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.
8 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;9 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 Ltd10 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 Leach11 and Raleigh v Goschen. 12 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. 14 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 Ltd15 further supported by the case of Wick Harbour Trustees v Admiralty16 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.