Regina -v- Secretary of State for the Home Department ex parte Fire Brigades Union; HL 5 Apr 1995

References: [1995] 2 AC 513, [1995] UKHL 3, [1995] 2 All ER 244, [1995] 2 WLR 464
Links: Bailii
Coram: Lord Mustill, Lord Lloyd, Lord Browne-Wilkinson
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The claimants, whose members would have recourse to the scheme, sought an order that the Act should be implemented, or the non-statutory scheme declared unlawful.
Held: There was no power in the courts to compel the minister to bring the Act into effect, but his alternate scheme was unlawful. While the Secretary of State is under no legally enforceable duty to bring the main provisions of the Act into force, he must consider when it is appropriate for him to do so and does not enjoy an absolute and unfettered discretion not to do so.
The doctrine of legitimate expectation cannot reasonably be extended to the public at large as opposed to particular individuals or bodies who are directly affected by the executive action under consideration.
Lord Lloyd said that the ordinary function of the court was to grant discretionary relief if a minister exceeded the powers conferred on him by Parliament and: ‘In granting such relief the court is not acting in opposition to the legislature, or treading on Parliamentary toes. On the contrary: it is ensuring that the powers conferred by Parliament are exercised within the limits, and for the purposes, which Parliament intended. I am unable to see the difference in this connection between a power to bring legislation into force and any other power.’
Lord Browne-said: ‘In my judgment it would be most undesirable that, in such circumstances, the court should intervene in the legislative process by requiring an Act of Parliament to be brought into effect. That would be for the courts to tread dangerously close to the area over which Parliament enjoys exclusive jurisdiction, namely the making of legislation.’ and ‘There is a second consequence of the power in section 171(1) being conferred for the purpose of bringing the sections into force. As I have said, in my view the Secretary of State is entitled to decide not to bring the sections into force if events subsequently occur which render it undesirable to do so. But if the power is conferred on the Secretary of State with a view to bringing sections into force, in my judgment the Secretary of State cannot himself procure events to take place and rely on the occurrence of those events as the ground for not bringing the statutory scheme into force. In claiming that the introduction of the new tariff scheme renders it undesirable now to bring the statutory scheme into force, the Secretary of State is, in effect, claiming that the purpose of the statutory power has been frustrated by his own act in choosing to introduce a scheme inconsistent with the statutory scheme approved by Parliament.’
Lord Browne-Wilkinson set out the ‘inconsistency principle’, saying: ‘It would be most surprising if, in the present day, prerogative powers could be validly exercised by the Executive so as to frustrate the will of Parliament expressed in the statute and, to an extent to pre-empt the decision of Parliament whether or not to continue with the statutory scheme even though the old scheme has been abandoned. It is not for the Executive to state as it did in the White Paper that the provisions in the Act of 1988 ‘will accordingly be repealed when a suitable legislative opportunity occurs’. It is for Parliament not the Executive to repeal legislation. The constitutional history of this country is a history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature of the sovereign body. The prerogative powers of the court remain in existence to the extent that Parliament has not expressly or by implication extinguished them.’
Statutes: Criminal Justice Act 1988 171(1)
This case cites:

  • At First Instance – Regina -v- Secretary of State for Home Department Ex Parte Fire Brigades Union and Others QBD (Times 30-May-94, Independent 24-May-94)
    The Home Secretary was under no duty to bring the new statutory CICB scheme into force on any particular date. He was free to continue to use his own. The court refused to order a judicial review. . .
  • Appeal from – Regina -v- Secretary of State for Home Department Ex Parte Fire Brigades Union and Others CA (Times 10-Nov-94, Independent 10-Nov-94, [1995] 2 WLR 1)
    The Home Secretary’s non-statutory scheme for the compensation for criminal injuries was unlawful pending implementation of the Act. It amounted to an abuse of power. He had power to delay implementing the new Act, with no duty to bring it into . .
  • Cited – Attorney General -v- De Keyser’s Royal Hotel Ltd HL ([1920] AC 508, Bailii, [1920] UKHL 1, [1920] All ER 80, (1920) 36 TLR 600, (1920) 122 LT 691)
    A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
    Held: There is an . .

This case is cited by:

  • Cited – BAPIO Action Ltd and Another, Regina (on the Application of) -v- Secretary of State for the Home Department and Another HL (Bailii, [2008] UKHL 27, Times 01-May-08, [2008] 2 WLR 1073, HL, [2008] LS Law Medical 265, [2008] 1 AC 1003, [2009] 1 All ER 93, [2008] ICR 659)
    The House considered whether the Secretary of State for Health acted lawfully in issuing guidance as to the employment of foreign doctors to employing bodies within the National Health Service in April 2006.
    Held: The secretary of state’s . .
  • Cited – Regina -v- Secretary of State for Wales Ex Parte Emery CA (Gazette 23-Jul-97, Times 22-Jul-97, Bailii, [1997] EWCA Civ 2064, [1998] 4 All ER 367, [1997] EG 114)
    The applicant had sought to have included in the definitive map, a local footpath, and now challenged refusal to include it.
    Held: A public right of way may be created by dedication or it may be deemed after actual use by the public over . .
  • Cited – RM -v- The Scottish Ministers SC (Bailii, [2012] UKSC 58, 2012 GWD 40-774, [2012] 1 WLR 3386, [2012] WLR(D) 365, Bailii Summary, UKSC 2011/0212, SC Summary, SC)
    The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created the . .

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