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

JurisdictionUK Non-devolved
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Browne-Wilkinson,Lord Mustill,Lord Lloyd of Berwick,Lord Nicholls of Birkenhead
Judgment Date05 April 1995
Judgment citation (vLex)[1995] UKHL J0405-1
Date05 April 1995

[1995] UKHL J0405-1

House of Lords

Lord Keith of Kinkel

Lord Browne-Wilkinson

Lord Mustill

Lord Lloyd of Berwick

Lord Nicholls of Birkenhead

Regina
and
Secretary of State for the Home Department
(Original Appellant and Cross-Respondent)
Ex Parte Fire Brigades Union and Others
(Original Respodents and Cross-Appellants)
1

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

Lord Keith of Kinkel

My Lords,

2

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.

3

The first question for consideration is whether, by the terms of section 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 sections 108 to 117 of the Act, at the instance of persons who claim an interest in that being done. I am clearly of opinion that this question must be answered in the negative. In the first place the terms of section 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 sections 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.

4

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.

5

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 sections 108 to 117 of the Act of 1988 had been brought into effect these provisions would have subsumed the prerogative, under the principle of Attorney-General v. De Keyser's Royal Hotel Ltd. [1920] A.C. 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 sections 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 sections 108 to 117 are present in the statute book but not in force. I do not consider that the doctrine of legitimate expectations properly enters into the matter. In Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 the Minister had instructed that staff at G.C.H.Q. Cheltenham were no longer to be permitted to belong to a national trade union. The instruction had been issued without any prior consultation with the staff or with trade unions. This House held that executive action under a prerogative power was open to judicial review in the same manner as action under a statutory power, so that in appropriate circumstances a Minister might be under a duty to act fairly in relation to the exercise of the power. Further it was held that the Minister had acted unfairly in issuing the instruction in question because the staff had a reasonable expectation that they would be consulted before the instruction was issued and they had not been consulted. That case affords no parallel with the present. Certain rights of the staff at G.C.H.Q. had been taken away in breach of an obligation to act fairly towards them. In the present case no rights have been taken away from anyone, nor has the Minister acted unfairly towards anyone. While no doubt many members of the public may be expected to have hoped that sections 108 to 117 of the Act of 1988 would be brought into force, they had no right to have them brought into force. In any event, 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 certain executive action.

6

The respondents argue that to make payments under the proposed new tariff scheme would be unlawful because that would be inconsistent with the scheme embodied in sections 108 to 117, since that would make it impossible for all practical purposes ever to bring the statutory scheme into operation. The Secretary of State must at least be under a duty, so it is said, to keep under review from time to time whether to bring sections 108 to 117 into force. I would accept that the Secretary of State is under such a duty, but in my opinion it is one owed to Parliament and not to the public at large. On the other hand it does not seem to me that operating the proposed new tariff scheme would rule out any reasonable possibility of the statutory scheme ever being introduced. The decision not to introduce it at the present time is a political one and it is entirely predictable that political views might change, if not under the present administration then under a future one. If a political decision were made to bring in the statutory scheme then there is no reason to suppose that the political will would not be found, notwithstanding any difficulty there might be in dismantling the existing arrangements and setting up new ones. The extent to which it might be necessary to do so is in any event open to question.

7

Upon the whole matter I am clearly of opinion that the respondents' 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 respondents 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.

8

I would allow the appeal and dismiss the cross-appeal.

Lord Browne-Wilkinson

My Lords,

9

In this appeal your Lordships have to consider the legality of certain decisions made by the Secretary of State for the Home Department in relation to schemes for the payment of compensation to victims of violent crime. The respondents (applicants for judicial review) are trade unions or other bodies whose members are liable in the course of their working duties to suffer personal injuries as a result of such crimes.

10

The facts

11

Until 1964 victims who suffered personal injuries as a result of crimes of violence had no right to compensation out of public funds. On 24 June 1964 a scheme compensating such victims was announced in both Houses of Parliament. In its original form the scheme came into force on 1 August 1964. It was non-statutory and was introduced under the prerogative powers, compensation being paid out of moneys voted by Parliament. The scheme ("the old scheme") was modified on a number of occasions, most recently in February 1990 and January 1992.

12

The old scheme provided for a system of ex gratia payments to be assessed on the same basis as damages at common law. Compensation was assessed on an individual basis and included provision for pain and suffering and loss of earnings, as well as compensation for the dependants of dead victims, subject to certain limitations.

13

In March 1978 the Royal Commission on Civil Liability and Compensation for Personal Injury (Cmnd. 7054-I) recommended that compensation under the old scheme in Great Britain should continue to be based upon tort damages and that the scheme should be put on a statutory basis. In March 1984, an Interdepartmental Working Party was appointed to review the criminal injuries compensation scheme and to make recommendations for putting the scheme into statutory form. The Working Party reported in 1986.

14

On 29 July 1988, the Criminal Justice Act 1988 received the Royal Assent. Sections 108 to 117 of and Schedules 6 and 7 to that Act contain a statutory criminal injuries compensation scheme, which in substance follows the recommendations of the Working Party and gives statutory enactment to the old scheme. In particular, the amount of compensation under the statutory scheme would be calculated on the same basis as common law damages.

15

Section 171 of the 1988 Act so far as relevant provides as follows:

"(1) Subject to the following provisions of this section, this Act shall come into force on such day as the...

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