Law Report: New compensation scheme lawful: Regina v Secretary of State for the Home Department, Ex parte the Fire Brigades Union and others - Queen's Bench Divisional Court (Lord Justice Staughton and Mr Justice Buckley), 23 May 1994.

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Section 171(1) of the Criminal Justice Act 1988 does not impose an obligation on the Home Secretary to bring into force the statutory scheme for criminal injuries compensation and the Home Secretary had not acted improperly by deciding to bring in another different scheme.

The Divisional Court dismissed an application by 11 unions and other bodies for judicial review of the Home Secretary's decisions not to bring into force the statutory form of the Criminal Injuries Compensation Scheme under the Criminal Justice Act 1988 and to operate a new tariff scheme of his own devising. Leave to appeal to the Court of Appeal was granted.

The scheme was first introduced in 1964 under common law powers. The 1988 Act made provision for a statutory scheme, the commencement of which was to be regulated by an order of the Home Secretary under section 171(1) which provides that '. . . this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint . . .'

In December 1993, the Government published a White Paper proposing a new scheme on a tariff basis and repealing the 1988 statutory scheme which had never been brought into force. The new tariff scheme was an exercise of common law powers and expressed to come into force on 1 April 1994 and replace the existing scheme.

There are differences between the statutory scheme and the tariff scheme. Under the tariff scheme there will no longer be a calculation based on the claimant's loss of earnings, and there is a list of many types of injury, with a tariff sum for each. The time limit for claims is reduced from three years to one year.

The tariff scheme is expected to cost significantly less than the present scheme or the statutory scheme.

The 11 applicants, whose members are exposed during their work to injury from crimes of violence, applied for judicial review on the ground that section 171(1) of the 1988 Act imposed expressly or by implication a duty on the Home Secretary to bring the provisions of the Act into force at an appropriate time.

Patrick Elias QC and Dinah Rose (Robin Thompson & Partners) for the applicants; Guy Sankey QC and Stephen Richards (Treasury Solicitor) for the Home Secretary.

LORD JUSTICE STAUGHTON said that at first sight the words in section 171 suggested that there was a power but not duty to bring the provisions into force. Mr Elias submitted that the statute as enacted expressed the will of Parliament and that Parliament was unlikely to have enabled a member of the executive government to postpone its operation indefinitely.

However, it was legitimate to bear in mind that the bill was promoted by the executive government and it was not necessarily unlikely that the executive government should retain the power to decide whether and when it would come into force.

The obligation to bring the statute into force was not express and was too vague in its context to be properly the subject of an implication. There would have been no difficulty in framing an express obligation. Instead the word 'may' was sued which at least prima facie tended to point to a discretion.

Once one had concluded that the Home Secretary was not obliged to bring the statutory provisions into force, there was nothing irrational or improper in his deciding not to do so, or in bringing in another scheme under the common law. The application would be dismissed.