Subordinate Legislation and Injunctions to Ministers
| Published date | 01 November 1955 |
| Date | 01 November 1955 |
| Author | S. A. Smith |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00335.x |
618
THE
MODERN
LAW
REVIEW
VOL.
18
SUBORDINATE LEGISLATION
AND
INJUNCTIONS
TO
MINISTERS
BEFORE the Crown Proceedings Act,
1947,
an injunction would lie
against a Minister of the Crown in his personal capacity
if
he
committed a civil wrong;
it
would never lie against the Crown;
but whether the courts had any jurisdiction to issue an injunction
against a Government Department
or
against a Minister acting in
his official capacity was uncertain. In
Hutton
v.
Secretary of State
for
War
(1926) 43
T.L.R.
106
Tomlin
J.
held that they had not,
but there were other decisions, of doubtful authority, going the
other way. Yet
it
was settled law that mandamus could issue to
order a Minister to perform a public duty, other than
a
duty owed
to the Crown, imposed on him by statute; and
if
mandamus could
issue, why could not a mandatory injunction,
or
a prohibitory
injunction to restrain him from acting
ultra vires
?
The Crown Proceedings Act left unaffected the law on proceed-
ings against a Minister in his private capacity;
it
reaffirmed the
rule that
no
injunction will lie against the Crown (section
21 (1));
and
it
provided that no injunction shall be granted against an
officer of the Crown
if
the effect of granting
it
will be to grant
relief against the Crown which could not have been obtained against
the Crown directly (section
21 (2)).
This left unresolved the
question whether a party could ever obtain an injunction against
a
Minister in his official capacity by establishing that he was acting
not as a Crown servant but as an officer directly charged by Parlia-
ment with specific responsibilities affecting private interests.
In
Harper
v.
Secretary
of
State
for
Home Affairs
[1955]
Ch.
238
(noted at p.
281,
ante),
an attempt to restrain the Secretary
of
State from presenting a draft Order, which had been approved by
both Houses of Parliament, to Her Majesty in Council failed,
mainly on the ground that the Order was
intra vires.
During the
course of his judgment Sir Raymond Evershed M.R. expressed
doubts whether in any event an injunction would have lain against
the Secretary of State, having regard to the provisions
of
the Crown
Proceedings Act. His Lordship's doubts would appear
to
have
been well founded, for the plaintiff was in effect seeking an injunc-
tion to restrain the Crown from making an Order in Council
(cf.
Crown Proceedings Act,
s.
21
(2)).
The problem remained
whether the same considerations would necessarily apply
if
an
injunction were sought to restrain a Minister from making a
statutoryorder in his own name. In
Merricks
v.
Heathcoat-
Amory and the Minister of Agriculture, Fisheries and
Food
[1955]
Ch.
567
the plaintiff moved for a mandatory injunction
against Mr. D. Heathcoat-Amory, both in his personal capacity
and in his capacity as Minister, ordering him to withdraw
the draft of a potato marketing scheme made under the
Agricultural Marketing Act,
1931,
and already laid by him
before both Houses of Parliament for approval; and for a
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