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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
    1. Godden v Hales (1686) 11 St Tr 1165
    2. The Bill of Rights 1689
    3. Attorney-General v De Keyser's Royal Hotel [1920] All ER 80; [1920] AC 508
    4. Laker Airways Ltd v Department of Trade [1977] 2 All ER 182; [1977] QB 643.
    5. R v Secretary of State for the Home Department, ex parte Fire Brigades Union and Others [1995] 2 AC 513; [1995] 2 WLR 464.
    6. R v Allen (1862) 121 ER 929
    7. China Navigation Company Ltd v Attorney-General [1932] 2 KB 197
    8. R v Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 All ER 770; [1967] 2 QB 864
    9. Hanratty and Another v Lord Butler of Saffron Walden (1971) SJ 382
    10. Gouriet v Union of Post Office Workers and others [1977] 3 All ER 70; [1978] AC 435.
    11. Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935; [1985] AC 374.
    12. R v Foreign Secretary, ex parte Everett [1989] 2 WLR 224
    13. R v Secretary of State for the Home Department, ex parte Bentley [1993] 4 All 442
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v Secretary of State for the Home Department, ex parte Fire Brigades Union and Others [1995] 2 AC 513; [1995] 2 WLR 464.

LORD KEITH OF KINKEL (dissenting):....My Lords, I have had the opportunity of reading in draft the speech to be delivered by my noble and learned friend Lord Mustill and I agree with it.

The first question for consideration is whether, by the terms of s 171(1) of the Criminal Justice Act 1988, Parliament has evinced an intention to confer upon the courts an ability to oversee and control the exercise by the Secretary of State of the power thereby conferred upon him to bring into effect ss 108 to 117 of the Act, at the instance of persons who claim an interest in that being done. I am clearly of the opinion that this question must be answered in the negative. In the first place the terms of s 171(1) are not apt to create any duty in the Secretary of State owed to members of the public. In the second place any decision by the Secretary of State as to whether or not ss 108 to 117 should be brought into effect at any particular time is a decision of a political and administrative character quite unsuitable to be the subject of review by a court of law. The fact that the decision is of a political and administrative character means that any interference by a court of law would be a most improper intrusion into a field which lies peculiarly within the province of Parliament. The Secretary of State is unquestionably answerable to Parliament for any failure in his responsibilities, and that is the proper place, and the only proper place, for any possible failure in the present respect to be called in question.

The position is not altered, in my opinion, by reason that the Secretary of State has announced that he does not intend to bring the statutory scheme into force. Given that the Secretary of State is under no duty owed to members of the public to bring it into force, it cannot be a breach of duty to them to announce that he does not intend to do so. It may be a breach of a duty owed to Parliament, but that is a matter for Parliament to consider.

The second question is whether the Secretary of State's announcement of the proposed new tariff scheme is in some way unlawful. The scheme based on compensation analogous to damages in tort which operated from 1964 operated by virtue of the royal prerogative. The payments made under it were ex gratia, made out of moneys voted by Parliament for the purpose. Payments under the proposed new tariff scheme would be of similar character. I can see no valid ground upon which it might be held that a payment under the tariff scheme would be unlawful. At the present time the prerogative in this field exists unimpaired. If ss.108 to 117 of the 1988 Act had been brought into effect these provisions would have subsumed the prerogative, under the principle of A-G v De Keyser's Royal Hotel Ltd [1920] AC 508. Compensation payments for crimes of violence would have become capable of being made only under the statute. But since these sections have not been brought into effect the prerogative power remains the only source of power to make such payments. If ss.108 to 117 had never been enacted, it would have been open to the Secretary of State to discontinue making payments under the 1964 scheme and to start making payments under a tariff scheme. On the basis that the 1964 scheme had become more expensive than the nation could afford, which is the ground upon which the new tariff scheme is proposed and which is essentially a political matter, such a decision would not be open to challenge as being irrational. In my opinion, the position is no different by reason that ss.108 to 117 are present in the statute book but not in force.....

Upon the whole matter I am clearly of opinion that the applicants' case fails upon a proper application of the rules of statutory construction and of the principles which govern the process of judicial review. To grant the applicants the relief which they seek, or any part of it, would represent an unwarrantable intrusion by the court into the political field and a usurpation of the function of Parliament.

LORD BROWNE-WILKINSON:....The tariff scheme, if validly introduced under the royal prerogative, is both inconsistent with the statutory scheme contained in ss 108 to 117 of the 1988 Act and intended to be permanent. In practice, the tariff scheme renders it now either impossible or at least more expensive to reintroduce the old scheme or the statutory enactment of it contained in the 1988 Act. The tariff scheme involves the winding up of the old Criminal Injuries Compensation Board together with its team of those skilled in assessing compensation on the common law basis and the creation of a new body, the Criminal Injuries Compensation Authority, set up to assess compensation on the tariff basis at figures which, in some cases, will be very substantially less than under the old scheme. All this at a time when Parliament has expressed its will that there should be a scheme based on the tortious measure of damages, such will being expressed in a statute which Parliament has neither repealed nor (for reasons which have not been disclosed) been invited to repeal.

My Lords, it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament expressed in a 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, as the Lord Advocate accepted, to state as it did in the White Paper (para 38) that the provisions in the 1988 Act "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 the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body. The prerogative powers of the Crown remain in existence to the extent that Parliament has not expressly or by implication extinguished them. But under the principle in A-G v De Keyser's Royal Hotel Ltd if Parliament has conferred on the executive statutory powers to do a particular act, that act can only thereafter be done under the statutory powers so conferred: any pre-existing prerogative power to do the same act is pro tanto excluded.

How then is it suggested that the executive has power in the present case to introduce under the prerogative power a scheme inconsistent with the statutory scheme? First, it is said that since ss.108 to 117 of the Act are not in force, they confer no legal rights on the victims of crime and impose no duties on the Secretary of State. The De Keyser principle does not apply since it only operates to the extent that Parliament has conferred statutory powers which in fact replace pre-existing powers: unless and until the statutory provisions are brought into force, no statutory powers have been conferred and therefore the prerogative powers remain. Moreover, the abandonment of the old scheme and the introduction of the new tariff scheme does not involve any interference by the executive with private rights. The old scheme, being a scheme for ex gratia payments, conferred no legal rights on the victims of crime. The new tariff scheme, being also an ex gratia scheme, confers benefits not detriments on the victims of crime. How can it be unlawful to confer benefits on the citizen, provided that Parliament has voted the necessary funds for that purpose?....

In his powerful dissenting judgment in the Court of Appeal, Hobhouse LJ decided that, since the statutory provisions had not been brought into force, they had no legal significance of any kind. He held, in my judgment correctly, that the De Keyser principle did not apply to the present case: since the statutory provisions were not in force they could not have excluded the pre-existing prerogative powers. Therefore the prerogative powers remained. He then turned to consider whether it could be said that the Secretary of State had abused those prerogative powers and again approached the matter on the basis that since the sections were not in force they had no significance in deciding whether or not the Secretary of State had acted lawfully. I cannot agree with this last step. In public law the fact that a scheme approved by Parliament was on the statute book and would come into force as law if and when the Secretary of State so determined is in my judgment directly relevant to the question whether the Secretary of State could in the lawful exercise of prerogative powers both decide to bring in the tariff scheme and refuse properly to exercise his discretion under s 171(1) to bring the statutory provisions into force....

I turn then to consider whether the Secretary of State's decisions were unlawful as being an abuse of power. In this case there are two powers under consideration: first, the statutory power conferred by s 171(1); second, the prerogative power. In order first to test the validity of the exercise of the prerogative power, I will assume that the 1988 Act, instead of conferring a discretion on the Secretary of State to bring the statutory scheme into effect, had specified that it was to come into force one year after the date of the royal assent. As Hobhouse LJ held, during that year the De Keyser principle would not apply and the prerogative powers would remain exercisable. But in my judgment it would plainly have been an improper use of the prerogative powers if, during that year, the Secretary of State had discontinued the old scheme and introduced the tariff scheme. It would have been improper because in exercising the prerogative power the Secretary of State would have had to have regard to the fact that the statutory scheme was about to come into force: to dismantle the machinery of the old scheme in the meantime would have given rise to further disruption and expense when, on the first anniversary, the statutory scheme had to be put into operation. This hypothetical case shows that, although during the suspension of the coming into force of the statutory provisions the old prerogative powers continue to exist, the existence of such legislation basically affects the mode in which such prerogative powers can be lawfully exercised.

Does it make any difference that the statutory provisions are to come into effect, not automatically at the end of the year as in the hypothetical case I have put, but on such day as the Secretary of State specifies under a power conferred on him by Parliament for the purpose of bringing the statutory provisions into force? In my judgment it does not. The Secretary of State could only validly exercise the prerogative power to abandon the old scheme and introduce the tariff scheme if, at the same time, he could validly resolve never to bring the statutory provisions and the inconsistent statutory scheme into effect. For the reasons I have already given, he could not validly so resolve to give up his statutory duty to consider from time to time whether to bring the statutory scheme into force. His attempt to do so, being a necessary part of the composite decision which he took, was itself unlawful. By introducing the tariff scheme he debars himself from exercising the statutory power for the purposes and on the basis which Parliament intended. For these reasons, in my judgment the decision to introduce the tariff scheme at a time when the statutory provisions and his power under s 171(1) were on the statute book was unlawful and an abuse of the prerogative power.