United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/18/253

In re M (A.P.) (Cross-appellant and Original Respondent)

JUDGMENT

Die Martis 27° Julii 1993

Upon Report from the Appellate Committee to whom was
referred the Cause In re M, That the Committee had heard Counsel
as well on Monday the 10th as on Tuesday the 11th, Wednesday the
12th, Thursday the 13th, Monday the 17th, Tuesday the 18th and
Wednesday the 19th days of May last upon the Petition and Appeal
of Kenneth Wilfred Baker of 50 Queen Anne's Gate, London SW1H
9AT, praying that the matter of the Order set forth in the
Schedule thereto, namely an Order of Her Majesty's Court of
Appeal of the 29th day of November 1991, might be reviewed before
Her Majesty the Queen in Her Court of Parliament and that the
said Order might be reversed, varied or altered or that the
Petitioner might have such other relief in the premises as to Her
Majesty the Queen in Her Court of Parliament might seem meet; as
upon the case of Makunsa Mbala lodged in answer to the said
Appeal; as also upon the Petition and Cross-appeal of Makunsa
Mbala of Her Majesty's Prison Pentonville, Caledonian Road,
London N7, praying that the matter of the Order set forth in the
Schedule thereto, namely an Order of Her Majesty's Court of
Appeal of the 29th day of November 1991, might be reviewed before
Her Majesty the Queen in Her Court of Parliament and that the
said Order might be reversed, varied or altered or that the
Petitioner might have such other relief in the premises as to Her
Majesty the Queen in Her Court of Parliament might seem meet; as
upon the case of the Home Office and Kenneth Wilfred Baker lodged
in answer to the said Cross-appeal; and due consideration had
this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty's Court of Appeal
of the 29th day of November 1991 complained of in the said Appeal
and the said Cross-appeal be, and the same is hereby, Affirmed
save that in place of Kenneth Wilfred Baker there be substituted
the designation "Secretary of State for Home Affairs" as being
the proper subject of the finding of contempt, and that the said
Petition and Appeal and the said Cross-appeal be, and the same
are hereby, dismissed this House: And it is further Ordered.
That the Appellant do pay or cause to be paid to the said
Respondent the Costs incurred by him in respect of the said
Appeal and the said Cross-appeal, such costs to include provision
for three Counsel and the amount thereof to be certified by the
Clerk of the Parliaments if not agreed between the parties: And
it is also further Ordered, That the costs of the Respondent be
taxed in accordance with the Legal Aid Act 1988.

Cler: Parliamentor:

Judgment: 27 July 1993

HOUSE OF LORDS

INREM (A.P.)

(CROSS-APPELLANT

AND ORIGINAL RESPONDENT)

Lord Keith of Kinkel
Lord Templeman
Lord Griffiths
Lord Browne-Wilkinson
Lord Woolf




LORD KEITH OF KINKEL

My Lords.

I have had the advantage of reading in draft the speech to be delivered
by my noble and learned friend Lord Woolf. I agree with it, and for the
reasons he gives would dismiss the appeal, while substituting the Secretary of
State for Home Affairs for Mr. Baker personally as the subject of the finding
of contempt.




LORD TEMPLEMAN




My Lords,




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 17th 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



- 1 -

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. Kenneth 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. For the reasons given by my noble and
learned friend Lord Woolf and on principle. I am satisfied that injunctions and
contempt proceedings may be brought against the minister in his official
capacity and that in the present case the Home Office for which the Secretary
of State was responsible was in contempt. I am also satisfied that Mr. Baker
was throughout acting in his official capacity, on advice which he was entitled
to accept and under a mistaken view as to the law. In these circumstances I
do not consider that Mr. Baker personally was guilty of contempt. I would
therefore dismiss this appeal substituting the Secretary of State for Home
Affairs as being the person against whom the finding of contempt was made.

LORD GRIFFITHS

My Lords,

I have had the advantage of reading in draft the speech to be delivered
by my noble and learned friend Lord Woolf. I agree with it, and for the
reasons he gives would dismiss the appeal, while substituting the Secretary of
State for Home Affairs for Mr. Baker personally as the subject of the finding
of contempt.

- 2 -

LORD BROWNE-WILKINSON

My Lords.

For the reasons given in the speech of my noble and learned friend
Lord Woolf I agree that this appeal should be dismissed, while substituting the
Secretary of State for Home Affairs for Mr. Baker personally as the subject
of the finding of contempt.

LORD WOOLF

My Lords,

This appeal gives rise to issues of constitutional importance. It is an
appeal from a decision of the Court of Appeal, which by a majority (Lord
Donaldson of Lymington M.R. and Nolan L.J.. McCowan L.J.. dissenting)
reversed a judgment of Simon Brown J. and decided that Mr. Kenneth Baker,
when acting as Home Secretary, had been guilty of contempt of court.

This was the first time that a Minister of the Crown had been found
to be in contempt by a court. The finding of contempt was made for not
complying with an injunction granted by Garland J. ordering M., who had
made a claim for asylum, which was rejected by the Home Office, to be
returned to this country. The Court of Appeal did not regard the contempt as
requiring any punishment of Mr. Baker other than that he pay the costs of the
appeal and, in so far as they related to the proceedings brought against him.
in the court below. The Court of Appeal did not allow the appeal of M.
against the dismissal of his application that other respondents, including the
Home Office, should also be found guilty of contempt. Mr. Kentridge Q.C..
in his argument on behalf of M., made it clear that he would only seek to rely
on a cross-appeal against the decision as to the Home Office if. contrary to his
primary contention, the decision of the majority of the Court of Appeal was
wrong in relation to the responsibility of Mr. Baker.

Mr. Stephen Richards submits on behalf of the Home Office and on
behalf of Mr. Baker that neither the Crown in general, nor a Department of
State, nor a Minister of the Crown, acting in his capacity as such, are
amenable to proceedings in contempt. It is a necessary part of that submission
that the courts also have no power to grant injunctions directed to such bodies
and that the order which was made by Garland J.. which it was held by Simon
Brown J. as well as the Court of Appeal that Mr. Kenneth Baker had
contravened, was made without jurisdiction.

When advancing these submissions Mr. Stephen Richards stressed that
it was no part of his case that the Crown or Ministers are above the law or



- 3 -

that Ministers are able to rely on their office so as to evade liability for
wrongdoing. He argued that this was not a consequence of his submissions
and he accepted that the Crown has a duty to obey the law as declared by the
courts. He accepted that if a minister acted in disregard of the law as
declared by the courts, or otherwise was engaged in wrongdoing, he would
be acting outside his authority as a minister and so would expose himself to
a personal liability for his wrongdoing.

The fact that these issues have only now arisen for decision by the
courts is confirmation that in ordinary circumstances Ministers of the Crown
and Government Departments invariably scrupulously observe decisions of the
courts. Because of this, it is normally unnecessary for the courts to make an
executory order against a Minister or a Government Department since they
will comply with any declaratory judgment made by the courts and pending
the decision of the courts will not take any precipitous action. Mr. Stephen
Richards submits that the circumstances which have given rise to the present
proceedings are highly unusual and that the fact that Garland J. felt it
necessary to grant an injunction was due to a series of mishaps and
misunderstandings. Mr. Richards also submits that, irrespective of the
answers to the legal issues, this is not a case in which it was appropriate to
make a finding of contempt, since there was no question of Mr. Kenneth
Baker seeking to act in defiance of the court, nor was there any intention to
interfere with or impede the administration of justice. Support for these
submissions is provided by two comments of Lord Donaldson in his judgment
in the Court of Appeal, the first being made at the outset of his judgment
when he said:

"This case is remarkable for the chapter of accidents, mistakes and
misunderstandings which has occurred." [1992] 1 Q.B. 284.

The second comment is part of the explanation which Lord Donaldson
M.R. gave for concluding that, in the highly unusual circumstances of this
case. Mr. Baker's responsibility for contempt fell at the lower end of the
scale. The second comment is that Mr. Baker:

"has disavowed any intention to act in defiance of an Order of the
court or to hold himself above the law, a disavowal which I fully
accept." [1992] 1 Q.B. at p. 306.

The sequence of events which led to the majority of the Court of
Appeal coming to the conclusion that Mr. Baker was guilty of contempt are
set out fully in the judgments of Simon Brown J. (not reported) and Lord
Donaldson M.R. in the Court of Appeal. Although I will therefore summarise
them as shortly as possible, I am afraid it is still necessary, especially in view
of Mr. Richards' suggestion that it was unjust to find Mr. Baker guilty of
contempt, to set out the events in some detail.

- 4 -

The Sequence of Events

M. is a citizen of Zaire. He arrived in the United Kingdom on 23
September 1990 and immediately claimed asylum. The claim was based on
an allegation that he was a refugee within the meaning of the Geneva
Convention Relating to the Status of Refugees (1951) (Cmd. 9171). He was
interviewed and he was informed that the Home Secretary was minded to
refuse his claim to asylum by a letter of 16 November 1990 which explained
the basis upon which this preliminary decision had been reached.

M. was then re-interviewed on 2 December 1990 and given an
opportunity to comment upon the letter of 16 November 1990. His position
was then reconsidered by the asylum division of the Home Office and on 17
December 1990 a letter was written to M. setting out that, his further
comments having been considered, it was still not considered that he qualified
for asylum under the terms of the Convention.

The contents of the two letters make it reasonably clear that the
decision to refuse asylum was due to the Home Office not accepting M.'s
accounts of events which resulted in his seeking asylum. This account
involved him claiming that he was a teacher in Zaire who had encouraged
other teachers to take strike action which resulted in demonstrations by
students at his school; that he was arrested for having organised the strike and
detained for three days during which time he was whipped and beaten; and
that a guard, who he believed had been bribed by his father, had then
smuggled him into an aircraft bound for Lagos where he acquired a false
Nigerian passport and a ticket for a flight to London.

An application was then made for leave to apply for judicial review
and as a result the directions which had been made for his removal by the
Home Office, which had been set for 17 January 1991. were cancelled. The
basis of the application for leave was that the Secretary of State had failed to
consider certain facts. On 20 March 1991 the application was refused by
Kennedy J. The removal directions were then scheduled for 28 March 1991.
M. then promptly applied to renew his application for leave before the Court
of Appeal, but his solicitors failed to file the appropriate documents and so the
application was not listed.

On 11 April 1991 M. was examined by a doctor from the Medical
Foundation for the Care of Victims of Torture and he prepared a report dated
12 April 1991 which set out his opinion as follows:

"I found nothing in his history or its presentation to suggest that it was
in any way unreliable. His description of prison conditions has been
confirmed innumerable times by other people who have experienced
them. The scars he bears are entirely compatible with the causes he
ascribes to them. He is suffering a degree of deafness and spinal
trouble quite likely to have arisen from his mistreatment.



- 5 -

Psychologically he describes symptoms very likely to arise from the
experiences he described. He shows some evidence of depression and
his continued detention can only aggravate these symptoms and he
could easily become a serious suicide risk."

Regrettably the report was not sent to the Home Office until 30 April
1991. the day before the latest time which had been set for M.'s removal,
which was 6.30 p.m. on 1 May 1991. The Court of Appeal heard M.'s
application by interrupting its normal work for that day during the afternoon
of 1 May and at about 4.55 p.m. Lord Donaldson M.R., sitting with Nicholls
and Farquharson L.JJ., delivered a 5 page judgment giving the Court of
Appeal's reasons for unanimously refusing the application. Unbeknown to the
Court of Appeal, arrangements were already being made for M. to change his
solicitors from those who had represented him up to that time, including in the
Court of Appeal, on the basis that his case was not being fully deployed by
his existing legal advisors. Outside the Court of Appeal, the new solicitors
for M. and the counsel then instructed informed counsel for the Home Office
and his instructing solicitor (Mr. David Palmer) that a fresh application for
leave to apply for judicial review was to be made on M.'s behalf to Garland
J.. the judge in chambers, as it was outside normal court hours and there was
no nominated Crown Office List judge available. It was indicated that the
fresh grounds relied upon would include the availability of the medical report
and the unreasonable reliance by the Home Office upon the respondent's
failure to apply for asylum in Nigeria.

At about 5.25 p.m. on 1 May 1991 the hearing before Garland J.
commenced. At that stage it was appreciated that M.'s aircraft was about to
take off from Heathrow at 6.00 or 6.30 p.m. Having heard part of the
argument. Garland J. not unnaturally took the view that the judge in chambers
was not the proper tribunal to give leave to move for judicial review and that
the obvious course was to adjourn the matter so that an application could be
made the following day to a nominated judge. When it became apparent that
Garland J. wished M.'s departure to be postponed Mr. Palmer telephoned the
Home Office to convey the judge's wishes and told a senior executive officer
at the Home Office that the judge had expressed the wish that M. should not
be removed from the United Kingdom and asked him to do his best to insure
the removal did not take place. This was at approximately 5.50 p.m.

In the absence of Mr. Palmer a misunderstanding took place between
counsel who was representing the Home Office and Garland J. Garland J.
understood that he had been given an undertaking by counsel on behalf of the
Home Office that M. would not be removed pending the making of an
application the following morning. On that basis Garland J. refrained from
granting leave and adjourned the application. However, counsel for the Home
Office did not intend to give an undertaking and did not believe that he had
done so. However, the Order which was made in relation to the hearing
recited the fact that "the application for leave to move for judicial review be



- 6 -

adjourned on the undertaking by counsel for the Home Office . . . that the
applicant would not be removed from the United Kingdom to Zaire."

Unfortunately, through no one's fault, the steps which Mr. Palmer had
set in motion to prevent M.'s removal were unsuccessful and at 6.30 p.m. the
aircraft carrying M. commenced its departure for Zaire via Paris. The
aircraft landed in Paris at 7.45 p.m. The plane on which M. was to continue
his flight was not due to leave until 10.20 p.m.

Prior to M.'s departure from Paris, numerous discussions took place
between officials of the Home Office, an M.P. who was intervening on M.'s
behalf, his new solicitor and subsequently Mr. Peter Lloyd, the Parliamentary
Under Secretary of State to the Home Office ("the Minister"). The
conversation which took place revealed a considerable confusion as to what
was the precise situation. The Home Office officials and the Minister were
under the impression that the judge, whose identity they did not know, wanted
M. to be renamed. The view was taken that it would not be appropriate to
intervene in Paris, but it was decided that the judge should be informed about
the situation. The Home Office officials were not able to contact a
representative of the Treasury Solicitor and in fact although, subsequently, the
identity of the judge was ascertained together with his telephone number, no
one contacted him on behalf of the Home Office.

No action was taken by the Home Office to prevent M. leaving Paris
and at 10.40 p.m. the aircraft carrying M. and his escort departed from Paris.
It is accepted that at that time the Minister was ignorant of any undertaking,
as opposed to an informal request, being given by the Home Office until it
was too late to have secured M.'s return from Paris.

At about 11.20 p.m. M.'s solicitor telephoned Garland J. at his home
and informed him what had happened and that, on M.'s case, he would be
exposed to a grave risk of persecution on his arrival in Zaire. Garland J. then
made a mandatory Order on the telephone requiring the Home Secretary to
return M. to this country. The solicitor later at about 12.30 a.m. visited
Garland J. at his home where the judge wrote out an Order in the following
terms:

"Whereas at 17.55 hours on Wednesday 1 May 1991, on an
application to the judge in chambers for leave to move for judicial
review of the determination that [M.] was not entitled to the status of
refugee counsel for the Home Office ... on instructions undertook to
the court that [M.] would not be removed from the United Kingdom
to Zaire pending an adjourned application for leave to move for
judicial review so soon as possible on Thursday 2 May 1991;

and whereas the said undertaking was embodied in the order of the
court adjourning the said application;

- 7 -

and whereas it appears to the court that the said undertaking has been
breached by the removal of [M.];

upon hearing Mr. David Burgess, solicitor, on behalf of the said [M.]

It is ordered that the Secretary of State for the Home Department by
himself, his servants or agents do forthwith procure that

1. The said [M.] be returned within the jurisdiction of this court,
   and further that:

2. pending the return of the said [M.] he be kept in the care of the
   servants or agents of the Secretary of State and/or of the
   servants or agents of Her Majesty's Government in Zaire until
   further order herein.

3. that the Secretary of State be at liberty to apply to vary or
discharge this Order at 10.30 a.m. on Thursday 2 May 1991."

Having obtained the Order the solicitor first informed the Home Office
of its contents on the telephone and subsequently faxed a copy to the Chief
Immigration Officer. At about 1.40 a.m., the Minister's Private Secretary,
who was by then aware of the terms of the Order and had spoken to a
representative of the Treasury Solicitor, contacted the resident clerk of the
Foreign and Commonwealth Office and asked him to contact Kinshasha
immediately and arrange for the respondent to be met on arrival by officials
from the British Embassy, who should look after him and help him to return
provided that he wanted to do so. However, it was not possible to contact the
British Embassy until 7 a.m. the following morning. In the meantime the
Minister had been informed of what had been arranged.

When the plane carrying M. arrived at the airport at Kinshasa he was
not met and was presented by his escort to the Zaire immigration authorities.
Shortly afterwards he was seen by an official of the embassy. He told the
official that he wished to return to London and he was booked on a flight due
to leave Kinshasa at 9 p.m. that evening. His travel documents were taken
for a return visa to be endorsed on them.

No application was made to Garland J. at 10.30 on 2 May in
accordance with the terms of the Order, though a message was left with his
clerk that the Home Office wished to make an application and would be in
touch again as soon as possible.

During the morning discussions took place between the Minister and
his officials but he concluded that the case raised issues of such importance
that the instructions of the Secretary of State, Mr. Baker, should be sought.
A meeting with Mr. Baker was arranged for 4 p.m. that afternoon which,
having regard to his other commitments, was the earliest opportunity. At the

- 8 -

beginning of the meeting Mr. Baker knew nothing about the case. What
happened at the meeting is set out in a note which was taken by Mr. Baker's
private secretary for which public interest immunity was exceptionally waived.
The meeting was attended by the Minister, an Assistant Under-Secretary of
the Immigration Department, a member of the legal department of the Home
Office and the respective Private Secretaries. The note describes what
happened as follows:

"The Home Secretary discussed the case of [M.] with Mr. Lloyd. Mr.
Plait, Mr. Osborne and Ms. Spencer this afternoon.

"2. Having read the facts of the case, as set out in your briefing
note of 2 May, the Home Secretary asked the grounds on which
officials proposed that the court Order should be opposed. Mr.
Osborne explained that Mr. Justice Garland had exceeded his powers
in making an Order that [M.] should be returned directly from Zaire:
it was a mandatory Order against the Crown and was outside our
jurisdiction. Treasury Solicitors were expected to confirm later this
afternoon that the Home Office should appeal against the Order and
that [M.] should not be returned to Britain. Mr. Platt explained that,
because [M.] would require a visa or some form of entry clearance to
re-enter Britain, it would be extremely difficult to remove him if. as
expected, we won the case. Mr. Lloyd was confident that the reasons
for [M's] removal still held good. The political difficulty was that the
Home Office could be accused of having been dilatory in giving effect
to the undertaking given by counsel to the judge. However, the
undertaking had been that we would "do our best" to delay [M's]
removal, and the chronology of events clearly demonstrated that we
had fulfilled this undertaking.

"3. The Home Secretary fully supported the action taken and,
subject to Treasury Solicitors' [sic] advice, agreed in the present
circumstances that [M.] should not be returned to Britain."

In an affidavit prepared for the hearing in the Court of Appeal. Mr.
Baker described how he came to his decision as follows:

"... two factors operated on my mind in particular:

(1) The assurance which I received from Mr. Lloyd that the underlying
asylum decision in relation to the [M.] was the right one: and (2) legal
advice (subsequently confirmed by Treasury Counsel) was to the effect
that the Order of Garland J. was made without jurisdiction and that an
application to set aside his Order would be made at the first
opportunity. I have to say that it was never suggested to me that my
decision constituted contempt of court and my whole understanding
was that in the circumstances it was perfectly in order for the Home
Office to apply to set aside the Order of Garland J. provided such



- 9 -

application was prompt. I am sure that I never had it in contemplation
to act in defiance of an Order of the court, much less to hold myself
above the law. If I am wrong in any of these conclusions or if the
legal advice on which I acted was wrong, then it is a matter of sincere
regret to me and I unreservedly apologise to the Court."

The note, in paragraph 3. is probably in error in referring to the
"Treasury Solicitor's advice." What was probably intended was to refer to
the advice of "Treasury Counsel" with whom a conference took place at 5.15
p.m. At the conference counsel advised that, as the liberty to apply granted
by the judge (although spent) itself indicated, the Home Office should have an
opportunity to challenge the Order made late the night before but that the
Home Office should take that opportunity at the earliest practicable time: in
the meantime the Home Office might reasonably hold its hand. As a result
the booking for the respondent's return flight was cancelled and arrangements
were made for an application to be made to Garland J. at 9 a.m. on the
following morning, 3 May. In the meantime M. was seen at Kinshasha
airport by officials and informed that there was no urgent need for him to
attend court proceedings in the United Kingdom. He was asked to remain in
touch with the embassy. He wrote down two addresses which he gave to the
officials as to where he could be contacted. Nothing was done to protect him
in the meantime.

In accordance with the arrangements which had been made, on 3 May
the application was made to Garland J. to discharge the Order that he had
made. Though that application was opposed. Garland J. came to the
conclusion that he had had no jurisdiction to make the Order, but indicated
that he had made the Order:

"on the basis not that I was granting a mandatory injunction against the
Crown, which clearly I could not do, on authority, but that I was
seeking to compel obedience of an undertaking freely given to the
court and which to the court appeared to have been breached."

Later the same day a further conference took place with counsel. As
a result of that conference in the light of Garland J.'s holding that an
undertaking had been received, a decision was taken by the Minister to effect
M.'s return to the United Kingdom. It proved impossible to contact M. at the
addresses which he had given. He did eventually contact his solicitors from
Nigeria and, although arrangements were made for his return from Nigeria,
by the time those arrangements were made contact had been lost again and his
whereabouts are now unknown.

On 7 May 1991 proceedings were commenced on behalf of M. seeking
to have the Home Office fined and the Minister committed to prison or fined
for contempt of court in failing to comply with the Order made on 2 May.
The notice of motion was subsequently amended, to include a number of other
claims including a claim against Mr. Baker. At the commencement of the

- 10 -

hearing before Simon Brown J. on 9 July, the only charges which were
maintained were those against the Home Office and Mr. Baker. Simon Brown
J. came to the conclusion that he had no power to make a finding that either
the Home Office or the Home Secretary were guilty of contempt. He
indicated that, if he had had such power, he would have found the Home
Office in contempt in failing to prevent M. being put on the plane in Paris
when they had had notice that an undertaking had been given to the court and
of its terms. With regard to Mr. Baker, Simon Brown J. said:

"Not without considerable hesitation. I have finally come to accept Mr.
Laws' submission that, jurisdiction apart, it would be wrong to find
the Secretary of State in contempt in the particular circumstances of
this case. It is just not proved beyond reasonable doubt that he had a
reasonable opportunity to decide to seek, and then in fact to seek,
discharge prior to 9 a.m. on 3 May. It is not sufficient for the
applicant to establish merely that in an ideal world things would have
been ordered differently. A respondent to contempt proceedings is
entitled to a reasonably benevolent construction of his actions and
decisions following receipt of a mandatory order made apparently
without jurisdiction, not least when, as here, these actions and
decisions are being guided at every step by responsible legal advisers."

Before Simon Brown J., Mr. Laws who was appearing for the Home
Office and Mr. Baker, but who had not appeared before Garland J. when the
alleged undertaking had been given, "did not feel it proper" to dispute that the
undertaking had in fact been given. As to this aspect of the case in the Court
of Appeal Lord Donaldson M.R. (at p. 298) said:

"Whilst I understand and respect Mr. Laws' attitude. I do not think
that it would be right for the court to shut its eyes to the wholly
exceptional circumstances of this case. In any ordinary circumstances
if a party, or solicitors or counsel on his behalf, so act as to convey to
the court the firm conviction that an undertaking is being given, that
party will be bound and it will be no answer that he did not think that
he was giving it or that he was misunderstood. Here, however, the
circumstances were extraordinary and the pressures of time
overwhelming. It was a situation in which a misunderstanding was
waiting to happen. If, as I think, it would not be right to regard the
Home Office or the Home Secretary as being bound by an undertaking
at a time when all concerned left court at the conclusion of the hearing
before Garland J. this position could not be altered by Mr. Burgess
informing Mr. George that an undertaking had been given. I do not.
therefore, think that any question of contempt arises in this context.
This is very far from saying that the Home Office can escape serious
criticism. On any view the judge was informed that the Home Office
would seek to prevent M. leaving the United Kingdom and I should
have thought that it was implicit in this that, if this proved impossible,
any other practicable means of preventing his reaching Zaire would be



- 11 -

adopted. This was why Mr. Palmer left the court in order to
telephone to the Home Office before the proceedings had been
concluded. Given greater efficiency and determination. I have no
doubt that M. could probably have been prevented from leaving
Heathrow and certainly he could have been returned to the United
Kingdom from Paris. He was not unwilling and he was in the custody
of the Home Office or its agents throughout the whole period ending
with his arrival in Zaire."

There is no reason for disagreeing with those criticisms. What does
appear to me to be clear from the events which occurred on 1 and 2 May
1991 is that, if there is no power in a court to make an order to prevent the
Home Office moving a person in any circumstances, this would be a highly
unsatisfactory situation. The facts of this case illustrate that circumstances can
occur where it is in the interests both of a person who is subject to the powers
of government and of the government itself that the courts should be in a
position to make an order which clearly sets out either what should or what
should not be done by the government. If there had been no confusion in this
case as to the extent of the court's power. I have little doubt that Mr. Baker
would not find himself in his present position where he has been found guilty
of contempt.

Lord Donaldson M.R. described Mr. Baker's contempt as "a very
serious one" because he had taken "a deliberate decision which has the effect
of ensuring that an Order of the court, to whomsoever addressed, is not
complied with, particularly when non-compliance could have had irremediable
and even fatal consequences for M., for whose protection the Order was
made." He however added:

"Any contempt of court is a matter of the utmost seriousness, but the
culpability of the contemnor can vary enormously. In the highly
unusual circumstances of this case. Mr. Baker's culpability falls at the
lower end of the scale for the following reasons:

"(1) He had no advance knowledge of M.'s case or of the court's
Order before 4 p.m. on 2 May.

"(2) He had very little time in which to decide upon his course of
action.

"(3) He was advised, wrongly, that the court's Order was made
without jurisdiction and may have got the impression that it
could be treated as a nullity.

"(4) Whether or not his advisers intended it, I think that he was left
with the impression that he could properly delay action in
compliance with the Order until after the judge had decided
whether or not to rescind it and that the cancellation of the



- 12 -

return flight should be viewed as part of a decision by Mr.
Baker to postpone action rather than to decline to take it.

"(5) His decision was expressly made subject to any advice which
might be given by Treasury Counsel.

"(6) He has disavowed any intention to act in defiance of an order
of the court or to hold himself above the law. a disavowal
which I fully accept.

"(7) He has expressed sincere regret if he acted wrongly, as
undoubtedly he did."

Nolan L.J. regarded Mr. Baker as being in contempt because he
"interfered with the administration of justice by completing the removal from
the court's jurisdiction and protection of a litigant who was bringing
proceedings against him."

Injunctions And The Crown

Mr. Kentridge placed at the forefront of his argument the issue as to
whether the courts have jurisdiction to make coercive orders against the
Crown or Ministers of the Crown. It was appropriate for him to do so for at
least two reasons. First, and more importantly, because whether the courts
have or do not have such a coercive jurisdiction would be a strong indicator
as to whether the courts had the jurisdiction to make a finding of contempt.
If there were no power to make coercive orders, then the need to rely on the
law of contempt for the purpose of enforcing the orders would rarely arise.
The second reason is that, on the facts of this case, the issue is highly
significant in determining the status of the order which Garland J. made and
which it is alleged Mr. Baker breached. If that order was made without
jurisdiction, then Mr. Richards would rely on this in support of his contention
that Mr. Baker should not have been found guilty of contempt. As Mr.
Richards admitted, the issue is of constitutional importance since it goes to the
heart of the relationship between the executive and the courts. Is the
relationship based, as he submits, on trust and cooperation or ultimately on
coercion?

Mr. Richards submits that the answer to this question is provided by
the decision of Factortame Ltd. v. Secretary for State for Transport [1990] 2
A.C. 85 and in particular by the reasoning of Lord Bridge of Harwich who
made the only speech in that case. This speech was highly influential in
causing Simon Brown J. and McCowan L.J. to take a different view from the
majority of the Court of Appeal as to the outcome of the present proceedings.
That case was not, however, primarily concerned with the question as to
whether injunctive relief was available against the Crown or its officers. It
involved the allegedly discriminatory effect of the requirement of British
ownership and the other requirements of Part II of the Merchant Shipping Act



- 13 -

1988 and the associated Regulations, which prevented fishing vessels which
were owned by Spanish nationals or managed in Spain being registered under
the legislation. This it was said contravened Community Law. It was an
issue of difficulty which had accordingly been referred to the European Court
under article 177 of the E.E.C. Treaty. The question then arose as to whether
the applicants were entitled to interim relief pending the outcome of the
reference. The primary contention of the applicants was that it was in the
circumstances a requirement of Community Law that interim relief should be
available. This was an additional point as to which Community Law was
unclear so your Lordships' House decided that that issue should also not be
determined until after a reference under article 177. This meant that pending
the outcome of the second reference your Lordships had to determine whether
interim relief should be granted under domestic law .

In deciding whether under domestic law interim relief should be
granted Lord Bridge initially examined the position without reference to the
involvement of a Minister. He concluded that no relief could be granted since
English Law unassisted by Community Law treated legislation as fully
effective until it was set aside. Lord Bridge described the position in these
words, at pp. 142-143:

"But an order granting the applicants the interim relief which they seek
will only serve their purpose if it declares that which Parliament has
enacted to be the law from 1 December 1988, and to take effect in
relation to vessels previously registered under the Act of 1894 from 31
March 1989, not to be the law until some uncertain future date.
Effective relief can only be given if it requires the Secretary of State
to treat the applicants' vessels as entitled to registration under Part II
of the Act in direct contravention of its provisions. Any such order,
unlike any form of order for interim relief known to the law, would
irreversibly determine in the applicants' favour for a period of some
two years rights which are necessarily uncertain until the preliminary
ruling of the E.C.J. has been given. If the applicants fail to establish
the rights they claim before the E.C.J., the effect of the interim relief
granted would be to have conferred upon them rights directly contrary
to Parliament's sovereign will and correspondingly to have deprived
British fishing vessels, as defined by Parliament, of the enjoyment of
a substantial proportion of the United Kingdom quota of stocks of fish
protected by the common fisheries policy. I am clearly of the opinion
that, as a matter of English law, the court has no power to make an
order which has these consequences."

Pending the outcome of the second reference this conclusion was in itself
sufficient to determine the applicants' appeal. However, Lord Bridge went on
to give a second reason for his decision which is directly relevant to the
present appeal. The second reason is that injunctive relief is not available
against the Crown or an officer of the Crown, when acting as such, in judicial
review proceedings. When determining this aspect of the appeal the House



- 14 -

had the advantage of full argument on behalf of the Crown from junior
counsel. Mr. Laws, as to why relief was not available, but judging by the
report the House did not have the benefit of the very extensive argument in
favour of the contrary view based on the historical development of
proceedings against the Crown on which Mr. Kentridge relied at the hearing
of this appeal. In saying this I make no criticism whatsoever of counsel for
the applicants in Factortame. It is clear that what for the Crown was a
question of the greatest importance was for the applicants a side-show. The
Crown was anxious to have reconsidered the dicta in two cases which
indicated that in judicial review proceedings injunctive relief could be granted
against officers of the Crown. The first case was Reg. v. Secretary of State for
the Home Department, Ex parte Herbage [1987] Q.B. 872. The second was
Reg. v. Licensing Authority, Ex parte Smith Kline & French Laboratories Ltd.
(No. 2) [1990] Q.B. 574, where the majority of the Court of Appeal approved
the judgement of Hodgson J. in Herbage. In both those cases the Crown had
been unable to appeal as it had been successful and so the Factortame case
proved an ideal opportunity in which to vindicate its view that the dicta were
wrong. Since the decision in Factortame there has also been the important
development that the European Court has determined the second reference
against the Crown so that the unhappy situation now exists that while a citizen
is entitled to obtain injunctive relief (including interim relief) against the
Crown or an Officer of the Crown to protect his interests under Community
Law he cannot do so in respect of his other interests which may be just as
important.

Before examining the second reason that Lord Bridge gave for his
conclusion I should point out that I was a party to the judgment of the
majority in the Smith Kline case. In my judgment in that case I indicated that
injunctive relief was available in judicial review proceedings not only against
an officer of the Crown but also against the Crown. Although in reality the
distinction between the Crown and an officer of the Crown is of no practical
significance in judicial review proceedings, in the theory which clouds this
subject the distinction is of the greatest importance. My judgment in the
earlier case may have caused some confusion in Factortame by obscuring the
important fact that, as was the position prior to the introduction of judicial
review, while prerogative orders are made regularly against Ministers in their
official capacity, they are never made against the Crown.

Lord Bridge in determining the second issue acknowledged the
importance of the relevant history in determining this issue and it is necessary
for me to set out my understanding of that history.

In support of their respective submissions as to the correct answer to
this issue, Mr. Richards and Mr. Kentridge relied on principles which had
been repeatedly reiterated down the centuries since medieval times. The
principles on which Mr. Richards founded his argument are that the King can
do no wrong and that the King cannot be sued in his own courts. Mr.



- 15 -

Kentridge on the other hand relied on the equally historic principle which is
intimately linked with the name of Professor Dicey that:

"when we speak of the 'rule of law' as a characteristic of our country,
[we mean] not only that with us no man is above the law. but (what
is a different thing) that here every man, whatever be his rank or
condition, is subject to the ordinary law of the realm and amenable to
the jurisdiction of the ordinary tribunals. In England the idea of legal
equality, or the universal subjection of all classes to one law
administered by the ordinary courts, has been pushed to its utmost
limit. With us every official, from Prime Minister down to a
constable or a collector of taxes, is under the same responsibility for
every act done without legal justification as any other citizen. The
Reports abound with cases in which officials have been brought before
the courts, and made, in their personal capacity, liable to punishment.
or to the payment of damages, for acts done in their official character
but in excess of their lawful authority. A colonial governor, a
secretary of state, a military officer, and all subordinates, though
carrying out the commands of their official superiors, are as
responsible for any act which the law does not authorise as is any
private and unofficial person". (Introduction to the Study of the Law
of the Constitution by A. V. Dicey 10th ed. 1965 p. 193).

In the course of argument we were referred to numerous authorities which
supported these principles. However, in the present proceedings what is in
dispute is not the validity of the principles but the manner in which in practice
they were reconciled by the courts. 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 Crown Proceedings Act 1947 it was long established that what would
now be described as private law rights could be established against the Crown
cither by bringing a petition of right or. in the case of an action in ton. when
a petition of right was not available (Tobin v. The Queen (1864) 16 C.B.
(N.S.) 310), by bringing an action for damages against the servant of the
Crown responsible for the tort in his own name. Such an action was possible
since, as was pointed out by Cockburn C.J. in Feather v. The Queen (1865)
6 B. & S. 257 at p. 296 "As the Sovereign cannot authorise wrong to be
done, the authority of the Crown would afford no defence to an action brought
for an illegal act committed by an officer of the Crown". However,
difficulties did exist in relation to an action against an officer or servant of the
Crown in an action for a tort. The officer or servant had to be identified.
There could be no vicarious liability placed personally on an officer for the
acts of other officers or servants of the Crown since the "employer" was the
Crown. Only a servant who committed or authorised the commission of the
wrong could be responsible.

The position was accurately described by Romer J. in Raleigh v.
Goschen [1898] 1 Chancery 73 at p. 79. In that case the plaintiffs
commenced an action against the Lords Commissioners of the Admiralty with

- 16 -

the object of establishing that they were not entitled to enter or acquire by way
of compulsory purchase land belonging to the plaintiffs and in order to obtain
damages for trespass and an injunction to restrain any further trespass. It was
held that while the plaintiffs could not sue any of the defendants as an official
body they could sue the defendants individually for trespass committed or
threatened by them personally. As the action was a claim against the
defendants in their official capacity Romer J. decided that it was misconceived
and that the action did not lie. In the course of his judgment he said:

"So, if any of the defendants had themselves ordered or directed the
alleged trespass now complained of by the plaintiffs, and it was in
consequence of such order or direction that the alleged trespass took
place, or if any of the defendants threatened to order or direct further
trespass, then they could be sued. But in this case they could be sued
not because, but in despite of the fact that they occupied official
positions or acted as officials. In other words ... the plaintiffs, in
respect of the matters they are now complaining of, could sue any of
the defendants individually for trespasses committed or threatened by
them, but they could not sue the defendants officially or as an official
body. The question . . . narrows itself down to this: Is the present
action one against the defendants as an official body, or is it an action
against them as individuals?"

Having come to the conclusion that the action was against the
defendants in their official capacity, Romer J. considered whether he should
give leave to amend. In explaining his decision not to give leave to amend,
he stated that to have done so would have amounted to changing "one action
into another of a substantially different character." He added that this was
illustrated by the fact that "an action against the defendants in their official
capacity, supposing it to lie, would differ in most material respects from an
action against them as individuals, as will be seen when consideration is paid
to questions of discovery, and to the form of any interlocutory injunction or
final judgment that could be obtained by the plaintiffs, and as to how and
against whom such injunction or judgment could be enforced."

When dismissing the action Romer J. was careful to do so "without
prejudice to any claim the plaintiffs" might have "against any of the
defendants individually, in respect of any trespass committed or threatened."
In identifying the nature of the action, he did not confine himself merely to
looking at the title: he examined the substance of the claim as it was disclosed
in the pleadings.

The authorities on which the plaintiffs relied in Raleigh v. Goschen for
seeking an injunction against the Lords Commissioners of the Admiralty
included Ellis v. Earl Grey (1833) 6 Sim. 214. The reasoning of Vice-
Chancellor Shadwell for granting the relief claimed in that case is not entirely
satisfactory. However, the argument of counsel expressed the position
correctly when he concluded his submission in support of the Bill, which



- 17 -

included a claim for an order restraining the Lords of the Treasury from
making certain payments in their official capacity, by saying of the Lords of
the Treasury that they "are not made panics to the Bill as Public
Functionaries, but as mere Stakeholders of the Fund: and, in that character
there can be no objection to their being restrained from making the payment
as they have hitherto done, until the rights of the opposing Claimants have
been determined". The Vice-Chancellor presumably accepted this argument
since he described the Lords of the Treasury as being "mere ministerial
conduit-pipes for payment ... to the Parties entitled" and overruled the claim
of demurrer.

Raleigh v. Goschen was applied in Hutton v. Secretary of State for War
(1926) 43 T.L.R. 106 by Tomlin J. It is interesting to note that in the latter
case the Attorney-General's submission, which was accepted by the judge,
made it clear that for the alleged breach of statutory duty the only remedy was
"by petition of right unless the existing Secretary of State had acted
wrongfully, and then he could be sued personally, but not as Secretary of
State".

The position so far as civil wrongs are concerned, prior to the Crown
Proceedings Act, can be summarised, therefore, by saying that as long as the
plaintiffs sued the actual wrongdoer or the person who ordered the
wrongdoing he could bring an action against officials personally, in particular
as to torts committed by them and they were not able to hide behind the
immunity of the Crown. This was the position even though at the time they
committed the alleged tort they were acting in their official capacity. In those
proceedings an injunction, including, if appropriate, an interlocutory
injunction, could be granted. The problem which existed in seeking a remedy
against the Crown was not confined to injunctions. It applied to any form of
proceedings and where proceedings were possible by suing the wrongdoer
personally then an injunction would be available in the same circumstances as
other remedies. If such a position required reconciling with the historic
maxim as to the Crown doing no wrong, then this could be achieved by an
approach, which Mr. Richards endorsed in the course of argument, by saying
that, as the Crown could do no wrong, the Crown could not be considered to
have authorised the doing of wrong, so the tortfeasor was not acting with the
authority of the Crown. (In this summary I put on one side the position with
regard to a claim for immunity on the basis of Act of State. This is not
relevant for present purposes).

The difficulty which a plaintiff might have in identifying the
appropriate servant of the Crown who was the tortfeasor in practice was
overcome by the Crown nominating the individual responsible for the damage
and the lack of resources of the defendant did not cause problems since the
Treasury would make an ex gratia payment of compensation if it was a case
where, but for Crown immunity, the Crown would be vicariously liable. In
such proceedings, if it was appropriate for an injunction to be granted, there
was no reason why this should not be done.

- 18 -

It was the criticisms in Adams v. Naylor [1946] A.C. 543, and the
cases which applied those criticisms, of the practice of the Crown nominating
a defendant who might not have been personally guilty of any tort which were
the catalysts for the changes which were brought about by the Crown
Proceedings Act 1947.

However, before referring to that Act it is necessary to draw attention
to one additional development in bringing proceedings against the Crown.
This involved the grant of declaratory relief against the Crown. In Dyson v.
Attorney-General [1911] 1 KB 410 it was decided that it was unnecessary to
have a cause of action in order to obtain declaratory relief. This opened the
door to proceedings for a declaration against the Crown, at least where the
estate of the Crown was not involved (Dyson at p. 421), without the necessity
of proceeding by petition of right. In such proceedings there would be no
question of obtaining an injunction.

So far as civil proceedings were concerned the position was
transformed by the Crown Proceedings Act 1947. Section 1 enabled the
Crown to be sued directly in those situations where prior to the Act a claim
might have been enforced by petition of right. Section 2 in general permitted
actions to be brought against the Crown in respect of torts committed by its
servants or agents for any breach of its duties which gave rise to a tortious
liability (including a breach of statutory duty where the breach created a cause
of action). Section 2 did not remove the right to sue the actual tortfeasor.

Part II of the Crown Proceedings Act 1947 deals with "Jurisdiction and
Procedure". Section 17 provides for the Minister for the Civil Service to
publish a list of authorised government departments for the purposes of the
Act and requires civil proceedings against the Crown to be instituted against
the appropriate authorised government department or, if there is no
appropriate authorised department or where there is reasonable doubt as to the
identity of the appropriate department, against the Attorney-General. An
examination of the current list indicates that some of the authorised
departments are in fact the descriptions of the official names of individuals or
collections of individuals who head the departments. Thus proceedings can
be brought against a number of different Director Generals and bodies such
as the Commissioners of Customs and Excise or Inland Revenue. However,
there are other authorised departments which are not linked with the name of
the head of the department, so to take a typical example, the Home Office and
not the Home Secretary is listed.

Lord Bridge attaches importance to section 21 of the Act. Its terms
are as follows:

"21 Nature of relief

- 19 -

"(1) In any civil proceedings by or against the Crown the court shall,
subject to the provisions of this Act, have power to make all such
orders as it has power to make in proceedings between subjects, and
otherwise to give such appropriate relief as the case may require:

"Provided that:

"(a) where in any proceedings against the Crown any such relief is
sought as might in proceedings between subjects be granted by
way of injunction or specific performance, the court shall not
grant an injunction or make an order for specific performance,
but may in lieu thereof make an order declaratory of the rights
of the parties; and

"(b) in any proceedings against the Crown for the recovery of land
or other property the court shall not make an order for the
recovery of the land or the delivery of the property, but may
in lieu thereof make an order declaring that the plaintiff is
entitled as against the Crown to the land or property or to the
possession thereof.

"(2) The court shall not in any civil proceedings grant any
injunction or make any order against an officer of the Crown
if the effect of granting the injunction or making the order
would be to give any relief against the Crown which could not
have been obtained in proceedings against the Crown."

Before considering the provisions of section 21 in greater detail, it is
convenient to refer to the relevant provisions of section 23(2) which limits the
scope of Part II of the Act, including section 21. The terms of that subsection
are as follows:

"(2) Subject to the provisions of this section, any reference in this
Part of this Act to civil proceedings against the Crown shall be
construed as a reference to the following proceedings only:

"(a) proceedings for the enforcement or vindication of any right or
the obtaining of any relief which, if this Act had not been
passed, might have been enforced or vindicated or obtained by
any such proceedings as are mentioned in paragraph 2 of the
First Schedule to this Act;

"(b) proceedings for the enforcement or vindication of any right or
the obtaining of any relief which, if this Act had not been
passed, might have been enforced or vindicated or obtained by
an action against the Attorney-General, any Government
department, or any officer of the Crown as such; and

- 20 -

"(c) all such proceedings as any person is entitled to bring against
the Crown by virtue of this Act:

"and the expression 'civil proceedings by or against the Crown' shall
be construed accordingly."

Section 23(2)(a) refers to petitions of right, (b) refers, inter alia, to
proceedings for a declaration and (c) refers, inter alia, to proceedings in tort.
The language of section 23 makes it clear that Part II of the Act does not
generally apply to all proceedings which can take place in the High Court.
In particular, it does not apply to the proceedings which at that time would
have been brought for prerogative orders. If there is any doubt about this,
that doubt is removed by the general interpretation provisions of the Act
contained in section 38, section 38(2) providing:

"In this Act, except in so far as the context otherwise requires or it is
otherwise expressly provided, the following expressions have the
meanings hereby respectively assigned to them, that is to say:

'Civil proceedings' includes proceedings in the High Court or
the county court for the recovery of fines or penalties, but does
not include proceedings on the Crown side of the [Queen's]
Bench Division."

Proceedings for the prerogative orders were brought on the Crown side.

Returning to section 21, what is clear is that in relation to proceedings
to which section 21(1) provisos (a) and (b) apply, no injunction can be granted
against the Crown. In addition there is the further restriction on granting an
injunction against an officer of the Crown under section 21(2). That
subsection is restricted in its application to situations where the effect of the
grant of an injunction or an order against an officer of the Crown will be to
give any relief against the Crown which could not have been obtained in
proceedings against the Crown prior to the Act. Applying those words
literally, their effect is reasonably obvious. Where, prior to 1947. an
injunction could be obtained against an officer of the Crown, because he had
personally committed or authorised a tort, an injunction could still be granted
on precisely the same basis as previously since, as already explained, to grant
an injunction could not affect the Crown because of the assumption that the
Crown could do no wrong. The proceedings would, however, have to be
brought against the tortfeasor personally in the same manner as they would
have been brought prior to the 1947 Act. If, on the other hand, the officer
was being sued in a representative capacity, whether as an authorised
government department, for example, one of the named Director-Generals or
as Attorney-General, no injunction could be granted because in such a
situation the effect would be to give relief against the Crown. The position
would be the same in those situations where proceedings would previously



- 21 -

have been brought by petition of right or for a declaration but could now be
brought against the authorised department.

There appears to be no reason in principle why, if a statute places a
duty on a specified Minister or other official which creates a cause of action,
an action cannot not be brought for breach of statutory duty claiming damages
or for an injunction, in the limited circumstances where injunctive relief would
be appropriate, against the specified Minister personally by any person entitled
to the benefit of the cause of action. If. on the other hand, the duty is placed
on the Crown in general, then section 21(2) would appear to prevent
injunctive relief being granted, but as Professor Sir William Wade Q.C. has
pointed out ("Injunction Relief against the Crown and Ministers" (1991) 107
L.Q.R. 4, 4-5) there are likely to be few situations when there will be
statutory duties which place a duty on the Crown in general instead of on a
named Minister. In broad terms therefore the effect of the Act can be
summarised by saying that it is only in those situations where prior to the Act
no injunctive relief could be obtained that section 21 prevents an injunction
being granted. In other words it restricts the effect of the procedural reforms
that it implemented so that they did not extend the power of the courts to
grant injunctions. This is the least that can be expected from legislation
intended to make it easier for proceedings to be brought against the Crown.

It is now necessary refer to the case of Merricks v. Heathcoat-Amory
[1955] Ch. 567, a case which requires careful consideration because of the
importance attached to it, as we shall see later, by Lord Bridge in Factortame.

In Merricks the plaintiff sought a mandatory injunction against the
Minister of Agriculture, Fisheries and Food both in his personal capacity and
in his capacity as Minister, a corporation sole constituted by statute. The
injunction required the Minister to withdraw the draft of a statutory scheme
regulating the marketing of potatoes which had been laid by the Minister
before Parliament for approval when acting in his capacity as Minister and
also restraining him from seeking approval of the scheme by Parliament. An
application was made on behalf of the Minister to strike out the proceedings
as being misconceived. It was argued by the Law Officers on behalf of the
Minister that, in so far as the proceedings were brought against the Minister
in his official capacity , there was no jurisdiction to grant an injunction against
a Minister and, in so far as the proceedings were brought against the Minister
in his personal capacity, he could not and did not purport to lay the scheme
in his personal capacity. It was also submitted that the Minister owed no duty
to the plaintiff and that, if he acted in a personal capacity, he acted as a
Member of Parliament, which involved parliamentary privilege. Not
surprisingly Upjohn J. acceded to the application. Even today on an
application for judicial review it could be difficult to persuade a court to
intervene on similar facts to those in the Merricks case, though in view of the
decision in Reg. v. Her Majesty's Treasury, Ex parte Smedley [1985] Q.B.
657 I do not go so far as to say it would be impossible to do so. However,
the Merricks case was brought by what today can be described as private law

- 22 -

proceedings and the plaintiff, most certainly in those proceedings was not
entitled to seek any, and in particular injunctive. relief. He was not seeking
to enforce any legal or equitable right to which he was entitled. He would as
the law had so far developed lack the necessary standing to bring the
proceedings. However, Upjohn J. came to the conclusion that the Minister,
"from start to finish . . . was acting in his capacity as an officer representing
the Crown" and went on to say that as this was the position it was conceded
that no injunction could be obtained against him and therefore the motion
failed in limine. He added that he could not see how there could be the three
categories of situation for which the plaintiff argued, the first being when the
Minister was representing the Crown, the third where he was acting in a
purely individual capacity and the second, which he considered created the
difficulty, involving a person designated in an official capacity but not
representing the Crown. As to the second category, Upjohn J. said:

"It is possible that there may be special acts where named persons
have special duties to perform which would not be duties normally
fulfilled by them in their official capacity; but in the normal case
where the relevant or appropriate Minister is directed to carry out
some function or policy of some Act, he is either acting in his capacity
as a minister of the Crown representing the Crown, or is acting in his
personal capacity, usually the former. I find it very difficult to
conceive of a middle classification".

I do not find the scope of this statement clear. If Upjohn J. was intending to
suggest that it was not possible for a Minister to be under a personal liability
and subject to injunctive relief for wrongs committed by him in his official
capacity then it is inconsistent with the authorities cited earlier. The
approach indicated by those authorities was relied on by the plaintiff in
Merricks who cited in support the first instance decision of Roxburgh J. in
Harper v. Secretary of State for the Home Department (1954) The Times, 18
December. However, that was a case heard ex parte and Upjohn J. did not
in those circumstances attach importance to it. The case went to the Court of
Appeal [1955] Ch. 238 where, without finally committing himself. Sir
Raymond Evershed M.R. in fact described the position accurately when he
said, at p. 254 (see Merricks, at p. 574):

"But I return at the end of my judgment to the point which I
mentioned earlier and on which I would say one final word, namely,
the question of the defendant to this action. I have said that the
defendant is 'the Secretary of State for the Home Department' - sued,
that is to say, by his official title as a Minister of the Crown. It is
said by Sir Andrew that, since the report disregarded the rules in the
Act of 1949, therefore it is not a report within the meaning of the Act,
and that the Secretary of State has neither the duty to the House or to
anyone else, nor the power or authority, to take this proposed Order
in Council to Her Majesty. I am not myself satisfied that Sir Andrew
is not in this respect upon the horns of a dilemma. If the whole thing



- 23 -

pis a nullity and all he seeks to do is to restrain a particular individual,
who happens at the moment to be the Secretary of State for the Home
Department. I am not satisfied that he ought not to sue him in his
personal capacity as for an ordinary wrong - though, in that case, it
would not be clear to me what breach of duty to the plaintiffs he was
engaged in committing. On the other hand, if he does sue him, and
rightly sues him, in his capacity as Secretary of State for the Home
Department, then I am not satisfied (though I express no final view on
it. as we have not heard full argument) that the case is one which,
having regard to the terms of the Crown Proceedings Act 1947, will
lie. And I am not satisfied, having regard to section 21 of that Act.
that, on this alternative, the plaintiff could, in any event, obtain an
injunctions. . . '

Upjohn J.'s approach appears to treat a duty placed upon a named Minister
as being placed upon the Government as a whole. This could be said to be
in accord with the approach of Lord Diplock and Lord Simon in Town
Investments Ltd. v. Department of the Environment [1978] AC 359.
However, in that case your Lordships' House was dealing with a very
different situation, namely the consequence of a grant of a lease to a named
Department of Government which can make the Crown and not the
Department the tenant. It is not appropriate to apply that approach to actions
in tort, including actions for breach of statutory duty, since this would mean
that the Act of 1947 had the surprising effect of treating the wrongful act of
a named Minister as being that of the Crown so that the Minister could no
longer be sued personally in tort or for injunctive relief. Thus while the
outcome of the Merricks case was correct, the reasoning of Upjohn J. was
incorrect, if and in so far, by his remarks which have been cited, he was
seeking to suggest that a Minister when acting in his official capacity could
not be sued personally and an injunction granted. In any event his remarks
could have no application to proceedings for the prerogative orders or judicial
review which he was not considering.

I now turn to the historical development of relief against the Crown in
prerogative proceedings. I do so because the historical development of the
two sets of proceedings have been on different lines.

Prior to the introduction of judicial review, the principal remedies
which were available were certiorari, mandamus, prohibition and habeas
corpus. As we are primarily concerned with the possible availability of
injunction, I will focus on mandamus and prohibition since they are
indistinguishable in their effect from final injunctions. However, it should not
be forgotten that, at least indirectly, the other remedies are capable of having
a coercive effect. In addition, as in private law proceedings, once the Crown
or a body representing the Crown is a party to proceedings, unless some
express restriction exists, the Crown, like any other litigant, is liable to have
interlocutory orders made against it with which it is required to comply, such
as an order for discovery. Historically the result of issuing the writ of

- 24 -

certiorari was to require proceedings of inferior bodies to be brought before
the courts of chancery and common law so that they could be supervised by
those courts and if necessary quashed. Habeas corpus similarly required the
bringing before the courts of the body of the person concerned. As the case
of In re Thompson (1889) 5 T.L.R. 565 vividly makes clear, the non-
compliance with the writ of habeas corpus was a matter which at that time a
Divisional Court of the Queen's Bench Division found no difficulty in treating
as contempt by a captain of one of Her Majesty's ships.

The prerogative remedies could not be obtained against the Crown
directly as was explained by Lord Denman C.J. in Reg. v. Powell (1841) 1
Q.B. 352:

^" ... both because there would be an incongruity in the Queen
commanding herself to do an act. and also because the disobedience to
a writ of mandamus is to be enforced by attachment."

Originally this difficulty could not be avoided by bringing the proceedings
against named Ministers of the Crown (Reg. v. Lords Commissioners of the
Treasury (1872) L.R. 7 Q.B. 387). But. where a duty was imposed by statute
for the benefit of the public upon a particular Minister, so that he was under
a duty to perform that duty in his official capacity, then orders of prohibition
and mandamus were granted regularly against the Minister. The proceedings
were brought against the Minister in his official name and according to the
title of the proceedings by the Crown. The title of the proceedings would be
Reg. v. Minister, Ex parte the applicant (as is still the position today), so that
unless the Minister was treated as being distinct from the Crown the title of
the proceedings would disclose the "incongruity" of the Crown suing the
Crown. This did not mean that the Minister was treated as acting other than
in his official capacity and the order was made against him in his official
name. In accordance with this practice there have been numerous cases where
prerogative orders, including orders of prohibition and mandamus, have been
made against Ministers. This was accepted by Mr. Richards as being the
position prior to the introduction of judicial review and I will merely refer to
one authority, Reg. v. The Commissioners of Customs and Excise, Ex parte
Cook and another [1970] 1 W.L.R. 450 (which was not cited in Factortame)
to illustrate the position. Lord Parker, C.J. described the then situation of
which he had great experience (at p.455). He said:

"Accordingly, one approaches this case on the basis, and I confess for
my part an alarming basis, that the word of the Minister is
outweighing the law of the land. However, having said that, one
moves on to the far more difficult question whether mandamus will lie.
It is sometimes said as a general proposition that mandamus will not
lie against the Crown or an officer or servant of the Crown. I think
we all know in this day and age that that as a general proposition is
quite untrue. There have been many cases, of which the most recent



- 25 -

is Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C.
997 in which a mandamus was issued to a Minister. Indeed, that has
always been the case, as can be seen since as long ago as 1850 when
in Reg. v. Commissioners of Woods, Forests, Land, Works and
Buildings, Ex parte Budge (1850) 15 Q.B. 761, Sir Frederick Thesiger
expressed the proposition in argument in this form, at p. 768:

'Whenever a person, whether filling an office under the Crown
or not, has a statutory duty towards another person, a
mandamus will lie to compel him to perform it.'

"Those words of Sir Frederick Thesiger were in fact adopted by
Cockburn C.J.

"There are. of course, cases in which it has been held that a servant
or officer of the Crown may have as his only duty a duty towards the
Crown. That, indeed, was the deciding factor in Reg. v. Lords
Commissioners of the Treasury (1872) L.R. 7 Q.B. 387: but equally
there are other cases, for example. Rex v. Income Tax Special
Purposes Commissioners, Ex parte Dr. Barnado's Homes National
Incorporated Association [1920] 1 K.B. 26, and the well known case
of Reg. v. Income Tax Special Purpose Commissioners (1888) 21 Q.B.
313, which show quite clearly that where by statute an officer or
servant of the Crown has also a duty towards a member of the public,
then provided that member of the public has a sufficient interest,
mandamus will lie."

It is interesting to note the comment by Lord Parker about mandamus not
being available since similar comments were sometimes made about
injunctions in private law proceedings. Nonetheless, there were limits at that
time, as Lord Parker C.J. indicates, to the availability of mandamus. It was
necessary that there should be a duty which was owed to the applicant as a
member of the public. The duty which was required was not a private duty
which would give rise to a right to damages in the event of a breach, but a
public duty. In addition the duty had to be placed on a named Minister. As
already indicated, in most situations today statutory duties are conferred on
ministers in their own name and not upon the Crown in general. (Professor
Sir William Wade Q.C., L.Q.R. (1991) Vol. 107 p.4). Furthermore, by the
time of the introduction of the remedy of judicial review the position had
developed so that the prerogative orders, including prohibition and mandamus,
were being granted regularly against Ministers without any investigation of
whether a statutory duty, which had not been complied with, was placed upon
the Minister or some one else in the Department for which the Minister was
responsible. Thus the Immigration Act 1971 places some duties on
immigration officers and others on the Home Secretary, but even where it is
the immigration officer who has not complied with the statutory duty it is the
practice to make an order of mandamus against the Minister (an example is

- 26 -

provided by Reg. v. Secretary of State for the Home Department, Ex parte
Phansopkar [1976] 1 Q.B. 606). As a result of even more recent
developments, illustrated by the decision in the Council of Civil Service
Unions v. The Minister for the Civil Service [1985] 1 A.C. 374 a distinction
probably no longer has to be drawn between duties which have a statutory and
those which have a prerogative source.

After the introduction of judicial review in 1977 it was therefore not
necessary to draw any distinction between an officer of the Crown "acting as
such" and an officer acting in some other capacity in public law proceedings.

The changes made in procedure introduced in 1977 by Order 53 for
judicial review were first given statutory authority by primary legislation in
section 31 of the Supreme Court Act 1981. The relevant provisions of that
section, which do not differ materially from the corresponding provisions of
Order 53, are as follows;

"Application for judicial review

"(1) An application to the High Court for one or more of the
following forms of relief, namely -

1. an order of mandamus, prohibition or certiorari:

2. a declaration or injunction under subsection (2); or

(c) an injunction under section 30 restraining a person not
entitled to do so from acting in an office to which that
section applies.

shall be made in accordance with rules of court by a procedure to be
known as an application for judicial review.

"(2) A declaration may be made or an injunction granted under this
subsection in any case where an application for judicial review,
seeking that relief, has been made and the High Court considers that,
having regard to -

1. the nature of the matters in respect of which relief may
   be granted by orders of mandamus, prohibition or
   certiorari;

2. the nature of the persons and bodies against whom relief
   may be granted by such orders: and

(c) all the circumstances of the case.

- 27 -

it would be just and convenient for the declaration to be made or the
injunction to be granted, as the case may be.

"(3) No application for judicial review shall be made unless the
leave of the High Court has been obtained in accordance with rules of
court: and the court shall not grant leave to make such an application
unless it considers that the applicant has a sufficient interest in the
matter to which the application relates.

"(4) On an application for judicial review the High Court may
award damages to the applicant if -

1. he has joined with his application a claim for damages
   arising from any matter to which the application relates;
   and

2. the court is satisfied that, if the claim had been made in
   an action begun by the applicant at the time of making
   his application, he would have been awarded damages."

In section 31 the jurisdiction to grant declarations and injunctions is directly
linked to that which already existed in relation to the prerogative orders. The
jurisdiction to award damages by contrast is restricted to those situations
where damages are recoverable in an action begun by writ. It has never been
suggested that a declaration is not available in proceedings against a Minister
in his official capacity and if Order 53 and section 31 apply to a Minister in
the case of declarations then, applying ordinary rules of construction, one
would expect the position to be precisely the same in the case of injunctions.
As an examination of the position prior to the introduction of judicial review
indicates, because of the scope of the remedies of mandamus and prohibition
the availability of injunctions against Ministers would only be of any
significance in situations where it would be appropriate to grant interim relief.
Even here the significance of the change was reduced by the power of the
court to grant a stay under Ord. 53, r. (10). Furthermore in practice an
injunction against a Minister would be no more than a peremptory declaration
because of the limitations on execution contained in Ord. 77, r. 15 which
because of the definition of "order against the Crown" in Ord. 77, r. 1(2)
applies to judicial review and proceedings against an officer of the Crown as
such.

Lord Bridge of Harwich acknowledged (at p. 143), "the question at
issue depends, first, on the true construction of section 31". Lord Bridge also
accepted (at p. 149) that if section 31 "were to be construed in isolation" there
would be "great force in the reasoning" that section 31 did enable injunctions
to be granted for the first time against Ministers of the Crown in judicial
review proceedings. Why then did Lord Bridge come to the conclusion that
an injunction could not be granted against a Minister in proceedings for
judicial review?

- 28 -

A primary cause for Lord Bridge's taking this view was that he
concluded that it would be a dramatic departure from what was the position
prior to the introduction of judicial review for an injunction to be available
against the Crown or a Minister of the Crown, so that the change was one
which could be expected to be made only by express legislation. His
conclusion was not. however, based on as comprehensive an argument of the
history of both civil and prerogative proceedings as was available to your
Lordships. In particular he did not have an account of the developments
which had taken place in the granting of prerogative orders against Ministers,
which meant that in practical terms the only consequence of treating section
31 as enabling injunctions to be granted against Ministers acting in their
official capacity would be to provide an alternative in name only to the orders
of prohibition and mandamus which were already available and to allow
interim relief other than a stay for the first time.

A secondary cause was his reliance upon Upjohn J.'s judgment in the
Merricks case, a judgment which as already indicated should be approached
with caution. Lord Bridge was also influenced by the fact that the new Order
53 was introduced following the Law Commission's Report on Remedies in
Administrative Law (1976) (Law Com. No. 73) (Cmnd. 6407) and that that
Report drew attention to the problem created by the lack of jurisdiction to
grant interim injunctions against the Crown and recommended that the
problem should be remedied by amending section 21 of the 1947 Act. The
report included a draft of the legislation proposed. This proposal of the Law
Commission was never implemented. Instead the decision was taken
following the Law Commission's Report to proceed by amendment of the
Rules of the Supreme Court rather than by primary legislation. Lord Bridge
in his speech explains why, in his view, this meant that section 31 of the Act
of 1981 should be given a restricted interpretation:

"First, section 31(2) and Ord. 53, r. 1(2) being in identical terms, the
subsection and the sub-rule must have the same meaning and the sub-
rule, if it purported to extend jurisdiction, would have been ultra vires.
Secondly, if Parliament had intended to confer upon the court
jurisdiction to grant interim injunctions against the Crown, it is
inconceivable, in the light of the Law Commission's recommendation
in paragraph 51 of its report, that this would not have been done in
express terms either in the form of the proposed clause 3(2) of the
Law Commission's draft Bill or by an enactment to some similar
effect. There is no escape from the conclusion that this
recommendation was never intended to be implemented. Thirdly, it
is apparent from section 31(3) that the relief to which section 31(2)
applies is final, as opposed to interlocutory, relief. By section 31(2)
a declaration may be made or an injunction granted 'where an
application for judicial review . . . has been made . . .' But by
section 31(3) 'no application for judicial review shall be made unless
the leave of the High Court has been obtained in accordance with rules
of court; . . . Under the rules there are two stages in the procedure,



- 29 -

first the grant of leave to apply for judicial review on ex parte
application under Ord. 53. r. 3, secondly the making of the application
for judicial review which by r. 5 is required to be by originating
motion or summons duly served on all panics directly affected.
Section 31(2) is thus in terms addressed to the second stage, not the
first, and is in sharp contrast with the language of Ord. 53, r. 3(10),
which by its terms enables appropriate interim relief to be granted by
the court at the same time as it grants leave to apply for judicial
review. This point occurred to me at first blush to be one of some
technicality. But on reflection I am satisfied that it conclusively
refutes the views that section 31(2) was intended to provide a solution
to the problem of the lack of jurisdiction to grant interim injunctions
against the Crown. The form of final relief available against the
Crown has never presented any problem. A declaration of right made
in proceedings against the Crown is invariably respected and no
injunction is required. If the legislature intended to give the court
jurisdiction to grant interim injunctions against the Crown, it is
difficult to think of any reason why the jurisdiction should be available
only in judicial review proceedings and not in civil proceedings as
defined in the Act of 1947. Hence, an enactment which in turn applies
only to forms of final relief available in judicial review proceedings
cannot possibly have been so intended."

This is a very closely and carefully argued justification for adopting a
narrow approach to the effect of section 31 of the Supreme Court Act 1981.
It deserves very careful attention coming, as it does, from a judge who is
acknowledged to have made an outstanding contribution to this area of the
law. Nonetheless, I do not regard it as justifying limiting the natural
interpretation of section 31 so as to exclude the jurisdiction to grant
injunctions, including interim injunctions, on applications for judicial review
against Ministers of the Crown. I will try to explain why.

First of all it is unsafe to draw any inference from the fact that judicial
review was not first introduced by primary legislation. Primary legislation
could have led to delay. As it happens, in Northern Ireland, when judicial
review was introduced, the primary legislation, the Judicature (Northern
Ireland) Act 1978. came first and was followed by a subsequent amendment
of the Rules involving a new Order 53 which came into operation on 1
January 1981.

The fact that in England and Wales it was decided that an amendment
to the Rules of the Supreme Court should precede primary legislation did
mean that it was inevitable that the recommendation of the Law Commission
that section 21 of the Crown Proceedings Act 1947 should be amended had to
be abandoned. However, this decision not to amend section 21 is not really
surprising bearing in mind that the exercise in hand related to public law
proceedings while section 21 dealt with private or "civil" law proceedings.
Not having dealt with section 21 at the outset it was natural that, as section

- 30 -

31 was merely confirmatory of the changes already made, it should not deal
with section 21 either.

Order 53 undoubtedly extended the circumstances in which a
declaration could be granted against the appropriate representative of the
Crown. Prior to the change no remedy whatsoever in the nature of a
declaration could be obtained in prerogative proceedings. Furthermore, there
are situations where no declaration could be obtained in private law
proceedings against the Crown without the assistance of the Attorney-General
in circumstances in which it is now available on judicial review. It is not
suggested that Order 53 was ultra vires in allowing declarations against
Ministers and in my view if it was not ultra vires in relation to declarations
there is no reason why it should be regarded as being ultra vires in relation
to injunctions, albeit that the effect is that an injunction cannot be obtained
against a Minister of the Crown where previously only an order of mandamus
or prohibition could be obtained. However, if Order 53 were to be regarded
as being open to challenge on this ground, this would explain why the unusual
course was taken, a change having been introduced by an amendment to the
Rules of the Supreme Court, of confirming the amendment a substantial period
later by the Supreme Court Act. As a matter of construction it is difficult to
treat the provisions as to injunctions in Order 53 and section 31 as not
applying to Ministers, but as doing so in the case of the other remedies. This
difficulty is underlined in the case of Northern Ireland since the interpretation
section 118(1), of the Act of 1978 expressly provides that it should bind the
Crown, but in a restricted manner "as respects civil proceedings to which the
Act of 1947 applies." It would therefore bind the Crown as to injunctions in
non - "civil proceedings", that is judicial review. Section 19 of that Act also
gives the court a wide discretion to grant such interim relief as it considers
appropriate. It would, therefore, seem to be difficult to say that there is no
power to grant interim injunctions against Ministers in Northern Ireland.

If this is the effect of the Northern Ireland legislation the position is
likely to be the same in England and Wales, though the position is different
in Scotland. In Factortame no reference was made to the Northern Ireland
Act.

Ord. 53, r. 3(10) deals with the grant of interim relief on an
application for judicial review. It provides:

"Where leave to apply for judicial review is granted, then - (a) if the
relief sought is an order of a prohibition or certiorari and the court so
directs, the grant shall operate as a stay of the proceedings to which
the application relates until the determination of the application or until
the Court otherwise orders; (b) if any other relief is sought, the Court
may at any time grant in the proceedings such interim relief as could
be granted in an action begun by writ."

- 31 -

So far as respondents other than Ministers are concerned, the provisions of
Ord. 53, r. 3(10)(b) have always been treated as giving the Court jurisdiction
to grant interim injunctions. This is confirmed to be the position by the
decision of the Court of Appeal in Reg. v. Kensington and Chelsea Royal
London Borough Council, Ex parte Hammell [1989] Q.B. 518. The power of
the Court to grant interim injunctions is linked to the power of the Court to
grant final injunctions. If the court has the power to grant a final injunction
against a Minister it must surely have the power to grant an interim injunction
and vice versa. This is confirmed by section 37(1) of the 1981 Act which
provides:

"The High Court may by order (whether interlocutory or final) grant
an injunction ... in all cases which it appears to the court to be just
and convenient to do so."

As to the "technical" point referred to by Lord Bridge, Ord. 53. r.
3(10) is similarly linked to Ord. 53, r. 1(2) and the almost identically worded
provisions of section 31(2). While it is correct that an application for judicial
review cannot be made until leave is granted, this does not mean that section
31(2) restricts the court's jurisdiction to gram interim or final injunctions until
after leave has been given and this has been followed by lodging the formal
application with the court. This would be quite out of accord with practice
which has always been followed on judicial review and would involve the
expense and delay of two hearings when at present there is usually one. The
clear intent of Ord. 53, r. 3(10) is that the Court where it considers an
application for leave at an oral hearing should deal with questions of interim
relief if it is appropriate to do so. During the course of the hearing Mr.
Richards was asked whether he could provide any justification for Lord Bridge
regarding the language of section 31(2) and section 31(3) together with Ord.
53, r. 3(10) as "conclusively [refuting] the view that section 31(2) was
intended to provide a solution to the problem of the lack of jurisdiction to
grant interim injunctions against the Crown." but he was not able to do so.
Prior to the introduction of Order 53 there was the same problem of the
inability to grant interim injunctions against bodies which had no connection
with the Crown. The changes which are reflected in sections 31(2)and (3) and
Ord. 53, r. 3(10) provided a solution in relation to those bodies and it must
surely follow that if section 31(2) gives the court jurisdiction to grant final
injunctions against Ministers it must also provide the jurisdiction to grant
interim injunctions. Counsel for the applicants in Factortame did not reply to
the Crown's submissions on this aspect of the case and I expect this explains
why in Factortame the position was misunderstood.

I am, therefore, of the opinion that, the language of section 31 being
unqualified in its terms, there is no warrant for 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, is not available. In my view
the history of prerogative proceedings against officers of the Crown supports
such a conclusion. So far as interim relief is concerned, which is the practical

- 32 -

change which has been made, there is no justification for adopting a different
approach to officers of the Crown from that adopted in relation to other
respondents in the absence of clear language such as that contained in section
21(2) of the 1947 Act. The fact that in any event a stay could be granted
against the Crown under Ord.53, r. 3(10), emphasises the limits of the change
in the situation which is involved. It would be most regrettable if an approach
which is inconsistent with that which exists in Community Law should be
allowed to persist if this is not strictly necessary. The restriction provided for
in section 21(2) of 1947 does, however, remain in relation to civil
proceedings.

The fact that, in my view, the court should be regarded as having
jurisdiction to grant interim and final injunctions against Officers of the Crown
does not mean that that jurisdiction should be exercised except in the most
limited circumstances. In the majority of situations so far as final relief is
concerned, a declaration will continue to be the appropriate remedy on an
application for judicial review involving officers of the Crown. As has been
the position in the past, the Crown can be relied upon to co-operate fully with
such declarations. To avoid having to grant interim injunctions against
officers of the Crown, I can see advantages in the courts being able to grant
interim declarations. However, it is obviously not desirable to deal with this
topic, if it is not necessary to do so, until the views of the Law Commission

are known .

The Validity Of The Injunction Granted By Garland J.

What has been said so far does not mean that Garland J. was
necessarily in order in granting the injunction. The injunction was granted
before he had given the applicant leave to apply for judicial review.
However, in a case of real urgency, which this was, the fact that leave had
not been granted is a mere technicality. It would be undesirable if. in the
situation with which Garland J. was faced, he had been compelled to grant
leave because he regarded the case as an appropriate one for an interim
injunction. In the case of civil proceedings, there is recognition of the
jurisdiction of the court to grant interim injunctions before the issue of a writ,
etc. (see Ord. 29, r. 1(3)) and in an appropriate case there should be taken to
be a similar jurisdiction to grant interim injunctions now under Order 53. The
position is accurately set out in Note 53/1-14/24 of the White Book where it
is stated that:

"Where the case is so urgent as to justify it, [the judge] could grant an
interlocutory injunction or other interim relief pending the hearing of
the application for leave to move for judicial review. But, if the judge
has refused leave to move for judicial review he is functus officio and
has no jurisdiction to grant any form of interim relief. The application
for an interlocutory injunction or other interim relief could, however,
be renewed before the Court of Appeal along with the renewal of the
application for leave to move for judicial review."

- 33 -

There having been jurisdiction for Garland J. to make the order which
he did. it cannot be suggested that it was inappropriate for him to have made
the order. On the view of the law which I now take. Garland J. was therefore
not required to set aside the order though his decision to do so was inevitable
having regard to the state of the authorities at that time.

The Effect of the Advice Received By Mr. Baker

Having come to the conclusion that Garland J.'s order was properly
made, the next question which has to be considered is the effect of the advice
which was understandably given to Mr. Baker that the order was made
without jurisdiction. Here there are two important considerations. The first
is that the order was made by the High Court and therefore has to be treated
as a perfectly valid order and one which has to be obeyed until it is set aside.
(See the speeches of Lord Diplock in In re A Company [1981] AC 374 at
p.384 and Isaacs v. Robertson [1985] AC 97 at p. 102.) The second
consideration is that it is undesirable to talk in the terms of technical
contempt. The courts only make a finding of contempt if there is conduct by
the person or body concerned which can, with justification, be categorised as
contempt. If. therefore, there is a situation in which the view is properly
taken (and usually this will only be possible when the action is taken in
accordance with legal advice) that it is reasonable to defer complying with an
order of the court until application is made to the Court for further guidance
then it will not be contempt to defer complying with the order until an
application has been made to the court to discharge the order. However, this
course can only be justified if the application is made at the first practicable
opportunity and in the meantime all appropriate steps have been taken to
ensure that the person in whose favour the order was made will not be
disadvantaged pending the hearing of the application.

Mr. Baker's difficulties in this case are that, while it was
understandable that there should be delay before he could give the matter
personal attention, Garland J. was not kept informed of what was happening
and totally inadequate steps were taken to protect the position of M. pending
the application to the court. In addition Mr. Baker has the problem that this
House will not normally interfere with the assessment of the facts which was
made by the Court of Appeal unless it can be shown that the assessment is
flawed by some error of law.

Jurisdiction To Make A Finding Of Contempt

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

- 34 -

against a government department or a Minister of the Crown in his official
capacity. The Master of the Rolls 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 respectively in Town
Investments Ltd. v. The Department of the Environment [1978] AC 359).
The Crown can hold property and enter into contracts. On the other hand,
even after the Crown Proceedings Act 1947, it can not 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 the Master of the Rolls, but as to a
government department or a Minister.

Nolan L.J. 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. 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 sequest 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 coextensive with
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



- 35 -

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 Attorney-General v. Times Newspapers Ltd.
[1992] 1 A.C. 191 at p. 217-218, where Lord Oliver stated:

- 36 -

"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
which 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



- 37 -

acting on advice. His error was understandable and I accept that there is an
element of unfairness in the finding against him personally.

In addition, there are technical differences between the two findings
because of the provisions of Ord. 77. r. 1(2) of the R.S.C. which define an
"order against the Crown" in a broad sense to include an order against the
government department or against an officer of the Crown as such. Unlike
the definition of "civil proceedings by the Crown", this definition expressly
applies to proceedings "on the Crown side of the Queen's Bench Division".
This means that the provisions of Orders 45 to 52 (which deal with execution
and satisfaction of orders of the court) would not apply to an order against the
Home Secretary while they would do so in the case of an order against Mr.
Baker personally.

It is for these reasons that I would dismiss this appeal and cross appeal
save for substituting the Secretary of State for Home Affairs as being the
person against whom the finding of contempt was made. This was the
alternative decision which was the subject of the cross-appeal, except that
there the order was sought against the Home Office rather than the Home
Secretary.

- 38 -