Letter: Baker's role in setting aside court order

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The Independent Online
Sir: Having read your leading article about the Law Lords judgment ('Cavalier ministers in the dock', 28 July), one might be forgiven for regarding as cavalier the Independent's disregard for the background to this case. It arose because of my belief in May 1991 that Mr Justice Garland had no power to order the Home Secretary to return to Britain a Zairean asylum applicant who had been deported. Indeed, the High Court and the Court of Appeal had already rejected the man's appeal against deportation.

The decision that I made in 1991, after taking advice, was based upon the law relating to injunctions against the Crown as it was then understood to be and based upon a precedent decision by the House of Lords. In effect, this interpretation was that there was no power in domestic law to grant injunctions against the Crown.

I was also advised by Treasury counsel that, as Home Secretary, I was entitled to take prompt steps to have Mr Justice Garland's order set aside, and on the following morning the order was set aside. Mr Justice Garland recognised that he had no jurisdiction to make his order.

The Law Lords have now held that the Crown and its ministers may be subject to the coercive jurisdiction of the court. This will have significant constitutional consequences for the process of decision-making by ministers.

Some commentators have sought to portray the Law Lords' decision as a restraint on over-powerful government. This rather ignores the fact that ministers are always careful about the way their decisions are made because of the possibility of judicial review proceedings, and accountability to Members of Parliament and the House of Commons. At no time did I have any intention of acting in defiance of an order of the court or of holding myself above the law. As Home Secretary, I simply sought to exercise the right to have an irregular order set aside and to stay my hand in the meantime. In November 1991, I apologised to the Court of Appeal if, as a result of my action, a contempt of court had arisen. In light of the House of Lords judgment, I repeat that apology.

I note that the leading judgment by Lord Woolf said: 'The conduct complained of in this case was justified for the bringing of contempt proceedings but was not that of Mr Baker alone. He was acting on advice. His error was understandable and I accept there is an element of unfairness in the finding against him personally.'

Yours sincerely,

KENNETH BAKER

MP for Mole Valley (Con)

House of Commons

London, SW1

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