R v Secretary of State for the Home Department, ex parte Fire Brigades Union

JurisdictionEngland & Wales
Judgment Date09 November 1994
Judgment citation (vLex)[1994] EWCA Civ J1109-8
Docket NumberNo. QBCOF 94/0798/D
CourtCourt of Appeal (Civil Division)
Date09 November 1994

[1994] EWCA Civ J1109-8






Before: The Master of The Rolls (Sir Thomas Bingham) Lord Justice Hobhouse and Lord Justice Morritt

No. QBCOF 94/0798/D

Secretary of State for The Home Department Ex Parte Fire Brigades Union and Others

MR. P. ELIAS Q.C. and MISS D. ROSE (instructed by Messrs. Robin Thompson & Partners, Bloomsbury London) appeared on behalf of the Applicants.

MR. G. SANKEY Q.C. (instructed by The Treasury Solicitor, London SW1H) appeared on behalf of the Respondent.



On 23 May 1994 a Queen's Bench Divisional Court (Staughton LJ and Buckley J) refused the eleven applicants an order of judicial review against the Home Secretary : [1994] PIQR P320 The applicants challenge that refusal.


The applicants comprise a number of trade unions and other bodies and the Trades Union Congress. They claim to have one feature in common : that their members in the course of their working duties are liable to be the victims of personal injuries criminally caused. They seek to challenge two decisions of the Home Secretary. One is his continuing decision not to bring into force by order made by statutory instrument sections 108–117 and Schedules 6 and 7 of the Criminal Justice Act 1988. The other is his decision, published on 9 March 1994 and taking effect on 1 April 1994, to implement the Criminal Injuries Compensation Tariff Scheme ("the Tariff Scheme"). The applicants claim a declaration that the Secretary of State by failing or refusing to bring into force sections 108–117 and Schedules 6 and 7 of the 1988 Act has acted unlawfully in breach of his duty under that Act. They also claim a declaration that the Secretary of State by implementing the Tariff Scheme has acted unlawfully in breach of his duty under the 1988 Act and has abused his common law powers.


The applicants issued notice of their application for leave to apply for judicial review on 16 March 1994, after details of the Tariff Scheme had been published but before it came into force. The applicants then claimed an injunction to restrain implementation of the Tariff Scheme. At an oral hearing on 22 March Owen J granted the applicants leave to move. But the claim for an injunction was not pressed on the undertaking of counsel for the Home Secretary that no claimant would be adversely prejudiced by the administrative introduction of the Tariff Scheme on 1 April and that no final award would be made to any claimant pending final resolution of the matter in court.


Criminal injuries compensation.


Until 1964 victims who suffered injuries criminally caused had no right to compensation beyond the ordinary right to sue the party who caused the injury. In most cases this right was worthless. This was felt to leave an undesirable gap in the state's protection of the citizen.


On 24 June 1964 a scheme for compensating victims of crimes of violence was announced in both Houses of Parliament. In its original form the scheme came into force on 1 August 1964. The scheme was non-statutory and payments were made ex gratia. In general payments were calculated on familiar common law principles developed to compensate victims of tort. There were some differences (for instance in relation to the treatment of pension entitlement and statutory benefits, and in provision of a cap on claimable loss of earnings) but by and large awards took account, like personal injury awards in tort, of special damages, pain and suffering and loss of amenity, and prospective future loss. Claims were assessed and awards made by skilled personal injury practitioners.


In March 1978 the Pearson Commission on Civil Liability and Compensation for Personal Injury recommended that the scheme be put on a statutory basis and continue to be based on damages recoverable in tort. In 1986 an Interdepartmental Working Party, established in 1984 to make recommendations for putting the scheme into statutory form, reported.


The recommendations of this Working Party were, in substance, enacted by Parliament in sections 108–117 and Schedules 6 and 7 of the 1988 Act, to which reference has already been made. These provisions codified the existing scheme, with some amendments, but with no departure from the general assessment of awards on a case by case basis on common law principles. On accepting an award, a claimant would have a legal right to the compensation awarded. This Act received the royal assent on 29 July 1988 and section 171 came into force on that date, but by virtue of section 171(1) the criminal compensation provisions were only to come into force on such day as the Secretary of State might by order made by statutory instrument appoint. No such order was, or has to this day been, made. Upon the passing of the Act the existing non-statutory scheme remained in force.


On 23 November 1992 the Home Secretary announced that the Government intended to introduce a new Tariff Scheme to compensate the victims of violent crime. In December 1993 a White Paper was published, entitled " Compensating Victims of Violent Crime : Changes to the Criminal Injuries Compensation Scheme". The Tariff Scheme which the White Paper described was to differ from the existing non-statutory scheme as it had operated from 1964 and from the unimplemented statutory scheme. Compensation would no longer be awarded on the basis of common law damages. Instead, awards would be based on a flat-rate tariff, according to the category of injury into which the particular claim fell, with no specific account taken of special damages, loss of earnings and the circumstances of the particular case. These changes (the White Paper said) were to provide a better service to victims of crime, by simplifying the assessment and speeding up the settlement of claims. Attention was drawn to the sharp rise in the total of awards since the existing scheme began, particularly in recent years, and it was described as "one of the most generous state compensation schemes for the victims of crimes of violence anywhere in the world ". The White Paper stated that "the average claimant should be no worse off than under the current scheme". Evidence sworn on behalf of the Home Office in this application discloses that without any change the annual cost of the old scheme was estimated to rise to about £550 million by the year 2000–01. Under the Tariff Scheme the annual cost of compensation by that year was estimated to be in the order of £225 million. Paragraph 38 of the White Paper stated :

"The present scheme is non-statutory and payments are made on an ex gratia basis. Provision was made in the Criminal Justice Act 1988 for the scheme to be placed on a statutory footing. However, at the request of the Board the relevant provisions were not brought into force, because this would have disrupted their efforts to deal with the heavy workload. With the impending demise of the current scheme the provisions in the 1988 Act will not now be implemented. They will accordingly be repealed when a suitable legislative opportunity occurs".


It was indicated that the Tariff Scheme would, at least initially, be non-statutory and payments would continue to be ex gratia. Consideration would be given to putting the Tariff Scheme on a statutory basis in due course.


In the course of proceedings on the Criminal Justice and Public Order Bill an amendment was proposed which, if accepted, would have required the Home Secretary to implement the statutory scheme within six months of the Bill becoming law. This amendment was not accepted.


It appears that in March 1994 Supply estimates were laid before Parliament for the year ending 31 March 1995. Head 1 of the Home Office vote related among other things to criminal injuries compensation. A note referred to the old non-statutory scheme under which compensation was assessed on the basis of common law damages and to the plan to introduce a new scheme based on a tariff for injury awards to take effect on 1 April 1994. It was stated that the new scheme would apply to all applications received on or after the date of introduction. Further reference was made to the Criminal Injuries Compensation Authority which would administer the new tariff scheme. The Appropriation Act 1994 received the royal assent on 21 July 1994. The sum granted by the Act and appropriated to the Home Office under head 1 was the sum contained in the March estimates.


The first issue


The first issue between the parties turned on the construction of section 171 (1) of the 1988 Act, governing the commencement of sections 108–117 and Schedules 6 and 7 in which the old scheme was codified. Section 171 (1) reads :

"Subject to the following provisions of this section, this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint and different days may be appointed in pursuance of this subsection for different provisions or different purposes of the same provision".


The applicants submitted that the effect of this subsection was to confer on the Home Secretary a discretion as to when the relevant sections should be brought into force but none as to whether the sections should be brought into force. They recognised that the Home Secretary could, for good reason, delay the coming into force of the sections. But they did not accept that he could, for no reason or bad reason, delay the implementation of the sections. If he determined not to bring the sections into force he should seek their repeal. So long as the...

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