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.’
Judges: Lord Mustill, Lord Lloyd, Lord Browne-Wilkinson
Statutes: Criminal Justice Act 1988 171(1)
References:  2 AC 513,  UKHL 3,  2 All ER 244,  2 WLR 464
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