M v Home Office

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Briefly explain the case of M v Home Office (1994) as it relates to the concept of the Rule of Law Dicey proposed that every man is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals, whatever his ‘rank or condition’[1]. The accuracy of this assertion came under challenge in the case of M v Home Office (1994)[2], in which two issues of constitutional importance were considered; firstly whether injunctions could be issued against a government minister or department, and secondly whether a government minister or department could be found to be in contempt of court for failing to comply with a court order[3]. The case concerned ‘M’, a citizen of Zaire who sought political asylum under the Geneva Convention relating to the Status of Refugees[4]. M’s application was rejected by the Home Office who ordered his removal from the UK. The Court of Appeal refused an application for leave to move for judicial review and so a fresh application was made, which alleged new grounds, to Garland J in chambers. Garland J indicated that M’s departure should be postponed in order to consider the application, and his understanding was that the Home Office had given an undertaking that this would be done. In fact, the undertaking given was that they would ‘endeavour’ to postpone the departure; and regardless of ‘endeavours’, M was removed from jurisdiction on a flight to Zaire via Paris. On hearing of this, Garland J made a ‘without notice’ mandatory order, noting that the apparent ‘undertaking’ had been breached and requiring the Home Secretary to procure M’s return; and so arrangements were made for this[5]. The order granted the Secretary of State liberty to vary or discharge it, and so following advice from his officials, the Home Secretary cancelled the arrangements for M’s return, concluding that the underlying decision to refuse asylum had been correct, and that the order made by Garland J was made without jurisdiction. Proceedings were brought against the Home Secretary on behalf of M (who had since disappeared following his arrival in Zaire) and a finding was made that Kenneth Baker, when acting as Home Secretary, had been guilty of contempt of court with the result simply that Mr Baker should pay costs[6]. One of the significant considerations in the case was whether the Crown Proceedings Act 1947 granted immunity to the Crown and its servants from injunctions when acting in their official capacity[7]. Up until 1947, the Crown enjoyed a number of substantial immunities and benefited from various procedural advantages in litigation[8]. Under the Act, however, the Crown is subject to the same liabilities in tort as a person of full age and capacity[9]; it is further vicariously liable for torts committed by its servants or agents[10]. The extent to which the Crown is liable appears to be limited by the Act. The 1994 case established, however, that the Act does not preclude the grant of an injunction against a particular crown servant, and such a view was in keeping with the history of prerogative proceedings against officers of the Crown. Although the Crown cannot be subject to this remedy, its servants carrying out its tasks will be[11]. Lord Templeman in delivering his brief judgement noted that the argument that there was 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 his Lordship said would reverse the result of the Civil War[12]. Lord Woolf, delivering the main opinion of the Court, affirmed the finding of the Court of Appeal “save for substitution of designation "Secretary of State for Home Affairs" as proper object of finding of contempt”[13]. It was held that Garland J had jurisdiction to grant the order per Note 53/1-14/24 to the Supreme Court Practice 1993 which permits such a grant in urgent cases; further, the order was made by the High Court and so valid until set aside[14]. Whilst it might be acceptable to delay complying with the order until an application has been made for further guidance from the Court, the person in whose favour the order has been made (in this case M) must not be disadvantaged pending the hearing. In this case, the cancellation of plans to return M to the safety of the UK comprised a failure to protect his position and thus a disadvantage. Lord Woolf further examined the issue of whether a finding of contempt could be made against the Crown, government department or minister of the Crown. He considered that the Crown did have legal personality[15] so this did not present a hindrance to such a finding. Further, whilst acknowledging the argument that contempt proceedings were usually personal and punitive (and would therefore be inappropriate against the Crown or an officer of a Crown) he did not accept that this was always their function, and held that a finding of contempt could vindicate the requirements of justice. The issue as to whether the courts have jurisdiction to issue ‘coercive’ orders against the Crown or ministers of the Crown was said to go to the heart of “the relationship between the executive and the courts”[16]. Such sanctions are necessarily within a court’s jurisdiction to protect orders it has made, although they should only be issued in the most limited circumstances as they will usually be unnecessary[17],[18]. Their existence however reflects Dicey’s ideal that officials and others should have no exemption from the duty of the law that governs other citizens, or from the jurisdiction of ordinary tribunals[19], in order that citizens may enjoy legal protection against unlawful conduct on the part of officials[20]. However great the powers or duties conferred on the executive, it is necessary in a parliamentary democracy[21] that all concerned are equally responsible before the ordinary courts for the exercise of their rights, powers and duties[22]. Word count: 1,000 + refs & bibliography AV Dicey An Introduction to the Study of the Law of Constitution (10th Edition Macmillan London 1965) M Allen & B Thompson Cases and Materials on Constitutional and Administrative Law (7th Edition Oxford University Press London 2002) Halsbury's Laws of England Administrative Law (Volume 1(1) 2001 Reissue) 4. Judicial Control (4) Judicial Remedies (iii) Mandatory Orders b. Public Offices and Duties in Respect of Which a Mandatory Order Will Not Lie 148. Mandatory Orders Against the Crown and Crown Servants Halsbury's Laws of England Administrative Law (Volume 1(1) 2001 Reissue) 4. Judicial Control (4) Judicial Remedies (iv) Declarations and Injunctions b. injunctions 152. The injunction in public law. RVF Heuston The Rule of Law in Essays in Constitutional Law (2nd Edition 1964) 44-48 LexisNexis UK : http://www.lexisnexis.com/uk/legal Table of Cases Francome and Another v Mirror Group Newspapers Ltd and Others (1984) 2 All ER 408 at 412 Isaacs v Robertson (1985) Ac 97 M v Home Office (1994) 1 A.C. 377 R v Secretary of State for War [1891] 2 QB 326, CA R v Treasury Lords Comrs (1872) LR 7 QB 387 at 402 Re A Company (1981) AC 374 Town Investment Ltd v Department of the Environment (1978) Ac 359

Footnotes

[1] AV Dicey An Introduction to the Study of the Law of Constitution (10th Edition Macmillan London 1959) 193 as quoted in M Allen & B Thompson Cases and Materials on Constitutional and Administrative Law (7th Edition Oxford University Press London 2002) 216 [2] 1 A.C. 377 [3] Cases and Materials on Constitutional and Administrative Law (n 1 above) 217 [4] (1951) (Cmd. 9171): (1994) 1 A.C. 377 at 398 [5] [1994] 1 A.C. 377 at 400 [6] (1994) 1 A.C. 377 at 397-403 [7] Section 21(1) [8] RC Clements & J Kay Constitutional and Administrative Law (3rd Edition Oxford University Press Oxford)179 [9] Section 2 (amended by the Statute Law Repeals Act 1981 [10] As defined by Section 6 [11] Constitutional and Administrative Law (n 8 above) 182 [12] [1994] 1 A.C. 377 at 396 [13] [1994] 1 A.C. 377 at 428 [14] In Re A Company (1981) AC 374, 384 and Isaacs v Robertson (1985) Ac 97, 102 per Lord Diplock [15] As sole corporation or corporation aggregate per Lord Diplock in Town Investment Ltd v Department of the Environment (1978) Ac 359 [16] [1994] 1 A.C. 377 at 406 [17] Halsbury's Laws of England Administrative Law (Volume 1(1) 2001 Reissue) 152. The Injunction in Public Law [18] (1994) 1 A.C. 377 per Lord Woolf; cf R v Secretary of State for Transport, ex p Factortame [1990] 2 AC 85, [1989] 2 All ER 692, HL [19] An Introduction to the Study of the Law of Constitution (n1 above) 202-203 [20] Cases and Materials on Constitutional and Administrative Law (n 1 above) 215 [21] Per Lord Donaldson MR in Francome and Another v Mirror Group Newspapers Ltd and Others (1984) 2 All ER 408 at 412 [22] RVF Heuston The Rule of Law in Essays in Constitutional Law (2nd Edition 1964) 44-48 in Cases and Materials on Constitutional and Administrative Law (n 1 above) 215
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