R v Home Secretary ex p Fire Brigades Union

Facts

The Criminal Justice Act 1988 contained provisions for a statutory scheme of compensation for criminal injuries, to come into force on a day appointed by the Home Secretary. The earlier scheme of compensation had been non-statutory. The statutory provisions were never brought into force, and in 1993 the Home Secretary announced that he would not do so and would instead introduce a new tariff scheme, of a different nature, under the prerogative. The Fire Brigades Union and others challenged the decision.

History

The Court of Appeal, by majority, held that the Home Secretary had acted unlawfully, and he appealed to the House of Lords.

Issue

Whether the Home Secretary acted lawfully in deciding not to bring the statutory scheme into force and in introducing a different scheme under the royal prerogative, given the powers conferred on him by the statute.

Held

The appeal of the Home Secretary was dismissed by a majority of 3 to 2. His decision to introduce the tariff scheme was unlawful, since it was inconsistent with the statutory provisions and with his duty to keep under consideration whether to bring them into force.

Ratio

• The royal prerogative cannot be used to frustrate the purpose of a statute or to prevent a statutory provision from taking effect. Where Parliament has passed an Act which confers a power to bring a scheme into force, the minister may not choose to introduce a different scheme under the prerogative so as to make the statute a dead letter.
• The power to appoint a day for the coming into force of the provisions is a discretion, but the minister must consider from time to time whether to exercise it, and cannot decide not to bring the statute into force at all.

The judgments

Key reasoning

• Prerogative powers are residual powers that remain only so far as they have not been taken over by statute, and where Parliament has legislated on a subject, the Crown cannot act in a way that is inconsistent with the statutory scheme.
• The statutory scheme had been enacted by Parliament and had been intended to take effect, and the commencement provision was a power to be used for that purpose, not a power to decide that the Act should remain a dead letter.
• The introduction of a tariff scheme under the prerogative was a step showing that the Home Secretary had decided not to bring the statute into force, and was therefore an abuse of the power.

Where it fits in the module

In the module on the Crown and the royal prerogative the case shows how the courts control the use of prerogative powers in line with parliamentary sovereignty. It follows the earlier decision in the De Keyser Royal Hotel case on the displacement of prerogative by statute, and it is read with later cases such as Miller on prerogative and statute in the context of Brexit. The question is whether the case is based on the intention of Parliament or the rule of law, and how far courts can restrict ministers in the use of commencement powers.

Criticisms

• The majority treated an unexercised commencement power as though it created a duty to bring the Act into force, which interferes with the discretion left by Parliament in the Act and risks the court substituting its view of when the Act should take effect.
• The reasoning draws on the notion that the prerogative is displaced by a statute that is not in force, and it extends the displacement principle beyond the position established in earlier authority, so the boundary is uncertain.
• The decision has been said to rest on a weak basis in the wording of the Act, and the dissenting judges point out that a minister who has a power to appoint a day is not bound to appoint it, which would make the court the arbiter of executive policy.