Case Facts
In this case, the applicants were trade unions whose members were more than usually exposed to injuries from crimes of violence in the course of their employment, including the Fire Brigades Union, UNISON, GMB, the Royal College of Nursing, the Transport and General Workers' Union, the Prison Officers' Association, the Trades Union Congress, and several others.
The Criminal Injuries Compensation Scheme had been established in 1964 under the royal prerogative to provide compensation for victims of crimes of violence. It operated by way of ex gratia payments, assessed on an individual basis by the Criminal Injuries Compensation Board — a non-statutory body of lawyers experienced in personal injury — and calculated in the same way as common law damages. This non-statutory scheme was subsequently codified in ss 108-117 & Schs 6-7 Criminal Justice Act 1988, under which awards would continue to be decided on a case-by-case basis on common law principles by which tort victims were compensated. Under s 171(1) of the Criminal Justice Act 1988, those provisions were to come into force on a day to be appointed by the Secretary of State by order made by statutory instrument; until such an order was made, the existing non-statutory scheme remained in force.
In December 1993, the government published a White Paper announcing a new tariff scheme. Under this proposed scheme, victims of violent crime would receive flat-rate awards according to the category of injury suffered, without specific account being taken of special damages, loss of earnings, or individual circumstances. The government estimated that the annual cost of compensation would be halved by the year 2000. The White Paper further stated that ss 108-117 & Schs 6-7 Criminal Justice Act 1988 would not be implemented and would be repealed in due course. On 9 March 1994, the government announced that the new tariff scheme would take effect from 1 April 1994.
The applicant trade unions sought judicial review of the Home Secretary's decision to introduce the tariff scheme by means of prerogative power rather than bringing the statutory scheme into force. They sought two declarations: first, that the Home Secretary was under a legally enforceable duty to bring ss 108-117 & Schs 6-7 Criminal Justice Act 1988 into force; and second, that his exercise of prerogative power to introduce the tariff scheme was unlawful.
The Divisional Court (Staughton LJ and Buckley J) refused relief on 23 May 1994. The Court of Appeal (Sir Thomas Bingham MR and Morritt LJ; Hobhouse LJ dissenting) on 9 November 1994 granted the second declaration — that the use of prerogative power was unlawful — but refused the first, holding that there was no legally enforceable duty to implement the statutory provisions. The matter proceeded to the House of Lords, which heard the case on 1 and 2 February 1995 and delivered judgment on 5 April 1995.
Held
The House of Lords dismissed both the Home Secretary's appeal and the applicants' cross-appeal, affirming the decision of the Court of Appeal.
On the first issue, the House of Lords held unanimously that the Home Secretary was under no legally enforceable duty to bring ss 108-117 & Schs 6-7 Criminal Justice Act 1988 into force. The discretion conferred by s 171(1) of the Criminal Justice Act 1988 as to the timing of implementation was unqualified in nature, and the courts could not compel implementation without interfering improperly in the legislative process. The first declaration sought by the applicants was accordingly refused.
On the second issue, by a majority of three to two (Lord Browne-Wilkinson, Lord Lloyd, and Lord Nicholls in the majority; Lord Keith of Kinkel and Lord Mustill dissenting), the House of Lords held that the Home Secretary's discretion under s 171(1) of the Criminal Justice Act 1988 was not unfettered. While ss 108-117 & Schs 6-7 Criminal Justice Act 1988 remained unrepealed and had never been brought into force, the Home Secretary was required to keep the question of implementation under review. It was an abuse and excess of power for him to exercise prerogative power in a manner inconsistent with that duty — specifically, by introducing the tariff scheme and announcing that the statutory provisions would never be implemented — and that exercise of prerogative power was therefore unlawful. The second declaration was affirmed.
Lord Keith of Kinkel, agreeing with Lord Mustill, would have held the Home Secretary's actions entirely lawful on both issues. Lord Keith took the view that s 171(1) was not apt to create any duty owed to members of the public, and that any decision by the Secretary of State on when to bring ss 108-117 into effect was a decision of a political and administrative character entirely unsuitable for judicial review.
Ratio Decidendi
The central legal principles established by this case are as follows.
First, where Parliament has conferred upon a minister an unqualified statutory discretion as to the timing of bringing provisions into force, the courts will not compel the minister to exercise that discretion in a particular way. The discretion under s 171(1) of the Criminal Justice Act 1988 was not judicially enforceable, and no duty to implement ss 108-117 could be imposed upon the Secretary of State. To do so would be to interfere with the legislative process in a manner incompatible with the separation of powers.
Second, and crucially, a statutory discretion as to implementation is not entirely unfettered merely because it is expressed in unqualified terms. The majority held that, so long as the statutory provisions remained unrepealed, the Home Secretary was required to keep the question of their implementation under genuine review. He could not exercise prerogative power in a manner deliberately designed to make it impossible or pointless for the statutory provisions ever to be brought into force. This principle represents a more nuanced development than the straightforward ouster of prerogative by statute recognised in A-G v De Keyser's Royal Hotel [1920]: in that case the prerogative was ousted because a statutory scheme had been brought fully into force, whereas in this case the statutory scheme had never been commenced. The ratio goes further by establishing that even an unimplemented statute may constrain the exercise of prerogative power where the minister's prerogative action is inconsistent with the duty to consider implementation.
Third, the exercise of prerogative power that renders a statutory provision incapable of ever taking effect — whilst that provision remains on the statute book — constitutes an abuse of power amenable to judicial review. The prerogative cannot lawfully be used as a device to circumvent or nullify the will of Parliament as expressed in unrepealed legislation. This principle is closely connected with the authority of CCSU v Minister for Civil Service [1984], which confirmed that the exercise of prerogative powers may be subject to judicial review.
The case thus stands as a leading authority on the constitutional limits of ministerial prerogative where Parliament has legislated in the same field, even where the statutory scheme has not yet been brought into operation.
Obiter Dicta
Lord Mustill, dissenting on the prerogative issue, offered significant observations on the appropriate constitutional role of the courts when confronted with decisions of a fundamentally political character. He emphasised that the question of whether and when to implement the statutory compensation scheme was a matter falling squarely within the political and administrative sphere, and that judicial intervention in such matters risked blurring the constitutional boundary between the courts and the executive. Lord Mustill was accordingly sceptical of the majority's conclusion on the prerogative point, expressing concern that extending judicial review into this area would draw the courts into political controversy in a manner inconsistent with their constitutional function.
More broadly, the majority judgements contain observations to the effect that the rule of law requires that a minister exercising a statutory discretion must not use prerogative or other executive power to undermine or subvert unrepealed legislation, even where the discretion as to timing is wide. These observations, though directed at the specific facts, have been regarded by subsequent courts and commentators as having broader constitutional significance for the relationship between prerogative power and parliamentary legislation.