M v Home Office

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date29 November 1991
Judgment citation (vLex)[1991] EWCA Civ J1129-7
Date29 November 1991
Docket Number91/1158

[1991] EWCA Civ J1129-7






Royal Courts of Justice


The Master of the Rolls

(Lord Donaldson)

Lord Justice McCowan

Lord Justice Nolan


Home Office Kenneth Wilfred Baker

MR. STEPHEN SEDLEY Q.C., MR. RICHARD SCANNELL and MR. ANTHONY BRADLEY (instructed by Messrs. Winstanley-Burgess) appeared for the Applicant.

MR. JOHN LAWS and MR. RICHARD GORDON (instructed by the Treasury Solicitor) appeared for the Respondents.


The constitutional issue


This case is remarkable for the chapter of accidents, mistakes and misunderstandings which has occurred. Its importance, however, lies elsewhere. It lies in the fact that, for the first time in modern history, it has become necessary to consider whether the judiciary has any and, if so, what power to enforce orders addressed to government departments or ministers. In particular it has been necessary to consider whether the prerogative remedies of habeas corpus ("produce the body") which goes to the heart of individual liberty, mandamus (an order to do a particular thing) and prohibition (an order to refrain from doing a particular thing) when addressed to government departments or ministers are in law "orders" or merely "requests".


In proceedings brought by M. against the Home Office and the Rt. Hon. Kenneth Baker M.P. as Home Secretary, Simon Brown J. has held that such orders are not enforceable by any process of compulsion and that the same is true of undertakings to the court given by or on behalf of government departments or ministers. Commenting on this conclusion, the learned judge said this:-

"Point of high constitutional importance though this is, and reluctant though any court must be to proclaim the Crown beyond the reach of its ultimate coercive power, it is, I believe, difficult to regard this as a black day for the rule of law or the liberty of the subject. The court is not abrogating an historic responsibility for the control of executive government. Rather, it is recognising that when it comes to the enforcement of its decisions the relationship between the executive and the judiciary must, in the end, be one of trust. Parliament essentially made it so in 1947: the postulate implicit in sections 21 and 25 [of the Crown Proceedings Act 1947] is that the Crown will be true to its obligations. But if not—if it fails to observe them—it will be answerable to Parliament. It is not, then, given to the courts to exercise the power of punishment.

It goes without saying that nothing in this judgment affects the long established principle that the Crown is not merely bound always and in all respects to abide by the rule of law, but also must submit to the court's jurisdiction to rule upon all disputed issues. Although cited for different reasons— Eastern Trust Co. by Mr. Laws, as already stated, and Dyson v. Attorney-General (1911) 1 K.B. 410 by Mr. Sedley—passages in each from the judgments of Sir George Farwell are worth noting. In Eastern Trust Co. giving the judgment of the Privy Council, at page 759 he said this: 'It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. If there is any difficulty in ascertaining it the courts are open to the Crown to sue and it is the duty of the Executive in cases of doubt to ascertain the law, in order to obey, not to disregard it.' In Dyson, having made the same point, he resoundingly added: 'If ministerial responsibility were more than the mere shadow of a name, the matter would be less important, but as it is, the courts are the only defence of the liberty of the subject against departmental aggression.'

Whilst, therefore, I feel impelled to rule that the court cannot now arrogate to itself the ultimate power of enforcement—for that would be to shift the accepted constitutional balance between the Executive and the judiciary—I am confident that the Crown will continue to recognise and honour its obligations—obligations as these are to its less privileged opponents, to the courts, and to justice. In proper cases undertakings ought still to be given. Although their true character will, of course, now be recognised, I believe they will nevertheless be scrupulously observed in future as they always have been in the past. This case is surely the exception that proves that rule. The respondents have, on no view, here been contumacious. The seeds of this motion lie unmistakeably in the singular and surprising chambers' misunderstanding at the outset. I would not expect the court's continuing trust to be misplaced. And if, by chance, it were there would surely be a heavy political price to pay."


I agree with the learned judge that this is a matter of high constitutional importance. Indeed I would say of the very highest. I agree with him that the day to day relationship between the judiciary and all governments and ministers in modern times has been based upon trust. In a sense the same is true of its relationship with all who resort to the courts for justice in civil disputes. The system would be put under intolerable strain and would be likely to break down if a significant number of citizens treated the courts' orders as mere requests which could be complied with or ignored as they thought appropriate. I share his confidence that in the foreseeable future governments and ministers will recognise their obligations to their opponents, to the courts and to justice. Where I have somewhat less confidence is in the suggestion that were it ever otherwise there would be a heavy political price to pay. There might well be, but I am not sure that there would be if, in particular circumstances, popular opinion was firmly on the side of the government and against the person who had obtained the order. Yet it is precisely in those circumstances that individual citizens should be able to look to the judiciary for protection under the law. I therefore do indeed think that it would be a black day for the rule of law and for the liberty of the subject if Simon Brown J. has correctly interpreted the law. I have reached the firm conclusion that he was mistaken and it is to a consideration of that issue that I must shortly turn, M. having appealed against his judgment. However before doing so I must outline the facts which have given rise to these proceedings.


The factual background


The appellant M. is a citizen of Zaire who arrived in the United Kingdom on 23rd September 1990. He claimed asylum immediately upon arrival on the footing that he was a refugee within the meaning of the Geneva Convention of 1951 as being a person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country of nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". He was interviewed and on 16th November 1990 he was told that the Home Secretary was minded to refuse asylum. This was not, of course, a decision by the Home Secretary personally who never heard of M. until after he had been returned to Zaire in May 1991. M. was re-interviewed on 2nd and 24th December 1990 and a final decision to refuse asylum was communicated to M. in a very long and detailed letter dated 11th March 1991 from the Immigration and Nationality Department of the Home Office.


The essence of M.'s claim was that whilst in Zaire he had organised anti-government strike action amongst his fellow teachers and been arrested. He had spent three days in a local prison where he was physically maltreated. He escaped with the assistance of a prison guard and was smuggled on to a cargo aircraft at Kinshasa Airport and taken to Lagos in Nigeria. He did not claim asylum there because he did not trust the Nigerian authorities not to return him to Zaire. In Lagos he was able to acquire a false Nigerian passport and a ticket for a flight from Lagos to London. The letter explained in some detail why the Home Office did not regard M.'s story as credible. It concluded:-

"The Secretary of State recognises that a person fleeing persecution may not be able to provide documentary or other proof to support his statements and that cases where an applicant can provide such evidence in support of all his statements will be the exception rather than the rule. However, allowance for such lack of evidence does not oblige the Secretary of State to accept unsupported statements as necessarily being true, particularly if there are internal inconsistencies in the account provided by the applicant or there are grounds for doubting its credibility."


Judicial review


M. sought leave to apply for judicial review of the decision to refuse him asylum and this application was heard and refused on 25th March 1991. He promptly sought to renew his application before this court, but his solicitors failed to document his application which accordingly remained unlisted. Meanwhile his supporters in this country arranged for him to be examined by an organisation called the Medical Foundation for the Care of Victims of Torture. On 12th April 1991 a Dr. Vincent Tonge of that organisation reported that:-"

" Opinion

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...

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