Critically evaluate the view that the judgement of Simon Brown J in M v Home Office [1994] 1 AC 377 exemplifies the limited function of the law in the accountability of public power.

Claims for a breach of a statutory duty are mostly concerned with health and safety matters. The courts have limited this action by requiring a restrictive interpretation as to whether a private action is created and whether the claimant belongs to a specific class of beneficiaries of the statute. In the case of London Passenger Transport Board v Upson Lord Wright stated that this action is:

“A special common law right which is not to be confused in essence with a claim for negligence. The statutory right has its origin in the statute, but the particular remedy of an action for damages is given by the common law …It is not a claim in negligence in the strict or ordinary sense.”

Therefore a claimant can claim negligence in a common law sense but not in the ordinary sense if he is claiming for a breach of a statutory duty.

Misfeasance in a public office is where an official acts in excess of their powers with malice to the claimant, causing loss. This was established in the case of Three Rivers District Council v Bank of England (No.3) This case stemmed from the collapse of the business BCCI where many people claimed that the Bank of England should have acted earlier to avoid loss. Lord Steyn summarised that there were two different types of liability, the first being targeted malice by a public official, the second is acting with knowledge that they are acting outside their powers and with the knowledge that they will probably injure the claimant. Obviously this is a hard breach to prove because of the requirement of proof of Mens Rea.

In the case of M v Home Office, the applicant was a citizen of Zaire who came to the UK seeking political asylum. The claim was rejected by the Secretary of State and a move for judicial was refused. On the day that the applicant was to be deported, he made a new application to the Court of Appeal for leave to move, when rejected, the applicant applied for judicial review on different grounds. Garland, J requested that the deportation to be postponed pending consideration of the application, as it was understood, the counsel for secretary of states had given an undertaking to that effect. Counsel had no such instructions; Home Office officials concerned with the applicant deportation failed to disembark the applicant or to intercept him from Paris to Zaire. When made aware of the situation, the judge made an ex parte order requesting that the applicant be returned to the courts’ jurisdiction and to ensure his safety. Home Office officials made arrangements but when the Secretary of State was informed of the situation cancelled the return of the applicant in the knowledge that the judges order being a mandatory interim injunction against an officer of the crown, had been made without legality.

Simon Brown J. held that, since the Crown's immunity from injunction was preserved by the Crown Proceedings Act 1947, neither it nor its departments, ministers or officials acting in the course of their duties could be impleaded for contempt of court. He accordingly dismissed the motion. The Court of Appeal by a majority allowed in part an appeal by the applicant, holding that the Secretary of State personally had been guilty of contempt, or a misfeasance of power.

During this case, many other were mentioned which would help decide one way or the other whether this case is the headstone in motioning that the law is indeed limited in the accountability of public power.

Constitutionally, the court cannot make such and order as was made in the case of M v Home Office as it is the Crown holding itself in contempt when the Secretary of State did not follow the order. It is thought that although orders against the Crown are not enforceable by contempt, they are, nearly always obeyed. The respect for the rule of law by governments and the people who elect them makes compliance the morally correct and politically prudent course of action. Therefore there is no limit on the law for accountability of public powers due to this understanding, however in the case M v Home Office this was obviously not the case

The statement by Professor Hogg overlooks the case from the High Court of Australia in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation; where it was there held that a Royal Commission could be in contempt of court were it to carry out its inquiry; (into the question whether a named individual had committed an offence) in such a way as to interfere with the administration of justice in other proceedings. However, Eastern Trust Co v McKenzie Mann & Co Ltd proceeded on the assumption that the Crown cannot be in contempt, but neither case touches completely on whether the court can hold the crown in contempt.

In constitutional principle, nobody can escape the jurisdiction of the crown, which is exemplified by cases such as Money v Leach and Raleigh v Goschen. However, it seems obvious that crown servants are more at risk from liability for misfeasance in office than any other claim although this would only result in punitive damages such as the case of Rookes v Barnard. However, as ruled in the case of M v Home Office, the Crown is expressly exempted by Parliament from certain coercive orders and processes which would on principle, be available.

The main argument from M v Home Office is that the Crown chose to give an undertaking to the court and in doing so, the statutory immunity against a court order is of no relevance as once given, the undertaking has the power and effect of an injunction. This argument was based upon the case of Biba Ltd v Stratford Investments Ltd further supported by the case of Wick Harbour Trustees v Admiralty where the court treated a voluntary undertaking by the crown, to pay rates and dues from which it was exempt, as binding and enforceable.

From these many examples of case law and intellectual opinions, it is obvious that there is a conflict on whether the court can put an order on the Crown. The judgement by Simon Brown J significantly highlighted these opinions and although did not find the Crown in contempt of court, he has significantly summarised that in such cases there is a need for a solid decision. I believe that the case of M v Home Office solidified the position of the common law on the limitation of the court in holding public bodies accountable. In conclusion, a court can hold a session to decide if a public body is accountable but the remedies available are very limited. The court can not place an order on a public body as the crown cannot place an order on itself although constitutionally the court should have this power. Significantly the best way for the court or a claimant to try to hold a public body accountable is to hold an official accountable through misfeasance of office although this is very strict in its application and then very hard to prove. The case of M v Home Office is, in my opinion, the headstone case to show how limited the courts are in holding public bodies accountable.

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