Law Report: Coercive orders against the Crown: Re M. House of Lords (Lord Keith of Kinkel, Lord Templeman, Lord Griffiths, Lord Browne-Wilkinson and Lord Woolf), 27 July 1993
The House of Lords decided that the Home Secretary had been guilty of contempt of court.
The Home Secretary refused a claim for political asylum by M, a citizen of Zaire. He was to be repatriated to Zaire at about 6pm on 1 May 1991. His new solicitors made a fresh application for leave to apply for judicial review to the judge in chambers, Mr Justice Garland, at 5.25pm.
Mr Justice Garland adjourned the matter, thinking that counsel for the Home Office had given an undertaking that M would not be removed from the jurisdiction. However the Home Office lawyers did not appreciate that an undertaking had been given. M departed for Zaire via Paris and although Home Office officials became aware that the judge wanted M returned, no action was taken to prevent M leaving Paris.
At 12.30am Mr Justice Garland made a mandatory order requiring the Home Secretary to return M. On M's arrival in Zaire arrangements were made for his return. At 4pm on 2 May the Home Secretary, on receiving legal advice that the order was made without jurisdiction, cancelled the arrangements for M's return. M brought contempt proceedings against the Home Office and the minister for failing to comply with the order. Mr Justice Simon Brown decided that he had no power to make findings of contempt against the Home Office or the Home Secretary. The Court of Appeal reversed that judgment and decided that Kenneth Baker, when he was Home Secretary, had been guilty of contempt of court.
Stephen Richards and Richard Gordon (Treasury Solicitor) for the Home Secretary and Home Office; Sydney Kentridge QC, Richard Scannell and Anthony Bradley (Winstanley Burgess) for M.
LORD WOOLF said that at the forefront of the argument was whether the court had jurisdiction to make coercive orders against the Crown or ministers of the Crown. The fact that the Sovereign could do no wrong did not mean that a servant of the Crown could do no wrong.
Prior to the introduction of judicial review, the prerogative remedies of certiorari, mandamus, prohibition and habeas corpus could not be obtained against the Crown directly. Where a duty was imposed by statute on a particular minister prerogative orders were granted regularly against ministers in their official capacities as distinct from the Crown.
The language of section 31 of the Supreme Court 1981, which gave statutory authority for the changes in judicial review procedure, did not warrant restricting its application so that in respect of ministers and other officers of the Crown alone the remedy of an injunction, including an interim injunction, was not available. The history of prerogative proceedings against officers of the Crown supported such a conclusion. There was no justification for adopting a different approach to officers of the Crown from that in relation to other respondents.
There was no impediment to a court making a finding of contempt, when it was appropriate to do so, against a government department or a minister of the Crown in his official capacity. The very fact of making a finding of contempt against a government department or minister would vindicate the requirements of justice. A purpose of the courts' powers to make findings of contempt was to ensure that court orders were obeyed.
The Crown's relationship with the courts did not depend on coercion and in the exceptional situation when a government department's conduct justified it, a finding of contempt should suffice. A finding would demonstrate that a government department had interfered with the administration of justice.
On judicial review the court order would be against the minister and so normally should any finding of contempt in respect of the order. While Mr Baker was Home Secretary he was under a strict liability to comply with the judge's order. The finding of contempt would be made against the Home Secretary, and not Mr Baker personally.
As Voltaire once said, “Ice cream is exquisite. What a pity it isn’t illegal”
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