1994 PLP 1352 (SCMR)

In support of their respective submissions as to the correct answer to this issue, Mr. Richards and Mr. Kentridge relied on principles which had been repeatedly reiterated down the centuries since medieval times. The principles on which Mr. Richards founded his argument are that the King can do no wrong and that the King cannot be sued in his own courts. Mr. Kentridge on the other hand relied on the equally historic principle which is intimately linked with the name of Professor Dicey that "when we speak of the `rule of law' as a characteristic of our country, (we mean) not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from 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. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person." (Dicey on the Law of the Constitution, 10th ed. (1959), pp.193‑194.) In the course of argument we were referred to numerous authorities which supported these principles. However, in the present proceedings what is in dispute is not the validity of the principles but the manner in which in practice they were reconciled by the courts. The fact that the Sovereign could do no wrong did not mean that a servant of the Crown could do no wrong. Prior to the Crown Proceedings Act, 1947 it was long established that what would now be described as private law rights could be established against the Crown either by bringing a petition of right or, in the case of an action in tort, when a petition of right was not available (Tobin v. The Queen (1864) 16 C.B. (ICS.) 310), by bringing an action for damages against the servant of the Crown responsible for the tort in his own name. Such an action was possible since, as was pointed out by Cockburn, CJ. in Feather v. The Queen (1865) 6 B. & S.257, 296: "As the Sovereign cannot authorise wrong to be done, the authority of the crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown." However, difficulties did exist in relation to an action against an officer or servant of the Crown in an action for a tort. The officer or servant had to be identified. There could be no vicarious liability placed personally on an officer for the acts of other officers or servants of the Crown since the "employer" was the Crown. Only a servant who committed or authorised the commission of the wrong could be responsible. The position was accurately described by Romer, J. in Raleigh v. Goschen (1898) 1 Ch. 73,

79. In that case the plaintiffs commenced an action against the Lords Commissioners of the Admiralty with the object of establishing that they were not entitled to enter or acquire by way of compulsory purchase land belonging to the plaintiffs and in order to obtain damages for trespass and an injunction to restrain any further trespass. It was held that while the plaintiffs could not sue any of the defendants as an official body they could sue the defendants individually for trespass committed or threatened by them personally. As the action was a claim against the defendants in their official capacity Romer, J. decided that it was misconceived and that the action did not lie. In the course of his judgment he said, at pp. 79‑80: "So, if any of the defendants had themselves ordered or directed the alleged trespass now complained of by the plaintiffs, and it was in consequence of such order or direction that the alleged trespass took place, or if any of the defendants threatened to order or direct further trespass, then they could be sued. But in this case they could be sued not because, but in despite of the fact that they occupied official positions or aced as officials. In other words ... the plaintiffs, in respect of the matters they are now complaining of, could sue any of the defendants individually for trespasses committed or threatened by them, but they could not sue the defendants officially or as an official body. The question ... narrows itself down to this: Is the present action one against the defendants as an official body, or is it an action against them as individuals?" Having come to the conclusion that the action was against the defendants in their official capacity, Romer, J. considered whether he should give leave to amend. In explaining his decision not to give leave to amend, he stated, at p.81, that to have done so would have amounted to changing "one action into another of a substantially different character." He added that this was illustrated by the fact that "an action against the defendants in their official capacity, supposing it to lie, would differ in most material respects from an action against them as individuals, as will be seen when consideration is paid to questions of discovery, and to the form of any interlocutory injunction or final judgment that could be obtained by the plaintiffs, and as to how and against whom such injunction or judgment could be enforced." When dismissing the action, at p.82, Romer, J. was careful to do so "without prejudice to any claim the plaintiffs" might have "against any of the defendants individually, in respect of any trespass committed or threatened". In identifying the nature of the action, he did not confine himself merely to looking at the title: he examined the substance of the claim as it was disclosed in the pleadings. The authorities on which the plaintiffs relied in Raleigh v. Goschen for seeking an injunction against the Lords Commissioners of the Admiralty included Ellis v. Earl Grey (1833) 6 Sim.

214. The reasoning of Sir Lancelot Shadwell V: C. for granting the relief claimed in that case is not entirely satisfactory. However, the argument of counsel expressed the position correctly when he concluded his submission in support of the bill, which included a claim for an order restraining the Lords of the Treasury from making certain payments in their official capacity, by saying of the Lords of the Treasury, at p.222, that they "are not made parties to the bill as public functionaries, but as mere stakeholders of the fund; and, in that character there can be no objection to their being restrained from making the payment as they have hitherto done, until the rights of the opposing claimants have been determined." The Vice‑Chancellor presumably accepted this argument since he described the Lords of the Treasury as being "mere ministerial conduitpipes for payment ... to the parties entitled" and overruled the claim of demurrer. Raleigh v. Goschen was applied in Hutton v. Secretary of State for War (1926) 43 T.L.R. 106 by Tomlin, J. It is interesting to note that in the latter case the Attorney‑General's submission, which was accepted by the judge, made it clear that for the alleged breach of statutory duty the only remedy was "by petition of right unless the existing Secretary of State had acted wrongfully, and then he could be sued personally, but not as Secretary of State." The position so far as civil wrongs are concerned, prior to the Act of 1947, can be summarised, therefore, by saying that as long as the plaintiff sued the actual wrongdoer or the person who ordered the wrongdoing he could bring an action against officials personally, in particular as to torts committed by them, and they were not able to hide behind the immunity of the Crown. This was the position even though at the time they committed the alleged tort they were acting in their official capacity. In those proceedings an injunction, including, if appropriate, an interlocutory injunction, could be granted. The problem which existed in seeking a remedy against the Crown was not confined to injunctions. It applied to any form of proceedings and where proceedings were possible by suing the wrongdoer personally then an injunction would be available in the same circumstances as other remedies. If such a position required reconciling with the historic maxim as to the Crown doing no wrong, then this could be achieved by an approach, which Mr. Richards endorsed in the course of argument, by saying that, as the Crown could do no wrong, the Crown could not be considered to have authorised the doing of wrong, so the tortfeasor was not acting with the authority of the Crown. (In this summary I put on one side the position with regard to a claim for immunity on the basis of act of State. This is not relevant for present purposes.) The difficulty which a plaintiff might have in identifying the appropriate servant of the Crown who was the tortfeasor in practice was overcome by the Crown nominating the individual responsible for the damage and the lack of resources of the defendant did not cause problems since the Treasury would make an ex gratia payment of compensation if it was a case where, but for Crown immunity, the Crown would be vicariously liable. In such proceedings, if it was appropriate for an injunction to be granted, there was no reason why this should not be done. It was the criticisms in Adams v. Naylor (1946) A.C. 543, and the cases which applied those criticisms, of the practice of the Crown nominating a defendant who might not have been personally guilty of any tort which were the catalysts for the changes which were brought about by the Act of 1947. However, before referring to that Act it is necessary to draw attention to one additional development in bringing proceedings against the Crown. This involved the grant of declaratory relief against the Crown. In Dyson v. Attorney‑General (1911) 1 K.B. 410 it was decided that it was unnecessary to have a cause of action in order to obtain declaratory relief. This opened the door to proceedings for a declaration against the Crown, at least where the estate of the Crown was not involved (see p. 421), without the necessity of proceeding by petition of right. In such proceedings there would be no question of obtaining an injunction. So far as civil proceedings were concerned the position was transformed by the Act of 1947. Section 1 enabled the Crown to be sued directly in those situations where prior to the Act a claim might have been enforced by petition of right. Section 2 in' general permitted actions to be brought against the Crown in respect of torts committed by its servants or agents for any breach of its duties which gave rise to a tortious liability (including a breach of statutory duty where the breach created a cause of action). Section 2 did not remove the right to sue the actual tortfeasor. Part 11 of the Act of 1947 deals with "Jurisdiction and Procedure". Section 17 provides for the Minister for the Civil Service to publish a list of authorised government departments for the purposes of the Act and requires civil proceedings against the Crown to be instituted against the appropriate authorised government department or, if there is no appropriate authorised department or where their is reasonable doubt as to the identity of the appropriate department, against the Attorney‑General. An examination of the current list indicates that some of the authorised departments are in fact the descriptions of the official names of individuals or collections of individuals who head the departments. Thus proceedings can be brought against a number of different Director‑Generals and bodies such as the Customs and Excise Commissioners or the Inland Revenue. However, there are other authorised departments which are not linked with the name of the head of the department, so, to take a typical example, the Home Office and not the Home Secretary is listed. Lord Bridge of Harwich in Reg. v. Secretary of State for Transport, Ex parte Factortame Ltd. [19901 2 A.C. 85, 146 et seq. attaches importance to section 21 of the Act. Its terms are: "Nature of relief.‑‑(1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that:‑‑(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and (b) in any proceedings against the Crown for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Crown to the land or property or to the possession thereof. (2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown." Before considering the provisions of section 21 in greater detail, it is convenient to refer to the relevant provisions of section 23(2) which limits the scope of Part 11 of the Act, including section

21. The terms of that subsection are: "(2) Subject to the provisions of this section, any reference in this Part of this Act to civil proceedings against the Crown shall be construed as a reference to the following proceedings only:‑‑(a) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act had not been passed, might have been enforced or vindicated or obtained by any such proceedings as are mentioned in paragraph 2 of Schedule 1 to this Act; (b) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act had not been passed, might have been enforced or vindicated or obtained by an action against the Attorney‑General, any government department, or any officer of the Crown as such; and (c) all such proceedings as any person is entitled to bring against the Crown by virtue of this Act; and the expression `civil proceedings by or against the Crown' shall be construed accordingly." Section 23(2)(a) refers to petitions of right, (b) refers, inter alia, to proceedings for a declaration and (c) refers, inter alia, to proceedings in tort. The language of section 23 makes it clear that Part Il of the Act does not generally apply to all proceedings which can take place in the High Court. In particular, it does not apply to the proceedings which at that time would have been brought for prerogative orders. If there is any doubt about this, that doubt is removed by the general interpretation provisions of the Act contained in section 38, section 38(2) providing: "In this Act, except in so far as the context otherwise requires or it is otherwise expressly provided, the following expressions have the meanings hereby respectively assigned to them, that is to say ... `Civil proceedings' includes proceedings in the High Court or the country court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the (Queen's) Bench Division;..." Proceedings for the prerogative orders were brought on the Crown side. Returning to section 21, what is clear is that in relation to proceedings to which section 21(1) provisos (a) and (b) apply, no injunction can be granted against the Crown. In addition there is the further restriction on granting an injunction against an officer of the Crown under section 21(2). That subsection 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, as already explained, 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 tortfeasof personally in the same manner as they would have been. brought pride to the Act of 1947. If, on the other hand, the officer was being sued in a, representative capacity, whether as an authorised government department, for example, one of the named Director‑Generals or as Attorney‑General, 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 brougth 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 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 Q.C. has pointed out ("Injunctive Relief against the Crown and Ministers" (1991) 107 L.Q.R. 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. It is now necessary refer to Merricks v. Heathcoat‑Amory (1955) Ch. 567, a case which requires careful consideration because of the importance attached to it, as we shall see later, by Lord Bridge of Harwich in Factortame. In Merricks the plaintiff sought a mandatory injunction against the Minister of Agriculture, Fisheries and Food both in his personal capacity and in his capacity as minister, a corporation sole constituted by statute. The injunction required the minister to withdraw the draft of a statutory scheme regulating the marketing of potatoes which had been laid by the minister before Parliament for approval when acting in his capacity as minister and also restraining him from seeking approval of the scheme by Parliament. An application was made on behalf of the minister to strike out the proceedings as being misconceived. It was argued by the Law Officers on behalf of the minister that, in so far as the proceedings were brought against the minister in his official capacity, there was no jurisdiction to grant an injunction against a minister and, in so far as the proceedings were brought against the minister in his personal capacity, he could not and did not purport to lay the scheme in his personal capacity. It was also submitted that the minister owed no duty to the plaintiff and that, if he acted in a personal capacity, he acted as a Member of Parliament, which involved parliamentary privilege. Not surprisingly Upjohn, J. acceded to the application. Even today on an application for judicial review it could be difficult to persuade a court to intervene on similar facts to those in the Merricks case, though in view of the decision in Reg. v. Her Majesty's Treasury, Ex parte Smedley (1985) Q.B. 657 I do not go so far as to say that it would be impossible to do so. However, the Merricks case was brought by what today can be described as private law proceedings and the plaintiff most certainly in those proceedings was not entitled to seek any, and in particular inactive, relief. He was not seeking to enforce any legal or equitable right to which he was entitled. He would as the law had so far developed lack the necessary standing to bring the proceedings. However, Upjohn, J., at P. 575, time to the conclusion that the minister "from start to finish ... was acting in his capacity as an officer representing the Crown" and went on to say that as this was the position it was conceded that no injunction could be obtained against him and therefore the motion failed in limine. He added that he could not see how there could be the three categories of situation for which the plaintiff argued, the first, being when the minister was representing the Crown, the third where he was acting in a purely individual capacity and the second, which he considered created the difficulty, involving a person designated in an official capacity but not representing the Crown. As to the second category, Upjohn, J. said, at pp. 575‑576: "It is possible that there may be special acts where named persons .. ..have special duties to perform which would not be duties normally fulfilled by them in their official capacity; but in the normal case where the relevant or appropriate minister is directed to carry out some function or policy of some Act, he is either acting in his capacity as a minister of the Crown representing the Crown, or is acting in his personal capacity, usually the former. I find it very difficult to conceive of a middle classification, I do not find the scope of this statement clear. If Upjohn, J. was intending to suggest that it was not possible for a minister to be under a personal liability and subject to injunctive relief for wrongs committed by him in his official capacity then it is inconsistent with the authorities cited earlier. The approach indicated by those authorities was relied on by the plaintiff in Merricks who cited in support, at p. 571, the first‑instance decision of Roxburgh, J. in Harper v. Secretary of State for the Home Department, The Times, 18th December 1954. However, that was a case heard ex parte and Upjohn, J. did not in those circumstances attach importance to it. The case went to the Court of Appeal (1955) Ch. 238 where, without finally committing himself, Sir Raymond Ever-shed M.R. in fact described the position accurately when he said, at p. 254 (see Merricks (1955) Ch. 567, 574): "But I return at the end of my judgment to the point which I mentioned earlier and on which I would say one final word, namely, the question of the defendant to this action. I have said that the defendant is `the Secretary of State for the Home Department'‑‑sued, that is to say, by his official title as a minister of the Crown. It is said by Sir Andrew (Clark, for the plaintiff) that, since the report (of the boundary Commissioners) disregarded the rules in the Act of 1949, therefore it is not a report within the meaning of the Act, and that the Secretary of State has neither the duty to the House or to anyone else, nor the power or authority, to take this proposed Order in Council to Her Majesty. I am not myself satisfied that Sir Andrew is not in this respect upon the horns of a dilemma. If the whole thing is a nullity and all he seeks to do is to restrain a particular individual, who happens at the moment to be the Secretary of State for the Home Department, I am not satisfied that he ought not to sue him in his personal capacity as for an ordinary wrong‑‑though, in that case, it would not be clear to me what breach of duty to the plaintiffs he was engaged in committing. On the other hand, if he does sue him, and rightly sues him, in his capacity as Secretary of State for the Home Department, then I am not satisfied (though I express no final view on it, as we have not heard full argument) that the case is one which, having regard to the terms of the Crown Proceedings Act, 1947, will lie. And I am not satisfied, having regard to section 21 of that Act, that, on this alternative, the plaintiff could, in any event, obtain an injunction; ..." Upjohn, J.'s approach appears to treat a duty placed upon a named minister as being placed upon the Government as a whole. This could be said to be in accord with the approach of Lord Diplock and Lord Simon of Glaisdale in Town Investments Ltd. v. Department of the Environment (1978) A.C.

359. However, in that case your Lordships' House was dealing with a very different situation, namely the consequence of a grant of a lease to a named department of Government which can make the Crown and not the department the tenant. It is not appropriate to apply that approach to actions in tort, including actions for breach of statutory duty, since this would mean that the Act of 1947 had the surprising effect of treating the wrongful act of a named minister as being that of the Crown so that the minister could no longer be sued personally in tort or for injunctive relief. Thus while the outcome of the Merricks case was correct, the reasoning of Upjohn, J. was incorrect, if and in so far as, by his remarks which have been cited, he was seeking to suggest that a minister when acting in his official capacity could not be sued personally and an injunction granted. In any event his remarks could have no application to proceedings for the prerogative orders or judicial review which he was not considering. I now turn to the historical development of relief against the Crown in prerogative proceedings. I do so because the historical development of the two sets of proceedings has been on different lines. Prior to the introduction of judicial review, the principal remedies which were available were certiorari, mandamus, ‑prohibition and habeas corpus. As we are primarily concerned with the possible availability of injunction, I will focus on mandamus and prohibition since they are indistinguishable in their effect from final injunctions. However, it should not be forgotten that; at least indirectly, the other remedies are capable of having a coercive effect. In addition, as in private law proceedings, once the Crown or a body representing the Crown is a party to proceedings, unless some express restriction exists, the Crown, like any other litigant, is liable to have interlocutory orders made against it with which it is required to comply, such as an order for discovery. Historically the result of issuing the writ of certiorari was to require proceedings of inferior bodies to be brought before the courts of chancery and common law so that they could be supervised by those courts and if necessary quashed. Habeas corpus similarly required the bringing before the courts of the body of the person concerned. As In re: Thompson (1889) 5 T.L.R. 565 vividly makes clear, the non‑compliance with the writ of habeas corpus was a matter which at that time a Divisional Court of the Queen's Bench Division found no difficulty in treating as contempt by a captain of one of Her Majesty's ships. The prerogative remedies could not be obtained against the Crown directly as was explained by Lord Denman, CJ. in Reg. v. Powell (1841) 1 Q.B. 352, 361: "both because there would be an incongruity in the Queen commanding herself to do an act, and also because the disobedience to a writ of mandamus is to be enforced by attachment." Originally this difficulty could not be avoided by bringing the proceedings against named ministers of the Crown: Reg. v. Lords Commissioners of the Treasury (1872) L.R. 7 Q.B.

387. But, where a duty was imposed by statute for the benefit of the public upon a particular minister, so that he was under a duty to perform that duty in his official capacity, then orders of prohibition and mandamus were granted regularly against the minister. The proceedings were brought against the minister in his official name and according to the title of the proceedings by the Crown. The title of the proceedings would be Reg. v. Minister, Ex parte the applicant (as is still the position today), so that unless the minister was treated as being distinct from the Crown title of the proceedings would disclose the "incongruity" of the Crown suing the Crown. This did not mean that the minister was treated as acting other than in his official capacity and the order was made against him in his official name. In accordance with this practice there have been numerous cases where prerogative orders, including orders of prohibition and mandamus, have been made against ministers. This was accepted by Mr. Richards as being the position prior to the introduction of judicial review and I will merely refer to one authority, Reg. v. Commissioners of Customs and Excise, Ex parte Cook (1970) 1 W.L.R. 450 (which was not cited in Reg. v. Secretary of State for Transport, Ex parte Factortame Ltd. (1990) 2 A.C. 85) to illustrate the position. Lord Parker, C.J. described the then situation of which he had great experience. He said, at p. 455: "Accordingly, one approaches this case on the basis, and I confess for my part an alarming basis, that the word of the minister is outweighing the law of the land. However, having said that, one moves on to the far more difficult question whether mandamus will lie. It is sometimes said as a general proposition that mandamus will not lie against the Crown or an officer or servant of the Crown. I think we all know in this day and age that that as a general proposition is quite untrue. There have been many cases, of which the most recent is Padfield v. Minister of Agriculture, Fisheries and Food (1968) A.C. 997 in which a mandamus was issued to a minister. Indeed, that has always been the case, as can be seen since as long ago as 1850 when in Reg. v. Commissioners of Woods, Forests, Land, Works and Buildings, Ex parte Budge (1850) 15 Q.B. 761, Sir Frederick Thesiger expressed the proposition in argument in this form, at p. 768: `Whenever a person, whether filling an office under the Crown or not, has a statutory duty towards another person, a mandamus will lie to compel him to perform it.' Those words of Sir Frederick Thesiger were in fact adopted by Cockburn, CJ. There are, of course, cases in which it has been held that a servant or officer of the Crown may have as his only duty a duty towards the Crown. That, indeed, was the deciding factor in Reg. v. Lords Commissioners of the Treasury (1872) L.R. 7 Q.B. 387; but equally there are other cases, for example, Rex v. Income Tax Special Purposes Commissioners, Ex parte Dr. Barnado's Homes National Incorporated Association (1920) 1 KB. 26, and the well‑known case. of Reg. v. Income Tax Special Purpose Commissioners (1888) 21 Q.B. 313, which show quite clearly that where by statute an officer or servant of the Crown has also a duty towards a member of the public, then provided that member of the public has a sufficient .interest, mandamus will lie." It is interesting to note the comment by Lord Parker about mandamus not being available since similar comments were sometimes made about injunctions in private law proceedings. Nonetheless, there were limits at that time, as Lord Parker indicates, to the availability of mandamus. It was necessary that there should be a duty which was owed to the applicant as a member of the public. The duty which was required was not a private duty which would give rise to a right to damages in the event of a breach, but a public duty. In addition the duty had to be placed on a named minister. As already indicated, in most situations today statutory duties are conferred on ministers in their own name and not upon the Crown in general: Professor Sir William Wade Q.C., "Injunctive Relief against the Crown and Ministers," 107 L.Q.R.

4. Furthermore, by the time of the introduction of the remedy of judicial review the position had developed so that the prerogative orders, including prohibition and mandamus, were being granted regularly against ministers without any investigation of whether a statutory duty, which had not been complied with, was placed upon the minister or some` one else in the department for which the minister was responsible. Thus the Immigration Act 1971 places some duties on immigration officers and others on the Hone Secretary, but even where it is the immigration officer who has not complied with the statutory duty it is the practice to make an order of mandamus against the minister (an example is provided by Reg. v. Secretary of State of the Home Department, Ex parte Phansopkar (1976) Q.B. 606). As a result of even more recent developments, illustrated by the decision in the Council of Civil Service Unions v. Minister for the Civil Service (1985) A.C. 374 a distinction probably no longer has to be drawn between duties which have a statutory and those which have a prerogative source. After the introduction of judicial review in 1977 it was therefore not necessary to draw any distinction between an officer of the Crown "acting as such" and an officer acting in some other capacity in public law proceedings. The changes made in procedure introduced in 1977 by R.C.S., Ord. 53 for judicial review were first given statutory authority by primary legislation in section 31 of the Supreme Court Act, 1981. The relevant provisions of that section, which do not differ materially from the corresponding provisions of Order 53, are: "Application for judicial review.‑‑(1) An application to the High Court for one or more of the following forms of relief, namely‑‑(a) an order of mandamus, prohibition or certiorari; (b) a declaration or injunction. under subsection (2); or (c) an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies, shall be made in accordance with rules of court by a procedure to be known as an application for judicial review. (2) A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief, has been made and the High Court considers that, haring regard to‑‑(a) the nature of the matters in respect of which relief may be granted by orders of mandamus, prohibition or certiorari; (b) the nature of the persons and bodies against whom relief may be granted by such orders; and (c) all the circumstances of the case, it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be. (3) No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance, with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates. (4) On an application for judicial review the High Court may award damages to the applicant if (a) he has joined with his application a claim for damages arising from any matter to which the application relates; and (b) the court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he would have been awarded damages." In section 31 the jurisdiction to grant declarations and injunctions is directly linked to that which already existed in relation to the prerogative orders. The jurisdiction to award damages by contrast is restricted to those situations where damages are recoverable in an action begun by writ. It has never been suggested that a declaration is not available in proceedings against a mister in his official capacity and if Order 53 and section 31 apply to a minister in the case of declarations then, applying ordinary rules of construction, one would expect the position to be precisely the same in the case of injunctions. As an examination of the position prior to the introduction of judicial review indicates, because of the scope of the remedies of mandamus and prohibition the availability of injunctions against ministers would only be of any significance in situations where it would be appropriate to grant interim relief. Even here the significance of the change was reduced by the power of the court to grant a stay under Ord. 53, R. 3(10). Furthermore in practice an injunction against a minister would be no more than a peremptory declaration because of the limitations on execution contained in Ord. 77, R. 15 which because of the definition of "order against the Crown" in Ord. 77, R. 1(2) applies to judicial review and proceedings against an officer of the Crown as such. Lord Bridge of Harwich in Reg. v. Secretary of State for Transport, Ex parte Factortame Ltd. (1990) 2 A.C. 85, 143 acknowledged that "the question at issue depends, first, on the true construction of section 31." Lord Bridge also accepted, at p. 149 that if section 31 "were to be construed in isolation" there would be "great force in the reasoning" that section 31 did enable injunctions to be granted for the first time against ministers of the Crown in judicial review proceedings. Why then did Lord Bridge come to the conclusion that an injunction could not be granted against a minister in proceedings for judicial review? A primary cause for Lord Bridge's taking this view was that he concluded that it would be a dramatic departure from what was the position prior to the introduction of judicial review for an injunction to be available against the Crown or a minister of the Crown, so that the change was one which could be expected to be made only by express legislation. His conclusion was not, however, based on as comprehensive an argument of the history of both civil and prerogative proceedings as was available to your Lordships. In particular he did not have an account of the developments which had taken place in the granting of prerogative orders against ministers, which meant that in practical terms the only consequence of treating section 31 as enabling injunctions to be granted against ministers acting in their official capacity would be to provide an alternative in name only to the orders of prohibition and mandamus which were already available and to allow interim relief other than a stay for the first time. A secondary cause was his reliance upon Upjohn, J.'s judgment in Merricks v. Heathcoat‑Amory (1955) Ch. 567, a judgment which as already indicated should be approached with caution. Lord Bridge was also influenced by the fact that the new Order 53 was introduced following the Law Commission's Report on Remedies in Administrative Law (1976) (Law Com. No.73) (Cmnd. 6407) and that that report drew attention to the problem created by the lack of jurisdiction to grant interim injunctions against the Crown and recommended that the problem should be remedied by amending section 21 of the Act of 1947. The report included a draft of the legislation proposed. This proposal of the Law Commission was never implemented. Instead the decision was taken following the Law Commission's report to proceed by amendment of the Rules of the Supreme Court rather than by primary legislation. Lord Bridge in his speech, at pp. 149‑150, explains why, in his view, this meant that section 31 of the Act of 1981 should be given a restricted interpretation: "First, section 31(2) and Ord. 53, R.1(2) being in identical terms, the subsection and the sub‑rule must have the same meaning and the sub rule, if it purported to extend jurisdiction, would have been ultra vires. Secondly, if Parliament had intended to confer upon the court jurisdiction to grant interim injunctions against the Crown, it is inconceivable, in the light of the Law Commission's recommendation in paragraph 51 of its report, that this would not have been done in express terms either in the form of the proposed clause 3(2) of the Law Commission's draft Bill or by an enactment to some similar effect. There is no escape from the conclusion that this recommendation was never intended to be implemented. Thirdly, it is apparent from section 31(3) that the relief to which section 31(2) applies is final, as opposed to interlocutory, relief. By section 31(2) a declaration may be made or an injunction granted `where an application for judicial review ... has been made. But by section 31(3) `no application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; ...' Under the rules there are two stages in the procedure. first the grant of leave to apply for judicial review on ex parte application under Ord. 53, R. 3, secondly the making of the application for judicial review which by rule 5 is required to be by originating motion or summons duly served on all parties directly affected. Section 31(2) is thus in terms addressed to the second stage, not the first, and is in sharp contrast with the language of Ord. 53, R. 3(10), which by its terms enables appropriate interim relief to be granted by the court at the same time as it grants leave to apply for judicial review. This point occurred to me at first blush to be one of some technicality. But on reflection I am satisfied that it conclusively refutes the view that section 31(2) was intended to provide a solution to the problem of the lack of jurisdiction to grant interim injunctions against the Crown. The form of final relief available against the Crown has never presented any problem. A declaration of right made in proceedings against the Crown is invariably respected and no injunction is required. If the legislature intended to give the court jurisdiction to grant interim injunctions against the Crown, it is difficult to think of any reason why the jurisdiction should be available only in judicial review proceedings and not in civil proceedings as defend in the Act of 1947. Hence, an enactment which in turn applies only to forms of final relief available in judicial review proceedings cannot possibly have been so intended." This is a very closely and carefully argued justification for adopting a narrow approach to the effect of section 31 of the Act of 1981. It deserves very careful attention coming, as it does, from a judge who is acknowledge to have made an outstanding contribution to this area of the law. Nonetheless, I do not regard it as justifying limiting the natural interpretation of section 31 so as to exclude the jurisdiction to grant injunctions, including interim injunctions, on applications for judicial review against ministers. of the Crown. I will try to explain why. First of all it is unsafe to draw any inference from the fact that judicial review was not first introduced by primary legislation. Primary legislation could have led to delay. As it happens, in Northern Ireland, when judicial review was introduced, the primary legislation, the Judicature (Northern Ireland) Act 1978, came first and was followed by a subsequent amendment of the Rules of the Supreme Court (Northern Irland) involving a new Order 53 which came into operation on 1st January 1981. The fact that in England and Wales it was decided that an amendment to the Rules of the Supreme Court should precede primary legislation did mean that it was inevitable that the recommendation of the Law Commission that section 21 of the Act of 1947 should be amended had to be abandoned. However, this decision not to amend section 21 is not really surprising bearing in mind that the‑ exercise in hand related to public law proceedings while section 21 dealt with private or "civil" law proceedings. Not having dealt with section 21 at the outset it was natural that, as section 31 was merely confirmatory of the changes already made, is should not deal with section 21 either. Order 53 undoubtedly extended the circumstances in which a declaration could be granted against the appropriate representative of the Crown. Prior to the change no remedy whatsoever in the nature of a declaration could be obtained in prerogative proceedings. Furthermore, there are situations where no declaration could be obtained in private law proceedings against the Crown without the assistance of the Attorney‑General in circumstances in which it is now available on judical review. It is not suggested that Order 53 was ultra vires in allowing declarations against ministers and in my view if it was not ultra vires in relation to declarations there is no reason why it should be regarded as being ultra vires in relation to injunctions, albeit that the effect is that an injunction cannot be obtained against a minister of the Crown where previously only an order of mandamus or prohibition could be obtained. However, if Order 53 were to be regarded as being open to challenge on this ground, this would explain why the unusual course was taken, a change having been introduced by an amendment to the Rules of the Supreme Court, of confirming the amendment a substantial period later by the Act of 1981. As a matter of construction it is difficult to treat the provisions as to injunctions in Order 53 and section 31 as not applying to ministers, but as doing so in the case of the other remedies. This difficulty is underlined in the case of Northern Ireland since the interpretation section 118 (1), of the Act of 1978 expressly provides that it should bind the Crown, but in a restricted manner "as respects civil proceedings to which the Act of 1947 applies." It would therefore bind the Crown as to injunctions in non‑ "civil proceedings", that is judicial review. Section 19 of that Act also gives the court a wide discretion to grant such interim relief as it considers appropriate. It would, therefore, seem to be difficult to say that there is no power to grant interim injunctions against ministers in Northern Ireland. If this is the effect of the Northern Ireland legislation the position is likely to be the same in England and Wales, though the position is different in Scotland. In Reg. v. Secretary of State for Transport. Ex parte Factortame Ltd. (1990) 2 A.C. 85 no reference was made to the Northern Ireland Act. Ord. 53, R. 3 (10) deals with the grant of interim relief on an application for judicial review. It provides: "Where leave to apply for judicial review is granted, then‑‑‑(a) if the relief sought is an order of a prohibition or certiorari and the court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the court otherwise orders; (b) if any other relief is sought, the court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ." So far as respondents other than ministers are concerned, the provisions of Ord. 53, R. 3 (10) (b) have always been treated as giving the Court jurisdiction to grant interim injunctions. This is confirmed to be the position by the decision of the Court, of Appeal in Reg. v. Kensington and Chelsea Royal London Borough Council, Ex. parte Hammell (1989) O.B.

518. The power of the Court to grant interim injunctions is linked to the power of the Court to grant final injunctions. If the Court has the power to grant a final injunction against a minister it must surely have the power to grant, an interim injunction and vice versa. This is confirmed by section 37 (1) of the Act of 1981 which provides: "The High Court may by order (whether interlocutory or final) grant an injunction ...in all cases in which it appears to the Court to be just and convenient to do so." As to the "technical" point referred to by Lord Bridge of Harwich in Factortame (1990) 2 A.C. 85,150, Ord. 53, R. 3 (1Q) is similarly linked to Ord. 53, R. 1 (2) and the almost identically worded provisions of section 31 (2). While it is correct that an application for judicial review cannot be made until leave is granted, this does not mean that section 31 (2) restricts the court's jurisdiction to grant interim or final injunctions until after leave has been given and this has been followed by lodging the formal application with the court. This would be quite out of accord with practice which has always been followed on judicial review and would involve the expense and delay of two hearings when at present there is usually one. The clear intent of Ord. 53, R. 3 (10) is that the Court where it considers an application for leave at an oral hearing should deal with questions of interim relief if it is appropriate to do so. During the course of the hearing Mr. Richards was asked whether he could provide any justification for Lord Bridge regarding the language of section 31 (2) and section 31(3) together with Ord. 53, R. 3 (10) as: "conclusively (refuting) the view that section 31 ‑(2) was intended to provide a solution to the problem of the lack of jurisdiction to grant interim injunctions against the Crown." but he was not able to do so. Prior to the introduction of Order' 53 there was the same problem of the inability to grant interim injunctions against bodies which had no connection with the Crown. The changes which are reflected is sections 31(2) and (3) and Ord. 53, R. 3 (10) provided a solution in relation to those bodies and it must surely follow that if section 31 (21 gives the covet jurisdiction to grant final injunctions against ministers it must also provide the jurisdiction to grant interim injunctions. Counsel for the applicants is Factortame did not reply to the Crown's submissions on this aspect of the case and I expect this explains why in Factortame the position was misunderstood. I am, therefore, of the opinion that, the language of section 31 being unqualified in its terms, there is no warrant for restricting its application so that in respect of ministers and other officers of the Crown alone the remedy of an injunction, including an interim injunction, is not available. In my view the history of prerogative proceedings against officers of the Crown supports such a conclusion. So far as interim relief is concerned, which is the practical change which has been made, there is no justification for adopting a differed approach to officers of the Crown from that adopted in relation to the respondents in the absence of clear language such as that contained is section 2e(2) of the Act of 1947. The fact that in any event a stay could be granted against the Crown under Ord. 53, R. 3 (10) emphasises the limits of the change in the situation which is involved. It would be most regrettable if an approach which is inconsistent with that which exists in Community law should be allowed to persist if this is not strictly necessary. The restriction provided for in section 21 (2) of the Act of 1947 does, however, remain in relation to civil proceedings. The fact that, in my view, the court should be regarded as having jurisdiction to grant interim and final injunctions against officers of the Crown does not mean that that jurisdiction should be exercised except in the most limited circumstances. In the majority of situations so far as final relief is concerned a declaration will continue to be the appropriate remedy on an application for judicial review involving officers of the Crown. As has been the position in the past, the Crown can be relied upon to co‑operate fully with such declarations. To avoid having to grant interim injunctions against officers of the crown. I can see advantages in the Courts being able to grant interim declarations. However, it is obviously not desirable to deal with this topic, if it is not necessary to do so, until the views of the Law Commission are known. The validity of the injunction granted by Garland J. What has been said so far does not mean that Garland, J. was necessarily in order in granting the injunction. The injunction was granted before he had given the applicant leave to apply for judicial review. However, in a case of real urgency, which this was, the fact that leave had not been granted is a mere technicality. It would be undesirable if in the situation with which Garland, J. was faced, he had been compelled to grant leave because he regarded the case as an appropriate one for an interim injunction. In the case of civil proceedings, there is recognition of the jurisdiction of the court to grant interim injunctions before the issue of a writ, etc., (see Ord. 29, R.1(3)) and in an appropriate case there should be taken to be a similar jurisdiction to grant interim injunctions now under Order

53. The position is accurately set out in note 53/1‑14/24 to The Supreme Court Practice. 1993 where it is stated that: "Where the case is so urgent as to justify it (the judge) could grant an interlocutory injunction or other interim relief pending the hearing of the application for leave to move for judicial review. But, if the judge has refused leave to move for judicial review he is functus officio and has no jurisdiction to grant any form of interim relief. The application for an interlocutory injunction or other interim relief could, however, be renewed before the Court of Appeal along with the renewal of the application for leave to move for judicial review." There having been jurisdiction for Garland, J. to make the order which he did, it cannot be suggested that it was inappropriate for him to have made the order. On the view of the law which I now take, Garland, J. was therefore not required to set aside the order though his decision to do so was inevitable having regard to the state of‑the authorities at that time. The effect of the advice received by Mr. Baker Having come to the conclusion that Garland, J. 's order was properly made, the next question which has to be considered is the effect of the advice which was understandably given to Mr. Baker that the order was made without jurisdiction. Here there are two important considerations. The first is that the order was made by the High Court and therefore has to be treated as a perfectly valid order and one which has to be obeyed until it is set aside: see the speeches of Lord Diplock in In re: A Company (1981) A.C. 374, 384 and Isaacs v. Robertson (1985) A.C. 97,

102. The second consideration is that it is undesirable to talk in the terms of technical contempt. The courts only make a finding of contempt if there is conduct by the person or body concerned which can, with justification, be categorised as contempt. If, therefore, there is a situation in which the view is properly taken (and usually this will only be possible when the action is taken in accordance with legal advice) that it is reasonable to defer complying with an order of the court until application is made to the court for further guidance then it will not be contempt to defer complying with the order until an application has been made to the Court to discharge the order. However, this course can only be justified if the application is made at the first practicable opportunity and in the meantime all appropriate steps have been taken to ensure that the person in whose favour the order was made will not be disadvantaged pending the hearing of the application. Mr. Baker's difficulties in this case are that, while it was understandable that there should be delay before he could give the matter personal attention. Garland, J. was not kept informed of what was happening and totally inadequate steps were taken to protect the position of M. pending the application to the Court. In addition Mr. Baker has the problem that this House will not normally interfere with the assessment of the facts which was made by the Court of Appeal unless it can be shown that the assessment is flawed by some error of law. Jurisdiction to make a finding of contempt. The Court o 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 M.R. 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 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) A.C.

359. 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 department 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 department or a minister. Nolan, L.J., at p. 311, considered that the fact that proceedings for contempt are "essentially personal and punitive" meant that it was not open to a Court, as matter of law, to make a finding of contempt against the Home Office or the Home Secretary. While contempt proceedings usually have these characteristics and contempt proceedings against a government department or a minister in an official capacity could not be either personal or punitive (it would clearly not be appropriate to fine or sequent the assets of the Crown or a government 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. In consequence of the developments identified already such orders must be taken not to offend the theory that the Crown can supposedly do no wrong. Equally, if such orders are made and not obeyed, the body against whom the orders were made can be found guilty of contempt without offending that theory, which would be the only justifiable impediment against making a finding 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 department has interfered with the administration of justice. It will then be for Parliament to determine 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, 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 rule of law by a finding of contempt. This can be achieved equally by a declaratory finding of the Court as to the contempt against the minister as representing the department. By making the finding against the minister in his official capacity the court will be indicating that it is the department for which the minister is responsible which has been guilty of contempt. The minister himself may or may not have been personally guilty of contempt. The position so far as he is personally concerned would be the equivalent of that which needs to exist for the Court to give relief against the minister in proceedings for judicial review. There would need to be default by the department for which the minister is responsible. In addition Mr. Richards argued that for a finding of contempt against Mr. Baker personally it would not suffice to establish contempt to show that Mr. Baker was aware of the order and had not complied with it. It would also be necessary to show an intention to interfere with or impede the administration of justice. If such an intent was shown to exist, then Mr. Richards conceded that the conduct of the minister would fall outside his authority as a minister; it would be a personal act not the act of the Crown; and it would expose him to a personal liability for contempt. In support of the distinction which he relied upon, Mr. Richards referred to the speech of Lord Oliver of Aylmerton in Attorney‑General v. Times Newspapers Ltd. (1992) A.C. 191, 217‑218, where Lord Oliver stated: "A distinction (which has been variously described as `unhelpful' or `largely meaningless') is sometimes drawn between what is described as `civil contempt, that is to say, contempt by a party to proceedings in a matter of procedure, and 'criminal contempt'. One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent Court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constitutes a civil contempt by him which is punishable by the Court at the instance of the party for whose benefit the order was made and which can be waived by him. The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the Court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited. When, however the prohibited act is done not by the party bound himself but by a third party, a stranger to the litigation, that person may also be liable for contempt. There is however this essential distinction that his liability is for criminal contempt and arises not because the contemner is himself affected by the prohibition contained in the order but because his act constitutes a wilful interference with the administration of justice by the Court in the proceedings in which the order was made. Here the liability is not strict in the sense referred to, for there has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice‑‑an intention which can of course be inferred from the circumstances." I happily adopt the approach of Lord Oliver. It reflects the distinction which I have drawn between the finding of contempt and the punishment of the contempt. I also accept the distinction which Lord Oliver draws between the position of a person who is subject to an order and a third party. I also recognise the force of Mr. Richards' submission that if Mr. Baker was not under a strict liability to comply with the order it would not be possible to establish that he had the necessary intention to interfere with or impede the administration of justice to make him guilty of contempt as a third party. However, although the injunction was granted by Garland, J, against Mr. Baker in his official capacity this does not mean that he is in the same position as a third party. To draw a distinction between his two personalities would be unduly technical. While he was Home Secretary the order was one binding upon him personally and one for the compliance with which he as the head of the department was personally responsible. He was, therefore, under a strict liability to comply with the order. However, on the facts of this case have little doubt that if the Court of Appeal had appreciated that they could make a finding against Mr. Baker in his official capacity this is what the Court would have done. The conduct complained of in this case which justified the bringing of contempt proceedings was not that of Mr. Baker alone and he was acting on advice. His error was understandable and I accept that there is an element of unfairness in the finding against him personally. In addition, there are technical differences between the two findings because of the provisions of R.S.C. Ord. 77, R. 1 which define an "order against the Crown" in a broad sense to include an order against the government department or against an officer of the Crown as such. Unlike the definition of "civil proceedings by the Crown'; this definition expressly applies to proceedings "on the Crown side of the Queen's Bench Division", This means that the provisions of Orders 45 to 52 (which deal with execution and satisfaction of orders of the Court) would not apply to an order against the Home Secretary while they would do so in the cafe of an, order against Mr. Baker personally. It is for these reasons that I would dismiss this appeal and cross appeal save for substituting the Secretary of State for Home Affairs as being the person against whom the finding of contempt was made. This was the alternative decision which was the subject of the cross‑appeal, except that there the order was sought against the Home Officer rather than the Home Secretary. Order of Court of Appeal affirmed save for substitution of designation Secretary of State for Home Affairs" as proper object of finding of contemn, Anneal and cross‑appeal dismissed with costs, Solicitors: Treasury Solicitor: Winstanley‑Burgess. M.B‑A./497,/HL Appeal dismissed.