Law Lords assert authority over Government in landmark ruling: Judges assert authority over executive in landmark ruling

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The Independent Online
THE MOST senior judges in England and Wales yesterday moved to assert their authority over the executive, rebutting the Government's claim that it was above the law and ruling that ministers could be forced to obey a court order.

In a landmark judgment, five Law Lords said that courts had the power to grant injunctions against officers and the Crown, and enforce sanctions if necessary.

Their unanimous decision, which overturned previous rulings, came as they upheld a finding that Kenneth Baker was in contempt of court when, as Home Secretary, he ignored an instruction from a judge in an asylum case.

Mr Baker had argued that since he was acting as a minister of the Crown at the time and that since, under English law, the Crown can do no wrong, he could not be punished.

But his claims were given short shrift in the House of Lords.

Lord Templeman said Mr Baker was, in effect, arguing that ministers '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'.

Lawyers said the judgment would be of huge significance in a wide range of judicial review proceedings, but particularly those involving immigration and asylum claims.

For example, they said it opened the way for judges to order that the Home Office should not deport asylum seekers until their case had been heard. Until now, officials have been free to expel applicants as and when they liked.

Yesterday's ruling arose out of just such a case. In May 1991, a Zairean teacher was sent back to Kinshasa after his application for refugee status was turned down by the Home Office.

In a last-minute move, his lawyers asked for a judicial review and obtained a High Court order that the man, known as M, be brought back to Britain.

But Mr Baker, advised that the order was invalid, chose to ignore it, leaving M stranded in Zaire where he claimed to be at risk of persecution.

Last night, M's solicitor, David Burgess, said the Home Office had treated the case 'as a matter of no consequence'. 'They just wanted to get rid of the man,' he said.

In a hearing last year, the Court of Appeal accepted Mr Baker's assurances that he never intended to flout judicial authority but nevertheless found him to be personally in contempt.

This decision was modified slightly by the House of Lords, which said that he was guilty only in his capacity as Home Secretary and not as a private individual.

In the leading judgment, Lord Woolf declined to punish Mr Baker, saying that the contempt of court ruling was sufficient to 'vindicate the requirements of justice'. It was for Parliament to 'determine what should be the consequences of that finding', he said.

Law report, page 12

Leading article, page 19

(Photograph omitted)