In order to show that the above case does signify the limited function of the law in the accountability of public power, it is necessary, first to analyse why this power actually exist and in what capacity. We can then decide, with the help of case law, whether this power is limited and if the case above does in fact symbolise this. There are essentially three different power bases recognised in the UK constitutional framework, AV Dicey highlighted these, in particular the courts and parliament.
It is necessary for the courts to be able to rule in cases to stop one body having too much power, which would lean towards a totalitarianism structure. However, AV Dicey stated that the courts were not in a position to challenge the legal competence of the parliament. The courts can however, use judicial review, sought by members of the public to hold the public bodies accountable. This means that the general public can take a public body to court and apply for a judicial review of its actions to hold the body accountable of its actions, and measures can be taken if the body has acted outside its jurisdiction.
If found acting without legality, there are three options available for the courts, compensation, injunction or a mandate. However, this is not to assume that if there is illegality in public law that there is automatically an illegality in private law. In the case of X v Bedfordshire County Council1 The courts have to 'second guess' what policy decisions are to be followed to decide if the Ultra Vires would be compensated under private law. However, this leads onto further problems such as the requirement of proof, reasonableness and carelessness or negligence.
When holding a public body accountable, there are three ways that a claimant could explore, these are: an action for breach of statutory duty; an action for a breach of a common law duty in the exercise of a statutory duty or its performance and lastly an action for misfeasance in public office. Claims for a breach of a statutory duty are mostly concerned with health and safety matters. The courts have limited this action by requiring a restrictive interpretation as to whether a private action is created and whether the claimant belongs to a specific class of beneficiaries of the statute.
In the case of London Passenger Transport Board v Upson2 Lord Wright stated that this action is: "A special common law right which is not to be confused in essence with a claim for negligence. The statutory right has its origin in the statute, but the particular remedy of an action for damages is given by the common law … It is not a claim in negligence in the strict or ordinary sense. "3 Therefore a claimant can claim negligence in a common law sense but not in the ordinary sense if he is claiming for a breach of a statutory duty.
Misfeasance in a public office is where an official acts in excess of their powers with malice to the claimant, causing loss. This was established in the case of Three Rivers District Council v Bank of England (No. 3)4 This case stemmed from the collapse of the business BCCI where many people claimed that the Bank of England should have acted earlier to avoid loss. Lord Steyn summarised that there were two different types of liability, the first being targeted malice by a public official, the second is acting with knowledge that they are acting outside their powers and with the knowledge that they will probably injure the claimant.
Obviously this is a hard breach to prove because of the requirement of proof of Mens Rea. In the case of M v Home Office5, the applicant was a citizen of Zaire who came to the UK seeking political asylum. The claim was rejected by the Secretary of State and a move for judicial was refused. On the day that the applicant was to be deported, he made a new application to the Court of Appeal for leave to move, when rejected, the applicant applied for judicial review on different grounds.
Garland, J requested that the deportation to be postponed pending consideration of the application, as it was understood, the counsel for secretary of states had given an undertaking to that effect. Counsel had no such instructions; Home Office officials concerned with the applicant deportation failed to disembark the applicant or to intercept him from Paris to Zaire. When made aware of the situation, the judge made an ex parte order requesting that the applicant be returned to the courts' jurisdiction and to ensure his safety.
Home Office officials made arrangements but when the Secretary of State was informed of the situation cancelled the return of the applicant in the knowledge that the judges order being a mandatory interim injunction against an officer of the crown, had been made without legality. 6 Simon Brown J. held that, since the Crown's immunity from injunction was preserved by the Crown Proceedings Act 19477, neither it nor its departments, ministers or officials acting in the course of their duties could be impleaded for contempt of court.
He accordingly dismissed the motion. The Court of Appeal by a majority allowed in part an appeal by the applicant, holding that the Secretary of State personally had been guilty of contempt, or a misfeasance of power. During this case, many other were mentioned which would help decide one way or the other whether this case is the headstone in motioning that the law is indeed limited in the accountability of public power.