R v Secretary of State for the Home Department, ex parte Fire Brigades Union and others

The House of Lords considered the interaction between the Royal Prerogative and a statutory commencement power in section 171 of the Criminal Justice Act 1988, and the lawfulness of the Secretary of State's decision to implement a new non‑statutory tariff compensation scheme for victims of violent crime.

The court held that a common form commencement provision such as section 171(1) confers a discretion on the Secretary of State to select a commencement day but does not create a judicially enforceable obligation to bring the provisions into force at a particular time; the Secretary of State is, however, under a continuing duty to keep the question whether to bring those provisions into force under review.

The House also held that the exercise of prerogative powers is constrained by the existence of relevant statutory provisions on the statute book: the executive may not validly use the prerogative so as to frustrate the will of Parliament as expressed in statute. Accordingly the Secretary of State's introduction of a permanent tariff scheme which made it impracticable in reality to implement the statutory scheme in sections 108–117 was unlawful as an abuse of power. The court declined to grant compulsion to appoint a commencement day or other mandatory relief beyond the quashing of unlawful executive action.

This case concerned challenges by trade unions and representative bodies to the Secretary of State's decision not to bring into force sections 108–117 and Schedules 6 and 7 of the Criminal Justice Act 1988 and to introduce instead a new non‑statutory tariff compensation scheme for criminal injuries.

• Background and facts: An ex gratia criminal injuries scheme had operated since 1964. The Criminal Justice Act 1988 enacted a statutory scheme (sections 108–117; Schedules 6 and 7) to replace the non‑statutory arrangements, but those provisions were not commenced under section 171(1). The Government published a White Paper (December 1993) and introduced a tariff scheme (1 April 1994) to replace the old scheme on a permanent basis. Applicants (unions) sought judicial review.
• Procedural posture: Leave to apply for judicial review was granted; the Divisional Court refused relief; the Court of Appeal gave a split decision (finding no enforceable duty to commence the statutory scheme but holding the tariff scheme unlawful by majority on the second issue). The Secretary of State appealed to the House of Lords and the applicants cross‑appealed.
• Relief sought: Declarations that the Secretary of State had acted unlawfully in failing to bring the statutory scheme into force and in implementing the tariff scheme; mandamus to require commencement under section 171; injunctions to prevent the tariff scheme.
• Issues framed: (i) Whether section 171(1) imposed a judicially enforceable duty to appoint a commencement day for sections 108–117 and Schedules 6–7; (ii) whether the Secretary of State lawfully introduced the tariff scheme under prerogative powers or whether that was an abuse of power given the existence of the statutory scheme.
• Court’s reasoning and conclusions: The Lords analysed the construction of section 171(1), its purpose as a common commencement device and the practicalities of implementation. The court rejected the view that section 171 imposed an enforceable duty obliging the Secretary of State at a particular time to bring the statutory scheme into force; rather the Secretary of State must keep the matter under review in good faith. Separately, the court held that the prerogative cannot lawfully be exercised so as to stifle or frustrate the intention of Parliament embodied in statute; introducing a permanent tariff scheme that in practice precluded implementation of the statutory scheme was an abuse of the prerogative and unlawful. The court therefore quashed the unlawful aspects of the executive action but did not direct the court to perform the legislative function of fixing a commencement date by mandamus.

Appeal dismissed and cross‑appeal dismissed. The House held that (i) section 171(1) confers a discretion to appoint commencement days but does not create a judicially enforceable obligation to bring the provisions into force at any particular time; the Secretary of State is under a continuing duty to keep the exercise of that power under review, and that duty is owed in substance to Parliament; and (ii) the executive may not lawfully, by use of the prerogative, implement a permanent scheme which in practice frustrates the statutory scheme enacted by Parliament — the introduction of the tariff scheme in those circumstances was an abuse of power and unlawful. The court declined to order mandamus to appoint a commencement day.

Divisional Court (Staughton L.J. and Buckley J.) refused relief; Court of Appeal [1995] 2 WLR 1 (majority on second issue held tariff scheme unlawful; Court of Appeal were unanimous in refusing relief on first ground); House of Lords [1995] UKHL 3 (final determination 5 April 1995).