Law Report: Injury tariff scheme ruled unlawful

Regina v Secretary of State for the Home Department, Ex parte Fire Brigades Union and others. House of Lords (Lord Keith of Kinkel, Lord Browne-Wilkinson, Lord Mustill, Lord Lloyd of Berwick and Lord Nicholls of Birkenhead). 5 April 1995.
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While statutory provisions for a criminal injuries compensation scheme remained unrepealed although not in force, the Home Secretary acted unlawfully in implementing a different scheme.

The House of Lords (Lord Keith and Lord Mustill dissenting) dismissed the Home Secretary's appeal against the Court of Appeal's decision ([1995] 2 WLR 10) that the Home Secretary acted unlawfully when introducing a tariff scheme for criminal injuries compensation.

In 1964, a ex gratia non-statutory criminal injuries compensation scheme was introduced. Sections 108 to 117 of the Criminal Justice Act 1988 contained statutory provision for a similar scheme which the Home Secretary was empowered by section 171 to bring into force by order on a day he appointed. No order had been made.

In 1992, the Home Secretary announced the government's intention to introduce a new non-statutory tariff scheme from 1 April 1994, which differed from the existing scheme and the unimplemented statutory scheme and which was designed to save costs.

The applicants, 11 unions and other bodies whose members were liable to suffer injuries from crimes during their work, applied for judicial review of the Home Secretary's decision to implement the tariff scheme.

Lord Rodger of Earlsferry QC and Guy Sankey QC (Treasury Solicitor) for the Home Secretary; Patrick Elias QC and Dinah Rose (Robin Thompson & Partners) for the applicants.

LORD KEITH, dissenting, said that to grant the application would represent an unwarrantable intrusion by the court into the political field and a usurpation of the function of Parliament.

LORD BROWNE-WILKINSON said that the words of section 171 were consistent with the Home Secretary having some discretion whether to bring the scheme into force and did not impose a legally enforceable statutory duty. The plain intention of Parliament was that such power was to be exercised when it was appropriate.The Home Secretary could not lawfully surrender or release the power in section 171 to exclude its future exercise.

It would be most surprising if prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament expressed in a statute.

It was for Parliament, not the executive, to repeal legislation.

In public law, the fact that a scheme approved by Parliament was on the statute book and would come into force if and when the Home Secretary determined was directly relevant to whether the Home Secretary could in the lawful exercise of prerogative powers both decide to bring in the tariff scheme and refuse to exercise his discretion under section 171.

By introducing the tariff, he debarred himself from exercising the statutory power for the purposes and on the basis which Parliament intended. The decision to introduce the tariff scheme at a time when the statutory provisions were on the statute book was unlawful and an abuse of the prerogative power.

LORD MUSTILL, dissenting, said there was no duty to bring the scheme into force. Therefore there could no breach of duty simply by announcing that the non-existent duty would not be performed. Merely to introduce a cheaper scheme could not in itself be an abuse of the prerogative powers which subsisted in the interim. Parliament had its own means of ensuring that the executive performed in a way which Parliament found appropriate.

LORD LLOYD said that by renouncing the statutory scheme, the Home Secretary had exceeded his powers and thereby acted unlawfully. It was the paramount duty of the courts to say so.

LORD NICHOLLS said that the Home Secretary was not under a legal duty to appoint a commencement date but he was under a duty to consider whether or not to exercise the power and appoint a day. So long as the commencement power remained unrepealed, the Home Secretary was obliged to keep the exercise of that power under review. By setting up the tariff scheme he had disabled himself from properly discharging his statutory duty in the way Parliament intended. Therefore, the tariff scheme was outside the powers presently vested in him.