R v Secretary of State for the Home Department, ex parte Fir...

Facts

• The Criminal Justice Act 1988 (CJA), sections 108-117, created a statutory scheme for compensating victims of violent crime, but this scheme was not immediately in force; section 171(1) allowed the Home Secretary to decide when it should commence.
• Since 1964, a non-statutory Criminal Injuries Compensation Scheme operated under royal prerogative powers.
• The Home Secretary decided to indefinitely suspend the statutory scheme on cost grounds and instead introduced a new, separate 'tariff scheme' using prerogative powers, which differed from the statutory provisions.
• The Fire Brigades Union challenged this decision, arguing the Home Secretary’s failure to implement the statutory CJA scheme and the use of prerogative power to introduce the new scheme were unlawful.
• The Court of Appeal ruled in favour of the Fire Brigades Union, holding the tariff scheme unlawful and imposing a duty on the Home Secretary to consider bringing the statutory scheme into effect.
• Both the Home Secretary and the Fire Brigades Union appealed aspects of this ruling to the House of Lords.

Issues

1. Whether the Home Secretary acted lawfully in introducing a new compensation scheme under prerogative powers while the statutory scheme remained in suspense.
2. Whether the executive can use prerogative powers in an area where Parliament has legislated, but the statutory provisions are not yet in force.
3. The extent to which courts can review or restrain executive action that allegedly conflicts with the will or intent of Parliament.

Decision

• By a 3-2 majority, the House of Lords found the Home Secretary’s actions unlawful, concluding that the exercise of prerogative powers to override or ignore a statutory scheme not yet in force was impermissible.
• The majority held it was unlawful for the Home Secretary to renounce the statutory scheme and effectively disable himself from bringing it into operation by implementing a competing scheme.
• The House of Lords did not compel immediate implementation of the CJA scheme but declared the Home Secretary’s abandonment of the statutory scheme and reliance on prerogative powers to be an abuse of power.

Legal Principles

• Executive powers under the royal prerogative cannot be used to undermine, displace, or effectively annul the will of Parliament as expressed in statute, even if the statute is not yet in force.
• Where Parliament has legislated in a given area, the statue “covers the field” and executive decisions must not frustrate the legislative intent.
• Attorney-General v De Keyser’s Royal Hotel established that statutory powers supersede prerogative powers when both address the same subject, and this principle informs limits on prerogative use even when the statute is not commenced.
• Courts have a duty to declare executive action unlawful where it constitutes an abdication of statutory duty or an impermissible renunciation of powers conferred by Parliament.
• Dissenting judgments argued that prerogative powers remain available until the statutory scheme is actually brought into force and that the Secretary of State’s duty to consider implementation is owed to Parliament, not the public.

Conclusion

The House of Lords clarified that the executive cannot sidestep or nullify parliamentary intent by using prerogative powers to introduce alternative schemes where Parliament has legislated, even if the statutory framework is awaiting implementation; the separation of powers and parliamentary sovereignty require the executive to respect both the letter and the intent of statutory provisions.