M v Home Office

Facts

M, a teacher from Zaire, claimed asylum in the United Kingdom, and his claim was refused. He was removed to Zaire in circumstances in which the High Court judge, Garland J, had understood that he would not be removed until the court had considered his application, and the judge then ordered that the Home Secretary should arrange for his return. The Home Office, acting on legal advice, took the view that the court had no jurisdiction to make such an order against a minister of the Crown, and it did not comply.

History

The High Court judge held that he had no jurisdiction to find the Home Secretary in contempt. The Court of Appeal held that the court had jurisdiction to grant injunctions against ministers and found the Home Secretary, Kenneth Baker, in contempt in his official capacity. The Home Secretary appealed to the House of Lords.

Issue

Whether the courts have jurisdiction to grant interim and final injunctions against ministers of the Crown, and whether a minister can be held in contempt of court in his official capacity or personally for breach of an order.

Held

Appeal dismissed. The court had jurisdiction to grant an injunction against a minister of the Crown, and a finding of contempt could be made against a minister in his official capacity, although the Home Secretary personally was not in contempt.

Ratio

• Section 21 of the Crown Proceedings Act 1947 does not prevent the courts from granting injunctions against officers of the Crown in judicial review proceedings, and the Crown is not immune from the coercive jurisdiction of the courts in respect of acts of its servants.
• A minister of the Crown, as the holder of an office, can be found to be in contempt of court in his official capacity for failure to comply with an order of the court, and the possibility of such a finding is part of the way in which the courts uphold the rule of law against the executive.

The judgments

Key reasoning

• The historical immunity of the Crown from suit, and the maxim that the King can do no wrong, did not prevent proceedings against ministers as individuals who hold office, and the 1947 Act was not intended to take away the existing jurisdiction of the courts to grant relief against officers.
• The Crown cannot be said to be above the law, since the contrary would mean that the government could disregard orders of the court, and the principle that the executive must comply with the law is central to the constitution.
• The finding of contempt against the minister in his official capacity served the purpose of vindicating the authority of the court, while making a finding against him personally was unnecessary since he had acted on advice and was not personally guilty of defiance.

Where it fits in the module

In the Constitution course the case is used to explore the rule of law, the position of the Crown and the relationship between the executive and the judiciary. It supports the argument that no one, including ministers, is above the law, and it is read against the older immunity of the Crown and the later developments in judicial review.

Criticisms

• The distinction between contempt in an official capacity and personal contempt is artificial and gives little practical sanction, since a finding against an office holder carries no penalty beyond the public declaration.
• The decision relies on a technical reading of the 1947 Act that departs from the apparent assumptions of Parliament, and it shows judges changing the position of the Crown by interpretation instead of legislation.
• The case leaves the remedy of a coercive order in the hands of the court without a clear account of what sanctions are available against the executive if it refuses to comply.