M v Home Office

This appeal considered whether the courts have power to grant injunctions and to make findings of contempt against Ministers of the Crown or government departments and, on the facts, whether the Home Office and the Home Secretary were in contempt for breaching an injunction made by Garland J. The House held that courts can in proper and exceptional circumstances grant interim and final injunctions against officers of the Crown and may make findings of contempt against a government department or a Minister in his official capacity (taking account of the Crown Proceedings Act 1947 and the statutory rules for judicial review, including section 21 of the Crown Proceedings Act 1947 and section 31 of the Supreme Court Act 1981 and Order 53).

Applying those principles to the facts—an urgent order requiring return of an asylum-seeker was obtained but not complied with because of misunderstanding and administrative failures—the House affirmed the Court of Appeal's finding of contempt but substituted the proper subject of the finding: the Secretary of State for the Home Department (the Home Office) rather than Mr Kenneth Baker personally, since Mr Baker had acted on official advice and there was insufficient basis to hold him personally guilty.

The appellant and cross-appellant were the Secretary of State for the Home Department (then Mr. Kenneth Baker) and Makunsa Mbala (the asylum claimant). The underlying factual matrix was that M., an asylum seeker, was removed from the United Kingdom after Garland J., on an urgent ex parte application late at night, made an order directing that the Secretary of State should procure M.'s return to the jurisdiction pending further application. The Home Office failed to secure his return because of mistakes, misunderstandings and delays. Proceedings for contempt were later brought seeking fines and committal against the Home Office, the Minister and Mr Baker personally.

Nature of the claim / relief sought:

• Applications for findings of contempt of court, and related penalties (fines, committal), for failure to comply with Garland J.'s order to return M. to the United Kingdom.

Procedural posture:

• First instance: Simon Brown J. held he had no power to find the Home Office or the Home Secretary in contempt; in any event, he would not have found Mr Baker personally guilty on the facts.
• Court of Appeal: majority held Mr Baker had been in contempt for breach of Garland J.'s injunction; some judges dissented as to personal culpability and seriousness.
• House of Lords (this judgment): appeal and cross-appeal dismissed; Court of Appeal order affirmed save that the Secretary of State for the Home Department (the Home Office) was substituted as the proper subject of the contempt finding rather than Mr Baker personally.

Issues framed by the court:

• Whether courts have jurisdiction to grant injunctions (including interim relief) against the Crown, government departments or Ministers of the Crown acting in their official capacity.
• Whether courts can make findings of contempt against a government department or a Minister in his official capacity, and the scope of sanctions available.
• Whether Garland J.'s urgent order was valid and binding, and if so whether the Home Office and Mr Baker breached it amounting to contempt.
• Whether advice received by Mr Baker (that the order was without jurisdiction) and the operational circumstances meant he should be held personally liable for contempt.

Reasoning (concise):

• The House reviewed historical practice, the Crown Proceedings Act 1947 (in particular section 21 and section 23(2)), the development of prerogative remedies and the rules and statute governing judicial review (Order 53 and section 31 of the Supreme Court Act 1981). It concluded that injunctions, including interim injunctions, can in appropriate and exceptional cases be granted against officers of the Crown and that a finding of contempt can be made against a government department or a Minister in his official capacity (the courts should, however, exercise that jurisdiction sparingly).
• The validity of Garland J.'s order was sustained: in urgent cases a judge may grant interim relief before formal leave is given in chamber.
• On the facts, the Home Office had not taken adequate steps to protect M. pending application to discharge the order; administrative failings and the decision taken on advice contributed to non-compliance. Mr Baker acted in his official capacity and on advice; the House accepted it was inappropriate to hold him personally guilty on these facts and substituted the Secretary of State / Home Office as the contemnor, while affirming the need to vindicate the court's orders and that the Home Office had been in contempt.

The court noted that findings of contempt against Ministers or departments will be rare and that declarations and costs will often be the more appropriate remedies; Parliament remains responsible for determining consequences against the executive.

Appeal and cross-appeal dismissed. The House affirmed the Court of Appeal's order that the Home Office had been in contempt for failing to comply with Garland J.'s order, but substituted the Secretary of State for Home Affairs (the Home Office) as the proper subject of the contempt finding rather than Mr Kenneth Baker personally. The House held that courts have power in appropriate and exceptional cases to grant interim and final injunctions against officers of the Crown and to make findings of contempt against a government department or a Minister in his official capacity; nevertheless such powers are to be exercised sparingly and the personal culpability of an individual minister requires proof of appropriate fault.

First instance: Simon Brown J (not reported) found no power to make a contempt finding against the Home Office or the Home Secretary and would not have found Mr Baker personally guilty on the facts. Court of Appeal (majority) reversed Simon Brown J., finding Mr Baker guilty of contempt (reported at [1992] 1 Q.B. 284; Order of the Court of Appeal of 29 November 1991). House of Lords: appeal and cross-appeal dismissed and Court of Appeal order affirmed with substitution of the Secretary of State for Home Affairs for Mr Baker (this judgment, [1993] UKHL 5; judgment delivered 27 July 1993).