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clear body of legal opinion which would justify the declaration, for the ¬rst
time, of a legal right to compensation.
The company™s victory in this case raised the spectre of a governmental
liability (to other claimants also) in a considerable amount, greatly exceeding
the sum it had made available for a partial compensation of war losses, out of
which many claims had already been settled. The Government then, arguing
that it was necessary to maintain the integrity of its scheme of compensation,
brought about the enactment of the War Damage Act 1965, which provided:

1. (1) No person shall be entitled at common law to receive from the Crown compensa-
tion in respect of damage to, or destruction of, property caused (whether before or after the
passing of this Act, within or outside the United Kingdom) by acts lawfully done by, or on
the authority of, the Crown during, or in contemplation of the outbreak of, a war in which
the Sovereign was, or is, engaged.
(2) Where any proceedings to recover at common law compensation in respect of such
damage or destruction have been instituted before the passing of this Act, the court shall,
on the application of any party, forthwith set aside or dismiss the proceedings, subject only
to the determination of any question arising as to costs or expenses.

After the introduction of the bill which became the War Damage Act 1965,
JUSTICE published the following statement:

At a recent meeting of the Executive Committee of JUSTICE the members present, who
included lawyers who are members of all the main political parties, considered the War
Damage Bill in the context of the principles of the Rule of Law which JUSTICE is pledged
to uphold.
It was the unanimous view of the meeting that the passage of this Bill into law would
constitute a serious infringement of the Rule of Law by which is understood the supremacy
of the Courts. The refusal to meet a legitimate claim for compensation affirmed by the
highest Court in the land, namely the House of Lords, is in the view of JUSTICE an action
88 British Government and the Constitution


inconsistent with the Rule of Law and a dangerous precedent for the future. It is entirely
wrong that when a litigant has won his case, legislation should be produced revising
decisions retrospectively so that the successful plaintiff is deprived of his victory.
The fact that a threat of legislative action was made during an early stage of the
proceedings, and long after the right of legal action had arisen, so far from justifying the
enactment of this Bill, makes it clear, in the opinion of JUSTICE, that both Conservative and
Labour Governments have failed to recognise the over-riding need to respect the decisions
of the judiciary.


The issues raised by the Burmah Oil case and the Government™s response to
it were perhaps more complex than this statement would suggest (see C Harlow
and R Rawlings, Law and Administration (2nd edn 1997), pp 47“52), but if the
executive were to make a practice of retrospectively overturning adverse judi-
cial rulings there would be no equality before the law and no public con¬dence
in the legal process. Since the War Damage Act 1965 there have been other
instances, also of questionable propriety, of legislation retrospectively nullify-
ing judicial decisions. (See Zellick [1985] PL 283, 290.)


(b) Equality before the law
˜The most basic tenet of any constitutional society is the shared belief that
by virtue of being citizens of a state, all persons are equal in the eyes of the
law.™ (D Franklin and M Baun (eds), Political Culture and Constitutionalism
(1995), p 5.) For Dicey, as we have seen (above, p 77), the rule of law included
˜equality before the law™ “ the equal subjection of all, including o¬cials, to the
ordinary law administered by the ordinary courts. Here Dicey directed his ¬re
at the French system of administrative law (droit administratif) applied by
separate administrative courts, declaring that it rested ˜on ideas foreign to the
fundamental assumptions of our English common law, and especially to what
we have termed the rule of law™ (Law of the Constitution (1885), p 329). Dicey
later quali¬ed this insular and faulty judgement: the French system was not then
well understood in England but is now recognised as being fully compatible
with justice and the rule of law.
Dicey was, however, on surer ground in saying that o¬cials (and those in gov-
ernment) should enjoy no special exemption from obedience to the law. He was
convinced that this principle was respected in England: with us, he said (p 193):

every official, from the 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.


Admittedly Dicey was not here telling the whole truth for, while an o¬cial who
committed a tort (or for that matter a crime) would be liable like anyone else,
in Dicey™s day the Crown was immune from tortious liability and so could not
89 The ideas of the constitution


be made vicariously liable for the torts of its servants. Yet Dicey was surely right
to insist on a principle that o¬cials, ministers and other public authorities
should not be exempted from the rules and processes of the law and in partic-
ular should submit to the jurisdiction and comply with the decisions of the
courts. Now today it is true that immunities of the executive from legal process
have in general been removed “ for instance, the Crown was made liable in tort
by the Crown Proceedings Act 1947 “ but governments may still resort to expe-
dients for limiting their answerability to the courts, as by inducing Parliament
to invest them with wide discretionary powers or to exclude some kinds of
decisions from judicial control through the employment of ˜ouster™ clauses.
Judgments given by the courts against executive o¬cers or bodies are
generally fully respected and obeyed, but until recently there was believed to be
a signi¬cant surviving immunity of ministers of the Crown from the process of
law. An injunction “ a judicial order requiring something to be done or not
done (a mandatory or prohibitory injunction) “ was not only acknowledged to
be unavailable against the Crown itself but also, it was believed, could not be
granted against a minister acting in his or her o¬cial capacity. The exclusion of
injunctive relief in such cases was considered to be the e¬ect, in civil proceed-
ings, of section 21 of the Crown Proceedings Act 1947; and furthermore the
view was taken in R v Secretary of State for Transport, ex p Factortame Ltd [1990]
2 AC 85 that a like exclusion applied in (public law) proceedings for judicial
review. Some other remedy, such as a declaration, might be available instead of
a ¬nal injunction, but if urgent provisional relief was needed, there was no
e¬ective alternative to an interim (temporary) injunction.
Since ministers were thought to be immune, in their o¬cial capacities, from
the coercive jurisdiction of the courts, it appeared also that there was no juris-
diction to make a ¬nding of contempt against a minister who disregarded
a court™s order. Yet if an argument in these terms were to be upheld, said Lord
Templeman in M v Home O¬ce (below), it would ˜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™.


M v Home Office [1994] 1 AC 377 (HL)
M, a citizen of Zaire (now Democratic Republic of Congo), arrived in the
United Kingdom and claimed political asylum. His application was considered
by the Asylum Division of the Home O¬ce and rejected in the name of the
Home Secretary, whereupon directions were given for his removal from the
United Kingdom. An initial application by M for permission to apply for judi-
cial review was unsuccessful, but a fresh application to a judge in chambers was
made on his behalf as he was about to be put on a ¬‚ight to Zaire via Paris. The
judge (Garland J) adjourned the application for fuller consideration on the fol-
lowing day, stating that M should not be removed in the meantime. Garland J
understood and formally recorded that counsel for the Home O¬ce had given
90 British Government and the Constitution


an express undertaking to this e¬ect, but counsel had not intended to give such
an undertaking and no e¬orts were then made to procure M™s return from Paris
after the aircraft™s arrival there. Informed of the departure of M™s ¬‚ight from
Paris to Zaire, Garland J made a mandatory order requiring the Home Secretary
to arrange for M™s return to the jurisdiction. When this order was received and
considered by the Home Secretary, Mr Baker, he decided “ on legal advice that
the judge had exceeded his powers “ that M should not be brought back to this
country.
Proceedings for contempt of court were brought against the Home O¬ce and
Mr Baker. Simon Brown J held that he had no power to make a ¬nding of con-
tempt against either the Home O¬ce or Mr Baker. The Court of Appeal dis-
agreed, holding that Mr Baker had been guilty of contempt of court, although
not ¬nding it necessary that he should be punished otherwise than in being
ordered to pay the costs. Mr Baker appealed to the House of Lords.
The essential question in the case was whether the courts have jurisdiction to
make coercive orders against ministers of the Crown. Lord Woolf delivered the
principal speech, in which the other Law Lords concurred.
Lord Woolf ¬rst considered the prohibition in section 21(2) of the Crown
Proceedings Act 1947 on granting, in any civil proceedings, an injunction
against an o¬cer of the Crown if the e¬ect of the injunction would be ˜to give
any relief against the Crown which could not have been obtained in proceed-
ings against the Crown™.


Lord Woolf: . . . [Section 21(2)] 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 . . . 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 Act of 1947. If, on the other hand, the officer was
being sued in a representative capacity [as an authorised representative for defending civil
proceedings against the Crown in terms of section 17 of the 1947 Act] 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 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 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
91 The ideas of the constitution


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 QC has pointed out (˜Injunctive Relief
against the Crown and Ministers™ (1991) 107 LQR 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.


As regards proceedings for judicial review, Lord Woolf disagreed with the view
taken by Lord Bridge in R v Secretary of State for Transport, ex p Factortame Ltd
[1990] 2 AC 85 (above) that injunctions could not be granted against a minis-
ter of the Crown in such proceedings. Lord Bridge™s conclusion had been
reached on too narrow a construction of section 31 of the Supreme Court Act
1981, which gave jurisdiction to the High Court in general terms to grant
injunctions (including interim injunctions) in applications for judicial review.
Turning to the injunction granted by Garland J in the present case, Lord
Woolf concluded that the judge had jurisdiction to make the order and that it
was appropriately made. Notwithstanding the advice which Mr Baker had been
given that the order was made without jurisdiction, it was an order of the High
Court which was to have been treated as a valid order and one to be obeyed until
set aside.
Lord Woolf then considered the jurisdiction to make a ¬nding 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
against a government department or a minister of the Crown in his official capacity. Lord
Donaldson of Lymington MR considered that a problem was created in making a finding of
contempt because the Crown lacked a legal personality. However, at least for some purposes,
the Crown has a legal personality. It can be appropriately described as a corporation sole or
a corporation aggregate: per Lord Diplock and Lord Simon of Glaisdale respectively in
Town Investments Ltd v Department of the Environment [1978] AC 359 [below, p 000]. The
Crown can hold property and enter into contracts. On the other hand, even after the Act of
1947, it cannot conduct litigation except in the name of an authorised government depart-
ment 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 depart-
ment or a minister.
92 British Government and the Constitution


Nolan LJ . . . considered that the fact that proceedings for contempt are ˜essentially
personal and punitive™ meant that it was not open to a court, as a matter of law, to make
a finding of contempt against the Home Office or the Home Secretary. While contempt pro-
ceedings 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 sequestrate the assets of the Crown or a gov-
ernment 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 that the orders
of the court are obeyed. This jurisdiction is required to be coextensive with the courts™
jurisdiction to make the orders which need the protection which the jurisdiction to make
findings of contempt provides. In civil proceedings the court can now make orders (other
than injunctions or for specific performance) against authorised government departments or
the Attorney-General. On applications for judicial review orders can be made against
ministers. . . . [I]f such orders are made and not obeyed, the body against whom the orders
were made can be found guilty 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 depart-
ment has interfered with the administration of justice. It will then be for Parliament to deter-
mine 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 the 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,
93 The ideas of the constitution


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

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