Briefly explain the instance of M v Home Office ( 1994 ) as it relates to the construct of the Rule of Law
Dicey proposed that every adult male is capable to the ordinary jurisprudence of the kingdom and conformable to the legal power of the ordinary courts, whatever his ‘rank or condition’ [ 1 ]. The truth of this averment came under challenge in the instance of M v Home Office ( 1994 ) [ 2 ], in which two issues of constitutional importance were considered ; foremost whether injunctions could be issued against a authorities curate or section, and secondly whether a authorities curate or section could be found to be in disdain of tribunal for neglecting to follow with a tribunal order [ 3 ].
The instance concerned ‘M’, a citizen of Zaire who sought political refuge under the Geneva Convention associating to the Status of Refugees [ 4 ]. M’s application was rejected by the Home Office who ordered his remotion from the UK. The Court of Appeal refused an application for leave to travel for judicial reappraisal and so a fresh application was made, which alleged new evidences, to Garland J in Chamberss. Garland J indicated that M’s going should be postponed in order to see the application, and his apprehension was that the Home Office had given an project that this would be done. In fact, the project given was that they would ‘endeavour’ to prorogue the going ; and regardless of ‘endeavours’ , M was removed from legal power on a flight to Zaire via Paris. On hearing of this, Garland J made a ‘without notice’ compulsory order, observing that the evident ‘undertaking’ had been breached and necessitating the Home Secretary to secure M’s return ; and so agreements were made for this [ 5 ]. The order granted the Secretary of State autonomy to change or dispatch it, and so undermentioned advice from his functionaries, the Home Secretary cancelled the agreements for M’s return, reasoning that the underlying determination to decline refuge had been right, and that the order made by Garland J was made without legal power. Proceedings were brought against the Home Secretary on behalf of M ( who had since disappeared following his reaching in Zaire ) and a determination was made that Kenneth Baker, when moving as Home Secretary, had been guilty of disdain of tribunal with the consequence merely that Mr Baker should pay costs [ 6 ].
One of the important considerations in the instance was whether the Crown Proceedings Act 1947 granted unsusceptibility to the Crown and its retainers from injunctions when moving in their official capacity [ 7 ] . Up until 1947, the Crown enjoyed a figure of significant unsusceptibilities and benefited from assorted procedural advantages in judicial proceeding [ 8 ]. Under the Act, nevertheless, the Crown is capable to the same liabilities in civil wrong as a individual of full age and capacity [ 9 ]; it is further vicariously apt for civil wrongs committed by its retainers or agents [ 10 ]. The extent to which the Crown is apt appears to be limited by the Act. The 1994 instance established, nevertheless, that the Act does non prevent the grant of an injunction against a peculiar Crown retainer, and such a position was in maintaining with the history of prerogative proceedings against officers of the Crown. Although the Crown can non be capable to this redress, its retainers transporting out its undertakings will be [ 11 ], Lord Templeman in presenting his brief opinion noted that the statement that there was no power to implement the jurisprudence by injunction or contempt proceedings against a curate in his official capacity would, if upheld, set up the proposition that the executive obey the jurisprudence as a affair of grace and non as a affair of necessity, a proposition which his Lordship said would change by reversal the consequence of the Civil War [ 12 ].
Lord Woolf, presenting the chief sentiment of the Court, affirmed the determination of the Court of Appeal “save for permutation of appellation “ Secretary of State for Home Affairs ” as proper object of determination of contempt” [ 13 ] . It was held that Garland J had legal power to allow the order per Note 53/1-14/24 to the Supreme Court Practice 1993 which permits such a grant in pressing instances ; farther, the order was made by the High Court and so valid until set aside [ 14 ] . Whilst it might be acceptable to detain following with the order until an application has been made for farther counsel from the Court, the individual in whose favor the order has been made ( in this instance M ) must non be disadvantaged pending the hearing. In this instance, the cancellation of programs to return M to the safety of the UK comprised a failure to protect his place and therefore a disadvantage.
Lord Woolf farther examined the issue of whether a determination of disdain could be made against the Crown, authorities section or curate of the Crown. He considered that the Crown did hold legal personality [ 15 ] so this did non show a hinderance to such a determination. Further, whilst admiting the statement that contempt proceedings were normally personal and punitory ( and would hence be inappropriate against the Crown or an officer of a Crown ) he did non accept that this was ever their map, and held that a determination of disdain could justify the demands of justness.
The issue as to whether the tribunals have legal power to publish ‘coercive’ orders against the Crown or curates of the Crown was said to travel to the bosom of “the relationship between the executive and the courts” [ 16 ] . Such countenances are needfully within a court’s legal power to protect orders it has made, although they should merely be issued in the most limited fortunes as they will normally be unneeded [ 17 ],[ 18 ] . Their being nevertheless reflects Dicey’s ideal that functionaries and others should hold no freedom from the responsibility of the jurisprudence that governs other citizens, or from the legal power of ordinary courts [ 19 ] , in order that citizens may bask legal protection against improper behavior on the portion of functionaries [ 20 ] . However great the powers or responsibilities conferred on the executive, it is necessary in a parliamentary democracy [ 21 ] that all concerned are every bit responsible before the ordinary tribunals for the exercising of their rights, powers and responsibilities [ 22 ] .
Word count: 1,000 + refs & A ; bibliography
AV DiceyAn Introduction to the Study of the Law of Constitution( 10ThursdayEdition Macmillan London 1965 )
M Allen & A ; B ThompsonCases and Materials on Constitutional and Administrative Law( 7ThursdayEdition Oxford University Press London 2002 )
Halsbury ‘s Laws of England Administrative Law ( Volume 1 ( 1 ) 2001 Reissue ) 4. Judicial Control ( 4 ) Judicial Remedies ( three ) Mandatory Orders B. Public Offices and Duties in Respect of Which a Mandatory Order Will Not Lie 148. Compulsory Orders Against the Crown and Crown Servants
Halsbury ‘s Laws of England Administrative Law ( Volume 1 ( 1 ) 2001 Reissue ) 4. Judicial Control ( 4 ) Judicial Remedies ( four ) Declarations and Injunctions b. injunctions 152. The injunction in public jurisprudence.
RVF HeustonThe Rule of LawinEssaies in Constitutional Law( 2neodymiumEdition 1964 ) 44-48
LexisNexis UK: hypertext transfer protocol: //www.lexisnexis.com/uk/legal
Table of Cases
Francome and Another V Mirror Group Newspapers Ltd and Others ( 1984 ) 2 All ER 408 at 412
Isaacs V Robertson ( 1985 ) Ac 97
M v Home Office ( 1994 ) 1 A.C. 377
R V Secretary of State for War [ 1891 ] 2 QB 326, CA
R 5 Treasury Lords Comrs ( 1872 ) LR 7 QB 387 at 402
Re A Company ( 1981 ) AC 374
Town Investment Ltd v Department of the Environment ( 1978 ) Ac 359