M v Home Office - Free Essay Example

Briefly explain the case of M v Home Office (1994) as it relates to the concept of the Rule of Law Dicey proposed that every man is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals, whatever his à ¢Ã¢â€š ¬Ã‹Å"rank or conditionà ¢Ã¢â€š ¬Ã¢â€ž ¢[1]. The accuracy of this assertion came under challenge in the case of M v Home Office (1994)[2], in which two issues of constitutional importance were considered; firstly whether injunctions could be issued against a government minister or department, and secondly whether a government minister or department could be found to be in contempt of court for failing to comply with a court order[3]. The case concerned à ¢Ã¢â€š ¬Ã‹Å"Mà ¢Ã¢â€š ¬Ã¢â€ž ¢, a citizen of Zaire who sought political asylum under the Geneva Convention relating to the Status of Refugees[4]. Mà ¢Ã¢â€š ¬Ã¢â€ž ¢s application was rejected by the Home Office who ordered his removal from the UK. The Court of Appeal refused an application for leave to move for judicial review and so a fresh application was made, which alleged new grounds, to Garland J in chambers. Garland J indicated that Mà ¢Ã¢â€š ¬Ã¢â€ž ¢s departure should be postponed in order to consider the application, and his understanding was that the Home Office had given an undertaking that this would be done. In fact, the undertaking given was that they would à ¢Ã¢â€š ¬Ã‹Å"endeavourà ¢Ã¢â€š ¬Ã¢â€ž ¢ to postpone the departure; and regardless of à ¢Ã¢â€š ¬Ã‹Å"endeavoursà ¢Ã¢â€š ¬Ã¢â€ž ¢, M was removed from jurisdiction on a flight to Zaire via Paris. On hearing of this, Garland J made a à ¢Ã¢â€š ¬Ã‹Å"without noticeà ¢Ã¢â€š ¬Ã¢â€ž ¢ mandatory order, noting that the apparent à ¢Ã¢â€š ¬Ã‹Å"undertakingà ¢Ã¢â€š ¬Ã¢â€ž ¢ had been breached and requiring the Home Secretary to procure Mà ¢Ã¢â€š ¬Ã¢â€ž ¢s return; and so arrangements were made for this[5]. The order granted the Secretary of State liberty to vary or discharge it, and so following advice from his officials, the Home Secretary cancelled the arrangements for Mà ¢Ã¢â€š ¬Ã¢â€ž ¢s return, concluding that the underlying decision to refuse asylum had been correct, and that the order made by Garland J was made without jurisdiction. Proceedings were brought against the Home Secretary on behalf of M (who had since disappeared following his arrival in Zaire) and a finding was made that Kenneth Baker, when acting as Home Secretary, had been guilty of contempt of court with the result simply that Mr Baker should pay costs[6]. One of the significant considerations in the case was whether the Crown Proceedings Act 1947 granted immunity to the Crown and its servants from injunctions when acting in their official capacity[7]. Up until 1947, the Crown enjoyed a number of substantial immunities and benefited from various procedural advantages in litigation[8]. Under the Act, however, the Crown is subject to the same liabilities in tort as a person of full age and capacity[9]; it is further vicariously liable for torts committed by its servants or agents[10]. The extent to which the Crown is liable appears to be limited by the Act. The 1994 case established, however, that the Act does not preclude the grant of an injunction against a particular crown servant, and such a view was in keeping with the history of prerogative proceedings against officers of the Crown. Although the Crown cannot be subject to this remedy, its servants carrying out its tasks will be[11]. Lord Templeman in delivering his brief judgement noted that the argument that there was no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which his Lordship said would reverse the result of the Civil War[12]. Lord Woolf, delivering the main opinion of the Court, affirmed the finding of the Court of Appeal à ¢Ã¢â€š ¬Ã…“save for substitution of designation Secretary of State for Home Affairs as proper object of finding of contemptà ¢Ã¢â€š ¬Ã‚ [13]. It was held that Garland J had jurisdiction to grant the order per Note 53/1-14/24 to the Supreme Court Practice 1993 which permits such a grant in urgent cases; further, the order was made by the High Court and so valid until set aside[14]. Whilst it might be acceptable to delay complying with the order until an application has been made for further guidance from the Court, the person in whose favour the order has been made (in this case M) must not be disadvantaged pending the hearing. In this case, the cancellation of plans to return M to the safety of the UK comprised a failure to protect his position and thus a disadvantage. Lord Woolf further examined the issue of whether a finding of contempt could be made against the Crown, government department or minister of the Crown. He considered that the Crown did have legal personality[15] so this did not present a hindrance to such a finding. Further, whilst acknowledging the argument that contempt proceedings were usually personal and punitive (and would therefore be inappropriate against the Crown or an officer of a Crown) he did not accept that this was always their function, and held that a finding of contempt could vindicate the requirements of justice. The issue as to whether the courts have jurisdiction to issue à ¢Ã¢â€š ¬Ã‹Å"coerciveà ¢Ã¢â€š ¬Ã¢â€ž ¢ orders against the Crown or ministers of the Crown was said to go to the heart of à ¢Ã¢â€š ¬Ã…“the relationship between the executive and the courtsà ¢Ã¢â€š ¬Ã‚ [16]. Such sanctions are necessarily within a courtà ¢Ã¢â€š ¬Ã¢â€ž ¢s jurisdiction to protect orders it has made, although they should only be issued in the most limited circumstances as they w ill usually be unnecessary[17],[18]. Their existence however reflects Diceyà ¢Ã¢â€š ¬Ã¢â€ž ¢s ideal that officials and others should have no exemption from the duty of the law that governs other citizens, or from the jurisdiction of ordinary tribunals[19], in order that citizens may enjoy legal protection against unlawful conduct on the part of officials[20]. However great the powers or duties conferred on the executive, it is necessary in a parliamentary democracy[21] that all concerned are equally responsible before the ordinary courts for the exercise of their rights, powers and duties[22]. Word count: 1,000 + refs bibliography AV Dicey An Introduction to the Study of the Law of Constitution (10th Edition Macmillan London 1965) M Allen B Thompson Cases and Materials on Constitutional and Administrative Law (7th Edition Oxford University Press London 2002) Halsburys Laws of England Administrative Law (Volume 1(1) 2001 Reissue) 4. Judicial Control (4) Judicial Remedi es (iii) Mandatory Orders b. Public Offices and Duties in Respect of Which a Mandatory Order Will Not Lie 148. Mandatory Orders Against the Crown and Crown Servants Halsburys Laws of England Administrative Law (Volume 1(1) 2001 Reissue) 4. Judicial Control (4) Judicial Remedies (iv) Declarations and Injunctions b. injunctions 152. The injunction in public law. RVF Heuston The Rule of Law in Essays in Constitutional Law (2nd Edition 1964) 44-48 LexisNexis UK : https://www.lexisnexis.com/uk/legal Table of Cases Francome and Another v Mirror Group Newspapers Ltd and Others (1984) 2 All ER 408 at 412 Isaacs v Robertson (1985) Ac 97 M v Home Office (1994) 1 A.C. 377 R v Secretary of State for War [1891] 2 QB 326, CA R v Treasury Lords Comrs (1872) LR 7 QB 387 at 402 Re A Company (1981) AC 374 Town Investment Ltd v Department of the Environment (1978) Ac 359 Footnotes [1] AV Dicey An Introduction to the Study of the Law of Constitution (10th Edition Macmillan London 1959) 193 as quoted in M Allen B Thompson Cases and Materials on Constitutional and Administrative Law (7th Edition Oxford University Press London 2002) 216 [2] 1 A.C. 377 [3] Cases and Materials on Constitutional and Administrative Law (n 1 above) 217 [4] (1951) (Cmd. 9171): (1994) 1 A.C. 377 at 398 [5] [1994] 1 A.C. 377 at 400 [6] (1994) 1 A.C. 377 at 397-403 [7] Section 21(1) [8] RC Clements J Kay Constitutional and Administrative Law (3rd Edition Oxford University Press Oxford)179 [9] Section 2 (amended by the Statute Law Repeals Act 1981 [10] As defined by Section 6 [11] Constitutional and Administrative Law (n 8 above) 182 [12] [1994] 1 A.C. 377 at 396 [13] [1994] 1 A.C. 377 at 428 [14] In Re A Company (1981) AC 374, 384 and Isaacs v Robertson (1985) Ac 97, 102 per Lord Diplock [15] As sole corporation or corporation aggregate per Lor d Diplock in Town Investment Ltd v Department of the Environment (1978) Ac 359 [16] [1994] 1 A.C. 377 at 406 [17] Halsburys Laws of England Administrative Law (Volume 1(1) 2001 Reissue) 152. The Injunction in Public Law [18] (1994) 1 A.C. 377 per Lord Woolf; cf R v Secretary of State for Transport, ex p Factortame [1990] 2 AC 85, [1989] 2 All ER 692, HL [19] An Introduction to the Study of the Law of Constitution (n1 above) 202-203 [20] Cases and Materials on Constitutional and Administrative Law (n 1 above) 215 [21] Per Lord Donaldson MR in Francome and Another v Mirror Group Newspapers Ltd and Others (1984) 2 All ER 408 at 412 [22] RVF Heuston The Rule of Law in Essays in Constitutional Law (2nd Edition 1964) 44-48 in Cases and Materials on Constitutional and Administrative Law (n 1 above) 215

The Burqa Controversy in Australia Research Assignment - 1100 Words

The Burqa Controversy in Australia Research Assignment (Essay Sample) Content: First and Last NameProfessorClassTIME \@ "MMMM d, yyyy" August 22, 2017The Burqa Controversy in AustraliaA burqa pertains to the outer-garment used by women from the Islamic community, primarily to cover themselves in public. Muslim women primarily wear these burqas as the Quran prompts them to cover and be modest (Vyver). However, Dr. Raihan Ismail, a Middle East Politics and Islamic Studies professor at the Australian National University, asserts that today, women wear these veils for various reasons ranging from culture, fashion, and the most predominant: religion. In the context of religion, women particularly think that wearing the burqa is an obligation.Recently, the usage of burqas has been controversial and problematic. As a matter of fact, some countries have actually banned the use of burqa. While it is not completely outlawed in the Netherlands, burqa usage in places where it is essential to be seen is banned. This includes public transports and public plac es. In April 2011, France became the first country to officially ban women from leaving their homes with their faces covered. Belgium followed shortly after. In September 2016, Bulgaria banned the burqa in an attempt to strengthen security amidst the emergence of Islamic militant attacks. Egypt, Switzerland, Italy, and Chad later followed the burqa ban (Foster).The current paper takes into consideration the ongoing debate over the possibility of burqa ban in Australia. This contemporary issue must be tackled as it affects so many people, particularly the Islamic community, but also the general citizens of Australia. The proposition for burqa ban started from New South Wales passing of the Identification Legislation Amendment Act of 2011, which requires people to remove face covers when asked by state officials. Threatened by the Moscow theatre hostage situation in 2002, Fred Nile, an Australian politician, suggested the banning of full-body coverings in order to prevent possible car rying of weapons. In 2010, Nile put up a bill to criminalize face coverings, such as the burqa and the niqab, the latter being a veil worn by Islamic women to cover their faces, except their eyes. Senator Cory Bernadi lobbied for the same ban. Four years later, Senator Jacquie Lambie once again brought up the banning of the burqa, and in February 2017, introduced a bill to amend Criminal Code Act 1995. The said bill once again proposed to make burqas illegal when a terrorism threat is ongoing.In this light, it is of interest that recently, One Nation leader Pauline Hanson pulled a stunt by coming to the Parliament wearing a burqa. The Australian senator, known for her strong antagonism against Muslim immigration, came to a parliamentary session wearing the Islamic garment. She later took it off, saying I'm quite happy to remove this because it's not what should belong in this parliament (McKirdy). As a known opponent of migration and multiculturalism, this act seemed like a mockery, and therefore, caused a massive controversy. Senator George Brandis of the Liberal Nation coalition strongly expressed his antagonism by saying Senator Hanson, no, we will not be banning the burqa I'm not going to pretend to ignore the stunt that you have tried to pull today by arriving in the chamber dressed in a burqa, when we all know you are not an adherent of the Islamic faith. Brandis adds that Hanson should be careful the religious sensibilities of other Australians. He adds by saying that To ridicule that community, to drive it into a corner, to mock its religious garments is an appalling thing to do (McKirdy).The current paper defies Pauline Hansons act and agrees with George Brandis. Indeed, the wearing of the burqa in the Parliament was inappropriate. Moreover, Australia must not ban the burqa. In order to establish its arguement, the current paper firstly notes why its proponents lobby for banning of the burqa. Firstly, it should be acknowledged that support for such ba n has its foundations on ruthless pragmatism. This highlights the bans practicality, especially in keeping the general public safe and secure. Banning such garment would prevent individuals with impure intentions from using it as some sort of disguise and concealing harmful objects. Alongside other forms of clothing and accessories, such as sunglasses and masks, the form of garment in consideration inhibits security cameras from effectively recognizing facial features. This, therefore, threats the essential identification of individuals involved in committing crimes.Secondly, the support for such ban is being reinforced by the idea of preventing oppression against women. In a sense, requiring an individual to wear a particular type of clothing hinders them from making their own choice and going for their own preferences. In the case of burqas and niqabs, the culture only requires its imposition among women. This leads to the reinforcement of gender inequality. It oppresses women and disallows them from sporting any type of clothing that they would personally prefer.Thirdly, legislators and government officials have emphasized the fact that residents of Australia should belong to a single team, implying that those who wear such form of garment are un-Australian, and are therefore not part of the group. The ban has also received support in the European Court of Human Rights, where it has been found out that banning individuals from wearing such garments does not violate Article 9 in the European Convention on Human Rights.However, this current paper argues that these pro-ban views pale in comparison to the wrong connotations of the ban. Firstly, the ban highlights the intrusion of individual and personal freedoms. In specific, this pertains to an individuals inability to make choices according to their personal and religious preferences. As previously discussed, supporting the wearing of such facial coverings or garments hinders individuals from making their own choices and going for their own preferences. In fact, it is ironic that banning such type of garment only reinforces the notion of disallowing members of the society to practice their freedom. Instead of being able to freely choose whichever type of clothing an individual intends to sport, such ban inhibits them from practicing their freedom of choice, especially in light of religion.Secondly, banning the burqa is a form of discrimination to Islams beliefs. It is every individuals fundamental right to choose whichever practice of faith they intend to follow. In the case of Islam, it is an essential tradition for women to wear such garments in order to practice their faith and be in line with their cultures standards. Banning such garments is a form of disrespect for this particular faith, as it also reinforc...