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• Liability Of The Crown
• First Option: Change
• Second Option – Retain The Status Quo

1. Mandatory orders against the Crown: the issue and the options

1 THE ISSUE considered in this chapter is whether the current Crown immunity

from mandatory orders[2] should remain. It is the subject of a difference of expert opinions.

2 There developed at common law a rule (the Crown immunity rule) which was long believed to have two limbs:

(1) no mandatory order could be made against the Crown; and

(2) nor could such order be made against Crown servants sued in an official capacity.

The theory was expressed that the King could do no wrong and could not be sued in his own courts. Accordingly it was said that any, let alone mandatory, relief granted as of right against Crown servants must relate to conduct in their private capacity, on the basis that by committing a wrong they had acted ultra vires their authority as officials.[3]

3 The second limb of the Crown immunity rule was later discredited. The present question is of the status of the first limb.

4 The combined effect of both limbs was grossly unfair. The Crown could and did commit wrongs. The worst effects of such a rule had been mitigated by the practice that the Crown would nominate as defendant an individual person to be sued, in a sense as its surrogate. But in November 1946 the Court of Appeal declined to act on the fiction that a nominated defendant was the occupier of Crown premises where the plaintiff had been injured while working for the Ministry of Supply.[4] It was held that to be liable the nominated defendant must personally owe a duty to the plaintiff; since that was not the case the claim was dismissed. In the leading judgment, Scott LJ held

The defendant to the proceedings could not be the Ministry of Supply, which was the occupier of the factory, because that ministry, like every other government department, is simply in law the Crown, and in English law an action for tort, such as an action for negligence or breach of statutory duty of this type, does not lie against the Crown.

5 The obvious injustice led to the Crown Proceedings Act 1947 (UK), virtually reproduced in the CPA. By section 3 the CPA exposed the Crown to liability as of right to claims in respect of:

(a) the breach of any contract or trust;

(b) any wrong or injury for which the Crown is liable in tort under this Act or under any other Act which is binding on the Crown;

(c) any cause of action, in respect of which a claim or demand may be made against the Crown under this Act or under any other Act which is binding on the Crown, and for which there is not another equally convenient or more convenient remedy against the Crown;

(d) any cause of action, which is independent of contract, trust, or tort, or any Act, for which an action for damages or to recover property of any kind would lie against the Crown if it were a private person of full age and capacity, and for which there is not another equally convenient or more convenient remedy against the Crown; and

(e) any other cause of action in respect of which a petition of right would lie against the Crown at common law or in respect of which relief would be granted against the Crown in equity.

6 But the 1950 reform was incomplete. First, section 17 of the CPA prohibited the making against the Crown of mandatory orders of injunction, specific performance, and recovery of land or property, limiting relief to declaration of the plaintiff’s rights.[5] By excluding from the ambit of the reform these classes of relief which are available in claims against a subject, Parliament expressed an unwillingness to treat the Crown as ever on terms of equality with the subject.

7 Secondly, the reform was limited to “civil proceedings”. That term is defined by section 2:

‘Civil proceedings’ means any proceedings in any Court other than criminal proceedings; but does not include proceedings in relation to habeas corpus, mandamus,[6] prohibition, or certiorari [or proceedings by way of an application for review under Part I of the Judicature Amendment Act 1972 to the extent that any relief sought in the application is in the nature of mandamus, prohibition, or certiorari]:[7]

It is convenient to refer to proceedings that are neither “civil proceedings” nor “criminal proceedings” as “excepted proceedings”.

8 The result is that the supposed bar to mandatory orders against the Crown (as distinct from its servants alleged to be acting ultra vires) (paragraph 2 above), which the old common law had extended to mandamus,[8] prohibition⁹ and certiorari,¹⁰ was maintained by the exception from the operation of the CPA provided by section 2 (despite cases to the contrary, mainstream authority suggests that habeas corpus, by contrast, lay against the Head of State).[11]

9 The second limb of the Crown immunity theory – that a Crown servant’s liability to mandatory orders was based on ultra vires conduct – was demolished in M v Home Office.[12] The House of Lords held that the Home Secretary, although not personally at fault, was guilty in his official capacity of contempt of court for the defiance by an official of a mandatory injunction made against the Home Secretary requiring the return of a deportee. Moreover that order for injunction was held to have been validly made.

10 Since both mandatory injunction and contempt now lie against the Home Secretary in his official capacity, the very embodiment of the Crown’s executive authority, it follows that the first limb of the old law – that the Crown is immune from mandatory orders – has itself gone. The Crown cannot perform any act or omission save by conduct of its officials. If they are liable in their official capacity to mandatory orders, what is left of the common law rule that such orders cannot be made against the Crown?

11 There is, however, difference both within the Commission and among experts as to the need for and desirability of submitting the Crown to such orders.

12 In 1972 the New Zealand Parliament, in enacting the JAA, added its endorsement of the Crown immunity rule. That measure introduced a procedure for obtaining orders for judicial review of the exercise of statutory powers. Section 8, which empowers the grant of interim relief, adopts the policy of section 17 of the CPA in prohibiting the grant of mandatory orders against the Crown and permitting only declarations.[13] While unlike the CPA[14] it does not specifically prohibit the grant of mandatory relief against Crown officers, since the Crown can only act by its officers, it is generally taken to prohibit mandatory relief against them as well.

13 The unsatisfactory consequences are that, at least since M’s case:[15]

(1) at common law mandatory orders can be made against Crown officials;

(2) there is debate whether such orders can be made against the Crown as distinct from its officials; and

(3) in New Zealand, while recourse to the mandatory orders of the common law is available, in respect of conduct by an official that does not entail the exercise of a statutory power and so falls altogether outside the JAA, to give interim relief, it is probably not available in respect of conduct falling within the JAA.[16]

14 The present question is whether that law should now be changed.

15 The Law Commission is agreed that in today’s New Zealand the Crown must in general be subject to the rule of law.[17] It is also agreed that what Lord Templeman called “the Crown as monarch”[18] should continue to retain its current immunity from suit in relation to the excepted proceedings. The difference of opinion concerns whether what Lord Templeman called “the Crown as executive”[19] should maintain its immunity in relation to both the excepted proceedings and those falling within section 17 of the CPA. This paper focuses on the former; leaving the substance of the latter for consideration in a future review of the CPA. But in considering the principles it is necessary to bear it in mind.

LIABILITY OF THE CROWN

16 The Crown as monarch is the symbol of our nation, to whom are sworn oaths of allegiance by new citizens, the military, the judiciary and executive counsellors. It is personified by the Sovereign and by the Governor-General. No justification has been advanced to alter the immunities of the Crown as monarch. The position is altogether different in the case of the Crown as executive which for practical purposes in the present context is the State.

17 The rule of law requires the State and its officials to be subject to the law. It follows that (except where there are specific public policy reasons for exemption) the continuing exceptions to that principle have no current justification and should be removed.

18 General Crown immunity from suit results from the ancient principle that the King can do no wrong. ²⁰ Its continued justification is described by Cane:

The reasons for this are technical and constitutional. In theory the Crown is the applicant for every prerogative order; therefore, it would be incongruous if coercive relief were available against the Crown at its own suit. Furthermore, it is said that it would upset the constitutional balance between the courts and the executive if the Crown could be held in contempt of court for disobeying a prerogative order of prohibition or mandamus.[21]

19 Such notion of a general Crown immunity is an anachronism which should not have survived the development of Parliamentary democracy.[22]

20 The general principle should cease to be that the Crown as executive, alias those exercising public authority, can do no wrong; history is replete with examples of abuse of state power.

21 It should instead be that of the inherent dignity of the individual, recognised by the Preambles of the Universal Declaration of Human Rights and the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights, to all of which New Zealand has acceded. They are referred to in the long title of the Human Rights Act 1993, which is:

An Act to consolidate and amend the Race Relations Act 1971 and the Human Rights Commission Act 1977 and to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights.

By section 3, that Act binds the Crown.

22 Likewise the long title of the New Zealand Bill of Rights Act 1990 provides that it is:

An Act—

(a) To affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and

(b) To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights

which proclaims

2 Rights affirmed

The rights and freedoms contained in this Bill of Rights are affirmed.

3 Application

This Bill of Rights applies only to acts done—

(a) By the legislative, executive, or judicial branches of the government of New Zealand; or

(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

23 These commitments and measures recognise that the role of the State, represented by the Crown, is to safeguard and promote the interests of its citizens – as individuals and as social groups. It has no other justification. That is the sole reason for the receipt of sovereign power. In many cases the interests of all subjects require Crown authority to dominate, plain examples being the cases of taxing and policing, although even there the Crown is subject to the law. But save to the extent that in serving its citizens’ needs the Crown requires to have superior powers or immunities, the status of citizens before the courts should be no less than that of the Crown as executive.[23] Of course the acid question is when the exception is to apply and what test of its existence is to be employed.

24 Parliament has pointed to equality, where practicable, as a goal by directing in section 28 of the Interpretation Act 1999 the preparation by 30 June 2001 of a report as to the presumption that the Crown is not bound by enactments and as to Crown criminal liability, save to the extent that the public interest in its ability to exercise sovereign power should require.[24]

25 In developing the common law the judiciary has applied both section 3 of the New Zealand Bill of Rights Act 1990 and its underlying principles by applying the rule of law to all three limbs of the Crown – legislature,[25] judiciary²⁶ and the executive.

26 The executive is commonly the subject of proceedings for judicial review. In Burt v Governor-General[27] the Court of Appeal held that the mere fact that a decision has been made under the royal prerogative does not exempt it from judicial review at common law.[28]

27 Turning now to the question which divided the Law Commission, given the constitutional developments as to the role of the Crown and the accountability of Crown officials, is it necessary or desirable to take the final step of permitting mandatory orders against the Crown, as well as its officials?

FIRST OPTION: CHANGE

28 The argument for change is that the Crown’s general immunity to mandatory orders is anachronistic and, in cases falling outside the exceptions noted in paragraph 31, should be removed. In his contribution to The Nature of the Crown,[29]Loughlin argues:²⁹

At one level M may be viewed as a further stage in the process of recognition in law of the idea of government. Under the traditional approach, the status of the Crown was reconciled with the idea of the rule of law by asserting the essentially personal liability of officials. Recognising the artificiality of this process, M has set in place the framework of official liability for governmental action. ... [But] the Lords failed to develop further a legal concept of the State and to set in place a modern framework of official liability for governmental action. In retaining the distinction between the Crown and its servants, for example, they retained an ancient form, rooted in the idea that ‘the King can do no wrong’, which has little relevance to contemporary requirements and which sits uneasily with the judiciary’s view that, in principle, the exercise of prerogative power is susceptible to review. Further, while the practical significance of this distinction may not be great today, since statutes generally confer responsibilities on Ministers rather than the Crown, there is, as Mark Gould has noted, ‘nothing to prevent Parliament from adopting a form of words which confers duties directly on the Crown and using that formula more frequently than at present in order to avoid the very remedies made available in M’.[30] M is indicative of an attempt to refashion public law while retaining intact an unreconstructed core. [Emphasis in original]

29 In the same series Cornford advocates the view:[31]

. . . the time has come when it can be said that officers of the Crown are amenable to all of the remedies available in judicial review, whatever the source of the powers they exercise. The result of adopting this view[32] . . . would be a complete system of remedies. ... Proceedings against officers of the Crown would be proceedings against the Crown; the doctrine that the King cannot be sued in his own courts would apply only to the Monarch in person and not to the Crown as a political entity; and the archaic and arcane distinction formerly employed by the courts in their efforts to hold the executive to account could be allowed to wither away. [Emphasis added]

30 The extent of Crown liability to mandatory order should conform with the policy of the substantive law, whether statute or common law. The policy that the Crown should have no greater privilege than the public it serves, unless a test of necessity is met, was recommended in the Commission’s Report Crown Liability and Judicial Immunity: A response to Baigent’s case and Harvey v Derrick.[33] Following Parliament’s enactment of section 28 of the Interpretation Act 1999,[34] in To Bind their Kings in Chains³⁵ the Commission emphasised the practical need for certain of the Crown’s immunities and advised against a simple reversal of the presumption in section 27 of the Interpretation Act 1999:

No enactment binds the Crown unless the enactment expressly provides that the Crown is bound by the enactment.

Rather the Commission proposed that there should be adopted a practice that each proposed Bill should expressly state whether and to what extent the Crown is to be bound by the Bill and to the extent it is not, the reasons.

31 The view expressed in the first option[36] is that the time has come to limit the Crown’s immunity to mandatory order in proceedings for judicial review. It should be confined to the overlapping classes of case where:

(1) there is Crown immunity under the substantive law;

(2) claims against the Crown are not justiciable;[37]

(3) the Court’s discretion should be exercised in favour of immunity;[38] and

(4) in other cases the Crown should be liable to the same remedies as the subject. If that were done, procedural reform can readily follow. To permit Crown immunity to continue in other cases would be to concede the Crown’s claim to dispense with the law that was abolished by the Bill of Rights 1688, now reprinted in the New Zealand statutes:[39]

1 No dispensing power – That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of Parliament, is illegal:

32 On these arguments, save in specific exceptional cases required by the public interest, the process of protecting the citizen from breach of the law should not be limited by excluding from the liability it imposes any emanation of the Crown as executive. That must include not only its officers, however exalted (as in M’s case) but also the Crown itself. It must continue to apply to proceedings for habeas corpus, and extend to the applications for judicial review discussed in later chapters of this Paper and, in principle, to all other civil proceedings. The immunities at present provided by section 8(2) JAA[40] should be removed.

33 There are ready responses to the conventional arguments against this option, which include:

(1) the need to maintain immunity of the Sovereign (the Crown as monarch) requires Crown immunity;

(2) the court would pause before making mandatory orders against the Crown;

(3) it is illogical that the Crown as executive would be ordered by the Crown as judiciary to perform some act;

(4) the judiciary has no force of its own to compel the State to perform an act it refuses to do;

(5) there is no practical need for change; and

(6) the rule of law is sufficiently acknowledged by the making of declarations against the Crown and mandatory orders against officials, and their being honoured in each case.

34 As to (1), Sir William Wade in “The Crown, Ministers and Officials: Legal Status and Liability”[41] rejects the argument that “the Crown” means anything other than “the Queen”. It is, and always was, immune from legal process at common law. The immunity is tolerable because it does not extend to ministers and Crown officers. He argues that although:

The distinction between the Crown’s immunity and its servants’ non-immunity is, of course, highly artificial, [yet] in the system of remedies ... evolved from feudal origins ... it was indispensable for reconciling the immunity of the Crown with the rule of law ... the legal personalities of the Crown and of ministers should be kept distinct. Otherwise, the immunity of the Crown could not co-exist with the immunity of ministers.[42]

35 But that argument dissolves when the two modes of the Crown are separated as by Lord Templeman in M’s case.[43] Since liability is confined by the current substantive law to the Crown as executive there is no reason to protect it from suit.

36 As to (2), the courts pause before making any mandatory order.[44] But such orders are already made against high officials, as in M’s case. While some aspects of Crown conduct are non-justiciable, that is no reason to refrain from making mandatory orders in cases that are. The same response is made to claims that some Crown conduct warrants statutory protection. Parliament has already dealt with such cases.

37 As to (3), the purpose and effect of the CPA was to impose on the Crown, as executive, liability determined by the Crown, as judiciary. Claims against the Crown in tort and for breach of contract are commonplace. Almost the whole of judicial review is premised upon that division of roles.

38 As to (4), the fundament of the rule of law is not the power of the executive but the acceptance of the law by the citizenry. Mandatory orders are now made against the high officials who represent the Crown, not only in their personal capacity but as Crown servants. In M’s case the finding of contempt of the Secretary of State was against him as official, not as an individual. There is no functional distinction between making such an order against the Crown official because of his status as such, and making such order against the Crown itself. The decision in M’s case was meaningful even if the Crown might in theory, by exercise of State power, have been able to defy it, because it was unthinkable that the Crown, in whose name the official act was performed, would defy the law. What maintains the rule of law is not the fear of force but the ethos of society that the law must be obeyed. The symbolic significance of the Crown itself being seen to be answerable to the law would add respect for the rule of law. Its continued immunity is an anachronism that has outlived its usefulness. As observed by Lord Millet in R v Health Society, ex parte Imperial Tobacco Company:[45]

This raised an important constitutional issue concerning the relationship between the executive and the judiciary. The relevant constitutional doctrine is encapsulated in a passage from Dworkin’s Law’s Empire (1998), p 9:
The rule of law requires that state coercion shall always be backed by law. The state’s force must not be used or withheld, no matter how useful that would be to the ends in view, no matter how beneficial those ends, except as licensed or required by law – ie by valid legislation or decisions of the courts having the effect of making law.
It is the responsibility of the judges to ensure that this principle is observed and to inquire into the validity of any law which is invoked by the state to support its actions.

39 As to (5), there can be practical advantage in permitting direct action against the Crown as State rather than against a particular officer. If, for example, there is in effect an injunction against one Crown official, there would be no breach of the present law if another Crown officer, in ignorance of that order, acted inconsistently with it. There is no such excuse available if an order is made against a company: it becomes its business to ensure compliance by all its staff. The same principle should apply to the Crown.[46]

40 More fundamentally, if the whereabouts of a person taken into custody of the Crown is unknown, the Crown, and not just the Commissioner of Police or the Chief Executive of the Department of Corrections, should respond to habeas corpus.

41 As to (6), the Crown as executive should set an example to its citizens and strengthen the ethos of the rule of law by submitting to it.

42 It is finally to be observed that the exclusion of mandatory orders in the Crown Proceedings Act 1947 (UK) was not the wish of the Government but had been insisted upon by departmental officials (whose opinion may be that recorded in paragraph 48 below). The Lord Chancellor had expected that the point would be tidied in amending legislation. In the Second Reading debate Mr JSC Reid MP,[47] shortly to be appointed direct to the Appellate Committee of the House of Lords, challenged the change of Scots law and expressed his own view so it could receive attention when the amending legislation came to be introduced. Consideration of it is half a century overdue.[48]

SECOND OPTION – RETAIN THE STATUS QUO

43 The alternative option is to retain the status quo – that the historical justification for refusing mandatory orders against the Crown should remain for the reasons summarised in the following five paragraphs.

44 Coercive orders are enforced by the State (which is what ‘the Crown’ essentially means in the present context) either by imprisonment or by sequestration (confiscation of assets). The reason why a court may not make a coercive order against the State is that it is unenforceable. The State cannot be imprisoned, and the incongruity or absurdity of the State punishing the State by confiscating the State’s assets is obvious. Historically these practical common-sense considerations have prevailed over rhetoric about the Crown owing the same duty to obey the law as its subjects do.

45 In practice a claimant is adequately protected by a declaration of right or by order against the official. In M’s case in which a Home Secretary was held to be in contempt of court, the contempt seems to have been the result of muddle rather than contumacy. Moreover, a suitable result was achieved by suing the Secretary of State rather than the Crown.

46 Because in the overwhelming majority of cases the determinative power is vested in a minister or other officer against whom the coercive order can be made, and because in the few other cases a declaration of rights suffices, the citizen is already adequately protected.

47 In practical terms, just how would the enforcement of a coercive order against the Crown work, and if the answer is that it is sufficient to rely on the moral authority of such an order, then how does this differ from the entitlement to a declaration of right that already exists?

48 Justification for the current immunity of the Crown from mandatory orders remains that stated by the United Kingdom Treasury Solicitor in 1952:

No doubt the principle underlying this provision is that in times of national emergency the Crown may be compelled to take, at the shortest possible notice and with the certainty that its operations will not be interrupted by the courts, measures which may be thought to infringe the rights or alleged rights of the subject. In such a case the appropriate course is for the Government of the day to ask Parliament to validate what it has done and no doubt Parliament will in those cases decide how far the acts of the Crown were justified in the circumstances. If Parliament approves of what has been done and ratifies it by retrospective legislation, it will also no doubt provide compensation for the persons aggrieved. The freedom of the Executive to meet a crisis by action of this kind would be fettered if it were open to the subject to obtain an interim injunction restraining the Crown from doing what it thought necessary in the public interest.[49]