R v Fire Brigades Union [1995] 2 AC 513

Facts

• The Criminal Justice Act 1988 (CJA 1988) included sections 108-117 establishing a statutory criminal injuries compensation scheme, with commencement at the Home Secretary’s discretion under section 171(1).
• Since 1964, a non-statutory criminal injuries compensation scheme had existed; the statutory scheme in the CJA 1988 was designed to replace it, but had not been brought into force.
• The Home Secretary decided not to implement the statutory scheme, citing financial concerns, and introduced a new non-statutory "tariff scheme" under prerogative powers.
• The Fire Brigades Union challenged this decision by judicial review, arguing that the Home Secretary’s actions unlawfully circumvented Parliament’s statutory scheme and misused prerogative powers.
• The Court of Appeal held the Home Secretary’s actions unlawful, stating the discretion to delay implementation must not defeat parliamentary intent, but did not compel immediate implementation of the statutory scheme.
• Both the Home Secretary and the Fire Brigades Union appealed to the House of Lords.

Issues

1. Whether the Home Secretary lawfully exercised discretion in delaying the implementation of the statutory compensation scheme under the CJA 1988.
2. Whether the Home Secretary could introduce an alternative, non-statutory compensation scheme using prerogative power while the statutory scheme provisions remained unimplemented.
3. Whether the use of prerogative powers in this context undermined parliamentary sovereignty and the separation of powers.

Decision

• The House of Lords (majority) held that the Home Secretary acted unlawfully by introducing a non-statutory scheme inconsistent with the statutory provisions, thus misusing prerogative power.
• The majority reasoned that discretion to delay implementation was not a licence to abandon the statute or replace it with a conflicting scheme.
• Lord Browne-Wilkinson and other majority judges found that using the prerogative in this way was effectively to rewrite or nullify a statute, which was impermissible.
• The dissenting judges, Lord Keith and Lord Mustill, argued that prerogative power persisted while the statute was not in force and that the executive’s duties were primarily owed to Parliament, not justiciable by the courts.
• Both the appeal and cross-appeal were dismissed.

Legal Principles

• Where a statute exists covering a field previously governed by prerogative, the statute must prevail; prerogative powers cannot be used to undercut or bypass the will of Parliament.
• Executive discretion under an Act must be exercised for the purpose Parliament intended; it cannot be used to frustrate or negate the statutory scheme.
• The judiciary may review executive action that undermines legislative intent, reinforcing substantive separation of powers.
• Prerogative powers are constitutionally limited when Parliament has legislated in a given policy area.

Conclusion

The decision reinforced that executive action must align with legislative intent and cannot employ prerogative powers to override or circumvent statutory frameworks, upholding the principles of parliamentary sovereignty and separation of powers.