M v Home Office (M, In re)

The High Court may grant interim or final injunctions against ministers and other Crown officers in judicial review proceedings. Section 21 of the Crown Proceedings Act 1947 does not restrict that public law jurisdiction. A declaration will usually suffice, and injunctions should remain exceptional.

A court order must be obeyed unless and until it is set aside. Temporary non-compliance while seeking the court’s guidance is justified only where an application is made at the first practicable opportunity and appropriate steps protect the beneficiary meanwhile.

Disobedience may support a finding of contempt against a government department or minister in an official capacity. Such a finding vindicates the rule of law even where punitive sanctions would be inappropriate.

M v Home Office (M, In re) concerned an unsuccessful asylum applicant who was removed to Zaire while seeking judicial review. After learning of the removal, Garland J made an urgent mandatory order requiring the Home Secretary to procure M’s return. Acting on legal advice that the order was outside the court’s jurisdiction, the Home Secretary postponed compliance while arrangements for an application to discharge it were made. M was not adequately protected in the meantime and could not subsequently be located.

Simon Brown J held that he lacked jurisdiction to find either the Home Office or the Home Secretary in contempt. The Court of Appeal, by a majority, reversed that decision and found Mr Kenneth Baker personally in contempt: [1992] 1 Q.B. 284.

The principal questions before the House were whether judicial review injunctions and contempt findings could be made against ministers or government departments, whether Garland J’s order was valid, and whether the contempt finding should have been made against Mr Baker personally or against the responsible office.

1. Disposition. Lord Woolf delivered the leading speech, with which Lord Keith of Kinkel, Lord Griffiths and Lord Browne-Wilkinson agreed. Lord Templeman reached the same disposition on the central constitutional issues. The House unanimously dismissed the appeal and cross-appeal and affirmed the Court of Appeal’s order, save that the Secretary of State for Home Affairs was substituted for Mr Baker personally as the subject of the contempt finding.

2. Injunctions against ministers. Per Lord Woolf, sections 31 and 37 of the Supreme Court Act 1981 empowered the High Court to grant final and interim injunctions against ministers and other Crown officers in judicial review proceedings. Section 21 of the Crown Proceedings Act 1947 restricted injunctions in the civil proceedings to which Part II of that Act applied; it did not govern prerogative proceedings or judicial review. The contrary second reason in Factortame Ltd v Secretary of State for Transport [1990] 2 A.C. 85 was not accepted. A declaration would ordinarily remain sufficient, and an injunction against a Crown officer should be granted only in very limited circumstances.

3. Urgent relief and obedience to orders. Per Lord Woolf, Garland J had jurisdiction in this genuinely urgent case to grant interim relief before formally granting leave to apply for judicial review. The absence of prior leave was a technicality. An order of the High Court must be treated as valid and obeyed unless and until it is set aside. Compliance may exceptionally be deferred while further guidance is sought, but only if the application is made at the first practicable opportunity and all appropriate steps protect the beneficiary pending the hearing.

4. Official contempt. Per Lord Woolf, a court may find a government department or minister in an official capacity guilty of contempt. The jurisdiction to protect court orders must be coextensive with the jurisdiction to make them. Although punitive measures against Crown assets or a minister acting officially would be inappropriate, a declaratory finding and an order for costs vindicate the administration of justice. Lord Templeman likewise held that the executive obeys the law as a matter of necessity and is amenable to injunction and contempt proceedings.

5. Proper contemnor. Per Lord Woolf, an order addressed to a minister in an official capacity binds the minister and does not place that person in the position of a third-party stranger. Personal contempt can arise from the minister’s own default without proof of a separate intention to impede justice. Nevertheless, where an official order is breached through departmental conduct, the finding should normally be made against the minister in an official capacity. That course vindicates the rule of law without unfairly isolating one individual. Lord Templeman considered that Mr Baker, who acted officially on advice and under a mistaken view of the law, was not personally guilty.

• House of Lords: Dismissed both the appeal and cross-appeal and affirmed the Court of Appeal’s order, save that the Secretary of State for Home Affairs was substituted for Mr Baker personally as the subject of the contempt finding: [1994] 1 AC 377.
• Court of Appeal: By a majority, reversed Simon Brown J and found Mr Baker personally guilty of contempt. It dismissed M’s attempt to obtain contempt findings against the other respondents: [1992] 1 Q.B. 284.
• High Court, Simon Brown J: Held that there was no jurisdiction to find either the Home Office or the Home Secretary in contempt. He stated that, jurisdiction apart, he would have found the Home Office in contempt but would not have found contempt proved against Mr Baker personally. The decision was unreported.
• High Court, Garland J: Made an urgent mandatory order requiring the Home Secretary to procure M’s return. He later discharged it because the authorities then appeared to establish that he lacked jurisdiction.