R v Secretary of State for the Home Department, Ex parte Fire Brigades Union [1995] 2 AC 513

Key point

  • It is an unlawful use of royal prerogative to create a scheme different to that prescribed in an Act of Parliament even where the Act gives the executive branch the discretion to decide the date on which the provisions in the statute come into force
  • This case suggests that where statute covers a particular area of policy, even if it leaves it open to the government as to when the policy should be implemented, such area of policy is not outside of the scope of prerogative powers, pursuant to the principle in Attorney-General v De Keyser’s Royal Hotel [1920] UKHL 1, [1920] AC 508

Facts

  • ss.108-117 of the Criminal Justice Act 1988 (the “CJA”) contained provisions for an injuries compensation scheme which pursuant to section 171(1), will only be brought into force at such date decided at the Home Secretary’s discretion – in other words the scheme is in suspension until the Home Secretary decides otherwise
  • The Home Secretary announced in a white paper that:
    1. the statutory scheme in the CJA would be indefinitely suspended as it was too expensive for the nation to afford; and
    2. a new non-statutory ‘tariff scheme’ would be implemented using prerogative powers in place of the statutory scheme in the CJA
  • The Fire Brigades Union (F) challenged this decision on the grounds that:
    • it was unlawful to have not implemented the statutory scheme in the CJA; and
    • it was unlawful to create a new tariff scheme using prerogative powers
  • The Court of Appeal granted a declaration that it was unlawful to create a new tariff scheme whilst the CJA was still in force, and that the Home Secretary had a duty to bring into force the statutory scheme in the CJA and to keep the implementation of the scheme under review, but that it was inappropriate to compel Home Secretary to bring the scheme into force
  • The Home Secretary appealed the declaration that the tariff scheme was unlawful; F cross-appealed, seeking a declaration that it was unlawful to have not implemented the statutory scheme in the CJA and order should be granted compelling its implementation

Issue

Was the Home Secretary’s decision to have not enforced the statutory scheme in the CJA unlawful, and was the tariff scheme unlawful?

Held (House of Lords)

  • Appeal and cross-appeal dismissed
  • The Home Secretary has a continuing duty to bring about the statutory scheme in the CJA at some point of time, and creating a new scheme using royal prerogative was unlawful
  • However, it was not for the court to compel the Home Secretary to bring about the statutory scheme in the CJA at any particular time

Lord Browne-Wilkinson (Majority)

  • ‘The Secretary of State could only validly exercise the prerogative power to abandon the old scheme and introduce the tariff scheme if, at the same time, he could validly resolve never to bring the statutory provisions and the inconsistent statutory scheme into effect.’
  • ‘It is the decision of the Home Secretary to renounce the statutory scheme, and to surrender his power to implement it, which constitutes the abuse of power in the present case, not the substitution of an interim measure. In any event, it is clear from the White Paper that the tariff scheme is not an interim measure.’
  • ‘By introducing the tariff scheme he debars himself from exercising the statutory power for the purposes and on the basis which Parliament intended. For these reasons, in my judgment the decision to introduce the tariff scheme at a time when the statutory provisions and his power under section 171(1) were on the statute book was unlawful and an abuse of the prerogative power.’
  • It was argued that to grant relief in this case would ‘an intrusion by the courts into the legislative field’, on the contrary, in granting relief the court ‘is ensuring that the powers conferred by Parliament are exercised within the limits, and for the purposes, which Parliament intended’

Lord Lloyd (Majority)

  • ‘By renouncing the statutory scheme, the Home Secretary has exceeded his powers, and thereby acted unlawfully. It is the paramount duty of the courts to say so.’
  • ‘Ministers must be taken at their word. If they say that they will not implement the statutory scheme, they are repudiating the power conferred on them by Parliament in the clearest possible terms. It is one thing to delay bringing the relevant provisions into force. It is quite another to abdicate or relinquish the power altogether. Nor is that all. The Government’s intentions may be judged by their deeds as well as their words. The introduction of the tariff scheme, which is to be put on a statutory basis as soon as it has had time to settle down, is plainly inconsistent with a continuing power under section 171 to bring the statutory scheme into force.’

Lord Nicholls (Majority)

‘The inescapable conclusion is that the Home Secretary has effectually “written off” the statutory scheme and that once the tariff scheme has been introduced, there would be no realistic prospect of him being able to keep the exercise of the commencement day power under review. By setting up the tariff scheme the minister has set his face in a different direction. He has struck out down a different route and thereby disabled himself from properly discharging his statutory duty in the way Parliament intended. For this reason the new scheme is outside the powers presently vested in him. I would dismiss both the appeal and the cross-appeal.’

Lord Keith (Dissenting)

  • ‘At the present time the prerogative in this field exists unimpaired. If sections 108 to 117 of the Act of 1988 had been brought into effect these provisions would have subsumed the prerogative, under the principle of Attorney-General v De Keyser’s Royal Hotel [1920] UKHL 1, [1920] AC 508. Compensation payments for crimes of violence would have become capable of being made only under the statute. But since these sections have not been brought into effect the prerogative power remains the only source of power to make such payments.’
  • ‘The Secretary of State must at least be under a duty, so it is said, to keep under review from time to time whether to bring sections 108 to 117 into force. I would accept that the Secretary of State is under such a duty, but in my opinion it is one owed to Parliament and not to the public at large.’
  • ‘On the other hand it does not seem to me that operating the proposed new tariff scheme would rule out any reasonable possibility of the statutory scheme ever being introduced. The decision not to introduce it at the present time is a political one and it is entirely predictable that political views might change, if not under the present administration then under a future one.’
  • ‘To grant the respondents the relief which they seek, or any part of it, would represent an unwarrantable intrusion by the court into the political field and a usurpation of the function of Parliament.’

Lord Mustill (Dissenting)

  • There was no duty to implement the original scheme at any point, s.171(1) stipulated that the minister “may” implement the scheme, rather than “shall” when they see fit: [22] 
  • Using the prerogative to create a new scheme in no way nullifies Parliamentary intent in creating the original scheme. There is no Parliamentary dominion over criminal injuries.: [23] 
  • Until the original scheme is actually activated, there is a “legislative void” [23] 
  • The new scheme cannot be declared unlawful simply because of its incompatibility with a provision that is not yet in force: [24]

Commentary

This case concerns the scope of prerogative powers and the extent to which their boundaries are prescribed by statute, but delving deeper, it also concerns the constitutional competence of the courts to adjudicate on matters of a political nature. The majority had a more expansive view of the jurisdiction of courts to decide matters of a political nature while the minority had a more restrictive view.

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