M v Home Office

JurisdictionEngland & Wales
JudgeLord Keith of Kinkel,Lord Templeman,Lord Griffiths,Lord Browne-Wilkinson,Lord Woolf
Judgment Date27 July 1993
Judgment citation (vLex)[1993] UKHL J0727-1
CourtHouse of Lords

[1993] UKHL J0727-1

House of Lords

Lord Keith of Kinkel

Lord Templeman

Lord Griffiths

Lord Browne-Wilkinson

Lord Woolf

In re M (A.P.)
(Cross-Appellant and Original Respondent)
Lord Keith of Kinkel

My Lords,

1

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,

2

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.

3

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.

4

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

Lord Griffiths

My Lords,

5

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,

6

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,

7

This appeal gives rise to issues of constitutional importance. It is an appeal from a decision of the Court of Appeal, 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.

8

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 Q.C., 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.

9

Mr. Stephen 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 pan 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. Kenneth Baker had contravened, was made without jurisdiction.

10

When advancing these submissions Mr. Stephen Richards stressed that it was no pan of his case that the Crown or Ministers are above the law or that 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.

11

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. Stephen 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. Kenneth 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 in his judgment in the Court of Appeal, the first being made at the outset of his judgment when he said:

"This case is remarkable for the chapter of accidents, mistakes and misunderstandings which has occurred." [1992] 1 Q.B. 284.

12

The second comment is part of the explanation which Lord Donaldson M.R. 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:

"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." [1992] 1 Q.B. at p. 306.

13

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 are set out fully in the judgments of Simon Brown J. (not reported) 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.

14

The Sequence of Events

15

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.

16

M. was then re-interviewed on 2...

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