R v Secretary of State for the Home Department, Ex parte Fire Brigades Union (Fire Brigades Union, Ex parte)

A commencement provision giving a minister discretion to appoint the operative date of legislation does not, without clear language, impose an enforceable duty to appoint a date. It does impose a continuing duty to consider the power in good faith and keep its exercise under review.

While that duty subsists, the executive may not use prerogative powers in a manner which frustrates the enacted scheme or disables proper future consideration of its commencement. Introducing a permanent and incompatible replacement scheme may therefore constitute an abuse of power. The executive must seek repeal from Parliament if it wishes to remove the statutory constraint.

Sections 108 to 117 of the Criminal Justice Act 1988 established a statutory scheme for compensating victims of violent crime, but were to commence on a day appointed by the Secretary of State. They remained uncommenced. The Secretary of State later announced that they would not be implemented and introduced a permanent non-statutory tariff scheme which differed fundamentally from the enacted scheme.

Trade unions whose members were exposed to violent crime sought judicial review. The Divisional Court refused relief. The Court of Appeal held by a majority that introducing the tariff scheme was unlawful, although it unanimously refused relief based solely on failure to commence the statutory provisions: [1995] 2 WLR 1.

The House considered whether the commencement provision imposed a duty to implement the statutory scheme and whether the new tariff scheme was an unlawful exercise of prerogative power.

1. Disposition. By a majority of three to two, the House dismissed the Secretary of State’s appeal against the ruling that the tariff scheme was unlawful. Lord Browne-Wilkinson, Lord Lloyd of Berwick and Lord Nicholls of Birkenhead formed the majority. Lord Keith of Kinkel and Lord Mustill dissented on that issue. All five Law Lords dismissed the respondents’ cross-appeal concerning failure to commence the statutory scheme.
2. No compellable duty to appoint a commencement date. Lord Browne-Wilkinson and Lord Nicholls held that section 171(1) of the Criminal Justice Act 1988 did not impose a judicially enforceable duty to bring sections 108 to 117 into force. Lord Mustill and Lord Keith reached the same conclusion in dissent, while Lord Lloyd found it unnecessary finally to decide the point. The discretion permitted consideration of practical, political and financial circumstances. Clearer statutory language would be required before a court could compel a minister to bring primary legislation into force.
3. Continuing duty to consider the power. Lord Browne-Wilkinson, Lord Lloyd and Lord Nicholls held that the Secretary of State could not treat section 171(1) as conferring an unrestricted choice to ignore or renounce the enacted scheme. He was required to consider the commencement power in good faith and keep it under review until it was exercised or Parliament repealed the legislation. A minister could not surrender the power or procure circumstances which prevented its proper future exercise.
4. Constraint upon the prerogative. The substantive compensation provisions had not commenced, so the principle in Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 did not itself extinguish the existing prerogative. Nevertheless, the live statutory commencement power and its attendant duty constrained the manner and purposes for which that prerogative could be exercised. The executive could not use the prerogative to frustrate Parliament’s enacted scheme or disable itself from performing the continuing statutory duty.
5. The tariff scheme was unlawful. Per Lord Browne-Wilkinson and Lord Nicholls, the tariff scheme was intended as the permanent replacement of both the existing scheme and its enacted statutory embodiment. It required dismantling the existing administrative machinery and made later implementation of the statutory scheme unrealistic. Lord Lloyd likewise concluded that the Secretary of State had exceeded or abused the power Parliament had conferred. The executive had to seek repeal from Parliament before pursuing a course inconsistent with the continuing statutory constraint.
6. Dissent. Lord Mustill, with whom Lord Keith agreed, considered that the uncommenced provisions left the prerogative unimpaired. The tariff scheme remained capable of reversal, and neither the minister’s announcement nor the practical inconvenience of restoring the former arrangements prevented future implementation. Provided the commencement power continued to be reviewed rationally and in good faith, the courts should not intervene.

1. House of Lords: In [1995] 2 AC 513, dismissed the Secretary of State’s appeal by a 3–2 majority and dismissed the respondents’ cross-appeal unanimously. The Court of Appeal’s declaration that introduction of the tariff scheme was unlawful was upheld.
2. Court of Appeal: By a majority, allowed the unions’ appeal and held that implementing the tariff scheme was unlawful. It unanimously refused relief concerning failure to commence the statutory scheme: [1995] 2 WLR 1.
3. Queen’s Bench Divisional Court: Staughton LJ and Buckley J refused all relief. No citation is stated in the judgment.