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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
    1. Rustomjee v The Queen (1876) 2 QB D 69 (CA)
    2. Maclaine Wason and Co Ltd v Department of Trade and Industry [1990] 2 AC 418
    3. R v Secretary of State for the Home Department, ex parte Leech [1994] QB 198, [1993] 4 All ER 539, [1993] 3 WLR 1125 (CA)
    4. R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1996] 4 All ER 385, [1997] 1 WLR 27529 HLR 129 (CA)
    5. M v Home Office and another [1994] 1 AC 377; [1993] 3 All ER 537
    6. Derbyshire CC v Times Newspapers Ltd [1993] 1 ALL ER 1011 (HL)
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

M v Home Office and another [1994] 1 AC 377; [1993] 3 All ER 537

LORD TEMPLEMAN: Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law. The expression 'the Crown' has two meanings, namely the monarch and the executive. In the seventeenth century Parliament established its supremacy over the Crown as monarch, over the executive and over the judiciary. Parliamentary supremacy over the Crown as monarch stems from the fact that the monarch must accept the advice of a Prime Minister who is supported by a majority of Parliament. Parliamentary supremacy over the Crown as executive stems from the fact that Parliament maintains in office the Prime Minister, who appoints the ministers in charge of the executive. Parliamentary supremacy over the judiciary is only exercisable by statute. The judiciary enforce the law against individuals, against institutions and against the executive. The judges cannot enforce the law against the Crown as monarch because the Crown as monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown. A litigant complaining of a breach of the law by the executive can sue the Crown as executive bringing his action against the minister who is responsible for the department of state involved, in the present case the Secretary of State for Home Affairs. To enforce the law the courts have power to grant remedies including injunctions against a minister in his official capacity. If the minister has personally broken the law the litigant can sue the minister, in this case Mr Kenneth Baker, in his personal capacity. For the purpose of enforcing the law against all persons and institutions, including ministers in their official capacity and in their personal capacity, the courts are armed with coercive powers exercisable in proceedings for contempt of court.

In the present case, counsel for the Secretary of State argued that the judge could not enforce the law by injunction or contempt proceedings against the minister in his official capacity. Counsel also argued that in his personal capacity Mr Baker the Secretary of State for Home Affairs had not been guilty of contempt.

My Lords, the argument that there is 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 would reverse the result of the Civil War....

LORD WOOLF: The Court of Appeal were of the opinion that a finding of contempt could not be made against the Crown, a government department or a minister of the Crown in his official capacity. Although it is to be expected that it will be rare indeed that the circumstances will exist in which such a finding would be justified, I do not believe there is any impediment to a court making such a finding, when it is appropriate to do so, not against the Crown directly, but against a government department or a minister of the Crown in his official capacity. Lord Donaldson MR considered that a problem was created in making a finding of contempt because the Crown lacked a legal personality. However, at least for some purposes, the Crown has a legal personality. It can be appropriately described as a corporation sole or a corporation aggregate (per Lord Diplock and Lord Simon of Glaisdale respectively in Town Investments Ltd v Dept of the Environment [1977] 1 All ER 813, [1978] AC 359). The Crown can hold property and enter into contracts. On the other hand, even after the Crown Proceedings Act 1947, it cannot conduct litigation except in the name of an authorised government department or, in the case of judicial review in the name of a minister. In any event it is not in relation to the Crown that I differ from Lord Donaldson MR, but as to a government department or a minister.

Nolan LJ considered that the fact that proceedings for contempt are 'essentially personal and punitive' meant that it was not open to a court, as a matter of law, to make a finding of contempt against the Home Office or the Home Secretary (see [1992] 4 All ER 97 at 144, [1992] 1 QB 270 at 311). While contempt proceedings usually have these characteristics and contempt proceedings against a government department or a minister in an official capacity would not be either personal or punitive (it would clearly not be appropriate to fine or request the assets of the Crown or a government department or an officer of the Crown acting in his official capacity), this does not mean that a finding of contempt against a government department or minister would be pointless. The very fact of making such a finding would vindicate the requirements of justice. In addition an order for costs could be made to underline the significance of a contempt. A purpose of the courts' powers to make findings of contempt is to ensure the orders of the court are obeyed. This jurisdiction is required to be co-extensive with the courts' jurisdiction to make the orders which need the protection which the jurisdiction to make findings of contempt provides. In civil proceedings the court can now make orders (other than injunctions or for specific performance) against authorised government departments or the Attorney General. On applications for judicial review orders can be made against ministers. In consequence of the developments identified already such orders must be taken not to offend the theory that the Crown can supposedly do no wrong. Equally, if such orders are made and not obeyed, the body against whom the orders were made can be found guilty of contempt without offending that theory, which would be the only justifiable impediment against making a finding of contempt.

In cases not involving a government department or a minister the ability to punish for contempt may be necessary. However, as is reflected in the restrictions on execution against the Crown, the Crown's relationship with the courts does not depend on coercion and in the exceptional situation when a government department's conduct justifies this, a finding of contempt should suffice. In that exceptional situation, the ability of the court to make a finding of contempt is of great importance. It would demonstrate that a government department has interfered with the administration of justice. It will then be for Parliament to determine what should be the consequences of that finding. In accord with tradition the finding should not be made against the 'Crown' by name but in the name of the authorised department (or the Attorney General) or the minister so as to accord with body against whom the order was made. If the order was made in civil proceedings against an authorised department, the department will be held to be in contempt. On judicial review the order will be against the minister and so normally should be any finding of contempt in respect of the order.

However, the finding under appeal is one made against Mr Baker personally in respect of an injunction addressed to him in his official capacity as the Secretary of State for the Home Department. It was appropriate to direct the injunction to the Secretary of State in his official capacity since, as previously indicated, remedies on an application for judicial review which involve the Crown are made against the appropriate officer in his official capacity. This does not mean that it cannot be appropriate to make a finding of contempt against a minister personally rather than against him in his official capacity provided that the contempt relates to his own default. Normally it will be more appropriate to make the order against the office which a minister holds where the order which has been breached has been made against that office since members of the department concerned will almost certainly be involved and investigation as to the part played by individuals is likely to be at least extremely difficult, if not impossible, unless privilege is waived (as commendably happened in this case). In addition the object of the exercise is not so much to punish an individual as to vindicate the rule of law by a finding of contempt. This can be achieved equally by a declaratory finding of the court as to the contempt against the minister as representing the department. By making the finding against the minister in his official capacity the court will be indicating that it is the department for which the minister is responsible which has been guilty of contempt. The minister himself may or may not have been personally guilty of contempt. The position so far as he is personally concerned would be the equivalent of that which needs to exist for the court to give relief against the minister in proceedings for judicial review. There would need to be default by the department for which the minister is responsible.

In addition Mr Richards argued that for a finding of contempt against Mr Baker personally it would not suffice to establish contempt to show that Mr Baker was aware of the order and had not complied with it. It would also be necessary to show an intention to interfere with or impede the administration of justice. If such an intent was shown to exist, then Mr Richards conceded that the conduct of the minister would fall outside his authority as a minister; it would be a personal act not the act of the Crown; and it would expose him to a personal liability for contempt. In support of the distinction which he relied upon, Mr Richards referred to the speech of Lord Oliver of Aylmerton in A-G v Times Newspapers Ltd [1991] 2 All ER 398 at 414-415, [1992] 1 AC 191 at 217-218, where a Lord Oliver stated:

'A distinction (which has been variously described as "unhelpful" or "largely meaningless") is sometimes drawn between what is described as "civil contempt", that is to say contempt by a party to proceedings in a matter of procedure, and "criminal contempt". One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constitutes a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made and can be waived by him. The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited. When, however, the prohibited act is done not by the party bound himself but by a third party, a stranger to the litigation, that person may also be liable for contempt. There is, however, this essential distinction that his liability is for criminal contempt and arises not because the contemnor is himself affected by the prohibition contained in the order but because his act constitutes a wilful interference with the administration of justice by the court in the proceedings in which the order was made. Here the liability is not strict in the sense referred to, for there has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice -- an intention which can of course be inferred from the circumstances.'

I happily adopt the approach of Lord Oliver. It reflects the distinction which I have drawn between the finding of contempt and the punishment of the contempt. I also accept the distinction which Lord Oliver draws between the position of a person who is subject to an order and a third party. I also recognise the force of Mr Richards' submission that if Mr Baker was not under a strict liability to comply with the order it would not be possible to establish that he had the necessary intention to interfere with or impede the administration of justice to make him guilty of contempt as a third party. However, although the injunction was granted by Garland J against Mr Baker in his official capacity this does not mean that he is in the same position as a third party. To draw a distinction between his two personalities would be unduly technical. While he was Home Secretary the order was one binding upon him personally and one for the compliance with which he as the head of the department was personally responsible. He was, therefore, under a strict liability to comply with the order. However, on the facts of this case I have little doubt that if the Court of Appeal had appreciated that they could make a finding against Mr Baker in his official capacity this is what the court would have done. The conduct complained of in this case which justified the bringing of contempt proceedings was not that of Mr Baker alone and he was acting on advice. This error was understandable and I accept that there is an element of unfairness in the finding against him personally......

It is for these reasons that I would dismiss this appeal with costs save for substituting the Secretary of State for the Home Department as being the person against whom the finding of contempt was made....