1 A.C. 116; [1982] 3 W.L.R. 278; [1982] 2 All E.R. 903, H.L.(E.) |
Attorney-General v. Newspaper Publishing Plc. [1988] Ch. 333; [1987] 3 W.L.R.942; [1987] 3 All E.R. 276, Sir Nicolas Browne-Wilkinson V.-C. and C.A. |
Attorney-General for New South Wales v. Trethowan (1931) 44 C.L.R. 394; [1932] A.C. 526, P.C. |
Bhatnager v. Canada (Minister of Employment & Immigration) (1988) 46 D.L.R. (4th) 1; (1990) 71 D.L.R. (4th) 84 |
Bhimji v. Chatwani [1991] 1 W.L.R. 989; [1991] 1 All E.R. 705 |
Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food [1986] Q.B. 716; [1985] 3 W.L.R. 1027; [1985] 3 All E.R. 585, C.A. |
British Medical Association v. Greater Glasgow Health Board [1989] A.C. 1211; [1989] 2 W.L.R. 660; [1989] 1 All E.R. 984, H.L.(Sc.) |
Carltona Ltd. v. Commissioners of Works [1943] 2 All E.R. 560, C.A. |
Chiltern District Council v. Keane [1985] 1 W.L.R. 619; [1985] 2 All E.R. 118, C.A. |
Conseil des Ports Nationaux, Le v. Langelier [1969] S.C.R. 60 |
Eshugbayi Eleko v. Officer Administering the Government of Nigeria [1931] A.C. 662, P.C. |
Hallmark Cards Inc. v. Image Arts Ltd. [1977] F.S.R. 150, C.A. |
International Railway Co. v. Niagara Parks Commission [1941] A.C. 328; [1941] 2 All E.R. 456, P.C. |
Istel (A. T. & T.) Ltd. v. Tully [1993] A.C. 45; [1992] 3 W.L.R. 344; [1992] 3 All E.R. 523, H.L.(E.) |
McGuinness v. Attorney-General of Victoria (1940) 63 C.L.R. 73 |
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Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] A.C. 133; [1973] 3 W.L.R. 164; [1973] 2 All E.R. 943, H.L.(E.) |
O. (Restraint Order: Disclosure of Assets), In re [1991] 2 Q.B. 520; [1991] 2 W.L.R. 475; [1991] 1 All E.R. 330, C.A. |
Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997; [1968] 2 W.L.R. 924; [1968] 1 All E.R. 694, H.L.(E.) |
Racz v. Home Office, The Times, 17 December 1992; Court of Appeal (Civil Division) Transcript No. 1206 of 1992, C.A. |
Raymond v. Honey [1983] 1 A.C. 1; [1982] 2 W.L.R. 465; [1982] 1 All E.R. 756, H.L.(E.) |
Rayner (J. H.) (Mincing Lane) Ltd. v. Department of Trade and Industry [1990] 2 A.C. 418; [1989] 3 W.L.R. 969; [1989] 3 All E.R. 523, H.L.(E.) |
Reg. v. Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 A.C. 58; [1991] 3 W.L.R. 340; [1991] 3 All E.R. 733, H.L.(E.) |
Reg. v. Governor of Brixton Prison, Ex parte Osman [1991] 1 W.L.R. 281; [1992] 1 All E.R. 108, D.C. |
Reg. v. Income Tax Special Purposes Commissioners (1888) 21 Q.B.D. 313, C.A. |
Reg. v. Inland Revenue Commissioners, Ex parte Rossminster Ltd. [1980] A.C. 952; [1980] 2 W.L.R. 1; [1980] 1 All E.R. 80, H.L.(E.) |
Reg. v. Lancashire County Council, Ex parte Huddleston [1986] 2 All E.R. 941, C.A. |
Reg. v. Odhams Press Ltd., Ex parte Attorney-General [1957] 1 Q.B. 73; [1956] 3 W.L.R. 796; [1956] 3 All E.R. 494, D.C. |
Reg. v. Secretary of State for the Environment, Ex parte Hackney London Borough Council [1983] 1 W.L.R. 524; [1983] 3 All E.R. 358, D.C.; [1984] 1 W.L.R. 592; [1984] 1 All E.R. 956, C.A. |
Reg. v. Secretary of State for the Home Department, Ex parte Bugdaycay [1987] A.C. 514; [1987] 2 W.L.R. 606; [1987] 1 All E.R. 940, H.L.(E.) |
Reg. v. Secretary of State for the Home Department, Ex parte Muboyayi [1992] Q.B. 244; [1991] 3 W.L.R. 442; [1991] 4 All E.R. 72, C.A. |
Reg. v. Secretary of State for Transport, Ex parte Factortame Ltd. (No. 2) (Case C 213/89) [1991] 1 A.C. 603; [1990] 3 W.L.R. 818; [1991] 1 All E.R. 70, E.C.J. and H.L.(E.) |
Rex v. Minister of Health, Ex parte Davis [1929] 1 K.B. 619, C.A. |
Rex v. Secretary of State for Home Affairs, Ex parte O'Brien [1923] 2 K.B. 361, C.A. |
Roncarelli v. Duplessis [1959] S.C.R. 121; 16 D.L.R. (2d) 689 |
Rowling v. Takaro Properties Ltd. [1988] A.C. 473; [1988] 2 W.L.R. 418; [1988] 1 All E.R. 163, P.C. |
Supply of Ready Mixed Concrete, In re [1992] Q.B. 213; [1991] 3 W.L.R. 707; [1991] 4 All E.R. 150, C.A. |
WEA Records Ltd. v. Visions Channel 4 Ltd. [1983] 1 W.L.R. 721; [1983] 2 All E.R. 589, C.A. |
Z Ltd. v. A-Z and AA-LL [1982] Q.B. 558; [1982] 2 W.L.R. 288; [1982] 1 All E.R. 556, C.A. |
APPEAL and CROSS-APPEAL from the Court of Appeal. |
These were an appeal by the third respondent, Kenneth Wilfred Baker, the former Secretary of State for the Home Department, and a cross-appeal by the applicant, M., by leave of the Court of Appeal (Lord |
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Donaldson of Lymington M.R., McCowan and Nolan L.JJ.) [1992] Q.B. 270 from their decision on 29 November 1991 allowing in part an appeal by M. from an order of Simon Brown J. made on 26 July 1991 (The Times, 5 August 1991) dismissing his motion to commit the first respondent, the Home Office, and Mr. Baker for contempt of court. The Court of Appeal allowed M.'s appeal to the extent of holding that Mr. Baker had been in contempt of court. |
The facts are stated in the opinion of Lord Woolf. |
As to the cross-appeal, there was a genuine misunderstanding and in the extraordinary circumstances of the case it would not be right to regard the Home Office or the Secretary of State as having been bound by an undertaking. |
There is, indeed, a basic inconsistency between the finding of personal liability, which presupposes that Mr. Baker was acting otherwise than in his then capacity as Secretary of State, and the observation by Lord Donaldson of Lymington M.R. [1992] Q.B. 270, 306 that he might be entitled to be indemnified out of public moneys in respect of the costs awarded against him "as at all times and in all respects he was acting as a minister." McCowan L.J., at p. 311D-E, was right in his conclusion "that it would be wrong to hold him personally in contempt." In any event, the majority of the Court of Appeal were plainly wrong to find Mr. Baker guilty of a criminal contempt on the facts. Such a contempt was not even |
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Section 25 of the Act of 1947 indicates by the width of its wording that the certification procedure is to apply to orders of any kind, to the extent that they can be made against the Crown (or a department or officer of the Crown) at all. The section evidences the plain assumption and intention of the legislature that compulsory or coercive process is not available as a means of securing enforcement of an order against the Crown and that the issue of a formal certificate is a sufficient step to ensure compliance. [Reference was made to section 13.] The disapplication of the normal methods of enforcing judgments and orders by R.S.C., Ord. 77, r. 15(1) correctly reflects not only the specific provision of section 25(4) of the Act of 1947 in relation to orders for the payment of money or costs but also the more general position that existed at common law prior to the Act and that the Act intended to keep in place. [Reference was made to section 28 and R.S.C., Ord. 24, r. 16(1)(2); Ord. 77, rr. 12, 15(1).] |
The Act of 1947 contains nothing to remove the Crown's historical immunity from contempt processs, and nothing even to suggest that the Crown may be liable in contempt. On the contrary, the assumption behind the Act is that the Crown cannot be so liable. The same assumption underlies the provision in R.S.C., Ord. 77, r. 15(1) that nothing in Order 52 (committal) shall apply in respect of any order against the Crown. It is indeed striking that the application in this case is one for which the rules make no provision whatsoever. It is also striking that, if all the material rules did apply, the application would be doomed to failure not just on the merits but also because enforcement of a mandatory order is dependent on there having been personal service of the order, duly indorsed with a penal notice, on the alleged contemnor: Ord. 45, rr. 5, 7. A question of jurisdiction cannot depend on a rule of court, but it is a necessary and |
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unsatisfactory part of M.'s argument that the rule-maker acted on a misapprehension of the court's powers with regard to contempt. |
That powers conferred on a Secretary of State are conferred on him not as a private individual but in his capacity as a representative of the Crown is also supported by the Interpretation Act 1978. By section 5 and Schedule 1, "Secretary of State" means one of Her Majesty's Principal Secretaries of State. That reflects the common law position whereby the office of Secretary of State is one, and each Secretary of State is capable of performing the duties of all or any of the departments of state. Functions are distributed to individual Secretaries of State by Order in Council pursuant to the Ministers of the Crown Act 1975. It is therefore plain that functions conferred by statute on the Secretary of State are functions vested in individuals in their personal capacity or in some other capacity distinct from that of the Crown. |
Accordingly, the relevant functions of the Secretary of State under the Immigration Act 1971 (see sections 3(2) and of rule 75 of the Statement of Changes in Immigration Rules (1990) (H.C. 251)) were vested in him in his capacity as a minister of the Crown. It was because he was acting in that capacity that injunctive relief was not available against him and, as M. conceded below, the order was therefore "irregular." Moreover, the proceedings and order, although in name against the Secretary of State, were directed in substance at the relevant government department, the Home Office. In those circumstances, it is self-contradictory to assert that the Home Secretary was to be distinguished from the Crown and treated as a separate person as regards amenability to the contempt jurisdiction. (Officials of the Home Department are not the Secretary of State's servants but independent servants of the Crown. The Secretary of State is not vicariously liable for their acts.) |
Ministers of the Crown acting in their capacity as such are amenable in practice to certain kinds of process that are compulsory in form, e.g., mandamus or prohibition or, in the context of Community law, an interlocutory injunction. It is impossible to effect a satisfactory reconciliation between the existence of such orders and the general immunity of the Crown from compulsory process, but they represent a pragmatic means of overcoming perceived procedural limitations. When such orders issue against ministers of the Crown in their capacity as such, they are not, and do not need to be, backed up by the coercive sanctions of the court's contempt jurisdiction. |
Although the prerogative writs and orders were not and are not generally available against the Crown, there has over time developed an exception whereby ministers of the Crown may in certain cases be |
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The development of the earlier case law concerning the issue of mandamus no doubt owes much to the fact that prior to the procedural changes in 1977 it was not possible to apply for a declaration in proceedings under the prerogative jurisdiction of the court, so that if, in proceedings for what was effectively judicial review, a minister was found to be in breach of a duty imposed on him the only possible remedy was an order of mandamus. As to other prerogative remedies, prohibition gives rise to the same considerations as mandamus; certiorari cannot in any case give rise to questions of contempt; and habeas corpus has been so underpinned by statute (in particular, the Habeas Corpus Acts 1640 (16 Car. 1, c. 10), 1679 (31 Car. 2, c. 2) and 1816 (56 Geo. 3, c. 100)) as to offer little guidance on the amenability of ministers of the Crown to process at common law. |
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however, the grant of the injunction does not presuppose the existence of contempt sanctions for non-compliance. Such an order will be respected by the Crown in the usual way and must indeed be respected if the United Kingdom is to comply with its obligations under the E.E.C. Treaties. The order is a means, in effect, of declaring the requirements of Community law ad interim and will be observed accordingly. A stay is not available by way of interim relief to restrain ministers of the Crown. The limitations on the availability of interim relief in proceedings for judicial review cannot properly be circumvented by the issue of a writ of habeas corpus. |
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If, pending even a prompt application to the court, the respondent to an order were to take action to frustrate the order, he would expose himself to liability in contempt even if he then succeeded in having the order set aside, but any such liability would be not for breach of the order (civil contempt) but for interfering with or impeding the administration of justice by acting so as to frustrate the purpose of the order (criminal contempt). |
Sydney Kentridge Q.C., Richard Scannell and Anthony Bradley for M. The immunity said to arise from the fact that Mr. Baker was acting in the capacity of Secretary of State or, being a minister of the Crown, was acting "as such," does not exist. It would be a constitutional solecism. Claims for it have not been made for a very long time, or with success. Yet Mr. Baker has had to concede that ministers are personally liable for criminal acts, wrongs and contempt. The distinction sought to be drawn is between a minister acting in his official and his personal capacities. In virtually every case in which Crown servants, including ministers, have been held personally liable for wrongful acts over the last 300 years, they were acting in their official capacity, and usually in good faith. The major error in the submissions of Mr. Baker is the claim that a minister or Secretary of State is two different persons. In reality, "Secretary of State for the Home Department" means simply the gentleman who holds that office at the particular time: one person. |
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In the 13th to 15th centuries there was no thought of the King having two capacities. He was a personal ruler, and the prerogatives were personal to him. This included the principle that he could not be sued in his own courts. However, he was never regarded as being above the law but was under a duty to obey the law and to do justice to his subjects, hence the petition of right procedure, the King allowing the subjects to sue him for |
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As to res judicata and issue estoppel, contempt proceedings by A against B do not just concern A and B. The true object of contempt proceedings is to vindicate the process of the court. Even if between the parties there is an issue estoppel, it cannot bind the court as to whether a |
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Whether anyone can be put in the dock if no injunctions lie against the Crown is a matter of punishment, not substance. Where a large department of state is alleged to have disobeyed an order of the court it is not always possible to identify the individuals responsible. If the department was in breach, a declaration to that effect would be appropriate. "The Crown" today is simply a name for the executive. The executive is not above the law. |
R.S.C., Ord. 77, r. 15 excludes the application of Orders 45 to 52 only against the Crown. Order 52, however, is not the source of the court's jurisdiction in committal proceedings, and Ord. 52, r. 9 makes it clear that individual ministers may be committed for contempt. The definition of civil proceedings by and against the Crown in Ord. 77, r. 1 is drawn from the Act of 1947. |
Section 13 of the Act of 1947 is purely procedural and abolishes the old procedures listed in Schedule 1; its effect is only to subject Crown proceedings to the ordinary rules of court. It cannot be read as excluding any recourse against the Crown aside from what is stated. The Parliamentary record indicates that the purpose of section 13 was to simplify procedure. |
Richards in reply. All the cases referred to in M.'s historical analysis were concerned with private rights and personal liability for wrongdoing by ministers. They cannot be carried across into the context of judicial review where the proceedings are against the minister in his official capacity as representative of the Crown. |
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Kentridge Q.C. The decision of the Federal Court of Appeal in Bhatnager was reversed in the Supreme Court of Canada (1990) 71 D.L.R. (4th) 84. |
Their Lordships took time for consideration. |
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27 July. LORD KEITH OF KINKEL. My Lords, I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Woolf. I agree with it, and for the reasons he gives would dismiss the appeal, while substituting the Secretary of State for Home Affairs for Mr. Baker personally as the subject of the finding of contempt. |
LORD TEMPLEMAN. My Lords, 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. |
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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. |
LORD GRIFFITHS. My Lords, I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Woolf. I agree with it, and for the reasons he gives would dismiss the appeal, while substituting the Secretary of State for Home Affairs for Mr. Baker personally as the subject of the finding of contempt. |
LORD BROWNE-WILKINSON. My Lords, for the reasons given in the speech of my noble and learned friend, Lord Woolf, I agree that this appeal should be dismissed, while substituting the Secretary of State for Home Affairs for Mr. Baker personally as the subject of the finding of contempt. |
LORD WOOLF. My Lords, this appeal gives rise to issues of constitutional importance. It is an appeal from a decision of the Court of Appeal [1992] Q.B. 270, which by a majority (Lord Donaldson of Lymington M.R. and Nolan L.J., McCowan L.J., dissenting) reversed a judgment of Simon Brown J. and decided that Mr. Kenneth Baker, when acting as Home Secretary, had been guilty of contempt of court. |
This was the first time that a minister of the Crown had been found to be in contempt by a court. The finding of contempt was made for not complying with an injunction granted by Garland J. ordering M., who had made a claim for asylum, which was rejected by the Home Office, to be returned to this country. The Court of Appeal did not regard the contempt as requiring any punishment of Mr. Baker other than that he pay the costs of the appeal and, in so far as they related to the proceedings brought against him, in the court below. The Court of Appeal did not allow the appeal of M. against the dismissal of his application that other respondents, including the Home Office, should also be found guilty of contempt. Mr. Kentridge, in his argument on behalf of M., made it clear that he would only seek to rely on a cross-appeal against the decision as to the Home Office if, contrary to his primary contention, the decision of the majority of the Court of Appeal was wrong in relation to the responsibility of Mr. Baker. |
Mr. Richards submits on behalf of the Home Office and on behalf of Mr. Baker that neither the Crown in general, nor a department of state, nor a minister of the Crown, acting in his capacity as such, are amenable to proceedings in contempt. It is a necessary part of that submission that the courts also have no power to grant injunctions directed to such bodies and that the order which was made by Garland J., which it was held by Simon Brown J. as well as the Court of Appeal that Mr. Baker had contravened, was made without jurisdiction. |
When advancing these submissions Mr. Richards stressed that it was no part of his case that the Crown or ministers are above the law or that |
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ministers are able to rely on their office so as to evade liability for wrongdoing. He argued that this was not a consequence of his submissions and he accepted that the Crown has a duty to obey the law as declared by the courts. He accepted that if a minister acted in disregard of the law as declared by the courts, or otherwise was engaged in wrongdoing, he would be acting outside his authority as a minister and so would expose himself to a personal liability for his wrongdoing. |
The fact that these issues have only now arisen for decision by the courts is confirmation that in ordinary circumstances ministers of the Crown and government departments invariably scrupulously observe decisions of the courts. Because of this, it is normally unnecessary for the courts to make an executory order against a minister or a government department since they will comply with any declaratory judgment made by the courts and pending the decision of the courts will not take any precipitous action. Mr. Richards submits that the circumstances which have given rise to the present proceedings are highly unusual and that the fact that Garland J. felt it necessary to grant an injunction was due to a series of mishaps and misunderstandings. Mr. Richards also submits that, irrespective of the answers to the legal issues, this is not a case in which it was appropriate to make a finding of contempt, since there was no question of Mr. Baker seeking to act in defiance of the court, nor was there any intention to interfere with or impede the administration of justice. Support for these submissions is provided by two comments of Lord Donaldson of Lymington M.R. in his judgment in the Court of Appeal, the first being made at the outset of his judgment when he said, at p. 284: "This case is remarkable for the chapter of accidents, mistakes and misunderstandings which has occurred." |
The second comment is part of the explanation which Lord Donaldson gave for concluding that, in the highly unusual circumstances of this case, Mr. Baker's responsibility for contempt fell at the lower end of the scale. The second comment is that Mr. Baker, at p. 306: "has disavowed any intention to act in defiance of an order of the court or to hold himself above the law, a disavowal which I fully accept." |
The sequence of events which led to the majority of the Court of Appeal coming to the conclusion that Mr. Baker was guilty of contempt is set out fully in the judgments of Simon Brown J. (unreported), 26 July 1991 and Lord Donaldson M.R. in the Court of Appeal. Although I will therefore summarise them as shortly as possible, I am afraid it is still necessary, especially in view of Mr. Richards' suggestion that it was unjust to find Mr. Baker guilty of contempt, to set out the events in some detail. |
The sequence of events |
M. is a citizen of Zaire. He arrived in the United Kingdom on 23 September 1990 and immediately claimed asylum. The claim was based on an allegation that he was a refugee within the meaning of the Geneva Convention relating to the Status of Refugees (1951) (Cmd. 9171). He was interviewed and he was informed that the Home Secretary was minded to refuse his claim to asylum by a letter of 16 November 1990 which explained the basis upon which this preliminary decision had been reached. |
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M. was then re-interviewed on 2 December 1990 and given an opportunity to comment upon the letter of 16 November 1990. His position was then reconsidered by the asylum division of the Home Office and on 17 December 1990 a letter was written to M. setting out that, his further comments having been considered, it was still not considered that he qualified for asylum under the terms of the Convention. |
The contents of the two letters make it reasonably clear that the decision to refuse asylum was due to the Home Office not accepting M.'s account of events which resulted in his seeking asylum. This account involved him claiming that he was a teacher in Zaire who had encouraged other teachers to take strike action which resulted in demonstrations by students at his school; that he was arrested for having organised the strike and detained for three days during which time he was whipped and beaten; and that a guard, who he believed had been bribed by his father, had then smuggled him into an aircraft bound for Lagos where he acquired a false Nigerian passport and a ticket for a flight to London. |
An application was then made for leave to apply for judicial review and as a result the directions which had been made for his removal by the Home Office, which had been set for 17 January 1991, were cancelled. The basis of the application for leave was that the Secretary of State had failed to consider certain facts. On 20 March 1991 the application was refused by Kennedy J. The removal directions were then scheduled for 28 March 1991. M. then promptly applied to renew his application for leave before the Court of Appeal, but his solicitors failed to file the appropriate documents and so the application was not listed. |
On 11 April 1991 M. was examined by a doctor from the Medical Foundation for the Care of Victims of Torture and he prepared a report dated 12 April 1991 which set out his opinion as follows: |
"I found nothing in his history or its presentation to suggest that it was in any way unreliable. His description of prison conditions has been confirmed innumerable times by other people who have experienced them. The scars he bears are entirely compatible with the causes he ascribes to them. He is suffering a degree of deafness and spinal trouble quite likely to have arisen from his mistreatment. Psychologically he describes symptoms very likely to arise from the experiences he described. He shows some evidence of depression and his continued detention can only aggravate these symptoms and he could easily become a serious suicide risk." |
Regrettably the report was not sent to the Home Office until 30 April 1991, the day before the latest time which had been set for M.'s removal, which was 6.30 p.m. on 1 May 1991. The Court of Appeal heard M.'s application by interrupting its normal work for that day during the afternoon of 1 May and at about 4.55 p.m. Lord Donaldson of Lymington M.R., sitting with Nicholls and Farquharson L.JJ., delivered a five-page judgment giving the Court of Appeal's reasons for unanimously refusing the application. Unbeknown to the Court of Appeal, arrangements were already being made for M. to change his solicitors from those who had represented him up to that time, including in the Court of Appeal, on the basis that his case was not being fully deployed by his existing legal |
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advisers. Outside the Court of Appeal, the new solicitors for M. and the counsel then instructed informed counsel for the Home Office and his instructing solicitor (Mr. David Palmer) that a fresh application for leave to apply for judicial review was to be made on M.'s behalf to Garland J., the judge in chambers, as it was outside normal court hours and there was no nominated Crown Office List judge available. It was indicated that the fresh grounds relied upon would include the availability of the medical report and the unreasonable reliance by the Home Office upon M.'s failure to apply for asylum in Nigeria. |
At about 5.25 p.m. on 1 May 1991 the hearing before Garland J. commenced. At that stage it was appreciated that M.'s aircraft was about to take off from Heathrow at 6 or 6.30 p.m. Having heard part of the argument, Garland J. not unnaturally took the view that the judge in chambers was not the proper tribunal to give leave to move for judicial review and that the obvious course was to adjourn the matter so that an application could be made the following day to a nominated judge. When it became apparent that Garland J. wished M.'s departure to be postponed Mr. Palmer telephoned the Home Office to convey the judge's wishes and told a senior executive officer at the Home Office that the judge had expressed the wish that M. should not be removed from the United Kingdom and asked him to do his best to ensure that the removal did not take place. This was at approximately 5.50 p.m. |
In the absence of Mr. Palmer a misunderstanding took place between counsel who was representing the Home Office and Garland J. Garland J. understood that he had been given an undertaking by counsel on behalf of the Home Office that M. would not be removed pending the making of an application the following morning. On that basis Garland J. refrained from granting leave and adjourned the application. However, counsel for the Home Office did not intend to give an undertaking and did not believe that he had done so. However, the order which was made in relation to the hearing recited the fact that |
"the application for leave to move for judicial review be adjourned on the undertaking by counsel for the Home Office . . . that the applicant would not be removed from the United Kingdom to Zaire." |
Unfortunately, through no one's fault, the steps which Mr. Palmer had set in motion to prevent M.'s removal were unsuccessful and at 6.30 p.m. the aircraft carrying M. commenced its departure for Zaire via Paris. The aircraft landed in Paris at 7.45 p.m. The plane on which M. was to continue his flight was not due to leave until 10.20 p.m. |
Prior to M.'s departure from Paris, numerous discussions took place between officials of the Home Office, a Member of Parliament who was intervening on M.'s behalf, his new solicitor and subsequently Mr. Peter Lloyd, the Parliamentary Under Secretary of State to the Home Office ("the minister"). The conversation which took place revealed a considerable confusion as to what was the precise situation. The Home Office officials and the minister were under the impression that the judge, whose identity they did not know, wanted M. to be returned. The view was taken that it would not be appropriate to intervene in Paris, but it was decided that the judge should be informed about the situation. The |
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Home Office officials were not able to contact a representative of the Treasury Solicitor and in fact although, subsequently, the identity of the judge was ascertained together with his telephone number, no one contacted him on behalf of the Home Office. |
No action was taken by the Home Office to prevent M. leaving Paris and at 10.40 p.m. the aircraft carrying M. and his escort departed from Paris. It is accepted that at that time the minister was ignorant of any undertaking, as opposed to an informal request, being given by the Home Office until it was too late to have secured M.'s return from Paris. |
At about 11.20 p.m. M.'s solicitor telephoned Garland J. at his home and informed him what had happened and that, on M.'s case, he would be exposed to a grave risk of persecution on his arrival in Zaire. Garland J.then made a mandatory order on the telephone requiring the Home Secretary to return M. to this country. The solicitor later at about 12.30 a.m. visited Garland J. at his home where the judge wrote out an order in the following terms: |
"Whereas at 17.55 hours on Wednesday, 1 May 1991, on an application to the judge in chambers for leave to move for judicial review of the determination that [M.] was not entitled to the status of refugee counsel for the Home Office . . . on instructions undertook to the court that [M.] would not be removed from the United Kingdom to Zaire pending an adjourned application for leave to move for judicial review so soon as possible on Thursday, 2 May 1991; and whereas the said undertaking was embodied in the order of the court adjourning the said application; and whereas it appears to the court that the said undertaking has been breached by the removal of [M.]; upon hearing Mr. David Burgess, solicitor, on behalf of the said [M.] it is ordered that the Secretary of State for the Home Department by himself, his servants or agents do forthwith procure that 1. The said [M.] be returned within the jurisdiction of this court, and further that: 2. pending the return of the said [M.] he be kept in the care of the servants or agents of the Secretary of State and/or of the servants or agents of Her Majesty's Government in Zaire until further order herein. 3. that the Secretary of State be at liberty to apply to vary or discharge this order at 10.30 a.m. on Thursday, 2 May 1991." |
Having obtained the order the solicitor first informed the Home Office of its contents on the telephone and subsequently faxed a copy to the chief immigration officer. At about 1.40 a.m., the minister's private secretary, who was by then aware of the terms of the order and had spoken to a representative of the Treasury Solicitor, contacted the resident clerk of the Foreign and Commonwealth Office and asked him to contact Kinshasa immediately and arrange for M. to be met on arrival by officials from the British Embassy, who should look after him and help him to return provided that he wanted to do so. However, it was not possible to contact the British Embassy until 7 a.m. the following morning. In the meantime the minister had been informed of what had been arranged. |
When the plane carrying M. arrived at the airport at Kinshasa he was not met and was presented by his escort to the Zaire immigration authorities. Shortly afterwards he was seen by an official of the embassy. |
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He told the official that he wished to return to London and he was booked on a flight due to leave Kinshasa at 9 p.m. that evening. His travel documents were taken for a return visa to be endorsed on them. |
No application was made to Garland J. at 10.30 a.m. on 2 May in accordance with the terms of the order, though a message was left with his clerk that the Home Office wished to make an application and would be in touch again as soon as possible. |
During the morning discussions took place between the minister and his officials but he concluded that the case raised issues of such importance that the instructions of the Secretary of State, Mr. Baker, should be sought. A meeting with Mr. Baker was arranged for 4 p.m. that afternoon which, having regard to his other commitments, was the earliest opportunity. At the beginning of the meeting Mr. Baker knew nothing about the case. What happened at the meeting is set out in a note which was taken by Mr. Baker's private secretary for which public interest immunity was exceptionally waived. The meeting was attended by the minister, an assistant under-secretary of the Immigration Department, a member of the Legal Department of the Home Office and the respective private secretaries. The note describes what happened as follows: |
"The Home Secretary discussed the case of [M.] with Mr. Lloyd, Mr. Platt, Mr. Osborne and Ms Spencer this afternoon. 2. Having read the facts of the case, as set out in your briefing note of 2 May, the Home Secretary asked the grounds on which officials proposed that the court order should be opposed. Mr. Osborne explained that Garland J. had exceeded his powers in making an order that [M.] should be returned directly from Zaire: it was a mandatory order against the Crown and was outside our jurisdiction. Treasury Solicitors [sic] were expected to confirm later this afternoon that the Home Office should appeal against the order and that [M.] should not be returned to Britain. Mr. Platt explained that, because [M.] would require a visa or some form of entry clearance to re-enter Britain, it would be extremely difficult to remove him if, as expected, we won the case. Mr. Lloyd was confident that the reasons for [M.s] removal still held good. The political difficulty was that the Home Office could be accused of having been dilatory in giving effect to the undertaking given by counsel to the judge. However, the undertaking had been that we would 'do our best' to delay [M.s] removal, and the chronology of events clearly demonstrated that we had fulfilled this undertaking. 3. The Home Secretary fully supported the action taken and, subject to Treasury Solicitors' [sic] advice, agreed in the present circumstances that [M.] should not be returned to Britain." |
In an affidavit prepared for the hearing in the Court of Appeal, Mr. Baker described how he came to his decision as follows: |
"two factors operated on my mind in particular: (1) The assurance which I received from Mr. Lloyd [Peter Lloyd M.P., Parliamentary Under Secretary of State at the Home Office, the minister responsible for immigration matters] that the underlying asylum decision in relation to [M.] was the right one; and (2) legal advice (subsequently confirmed by Treasury counsel) was to the effect that the order of |
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Garland J. was made without jurisdiction and that an application to set aside his order would be made at the first opportunity. I have to say that it was never suggested to me that my decision constituted contempt of court and my whole understanding was that in the circumstances it was perfectly in order for the Home Office to apply to set aside the order of Garland J. provided such application was prompt. I am sure that I never had it in contemplation to act in defiance of an order of the court, much less to hold myself above the law. If I am wrong in any of these conclusions or if the legal advice on which I acted was wrong, then it is a matter of sincere regret to me and I unreservedly apologise to the court." |
The note, in paragraph 3, is probably in error in referring to the "Treasury Solicitor's advice." What was probably intended was to refer to the advice of "Treasury counsel" with whom a conference took place at 5.15 p.m. At the conference counsel advised that, as the liberty to apply granted by the judge (although spent) itself indicated, the Home Office should have an opportunity to challenge the order made late the night before but that the Home Office should take that opportunity at the earliest practicable time; in the meantime the Home Office might reasonably hold its hand. As a result the booking for M.'s return flight was cancelled and arrangements were made for an application to be made to Garland J. at 9 a.m. on the following morning, 3 May. In the meantime M. was seen at Kinshasa airport by officials and informed that there was no urgent need for him to attend court proceedings in the United Kingdom. He was asked to remain in touch with the embassy. He wrote down two addresses which he gave to the officials as to where he could be contacted. Nothing was done to protect him in the meantime. |
In accordance with the arrangements which had been made, on 3 May the application was made to Garland J. to discharge the order that he had made. Though that application was opposed, Garland J. came to the conclusion that he had had no jurisdiction to make the order, but indicated that he had made the order: |
"on the basis not that I was granting a mandatory injunction against the Crown, which clearly I could not do, on authority, but that I was seeking to compel obedience of an undertaking freely given to the court and which to the court appeared to have been breached." |
Later the same day a further conference took place with counsel. As a result of that conference in the light of Garland J.'s holding that an undertaking had been received, a decision was taken by the minister to effect M.'s return to the United Kingdom. It proved impossible to contact M. at the addresses which he had given. He did eventually contact his solicitors from Nigeria and, although arrangements were made for his return from Nigeria, by the time those arrangements were made contact had been lost again and his whereabouts are now unknown. |
On 7 May 1991 proceedings were commenced on behalf of M. seeking to have the Home Office fined and Mr. Peter Lloyd M.P. committed to prison or fined for contempt of court in failing to comply with the order made on 2 May. The notice of motion was subsequently amended, to include a number of other claims including a claim against Mr. Baker. At |
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the commencement of the hearing before Simon Brown J. on 9 July, the only charges which were maintained were those against the Home Office and Mr. Baker. Simon Brown J. came to the conclusion that he had no power to make a finding that either the Home Office or the Home Secretary were guilty of contempt. He indicated that, if he had had such power, he would have found the Home Office in contempt in failing to prevent M. being put on the plane in Paris when they had had notice that an undertaking had been given to the court and of its terms. With regard to Mr. Baker, Simon Brown J. said: |
"Not without considerable hesitation, I have finally come to accept Mr. Laws' submission that, jurisdiction apart, it would be wrong to find the Secretary of State in contempt in the particular circumstances of this case. It is just not proved beyond reasonable doubt that he had a reasonable opportunity to decide to seek, and then in fact to seek, discharge prior to 9 a.m. on 3 May. It is not sufficient for the applicant to establish merely that in an ideal world things would have been ordered differently. A respondent to contempt proceedings is entitled to a reasonably benevolent construction of his actions and decisions following receipt of a mandatory order made apparently without jurisdiction, not least when, as here, these actions and decisions are being guided at every step by responsible legal advisers." |
Before Simon Brown J., Mr. Laws who was appearing for the Home Office and Mr. Baker, but who had not appeared before Garland J. when the alleged undertaking had been given, "did not feel it proper" to dispute that the undertaking had in fact been given. As to this aspect of the case in the Court of Appeal Lord Donaldson of Lymington M.R. said [1992] Q.B. 270, 298: |
"Whilst I understand and respect Mr. Laws' attitude, I do not think that it would be right for the court to shut its eyes to the wholly exceptional circumstances of this case. In any ordinary circumstances if a party, or solicitors or counsel on his behalf, so act as to convey to the court the firm conviction that an undertaking is being given, that party will be bound and it will be no answer that he did not think that he was giving it or that he was misunderstood. Here, however, the circumstances were extraordinary and the pressures of time overwhelming. It was a situation in which a misunderstanding was waiting to happen. If, as I think, it would not be right to regard the Home Office or the Home Secretary as being bound by an undertaking at a time when all concerned left court at the conclusion of the hearing before Garland J., this position could not be altered by Mr. Burgess [M.'s solicitor] informing Mr. George [the chief immigration officer] that an undertaking had been given. I do not, therefore, think that any question of contempt arises in this context. This is very far from saying that the Home Office can escape serious criticism. On any view the judge was informed that the Home Office would seek to prevent M. leaving the United Kingdom and I should have thought that it was implicit in this that, if this proved impossible, any other practicable means of preventing his reaching Zaire would be adopted. This was why Mr. Palmer left the court in order to |
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telephone to the Home Office before the proceedings had been concluded. Given greater efficiency and determination, I have no doubt that M. could probably have been prevented from leaving Heathrow and certainly he could have been returned to the United Kingdom from Paris. He was not unwilling and he was in the custody of the Home Office or its agents throughout the whole period ending with his arrival in Zaire." |
There is no reason for disagreeing with those criticisms. What does appear to me to be clear from the events which occurred on 1 and 2 May 1991 is that, if there is no power in a court to make an order to prevent the Home Office moving a person in any circumstances, this would be a highly unsatisfactory situation. The facts of this case illustrate that circumstances can occur where it is in the interests both of a person who is subject to the powers of government and of the government itself that the courts should be in a position to make an order which clearly sets out either what should or what should not be done by the government. If there had been no confusion in this case as to the extent of the court's power, I have little doubt that Mr. Baker would not find himself in his present position where he has been found guilty of contempt. |
Lord Donaldson of Lymington M.R., at p. 305, described Mr. Baker's contempt as "a very serious one" because he had taken |
"a deliberate decision which has the effect of ensuring that an order of the court, to whomsoever addressed, is not complied with, particularly when non-compliance could have had irremediable and even fatal consequences for M., for whose protection the order was made." |
He however added, at pp. 305-306: |
"Any contempt of court is a matter of the utmost seriousness, but the culpability of the contemnor can vary enormously. In the highly unusual circumstances of this case, Mr. Baker's culpability falls at the lower end of the scale for the following reasons. (1) He had no advance knowledge of M.'s case or of the court's order before 4 p.m. on 2 May. (2) He had very little time in which to decide upon his course of action. (3) He was advised, wrongly, that the court's order was made without jurisdiction and may have got the impression that it could be treated as a nullity. (4) Whether or not his advisers intended it, I think that he was left with the impression that he could properly delay action in compliance with the order until after the judge had decided whether or not to rescind it and that the cancellation of the return flight should be viewed as part of a decision by Mr. Baker to postpone action rather than to decline to take it. (5) His decision was expressly made subject to any advice which might be given by Treasury counsel. (6) He has disavowed any intention to act in defiance of an order of the court or to hold himself above the law, a disavowal which I fully accept. (7) He has expressed sincere regret if he acted wrongly, as undoubtedly he did." |
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Nolan L.J., at p. 314, regarded Mr. Baker as being in contempt because he |
"interfered with the administration of justice by completing the removal from the court's jurisdiction and protection of a litigant who was bringing proceedings against him." |
Injunctions and the Crown |
Mr. Kentridge placed at the forefront of his argument the issue as to whether the courts have jurisdiction to make coercive orders against the Crown or ministers of the Crown. It was appropriate for him to do so for at least two reasons. First, and more importantly, because whether the courts have or do not have such a coercive jurisdiction would be a strong indicator as to whether the courts had the jurisdiction to make a finding of contempt. If there were no power to make coercive orders, then the need to rely on the law of contempt for the purpose of enforcing the orders would rarely arise. The second reason is that, on the facts of this case, the issue is highly significant in determining the status of the order which Garland J. made and which it is alleged Mr. Baker breached. If that order was made without jurisdiction, then Mr. Richards would rely on this in support of his contention that Mr. Baker should not have been found guilty of contempt. As Mr. Richards admitted, the issue is of constitutional importance since it goes to the heart of the relationship between the executive and the courts. Is the relationship based, as he submits, on trust and co-operation or ultimately on coercion? |
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In deciding whether under domestic law interim relief should be granted Lord Bridge initially examined the position without reference to the involvement of a minister. He concluded that no relief could be granted since English law unassisted by Community law treated legislation as fully effective until it was set aside. Lord Bridge described the position in these words, at pp. 142-143: |
"But an order granting the applicants the interim relief which they seek will only serve their purpose if it declares that which Parliament has enacted to be the law from 1 December 1988, and to take effect in relation to vessels previously registered under the [Merchant Shipping Act] 1894 from 31 March 1989, not to be the law until some uncertain future date. Effective relief can only be given if it requires the Secretary of State to treat the applicants' vessels as entitled to registration under Part II of the Act in direct contravention of its provisions. Any such order, unlike any form of order for interim relief known to the law, would irreversibly determine in the applicants' favour for a period of some two years rights which are necessarily uncertain until the preliminary ruling of the E.C.J. has been given. If the applicants fail to establish the rights they claim before the E.C.J., the effect of the interim relief granted would be to have conferred upon them rights directly contrary to Parliament's sovereign will and correspondingly to have deprived British fishing vessels, as defined by Parliament, of the enjoyment of a substantial proportion of the United Kingdom quota of stocks of fish protected by the common fisheries policy. I am clearly of the opinion that, as a matter of English law, the court has no power to make an order which has these consequences." |
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Lord Bridge in determining the second issue acknowledged the importance of the relevant history in determining this issue and it is necessary for me to set out my understanding of that history. |
In support of their respective submissions as to the correct answer to this issue, Mr. Richards and Mr. Kentridge relied on principles which had been repeatedly reiterated down the centuries since medieval times. The principles on which Mr. Richards founded his argument are that the King can do no wrong and that the King cannot be sued in his own courts. Mr. Kentridge on the other hand relied on the equally historic principle which is intimately linked with the name of Professor Dicey that |
"when we speak of the 'rule of law' as a characteristic of our country, [we mean] not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any |
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private and unofficial person:" Dicey on the Law of the Constitution, 10th ed. (1959), pp. 193-194. |
"As the Sovereign cannot authorise wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown." |
However, difficulties did exist in relation to an action against an officer or servant of the Crown in an action for a tort. The officer or servant had to be identified. There could be no vicarious liability placed personally on an officer for the acts of other officers or servants of the Crown since the "employer" was the Crown. Only a servant who committed or authorised the commission of the wrong could be responsible. |
"So, if any of the defendants had themselves ordered or directed the alleged trespass now complained of by the plaintiffs, and it was in consequence of such order or direction that the alleged trespass took place, or if any of the defendants threatened to order or direct further trespass, then they could be sued. But in this case they could be sued not because, but in despite of the fact that they occupied official positions or acted as officials. In other words . . . the plaintiffs, in respect of the matters they are now complaining of, could sue any of the defendants individually for trespasses committed or threatened by them, but they could not sue the defendants officially or as an official body. The question . . . narrows itself down to this: Is the present action one against the defendants as an official body, or is it an action against them as individuals?" |
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Having come to the conclusion that the action was against the defendants in their official capacity, Romer J. considered whether he should give leave to amend. In explaining his decision not to give leave to amend, he stated, at p. 81, that to have done so would have amounted to changing "one action into another of a substantially different character." He added that this was illustrated by the fact that |
"an action against the defendants in their official capacity, supposing it to lie, would differ in most material respects from an action against them as individuals, as will be seen when consideration is paid to questions of discovery, and to the form of any interlocutory injunction or final judgment that could be obtained by the plaintiffs, and as to how and against whom such injunction or judgment could be enforced." |
When dismissing the action, at p. 82, Romer J. was careful to do so "without prejudice to any claim the plaintiffs" might have "against any of the defendants individually, in respect of any trespass committed or threatened." In identifying the nature of the action, he did not confine himself merely to looking at the title: he examined the substance of the claim as it was disclosed in the pleadings. |
"are not made parties to the bill as public functionaries, but as mere stakeholders of the fund; and, in that character there can be no objection to their being restrained from making the payment as they have hitherto done, until the rights of the opposing claimants have been determined." |
The Vice-Chancellor presumably accepted this argument since he described the Lords of the Treasury as being "mere ministerial conduit-pipes for payment . . . to the parties entitled" and overruled the claim of demurrer. |
The position so far as civil wrongs are concerned, prior to the Act of 1947, can be summarised, therefore, by saying that as long as the plaintiff sued the actual wrongdoer or the person who ordered the wrongdoing he could bring an action against officials personally, in particular as to torts committed by them, and they were not able to hide behind the immunity |
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of the Crown. This was the position even though at the time they committed the alleged tort they were acting in their official capacity. In those proceedings an injunction, including, if appropriate, an interlocutory injunction, could be granted. The problem which existed in seeking a remedy against the Crown was not confined to injunctions. It applied to any form of proceedings and where proceedings were possible by suing the wrongdoer personally then an injunction would be available in the same circumstances as other remedies. If such a position required reconciling with the historic maxim as to the Crown doing no wrong, then this could be achieved by an approach, which Mr. Richards endorsed in the course of argument, by saying that, as the Crown could do no wrong, the Crown could not be considered to have authorised the doing of wrong, so the tortfeasor was not acting with the authority of the Crown. (In this summary I put on one side the position with regard to a claim for immunity on the basis of act of state. This is not relevant for present purposes.) |
The difficulty which a plaintiff might have in identifying the appropriate servant of the Crown who was the tortfeasor in practice was overcome by the Crown nominating the individual responsible for the damage and the lack of resources of the defendant did not cause problems since the Treasury would make an ex gratia payment of compensation if it was a case where, but for Crown immunity, the Crown would be vicariously liable. In such proceedings, if it was appropriate for an injunction to be granted, there was no reason why this should not be done. |
So far as civil proceedings were concerned the position was transformed by the Act of 1947. Section 1 enabled the Crown to be sued directly in those situations where prior to the Act a claim might have been enforced by petition of right. Section 2 in general permitted actions to be brought against the Crown in respect of torts committed by its servants or agents for any breach of its duties which gave rise to a tortious liability (including a breach of statutory duty where the breach created a cause of action). Section 2 did not remove the right to sue the actual tortfeasor. |
Part II of the Act of 1947 deals with "Jurisdiction and Procedure." Section 17 provides for the Minister for the Civil Service to publish a list of authorised government departments for the purposes of the Act and requires civil proceedings against the Crown to be instituted against the |
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appropriate authorised government department or, if there is no appropriate authorised department or where there is reasonable doubt as to the identity of the appropriate department, against the Attorney-General. An examination of the current list indicates that some of the authorised departments are in fact the descriptions of the official names of individuals or collections of individuals who head the departments. Thus proceedings can be brought against a number of different Director Generals and bodies such as the Customs and Excise Commissioners or the Inland Revenue. However, there are other authorised departments which are not linked with the name of the head of the department, so, to take a typical example, the Home Office and not the Home Secretary is listed. |
Lord Bridge of Harwich in Reg. v. Secretary of State for Transport, Ex parte Factortame Ltd. [1990] 2 A.C. 85, 146 et seq. attaches importance to section 21 of the Act. Its terms are: |
"Nature of relief. (1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that:- (a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and (b) in any proceedings against the Crown for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Crown to the land or property or to the possession thereof. (2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown." |
Before considering the provisions of section 21 in greater detail, it is convenient to refer to the relevant provisions of section 23(2) which limits the scope of Part II of the Act, including section 21. The terms of that subsection are: |
"(2) Subject to the provisions of this section, any reference in this Part of this Act to civil proceedings against the Crown shall be construed as a reference to the following proceedings only:- (a) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act had not been passed, might have been enforced or vindicated or obtained by any such proceedings as are mentioned in paragraph 2 of Schedule 1 to this Act; (b) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act had not been passed, might have been enforced or vindicated or obtained by an action against the Attorney-General, any government department, or any officer of the |
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Crown as such; and (c) all such proceedings as any person is entitled to bring against the Crown by virtue of this Act; and the expression 'civil proceedings by or against the Crown' shall be construed accordingly." |
Section 23(2)(a) refers to petitions of right, (b) refers, inter alia, to proceedings for a declaration and (c) refers, inter alia, to proceedings in tort. The language of section 23 makes it clear that Part II of the Act does not generally apply to all proceedings which can take place in the High Court. In particular, it does not apply to the proceedings which at that time would have been brought for prerogative orders. If there is any doubt about this, that doubt is removed by the general interpretation provisions of the Act contained in section 38, section 38(2) providing: |
"In this Act, except in so far as the context otherwise requires or it is otherwise expressly provided, the following expressions have the meanings hereby respectively assigned to them, that is to say . . . 'Civil proceedings' includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the [Queen's] Bench Division; . . ." |
Proceedings for the prerogative orders were brought on the Crown side. |
Returning to section 21, what is clear is that in relation to proceedings to which section 21(1) provisos (a) and (b) apply, no injunction can be granted against the Crown. In addition there is the further restriction on granting an injunction against an officer of the Crown under section 21(2). That subsection is restricted in its application to situations where the effect of the grant of an injunction or an order against an officer of the Crown will be to give any relief against the Crown which could not have been obtained in proceedings against the Crown prior to the Act. Applying those words literally, their effect is reasonably obvious. Where, prior to 1947, an injunction could be obtained against an officer of the Crown, because he had personally committed or authorised a tort, an injunction could still be granted on precisely the same basis as previously since, as already explained, to grant an injunction could not affect the Crown because of the assumption that the Crown could do no wrong. The proceedings would, however, have to be brought against the tortfeasor personally in the same manner as they would have been brought prior to the Act of 1947. If, on the other hand, the officer was being sued in a representative capacity, whether as an authorised government department, for example, one of the named Director Generals, or as Attorney-General, no injunction could be granted because in such a situation the effect would be to give relief against the Crown. The position would be the same in those situations where proceedings would previously have been brought by petition of right or for a declaration but could now be brought against the authorised department. |
There appears to be no reason in principle why, if a statute places a duty on a specified minister or other official which creates a cause of action, an action cannot be brought for breach of statutory duty claiming damages or for an injunction, in the limited circumstances where injunctive relief would be appropriate, against the specified minister personally by |
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any person entitled to the benefit of the cause of action. If, on the other hand, the duty is placed on the Crown in general, then section 21(2) would appear to prevent injunctive relief being granted, but as Professor Sir William Wade Q.C. has pointed out ("Injunctive Relief against the Crown and Ministers" (1991) 107 L.Q.R. 4, 4-5) there are likely to be few situations when there will be statutory duties which place a duty on the Crown in general instead of on a named minister. In broad terms therefore the effect of the Act can be summarised by saying that it is only in those situations where prior to the Act no injunctive relief could be obtained that section 21 prevents an injunction being granted. In other words it restricts the effect of the procedural reforms that it implemented so that they did not extend the power of the courts to grant injunctions. This is the least that can be expected from legislation intended to make it easier for proceedings to be brought against the Crown. |
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could not see how there could be the three categories of situation for which the plaintiff argued, the first being when the minister was representing the Crown, the third where he was acting in a purely individual capacity and the second, which he considered created the difficulty, involving a person designated in an official capacity but not representing the Crown. As to the second category, Upjohn J. said, at pp. 575-576: |
"It is possible that there may be special acts where named persons have special duties to perform which would not be duties normally fulfilled by them in their official capacity; but in the normal case where the relevant or appropriate minister is directed to carry out some function or policy of some Act, he is either acting in his capacity as a minister of the Crown representing the Crown, or is acting in his personal capacity, usually the former. I find it very difficult to conceive of a middle classification." |
"But I return at the end of my judgment to the point which I mentioned earlier and on which I would say one final word, namely, the question of the defendant to this action. I have said that the defendant is 'the Secretary of State for the Home Department' - sued, that is to say, by his official title as a minister of the Crown. It is said by Sir Andrew [Clark, for the plaintiff] that, since the report [of the boundary Commissioners] disregarded the rules in the Act of 1949, therefore it is not a report within the meaning of the Act, and that the Secretary of State has neither the duty to the House or to anyone else, nor the power or authority, to take this proposed Order in Council to Her Majesty. I am not myself satisfied that Sir Andrew is not in this respect upon the horns of a dilemma. If the whole thing is a nullity and all he seeks to do is to restrain a particular individual, who happens at the moment to be the Secretary of State for the Home Department, I am not satisfied that he ought not to sue him in his personal capacity as for an ordinary wrong - though, in that case, it would not be clear to me what breach of duty to the plaintiffs he was engaged in committing. On the other hand, if he does sue him, and rightly sues him, in his capacity as Secretary of State for the Home Department, then I am not satisfied (though I express no final view on it, as we have not heard full argument) that the case is one |
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which, having regard to the terms of the Crown Proceedings Act 1947, will lie. And I am not satisfied, having regard to section 21 of that Act, that, on this alternative, the plaintiff could, in any event, obtain an injunction; . . ." |
I now turn to the historical development of relief against the Crown in prerogative proceedings. I do so because the historical development of the two sets of proceedings has been on different lines. |
The prerogative remedies could not be obtained against the Crown directly as was explained by Lord Denman C.J. in Reg. v. Powell (1841) 1 Q.B. 352, 361: |
"both because there would be an incongruity in the Queen commanding herself to do an act, and also because the disobedience to a writ of mandamus is to be enforced by attachment." |
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towards a member of the public, then provided that member of the public has a sufficient interest, mandamus will lie." |
After the introduction of judicial review in 1977 it was therefore not necessary to draw any distinction between an officer of the Crown "acting as such" and an officer acting in some other capacity in public law proceedings. |
The changes made in procedure introduced in 1977 by R.C.S., Ord. 53 for judicial review were first given statutory authority by primary legislation in section 31 of the Supreme Court Act 1981. The relevant provisions of that section, which do not differ materially from the corresponding provisions of Order 53, are: |
"Application for judicial review. (1) An application to the High Court for one or more of the following forms of relief, namely - (a) an order of mandamus, prohibition or certiorari; (b) a declaration or injunction under subsection (2); or (c) an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies, shall be made in accordance with rules of court by a procedure to be known as an application for judicial review. (2) A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief, has been made and the High Court considers that, having regard to - (a) the nature of the matters in |
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respect of which relief may be granted by orders of mandamus, prohibition or certiorari; (b) the nature of the persons and bodies against whom relief may be granted by such orders; and (c) all the circumstances of the case, it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be. (3) 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. (4) On an application for judicial review the High Court may award damages to the applicant if - (a) he has joined with his application a claim for damages arising from any matter to which the application relates; and (b) the court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he would have been awarded damages." |
In section 31 the jurisdiction to grant declarations and injunctions is directly linked to that which already existed in relation to the prerogative orders. The jurisdiction to award damages by contrast is restricted to those situations where damages are recoverable in an action begun by writ. It has never been suggested that a declaration is not available in proceedings against a minister in his official capacity and if Order 53 and section 31 apply to a minister in the case of declarations then, applying ordinary rules of construction, one would expect the position to be precisely the same in the case of injunctions. As an examination of the position prior to the introduction of judicial review indicates, because of the scope of the remedies of mandamus and prohibition the availability of injunctions against ministers would only be of any significance in situations where it would be appropriate to grant interim relief. Even here the significance of the change was reduced by the power of the court to grant a stay under Ord. 53, r. 3(10). Furthermore in practice an injunction against a minister would be no more than a peremptory declaration because of the limitations on execution contained in Ord. 77, r. 15 which because of the definition of "order against the Crown" in Ord. 77, r. 1(2) applies to judicial review and proceedings against an officer of the Crown as such. |
A primary cause for Lord Bridge's taking this view was that he concluded that it would be a dramatic departure from what was the position prior to the introduction of judicial review for an injunction to be available against the Crown or a minister of the Crown, so that the |
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change was one which could be expected to be made only by express legislation. His conclusion was not, however, based on as comprehensive an argument of the history of both civil and prerogative proceedings as was available to your Lordships. In particular he did not have an account of the developments which had taken place in the granting of prerogative orders against ministers, which meant that in practical terms the only consequence of treating section 31 as enabling injunctions to be granted against ministers acting in their official capacity would be to provide an alternative in name only to the orders of prohibition and mandamus which were already available and to allow interim relief other than a stay for the first time. |
"First, section 31(2) and Ord. 53, r. 1(2) being in identical terms, the subsection and the sub-rule must have the same meaning and the subrule, if it purported to extend jurisdiction, would have been ultra vires. Secondly, if Parliament had intended to confer upon the court jurisdiction to grant interim injunctions against the Crown, it is inconceivable, in the light of the Law Commission's recommendation in paragraph 51 of its report, that this would not have been done in express terms either in the form of the proposed clause 3(2) of the Law Commission's draft Bill or by an enactment to some similar effect. There is no escape from the conclusion that this recommendation was never intended to be implemented. Thirdly, it is apparent from section 31(3) that the relief to which section 31(2) applies is final, as opposed to interlocutory, relief. By section 31(2) a declaration may be made or an injunction granted 'where an application for judicial review . . . has been made. . . .' But by section 31(3) 'no application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; . . .' Under the rules there are two stages in the procedure, first the grant of leave to apply for judicial review on ex parte application under Ord. 53, r. 3, secondly the making of the application for judicial review which by rule 5 is required to be by originating motion or summons duly served on all parties directly affected. Section 31(2) is thus in terms addressed to the second stage, not the first, and is in sharp contrast with the language of Ord. 53, |
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r. 3(10), which by its terms enables appropriate interim relief to be granted by the court at the same time as it grants leave to apply for judicial review. This point occurred to me at first blush to be one of some technicality. But on reflection I am satisfied that it conclusively refutes the view that section 31(2) was intended to provide a solution to the problem of the lack of jurisdiction to grant interim injunctions against the Crown. The form of final relief available against the Crown has never presented any problem. A declaration of right made in proceedings against the Crown is invariably respected and no injunction is required. If the legislature intended to give the court jurisdiction to grant interim injunctions against the Crown, it is difficult to think of any reason why the jurisdiction should be available only in judicial review proceedings and not in civil proceedings as defined in the Act of 1947. Hence, an enactment which in turn applies only to forms of final relief available in judicial review proceedings cannot possibly have been so intended." |
This is a very closely and carefully argued justification for adopting a narrow approach to the effect of section 31 of the Act of 1981. It deserves very careful attention coming, as it does, from a judge who is acknowledged to have made an outstanding contribution to this area of the law. Nonetheless, I do not regard it as justifying limiting the natural interpretation of section 31 so as to exclude the jurisdiction to grant injunctions, including interim injunctions, on applications for judicial review against ministers of the Crown. I will try to explain why. |
First of all it is unsafe to draw any inference from the fact that judicial review was not first introduced by primary legislation. Primary legislation could have led to delay. As it happens, in Northern Ireland, when judicial review was introduced, the primary legislation, the Judicature (Northern Ireland) Act 1978, came first and was followed by a subsequent amendment of the Rules of the Supreme Court (Northern Ireland) involving a new Order 53 which came into operation on 1 January 1981. |
The fact that in England and Wales it was decided that an amendment to the Rules of the Supreme Court should precede primary legislation did mean that it was inevitable that the recommendation of the Law Commission that section 21 of the Act of 1947 should be amended had to be abandoned. However, this decision not to amend section 21 is not really surprising bearing in mind that the exercise in hand related to public law proceedings while section 21 dealt with private or "civil" law proceedings. Not having dealt with section 21 at the outset it was natural that, as section 31 was merely confirmatory of the changes already made, it should not deal with section 21 either. |
Order 53 undoubtedly extended the circumstances in which a declaration could be granted against the appropriate representative of the Crown. Prior to the change no remedy whatsoever in the nature of a declaration could be obtained in prerogative proceedings. Furthermore, there are situations where no declaration could be obtained in private law proceedings against the Crown without the assistance of the Attorney-General in circumstances in which it is now available on judicial review. It is not suggested that Order 53 was ultra vires in allowing declarations |
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against ministers and in my view if it was not ultra vires in relation to declarations there is no reason why it should be regarded as being ultra vires in relation to injunctions, albeit that the effect is that an injunction can now be obtained against a minister of the Crown where previously only an order of mandamus or prohibition could be obtained. However, if Order 53 were to be regarded as being open to challenge on this ground, this would explain why the unusual course was taken, a change having been introduced by an amendment to the Rules of the Supreme Court, of confirming the amendment a substantial period later by the Act of 1981. As a matter of construction it is difficult to treat the provisions as to injunctions in Order 53 and section 31 as not applying to ministers, but as doing so in the case of the other remedies. This difficulty is underlined in the case of Northern Ireland since the interpretation section, 118(1), of the Act of 1978 expressly provides that it should bind the Crown, but in a restricted manner "as respects civil proceedings to which the Act of 1947 applies." It would therefore bind the Crown as to injunctions in non-"civil proceedings," that is, judicial review. Section 19 of that Act also gives the court a wide discretion to grant such interim relief as it considers appropriate. It would, therefore, seem to be difficult to say that there is no power to grant interim injunctions against ministers in Northern Ireland. |
Ord. 53, r. 3(10) deals with the grant of interim relief on an application for judicial review. It provides: |
"Where leave to apply for judicial review is granted, then - (a) if the relief sought is an order of a prohibition or certiorari and the court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the court otherwise orders; (b) if any other relief is sought, the court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ." |
"The High Court may by order (whether interlocutory or final) grant an injunction . . . in all cases in which it appears to the court to be just and convenient to do so." |
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As to the "technical" point referred to by Lord Bridge of Harwich in Factortame[1990] 2 A.C. 85, 150, Ord. 53, r. 3(10) is similarly linked to Ord. 53, r. 1(2) and the almost identically worded provisions of section 31(2). While it is correct that an application for judicial review cannot be made until leave is granted, this does not mean that section 31(2) restricts the court's jurisdiction to grant interim or final injunctions until after leave has been given and this has been followed by lodging the formal application with the court. This would be quite out of accord with practice which has always been followed on judicial review and would involve the expense and delay of two hearings when at present there is usually one. The clear intent of Ord. 53, r. 3(10) is that the court where it considers an application for leave at an oral hearing should deal with questions of interim relief if it is appropriate to do so. During the course of the hearing Mr. Richards was asked whether he could provide any justification for Lord Bridge regarding the language of section 31(2) and section 31(3) together with Ord. 53, r. 3(10) as |
"conclusively [refuting] the view that section 31(2) was intended to provide a solution to the problem of the lack of jurisdiction to grant interim injunctions against the Crown," |
but he was not able to do so. Prior to the introduction of Order 53 there was the same problem of the inability to grant interim injunctions against bodies which had no connection with the Crown. The changes which are reflected in sections 31(2) and (3) and Ord. 53, r. 3(10) provided a solution in relation to those bodies and it must surely follow that if section 31(2) gives the court jurisdiction to grant final injunctions against ministers it must also provide the jurisdiction to grant interim injunctions. Counsel for the applicants in Factortame did not reply to the Crown's submissions on this aspect of the case and I expect this explains why in Factortame the position was misunderstood. |
I am, therefore, of the opinion that, the language of section 31 being unqualified in its terms, there is no warrant for restricting its application so that in respect of ministers and other officers of the Crown alone the remedy of an injunction, including an interim injunction, is not available. In my view the history of prerogative proceedings against officers of the Crown supports such a conclusion. So far as interim relief is concerned, which is the practical change which has been made, there is no justification for adopting a different approach to officers of the Crown from that adopted in relation to other respondents in the absence of clear language such as that contained in section 21(2) of the Act of 1947. The fact that in any event a stay could be granted against the Crown under Ord. 53, r. 3(10) emphasises the limits of the change in the situation which is involved. It would be most regrettable if an approach which is inconsistent with that which exists in Community law should be allowed to persist if this is not strictly necessary. The restriction provided for in section 21(2) of the Act of 1947 does, however, remain in relation to civil proceedings. |
The fact that, in my view, the court should be regarded as having jurisdiction to grant interim and final injunctions against officers of the Crown does not mean that that jurisdiction should be exercised except in the most limited circumstances. In the majority of situations so far as |
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final relief is concerned, a declaration will continue to be the appropriate remedy on an application for judicial review involving officers of the Crown. As has been the position in the past, the Crown can be relied upon to co-operate fully with such declarations. To avoid having to grant interim injunctions against officers of the Crown, I can see advantages in the courts being able to grant interim declarations. However, it is obviously not desirable to deal with this topic, if it is not necessary to do so, until the views of the Law Commission are known. |
The validity of the injunction granted by Garland J. |
What has been said so far does not mean that Garland J. was necessarily in order in granting the injunction. The injunction was granted before he had given the applicant leave to apply for judicial review. However, in a case of real urgency, which this was, the fact that leave had not been granted is a mere technicality. It would be undesirable if, in the situation with which Garland J. was faced, he had been compelled to grant leave because he regarded the case as an appropriate one for an interim injunction. In the case of civil proceedings, there is recognition of the jurisdiction of the court to grant interim injunctions before the issue of a writ, etc. (see Ord. 29, r. 1(3)) and in an appropriate case there should be taken to be a similar jurisdiction to grant interim injunctions now under Order 53. The position is accurately set out in note 53/1-14/24 to The Supreme Court Practice 1993 where it is stated that: |
"Where the case is so urgent as to justify it, [the judge] could grant an interlocutory injunction or other interim relief pending the hearing of the application for leave to move for judicial review. But, if the judge has refused leave to move for judicial review he is functus officio and has no jurisdiction to grant any form of interim relief. The application for an interlocutory injunction or other interim relief could, however, be renewed before the Court of Appeal along with the renewal of the application for leave to move for judicial review." |
There having been jurisdiction for Garland J. to make the order which he did, it cannot be suggested that it was inappropriate for him to have made the order. On the view of the law which I now take, Garland J. was therefore not required to set aside the order though his decision to do so was inevitable having regard to the state of the authorities at that time. |
The effect of the advice received by Mr. Baker |
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be categorised as contempt. If, therefore, there is a situation in which the view is properly taken (and usually this will only be possible when the action is taken in accordance with legal advice) that it is reasonable to defer complying with an order of the court until application is made to the court for further guidance then it will not be contempt to defer complying with the order until an application has been made to the court to discharge the order. However, this course can only be justified if the application is made at the first practicable opportunity and in the meantime all appropriate steps have been taken to ensure that the person in whose favour the order was made will not be disadvantaged pending the hearing of the application. |
Mr. Baker's difficulties in this case are that, while it was understandable that there should be delay before he could give the matter personal attention, Garland J. was not kept informed of what was happening and totally inadequate steps were taken to protect the position of M. pending the application to the court. In addition Mr. Baker has the problem that this House will not normally interfere with the assessment of the facts which was made by the Court of Appeal unless it can be shown that the assessment is flawed by some error of law. |
Jurisdiction to make a finding of contempt |
Nolan L.J., at p. 311, considered that the fact that proceedings for contempt are "essentially personal and punitive" meant that it was not open to a court, as a matter of law, to make a finding of contempt against the Home Office or the Home Secretary. While contempt proceedings usually have these characteristics and contempt proceedings against a government department or a minister in an official capacity would not be either personal or punitive (it would clearly not be appropriate to fine or sequestrate the assets of the Crown or a government department or an officer of the Crown acting in his official capacity), this does not mean |
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that a finding of contempt against a government department or minister would be pointless. The very fact of making such a finding would vindicate the requirements of justice. In addition an order for costs could be made to underline the significance of a contempt. A purpose of the courts' powers to make findings of contempt is to ensure that the orders of the court are obeyed. This jurisdiction is required to be coextensive with the courts' jurisdiction to make the orders which need the protection which the jurisdiction to make findings of contempt provides. In civil proceedings the court can now make orders (other than injunctions or for specific performance) against authorised government departments or the Attorney-General. On applications for judicial review orders can be made against ministers. In consequence of the developments identified already such orders must be taken not to offend the theory that the Crown can supposedly do no wrong. Equally, if such orders are made and not obeyed, the body against whom the orders were made can be found guilty of contempt without offending that theory, which would be the only justifiable impediment against making a finding of contempt. |
In cases not involving a government department or a minister the ability to punish for contempt may be necessary. However, as is reflected in the restrictions on execution against the Crown, the Crown's relationship with the courts does not depend on coercion and in the exceptional situation when a government department's conduct justifies this, a finding of contempt should suffice. In that exceptional situation, the ability of the court to make a finding of contempt is of great importance. It would demonstrate that a government department has interfered with the administration of justice. It will then be for Parliament to determine what should be the consequences of that finding. In accord with tradition the finding should not be made against the "Crown" by name but in the name of the authorised department (or the Attorney-General) or the minister so as to accord with the body against whom the order was made. If the order was made in civil proceedings against an authorised department, the department will be held to be in contempt. On judicial review the order will be against the minister and so normally should be any finding of contempt in respect of the order. |
However, the finding under appeal is one made against Mr. Baker personally in respect of an injunction addressed to him in his official capacity as the Secretary of State for the Home Department. It was appropriate to direct the injunction to the Secretary of State in his official capacity since, as previously indicated, remedies on an application for judicial review which involve the Crown are made against the appropriate officer in his official capacity. This does not mean that it cannot be appropriate to make a finding of contempt against a minister personally rather than against him in his official capacity provided that the contempt relates to his own default. Normally it will be more appropriate to make the order against the office which a minister holds where the order which has been breached has been made against that office since members of the department concerned will almost certainly be involved and investigation as to the part played by individuals is likely to be at least extremely difficult, if not impossible, unless privilege is waived (as commendably happened in this case). In addition the object of the exercise is not so |
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much to punish an individual as to vindicate the rule of law by a finding of contempt. This can be achieved equally by a declaratory finding of the court as to the contempt against the minister as representing the department. By making the finding against the minister in his official capacity the court will be indicating that it is the department for which the minister is responsible which has been guilty of contempt. The minister himself may or may not have been personally guilty of contempt. The position so far as he is personally concerned would be the equivalent of that which needs to exist for the court to give relief against the minister in proceedings for judicial review. There would need to be default by the department for which the minister is responsible. |
"A distinction (which has been variously described as 'unhelpful' or 'largely meaningless') is sometimes drawn between what is described as 'civil contempt,' that is to say, contempt by a party to proceedings in a matter of procedure, and 'criminal contempt.' One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constitutes a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made and which can be waived by him. The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited. When, however, the prohibited act is done not by the party bound himself but by a third party, a stranger to the litigation, that person may also be liable for contempt. There is, however, this essential distinction that his liability is for criminal contempt and arises not because the contemnor is himself affected by the prohibition contained in the order but because his act constitutes a wilful interference with the administration of justice by the court in the proceedings in which the order was made. Here the liability is not strict in the sense referred to, for there has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice - an intention which can of course be inferred from the circumstances." |
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I happily adopt the approach of Lord Oliver. It reflects the distinction which I have drawn between the finding of contempt and the punishment of the contempt. I also accept the distinction which Lord Oliver draws between the position of a person who is subject to an order and a third party. I also recognise the force of Mr. Richards' submission that if Mr. Baker was not under a strict liability to comply with the order it would not be possible to establish that he had the necessary intention to interfere with or impede the administration of justice to make him guilty of contempt as a third party. However, although the injunction was granted by Garland J. against Mr. Baker in his official capacity this does not mean that he is in the same position as a third party. To draw a distinction between his two personalities would be unduly technical. While he was Home Secretary the order was one binding upon him personally and one for the compliance with which he as the head of the department was personally responsible. He was, therefore, under a strict liability to comply with the order. However, on the facts of this case I have little doubt that if the Court of Appeal had appreciated that they could make a finding against Mr. Baker in his official capacity this is what the court would have done. The conduct complained of in this case which justified the bringing of contempt proceedings was not that of Mr. Baker alone and he was acting on advice. His error was understandable and I accept that there is an element of unfairness in the finding against him personally. |
In addition, there are technical differences between the two findings because of the provisions of R.S.C., Ord. 77, r. 1 (2) which define an "order against the Crown" in a broad sense to include an order against the government department or against an officer of the Crown as such. Unlike the definition of "civil proceedings by the Crown," this definition expressly applies to proceedings "on the Crown side of the Queen's Bench Division." This means that the provisions of Orders 45 to 52 (which deal with execution and satisfaction of orders of the court) would not apply to an order against the Home Secretary while they would do so in the case of an order against Mr. Baker personally. |
It is for these reasons that I would dismiss this appeal and cross-appeal save for substituting the Secretary of State for Home Affairs as being the person against whom the finding of contempt was made. This was the alternative decision which was the subject of the cross-appeal, except that there the order was sought against the Home Office rather than the Home Secretary. |
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Solicitors: Treasury Solicitor; Winstanley-Burgess. |
M. G. |