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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] UKHL 3 (05 April 1995) URL: http://www.bailii.org/uk/cases/UKHL/1995/3.html Cite as: [1995] 2 WLR 464, [1995] UKHL 3, [1995] 2 AC 513, [1995] 2 All ER 244 |
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Parliamentary
Archives,
HL/PO/JU/18/255
Regina
v.
Secretary of State for the Home Department (Original Appellant
and Cross-Respondent) ex parte Fire Brigades Union and others
(Original Respondents and Cross-Appellants)
JUDGMENT
Die Mercurii 5° Aprilis 1995
Upon Report from the Appellate Committee to
whom was
referred the Cause Regina against the Secretary of State
for the
Home Department ex parte Fire Brigades Union and
others et e
contra. That the Committee had heard
Counsel as well on Wednesday
the 1st as on Thursday the 2nd days
of February last upon the
Petition and Appeal of the Secretary of
State for the Home
Department, Queen Anne's Gate, London SW1H 9AT
and upon the
Petition and Cross-Appeal of the Fire Brigades Union
of Bradley
House, 68 Coombe Road, Kingston Upon Thames, Surrey,
KT2 7AE, the
National Association of Schoolmasters and Union of
Women Teachers
of Hills Court Education Centre, Rose Hill, Rednal,
Birmingham,
B45 8RS, UNISON of Civic House, 20 Grand Depot Road,
Woolwich,
London, SE18 6SF, GMB of 22-24 Worple Road, London, SW19
4DD, the
Royal College of Nursing of 20 Cavendish Square, London,
W1M OAB,
the Transport and General Workers Union of Transport
House,
Smith Square, London, SW1P 3JB, the Associated Society
of
Locomotive Engineers and Firemen of 9 Arkwright Road,
Hampstead,
London, NW3 GAB, the Prison Officers' Association of
Cronin
House, 245 Church Street, London, N9 9HW, the Civil and
Public
Services Association of 160 Falcon Road, London, SW11 2LN,
the
Trades Union Congress of Congress House, Great Russell
Street,
London, WC1B 3LW and the Nat West Staff Association of
8/10 Dean
Park Street, Bournemouth, Dorset BH1 1HL, praying that
the matter
of the Order set forth in the Schedules thereto, namely
an Order
of Her Majesty's Court of Appeal of the 9th day of
November 1994,
might be reviewed before Her Majesty the Queen in
Her Court of
Parliament and that the said Order might be reversed,
varied or
altered or that the Petitioners might have such other
relief in
the premises as to Her Majesty the Queen in Her Court
of
Parliament might seem meet; as upon the case of the Fire
Brigades
Union, the National Association of Schoolmasters and
Union of
Women Teachers, UNISON, GMB, the Royal College of
Nursing, the
Transport and General Workers Union, the Associated
Society of
Locomotive Engineers and Fireman, the Prison
Officers'
Association, the Civil and Public Services Association,
the
Trades Union Congress and the Nat West Staff Association
lodged
in answer to the said Appeal and as upon the case of
the
Secretary of State for the Home Department lodged in answer
to
the said Cross-Appeal; and due consideration had this day of
what
was offered on either side in this Cause:
It is Ordered and Adjudged. by
the Lords Spiritual and
Temporal in the Court of Parliament of Her
Majesty the Queen
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
REGINA
v.
SECRETARY
OF STATE FOR THE HOME DEPARTMENT
(ORIGINAL APPELLANT AND
CROSS-RESPONDENT)
ex parte
FIRE
BRIGADES UNION AND OTHERS
(ORIGINAL RESPONDENTS AND
CROSS-APPELLANTS)
ON 5 APRIL 1995
Lord
Keith of Kinkel
Lord
Browne-Wilkinson
Lord
Mustill
Lord
Lloyd of Berwick
Lord
Nicholls of Birkenhead
LORD KEITH OF KINKEL
My Lords,
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.
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.
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
- 1 -
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.
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] AC 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.
-2-
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.
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.
I would allow the appeal and dismiss the cross-appeal.
LORD BROWNE-WILKINSON
My Lords,
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.
The facts
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,
- 3 -
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.
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.
In March 1978
the Royal Commission on Civil Liability and
Compensation for
Personal Injury (Cmnd. 7054-1) 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.
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.
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 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.
(5) The
following provisions shall come into force on the day this Act
is
passed-
. . .
this section;
(6) The
following provisions . . . shall come into force at the end of
the
period of two months beginning with the day this Act is passed
-
The provisions
of sections 108 to 117 of and Schedule 6 and 7 to the Act of
1988
were not brought into force by any other provision of section 171.
- 4 -
Accordingly
although section 171 itself is in force, the provisions of
sections
108 to 117 of and Schedule 6 and 7 to the Act ("the
statutory scheme") can
only be brought into force by the
Secretary of State under section 171(1). No
order has been made
under section 171(1) bringing the statutory scheme into
force.
Since 1988, the old non-statutory scheme has continued in
operation
subject to certain minor amendments made under
prerogative powers.
In December
1993 a White Paper was published entitled
"Compensating
Victims of Violent Crime: Changes to the Criminal
Injuries
Compensation Scheme" (Cm. 2434). The White Paper
gave details of a
proposed tariff scheme under which awards would
be based upon a tariff
according to the injuries received without
any separate or additional payments
being made for loss of
earnings or other past or future expenses. The White
Paper drew
attention to the rise in the number of awards and cost of the
old
scheme and concluded that the new scheme would be more readily
understood
and enable claimants to receive their compensation more
quickly and in a
more straightforward manner. It also pointed out
that the cost of
administration should come down and that
claimants should receive a better
service.
Paragraphs 38 and 39 of the White Paper stated as follows:
"38.
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.
39. The new
scheme, like the present one, will at least initially
be
non-statutory and payments will continue to be made on an
ex-
gratia basis. Consideration will, however, be given to
putting
the scheme on a statutory basis once it has had time to
settle
down and any teething problems have been resolved."
The new,
non-statutory scheme ("the tariff scheme") was published
on
9 March 1994. On 16 March 1994 the respondent trades unions
issued a
notice of application for leave to apply for judicial
review of
the continuing decision of the
Secretary of State not to bring
into force sections 108 to 117 of
and Schedules 6 and 7 to the
Act of 1988 and
the decision of the Secretary of
State to implement the tariff
scheme.
- 5 -
On 22 March
1994 leave to apply for judicial review was granted and the
Secretary
of State gave an assurance that no individual claimant would
be
prejudiced and no final award would be made to any claimant
pending the
matter being resolved in the courts. It was on the
basis of that assurance that
the applicants agreed not to press
for interim relief.
The tariff
scheme came into force on 1 April 1994 and contained
transitional
provisions whereby applications for compensation received by
the
Criminal Injuries Compensation Board (the Board which
administered the old
scheme) before 1 April 1994 would be dealt
with according to the provisions
of the old scheme; applications
received by the Board on or after 1 April
1994 would be dealt with
under the terms of the tariff scheme. The new tariff
scheme
involves the phasing out of the old Board and the creation of a
new
Criminal Injuries Compensation Authority to administer the
tariff scheme.
The tariff scheme provides for the making of awards
to the victims of crime,
assessed by reference to a scale of fixed
tariffs, according to the severity of
the injuries sustained and
without taking into account the circumstances of the
individual
case or common law principles governing the assessment of
damages.
The tariff scheme departs from the basic principles of the old
scheme
and the statutory scheme in that:
the assessment of compensation is
no longer based upon
common law principles;
awards are assessed according to
a fixed scale of tariffs,
without account being taken of the
individual circumstances of
the victim;
awards are made on behalf of the
Authority by persons who
need not be qualified lawyers, although
qualified lawyers may
be involved in the hearing of appeals.
It is common
ground that in some cases, particularly in relation to very
serious
injuries involving prolonged loss of earnings, the amount payable
to
the victim under the tariff scheme will be substantially less
than the amount
he would have received under the old scheme or the
statutory scheme.
On 23 May 1994,
the substantive hearing of the application for judicial
review
came before the Queen's Bench Divisional Court (Staughton L.J.
and
Buckley J.) who refused to make an order. The Court of Appeal
(Sir Thomas
Bingham M.R. and Morritt L.J., Hobhouse L.J.
dissenting) allowed an appeal
against that decision but for
differing reasons: [1995] 2 W.L.R. 1. As to the
first ground of
application (viz. that the Secretary of State was in breach of
duty
under section 171 of the 1988 Act in failing to bring the statutory
scheme
into effect) the Master of the Rolls held that section
171(1) did impose such
a duty on the Secretary of State but that
he was not shown to have been in
breach of that duty. Hobhouse and
Morritt L.JJ. held that section 171
imposed no such duty on the
Secretary of State. In the result, the Court of
-6-
Appeal were
unanimous in refusing any relief on the first ground claimed:
this
decision is the subject of a cross-appeal by the applicants. As to
the
second claim for relief (viz. did the Secretary of State act
unlawfully in
introducing the tariff scheme?) the Master of the
Rolls and Morritt L.J. held
that the Secretary of State by
implementing the tariff scheme acted unlawfully
and in abuse of
his prerogative powers; Hobhouse L.J. held that the Secretary
of
State had acted lawfully. The Secretary of State appeals against
that
decision on the second issue.
Interlinked decisions
Although the
application for judicial review identifies for attack two
decisions
by the Secretary of State, in reality the Secretary of State
made
either a number of interlocking decisions or one composite
decision having a
number of strands. In order to reach a position
in which the new prerogative
tariff scheme should come into
operation on a permanent basis without
Parliament repealing the
statutory scheme contained in the Act of 1988, the
Secretary of
State had to take all the following steps:
resolve not to exercise either
immediately or in the future the
power or duty conferred on him
by section 171(1) to bring the
statutory scheme into effect;
discontinue under prerogative
power the old, non-statutory,
scheme which was in operation down
to 1 April 1994; and
introduce under prerogative powers the new tariff scheme.
The second of
those steps is not directly attacked by the application for
judicial
review. But in my judgment that is not material since all three
steps
are inextricably interlinked and the legality of the
decision to introduce the
new tariff scheme must depend, at least
in part, on the legality of steps 1 and
2. I propose therefore to
consider first the cross-appeal and the true effect
of section 171
of the 1988 Act before returning to the subject matter of the
appeal.
Does section 171(1) impose a duty or a power on the Secretary of State ?
Duty
It is of
central importance in this case that section 171(1) of the Act
of
1988 (providing that, inter alia, the statutory scheme "shall
come into force
on such day as the Secretary of State may . . .
appoint") is itself in force. It
is the applicants' case
that, although the section confers a discretion as to the
date on
which the statutory scheme is to be brought into force, it in
addition
imposes on him a statutory duty to bring the sections
into force at some time.
In the cryptic formulation of Mr. Elias,
the Secretary of State has a discretion
as to when but not
whether the sections are to come into force. The Lord
-7-
Advocate, on
the other hand, contends that section 171(1) confers on the
Secretary
of State an absolute and unfettered discretion whether or not to
bring
the sections into force. I do not accept either of these
propositions.
The form of
words to be found in section 171(1) is used in many
statutes where
Parliament considers, for one reason or another, that it
is
impossible to specify a day for the statutory provisions
enacted to come into
force. Therefore although the case before
your Lordships turns on the
construction of section 171(1) it
cannot be construed in isolation. Such a
widely used statutory
formula must have the same effect wherever Parliament
employs it.
The words of section 171(1) are consistent only with the
Secretary
of State having some discretion: indeed even the applicants
concede
that he has a discretion. What is it then which suggests
that there will come
a time when that discretion is exhausted and
that, whatever the change of
circumstances since the sections in
question were passed by the Queen in
Parliament, the Secretary of
State becomes bound to bring the sections into
force? I can see
nothing in the Act which justifies such an implied restriction
on
the discretion. Moreover I can foresee circumstances in which it
would
plainly be undesirable for the Secretary of State to be
under any such duty.
Take, as an example, Part I of the Act of
1988 which introduced new
provisions as to extradition. Part I of
the Act was also to be brought into
force by the Secretary of
State under section 171(1). Say, further, that there
was a
subsequent extradition treaty which rendered the provisions of Part
I
inappropriate. It cannot be right that, notwithstanding such
change of
circumstances, the Secretary of State should then be
under a duty to bring into
force inappropriate legislation. Where
Parliament intends to impose a duty on
a Minister to bring
legislation into force under a similar formula, it expressly
states
the time-limit within which such power is to be exercised: see
section
5(2) of the Domestic Violence and Matrimonial Proceedings
Act 1976.
Further, if the
argument of the applicants is right, there must come a
time when
the Secretary of State comes under a duty to bring the
statutory
provisions into force and accordingly the court could
grant mandamus against
the Secretary of State requiring him to do
so. Indeed, the applicants originally
sought such an order in the
present case. In my judgment it would be most
undesirable that, in
such circumstances, the court should intervene in the
legislative
process by requiring an Act of Parliament to be brought into
effect.
That would be for the courts to tread dangerously close to
the area over which
Parliament enjoys exclusive jurisdiction,
namely the making of legislation.
In the absence of clear
statutory words imposing a clear statutory duty, in my
judgment
the court should hesitate long before holding that such a
provision
as section 171(1) imposes a legally enforceable
statutory duty on the Secretary
of State.
Power
It does not
follow that, because the Secretary of State is not under any
duty
to bring the section into effect, he has an absolute and unfettered
- 8 -
discretion
whether or not to do so. So to hold would lead to the conclusion
that
both Houses of Parliament had passed the Bill through all its stages
and
the Act received the Royal Assent merely to confer an enabling
power on the
executive to decide at will whether or not to make
the parliamentary
provisions a part of the law. Such a conclusion,
drawn from a section to
which the sidenote is "Commencement",
is not only constitutionally dangerous
but flies in the face of
common sense. The provisions for bringing sections
into force
under section 171(1) apply not only to the statutory scheme but
to
many other provisions. For example, the provisions of Parts I,
II and III
relating to extradition, documentary evidence in
criminal proceedings and
other evidence in criminal proceedings
are made subject to the same
provisions. Surely, it cannot have
been the intention of Parliament to leave
it in the entire
discretion of the Secretary of State whether or not to effect
such
important changes to the criminal law. In the absence of
express
provisions to the contrary in the Act, the plain intention
of Parliament in
conferring on the Secretary of State the power to
bring certain sections into
force is that such power is to be
exercised so as to bring those sections into
force when it is
appropriate and unless there is a subsequent change of
circumstances
which would render it inappropriate to do so.
If, as I think,
that is the clear purpose for which the power in section
171(1)
was conferred on the Secretary of State, two things follow. First,
the
Secretary of State comes under a clear duty to keep under
consideration from
time to time the question whether or not to
bring the section (and therefore the
statutory scheme) into force.
In my judgment he cannot lawfully surrender
or release the power
contained in section 171(1) so as to purport to exclude
its future
exercise either by himself or by his successors. In the course
of
argument, the Lord Advocate accepted that this was the correct
view of the
legal position. It follows that the decision of the
Secretary of State to give
effect to the statement in paragraph 38
of the White Paper (Cm. 2434) that
"the provisions in the Act
of 1988 will not now be implemented" was
unlawful. The Lord
Advocate contended, correctly, that the attempt by the
Secretary
of State to abandon or release the power conferred on him by
section
171(1), being unlawful, did not bind either the present Secretary
of
State or any successor in that office. It was a nullity. But,
in my judgment,
that does not alter the fact that the Secretary of
State made the attempt to bind
himself not to exercise the power
conferred by section 171(1) and such
attempt was an unlawful act.
There is a
second consequence of the power in section 171(1) being
conferred
for the purpose of bringing the sections into force. As I have
said,
in my view the Secretary of State is entitled to decide not
to bring the sections
into force if events subsequently occur
which render it undesirable to do so.
But if the power is
conferred on the Secretary of State with a view to bringing
the
sections into force, in my judgment the Secretary of State cannot
himself
procure events to take place and rely on the occurrence of
those events as the
ground for not bringing the statutory scheme
into force. In claiming that the
introduction of the new tariff
scheme renders it undesirable now to bring the
- 9 -
statutory
scheme into force, the Secretary of State is, in effect, claiming
that
the purpose of the statutory power has been frustrated by his
own act in
choosing to introduce a scheme inconsistent with the
statutory scheme
approved by Parliament.
The lawfulness of the decision to introduce the tariff scheme
The tariff
scheme, if validly introduced under the Royal Prerogative,
is both
inconsistent with the statutory scheme contained in sections 108 to
117
of the Act and intended to be permanent. In practice, the
tariff scheme
renders it now either impossible or at least more
expensive to reintroduce the
old scheme or the statutory enactment
of it contained in the Act of 1988. The
tariff scheme involves the
winding-up of the old Criminal Injuries
Compensation Board
together with its team of those skilled in assessing
compensation
on the common law basis and the creation of a new body, the
Criminal
Injuries Compensation Authority, set up to assess compensation on
the
tariff basis at figures which, in some cases, will be very
substantially less
than under the old scheme. All this at a time
when Parliament has expressed
its will that there should be a
scheme based on the tortious measure of
damages, such will being
expressed in a statute which Parliament has neither
repealed nor
(for reasons which have not been disclosed) been invited to
repeal.
My Lords, it
would be most surprising if, at the present day,
prerogative
powers could be validly exercised by the executive so as to
frustrate
the will of Parliament expressed in a statute and, to an extent,
to
pre-empt the decision of Parliament whether or not to continue
with the
statutory scheme even though the old scheme has been
abandoned. It is not
for the executive, as the Lord Advocate
accepted, to state as it did in the
White Paper that the
provisions in the Act of 1988 "will accordingly be
repealed
when a suitable legislative opportunity occurs". It is for
Parliament,
not the executive, to repeal legislation. The
constitutional history of this
country is the history of the
prerogative powers of the Crown being made
subject to the
overriding powers of the democratically elected legislature as
the
sovereign body. The prerogative powers of the Crown remain in
existence
to the extent that Parliament has not expressly or by
implication extinguished
them. But under the principle in
Attorney-General v. De Keyser's Royal Hotel
Ltd. [1920] AC 508, if Parliament has conferred on the executive statutory
powers
to do a particular act, that act can only thereafter be done under
the
statutory powers so conferred: any pre-existing prerogative
power to do the
same act is pro tanto excluded.
How then is it
suggested that the executive has power in the present
case to
introduce under the prerogative power a scheme inconsistent with
the
statutory scheme? First, it is said that since sections 108 to
117 of the Act are
not in force, they confer no legal rights on
the victims of crime and impose
no duties on the Secretary of
State. The De Keyser principle does not apply
since it only
operates to the extent that Parliament has conferred statutory
- 10 -
powers which in
tact replace pre-existing powers: unless and until the
statutory
provisions are brought into force, no statutory powers have
been
conferred and therefore the prerogative powers remain.
Moreover, the
abandonment of the old scheme and the introduction
of the new tariff scheme
does not involve any interference by the
executive with private rights. The
old scheme, being a scheme for
ex gratia payments, conferred no legal rights
on the victims of
crime. The new tariff scheme, being also an ex gratia
scheme,
confers benefits not detriments on the victims of crime. How can
it
be unlawful to confer benefits on the citizen, provided that
Parliament has
voted the necessary funds for that purpose?
In my judgment,
these arguments overlook the fact that this case is
concerned with
public, not private, law. If this were an action in which some
victim
of crime were suing for the benefits to which he was entitled under
the
old scheme, the arguments which I have recited would have been
fatal to his
claim: such a victim has no legal right to any
benefits. But these are
proceedings for judicial review of the
decisions of the Secretary of State in the
discharge of his public
functions. The well known passage in the speech of
Lord Diplock in
the G.C.H.Q. case, Council of Civil Service Unions v.
Minister
for the Civil Service [1985] AC 374 at 408-410, demonstrates
two
points relevant to the present case. First, an executive
decision which affects
the legitimate expectations of the
applicant (even though it does not infringe
his legal rights) is
subject to judicial review. Second, judicial review is as
applicable
to decisions taken under prerogative powers as to decisions
taken
under statutory powers save to the extent that the legality
of the exercise of
certain prerogative powers (e.g. treaty making)
may not be justiciable.
The G.C.H.Q.
case demonstrates that the argument based on the ex
gratia and
voluntary nature of the old scheme and the tariff scheme
is
erroneous. Although the victim of a crime committed immediately
before the
White Paper was published had no legal right to receive
compensation in
accordance with the old scheme, he certainly had a
legitimate expectation that
he would do so. Moreover, he had a
legitimate expectation that, unless there
were proper reasons for
further delay in bringing sections 108 to 117 of the
Act into
force, his expectations would be converted into a statutory right.
If
those legitimate expectations were defeated by the composite
decision of the
Secretary of State to discontinue the old scheme
and not to bring the statutory
scheme into force and those
decisions were unlawfully taken, he has locus
standi in
proceedings for judicial review to complain of such illegality.
Similar
considerations apply when considering the legality of the
minister's
decisions. In his powerful dissenting judgment in the Court
of
Appeal, Hobhouse L.J. decided that, since the statutory
provisions had not
been brought into force, they had no legal
significance of any kind. He held,
in my judgment correctly, that
the De Keyser principle did not apply to the
present case:
since the statutory provisions were not in force they could not
have
excluded the pre-existing prerogative powers. Therefore the
prerogative
powers remained. He then turned to consider whether it
could be said that the
- 11 -
Secretary of
State had abused those prerogative powers and again approached
the
matter on the basis that since the sections were not in force they
had no
significance in deciding whether or not the Secretary of
State had acted
lawfully. I cannot agree with this last step. In
public law the fact that a
scheme approved by Parliament was on
the statute book and would come into
force as law if and when the
Secretary of State so determined is in my
judgment directly
relevant to the question whether the Secretary of State could
in
the lawful exercise of prerogative powers both decide to bring in the
tariff
scheme and refuse properly to exercise his discretion under
section 171(1) to
bring the statutory provisions into force.
I turn then to
consider whether the Secretary of State's decisions were
unlawful
as being an abuse of power. In this case there are two powers
under
consideration: first, the statutory power conferred by
section 171(1); second,
the prerogative power. In order first to
test the validity of the exercise of the
prerogative power, I will
assume that the Act of 1988, instead of conferring
a discretion on
the Secretary of State to bring the statutory scheme into effect,
had
specified that it was to come into force one year after the date of
the
Royal Assent. As Hobhouse L.J. held, during that year the De
Keyser
principle would not apply and the prerogative powers
would remain
exercisable. But in my judgment it would plainly have
been an improper use
of the prerogative powers if, during that
year, the Secretary of State had
discontinued the old scheme and
introduced the tariff scheme. It would have
been improper because
in exercising the prerogative power the Secretary of
State would
have had to have regard to the fact that the statutory scheme
was
about to come into force: to dismantle the machinery of the
old scheme in the
meantime would have given rise to further
disruption and expense when, on
the first anniversary, the
statutory scheme had to be put into operation. This
hypothetical
case shows that, although during the suspension of the coming
into
force of the statutory provisions the old prerogative powers continue
to
exist, the existence of such legislation basically affects the
mode in which such
prerogative powers can be lawfully exercised.
Does it make
any difference that the statutory provisions are to come
into
effect, not automatically at the end of the year as in the
hypothetical case
I have put, but on such day as the Secretary of
State specifies under a power
conferred on him by Parliament for
the purpose of bringing the statutory
provisions into force? In my
judgment it does not. The Secretary of State
could only validly
exercise the prerogative power to abandon the old scheme
and
introduce the tariff scheme if, at the same time, he could validly
resolve
never to bring the statutory provisions and the
inconsistent statutory scheme
into effect. For the reasons I have
already given, he could not validly so
resolve to give up his
statutory duty to consider from time to time whether to
bring the
statutory scheme into force. His attempt to do so, being a
necessary
part of the composite decision which he took, was itself
unlawful. By
introducing the tariff scheme he debars himself from
exercising the statutory
power for the purposes and on the basis
which Parliament intended. For these
reasons, in my judgment the
decision to introduce the tariff scheme at a time
- 12 -
when the
statutory provisions and his power under section 171(1) were on
the
statute book was unlawful and an abuse of the prerogative
power.
I should add
for completeness that the Lord Advocate accepted that if
the
decision to introduce the tariff scheme was unlawful the fact
that
Parliament, in the Appropriation Act 1994, had voted the
funds necessary to
implement it could not cure that invalidity.
For these reasons, I would dismiss the appeal and the cross appeal.
LORD MUSTILL
My Lords,
This appeal
turns on certain important but narrow constitutional issues,
which
form part of a wider debate on the relationship between
Parliament,
ministers, the courts and the private citizen.
I.
Thirty-one
years ago the Government of the day established a scheme
to
compensate out of public funds the victims of criminal violence.
The
scheme was brought into existence through the exercise of the
Royal
Prerogative, and the payments were made ex gratia; that is,
there was no
statutory authority for the scheme, although the
necessary funds were voted
annually by Parliament, and the victims
had no right in law to claim payment.
Compensation was given in
the shape of a lump sum arrived at in the same
way as a civil
award of damages for personal injury caused by a tort, subject
to
an upper limit on the amount attributable to loss of earnings. The
scheme
was administered by the Criminal Injuries Compensation
Board, comprising
a chairman and a panel of Queen's counsel and
solicitors.
At first, the
scheme operated on a modest scale, but by 1978 the
number of
awards had increased twelvefold. In that year, the Royal
Commission
on Civil Liability and Compensation for Personal Injury
recommended,
in Chapter 29 of its Report (Cmnd. 7054-1), that compensation
for
criminal injuries should continue to be based on tort damages, but
that the
scheme, which had originally been experimental, should
now be put on a
statutory basis. The Government however preferred
to wait until more
experience had been gained. Although as the
years passed some important
changes were made, the scheme retained
its original shape. But its scale and
cost remorselessly
increased. In its first year the board had paid out
£400,000.
By 1984 the annual amount had risen to more than £35
million,
and the backlog was approaching fifty thousand claims.
- 13 -
At this point
the Government decided that the time had come to put the
scheme
into statutory form, and appointed an Interdepartmental Working
Party
to consider how it should be done. The Working Party made
numerous
recommendations, largely accepted by the Government. The
most important
was that compensation should continue to be given
to the victims of criminal
violence on the basis of civil damages.
Accepting this amongst other
recommendations the Secretary of
State for the Home Department (Mr.
Douglas Hurd) announced in
Parliament that legislation would be introduced
accordingly, and
that considerable extra public funds would be made available.
Within
a few years the promised legislation materialised in the shape of
Part
Vll of the Criminal Justice Act 1988 (sections 108 to 117)
together with the
dependent Schedules 6 and 7. When brought into
force, the scheme would be
administered by a statutory board,
appointed by the Secretary of State, being
a body corporate
declared not to be a servant or agent of the Crown (Schedule
6,
paragraph 1). The expenses incurred by the Board in the discharge of
its
functions would be defrayed by the Secretary of State
(Schedule 6, paragraph
7). Subject to certain exceptions and
limitations, claims for compensation
were to be determined, and
the amounts payable assessed, in accordance with
the laws of
England and Wales or Scotland by which a claim in tort or
delict
arising out of the same facts would fall to be determined
(Schedule 7,
paragraph 8). There would be a right of appeal from a
determination of the
Board to the High Court or the Court of
Session (section 113).
For present
purposes nothing turns on the details of the compensation
scheme
itself. The important provision is section 171, which governs
the
implementation of the numerous important changes in criminal
law and
practice brought about by the Act as a whole. So far as
material it reads as
follows:
"(1)
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 bv statutory instrument appoint and
different
days may be appointed in pursuance of this subsection
for
different provisions or different purposes of the same
provision.
An order under this section may
make such transitional
provision as appears to the Secretary of
State to be necessary
or expedient in connection with any
provision thereby brought
into force other than a provision
contained in sections 108 to
117 above or in Schedule 6 or 7 to
this Act.
The Secretary of State may by
regulations made by statutory
instrument make such provision as
he considers necessary or
expedient in preparation for or in
connection with the coming
into force of any provision contained
in those sections or
Schedules.
- 14-
A statutory instrument containing
any such regulations shall be
subject to annulment in pursuance
of a resolution of either
House of Parliament.
The following provisions shall
come into force on the day this
Act is passed—
. . .
(6) The following provisions-
. . .
shall come into
force at the end of the period of two months beginning
with the
day this Act is passed."
The words
emphasised form the crux of this dispute. They apply, not
only to
the compensation scheme, but also to the provisions of Parts I to
IV,
VI, and IX of the Act, which are concerned with quite
different subjects.
Step by step, during the intervening years,
they have all (with a few scattered
exceptions) been brought into
force. Only Part VII stands isolated, awaiting
the appointment of
a day.
In the years
immediately following the passing of the Act it seemed
probable
that, whether or not the statutory scheme took effect,
the
compensation regime would continue much as before; and indeed
as recently
as December 1991 the Secretary of State (Mr. Kenneth
Baker) announced to
Parliament an increase in the lower limit of
entitlement, without suggesting
that the general principles of the
scheme might be under reconsideration.
However, in the light of
what was to happen later it may be significant that
he took the
opportunity to report even greater increases in the amounts of
the
annual payments and the costs of running the scheme.
At all events,
during the following year the Government changed their
mind. On
23rd November 1992 the Secretary of State (Mr. Kenneth Clarke)
gave
notice of an intention to replace the existing scheme with a new
tariff
scheme, with effect from 1994, and this was followed in
December 1993 by
a White Paper (Cm. 2434) "Compensating
victims of violent crime: changes
to the Criminal Injuries
Compensation Scheme", presented to Parliament by
the
Secretary of State for the Home Department (Mr. Michael Howard)
and
the Secretary of State for Scotland (Rt. Hon. Ian Lang, M.P.).
Since your
Lordships are not concerned in any way with the merits
or otherwise of the
decision to change the entire shape of the
scheme there is no need to describe
the new arrangements in
detail. The following extracts from the White Paper
will show what
was proposed.
"10.
There is no obvious or logical way of matching a particular
sum of
money precisely to the degree of pain and hurt suffered
- 15 -
by an injured
person. Even under common law damages the
award of damages is not
an exact science. Judgments tend to
be made pragmatically on the
facts of the case and with regard
to precedent. But the assessment
is essentially subjective and
any amount awarded must to some
extent be regarded as
artificial. There is no exactly right
answer.
. . .
12. Such
factors have been major elements in the consideration that
led the
Government to decide that awards based on common
law damages are
no longer appropriate for a state financed
compensation scheme.
Since there is no absolute or right
figure for an award, the
Government does not consider it
appropriate to attempt the very
difficult and time-consuming
task of trying to assign a precisely
calculated but essentially
arbitrary sum to the injury suffered
.... The new system will
accordingly be based on a tariff or scale
of awards under which
injuries of comparable severity will be
grouped together in
bands for which a single fixed payment is
made. This means
that people with, similar injuries will get the
same payment.
. . .
21. Under
the current scheme loss of earnings and costs of future
medical
care can be paid as separate heads of damage. That is
a feature of
the common law system, though the necessary
calculations can often
prove to be very difficult and time
consuming to make. The tariff
scheme will, however, break
the link with common law damages; and
the aim will no
longer be to provide finely calculated
'compensation' as such.
Instead a simple lump sum award related to
the severity of the
injury will be paid. That removes the
subjective element of
assessment and substitutes a more objective
test which is easier
to apply.
. . .
The severance of the link to
common law damages and the
introduction of a straightforward
tariff scheme, under which
payments are made from a scale of
awards related to the nature
of the injury, means that the
specialist skills of senior lawyers
with experience of personal
injury casework will no longer be
needed and that cases can be
decided administratively. There
will accordingly be no longer
term role for the present Board
to play under the tariff
arrangements.
. . .
- 16 -
... If the applicant is
dissatisfied with the initial decision he
may request
reconsideration of his case by the Criminal Injuries
Compensation
Authority. This will be an internal review of the
case
conducted by a more senior member of
the
administration. . .
If the claimant remains
dissatisfied after this review of his case,
he will be able to
appeal to an appeals panel independent of
both the C.I.C.A. and
the Secretary of State ....
. . .
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.
The new scheme, like the present
one, will at least initially be
non-statutory and payments will
continue to be made on an ex-
gratia basis. Consideration will,
however, be given to putting
the scheme on a statutory basis once
it has had time to settle
down and any teething problems have
been resolved."
The general
shape of the proposed scheme is thus quite clear. It will
be
entirely different in principle and practice both from the
present
arrangements and from those contemplated by the Act of
1988. The statutory
scheme is treated as redundant, and the
intention is to persuade Parliament to
remove it from the statute
book. Meanwhile, the Minister is presently
resolved not to
exercise his power under section 171(1) to bring Part VII into
force.
II.
The
Government's radical change of course has engendered
much
controversy, both within Parliament and outside. Your
Lordships are not
concerned with events in Parliament, and with
only one aspect of the public
debate, namely the proceedings for
judicial review instituted by the present
respondents, eleven
trades unions and similar bodies, whose members are
liable in the
course of their duties to suffer personal injury as a result
of
criminal violence. It is important to state in full the relief
claimed by the
respondents in their notice of application for
leave to apply for judicial
review:
- 17 -
"(1) A
Declaration that the Secretary of State by failing or refusing
to
bring into force sections 107 to 117, and Schedules 6 and 7
of the
1988 Act, has acted unlawfully in breach of his duty
under the
1988 Act;
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;
Mandamus, to order the Secretary
of State, in accordance with
section 171 of the 1988 Act, to
bring into force by statutory
instrument sections 108 to 117 and
Schedules 6 and 7 of the
1988 Act;
An Injunction, to prevent the
Secretary of State from bringing
the Tariff Scheme into effect
from 1st April 1994."
It is also
convenient to quote the grounds of application given by
the
respondents in their Notice, since they are in substance those
maintained in
their arguments before the House:
"30.
... the Secretary of State has acted unlawfully, ultra vires
and
in breach of his duty under section 171 of the 1988 Act, in
that:
(i) he has
delayed the implementation of the Statutory
Scheme without a good
or proper purpose;
(ii) he
has announced in Parliament and in the White Paper
that it is his
intention not to perform his statutory duty
to implement the
Statutory Scheme;
(iii) he has
decided to implement, and has published the
details of, the Tariff
Scheme which is wholly
inconsistent with the statutory scheme
passed by
Parliament;
(iv) he has
thereby sought to frustrate both the will of
Parliament and the
purposes of the relevant provisions
of the 1988 Act.
31.
Further or in the alternative, in implementing and publishing
the
new scheme in the manner aforesaid, the Secretary of State
has
abused his common law powers."
On 22 March
1994 leave to apply for judicial review was granted by
Owen J.
Upon the Secretary of State giving an assurance that no
individual
claimant would be prejudiced and no final award would
be made to any
- 18 -
claimant
pending the matter being resolved in the courts or by this House,
the
applicants did not press for interim relief to stay the
implementation of the
tariff scheme pending the outcome of the
proceedings.
On 23 May 1994
the Divisional Court (Staughton L.J. and Buckley J.)
refused all
relief. On appeal the Court of Appeal was divided in opinion.
Indeed,
the fact that the three cogent judgments delivered, each of
them
convincing when read in isolation, were not unanimous on
either issue shows
the difficulty of this important case. On the
first issue Hobhouse and Morritt
L.JJ. held that there was no duty
to implement the statutory scheme. Sir
Thomas Bingham M.R. arrived
at the same conclusion, but by a different
route, holding (at p. 8
C-G [1985] 2 W.L.R.) that:
"In my
opinion the effect of section 171(1) was to impose a legal duty
on
the Secretary of State to bring the provisions into force as soon
as
he might properly judge it to be appropriate to do so. In
making that
judgment he would be entitled to have regard to all
relevant factors.
These would plainly include the time needed to
make preparations and
prepare subordinate legislation. They would
also include the request
initially made (although not persisted
in) by the Chairman of the non-
statutory Board to delay
implementation. They would also in my
opinion include (and here I
part company from the applicants) the
escalating cost of the
non-statutory and the enacted statutory scheme;
if it appeared
that the cost would be much greater than Parliament
envisaged when
the provisions were debated and approved, or if since
that time
economic expectations had significantly declined, these would
be
factors which a prudent Secretary of State could not be expected
to
ignore and they could in my judgment provide good grounds for
delay
in the exercise of the power to bring the sections into
force."
The Master of
the Rolls went on to hold that the rapidly increasing cost
of the
scheme provided reasons for delay and that there was accordingly
no
breach of duty on the facts.
On the second
issue, the court was again divided. The Master of the
Rolls and
Morritt L.J. held that the Secretary of State had acted
unlawfully
and abused his prerogative and common law powers by
introducing a scheme
radically different from what Parliament had
approved whilst the relevant
provisions of the Act stood
unrepealed. Hobhouse L.J. was of the opposite
opinion, essentially
on the grounds that the new scheme could not be contrary
to law
since the statutory scheme was not yet law, and that the Secretary
of
State had by virtue of a grant in aid under the Appropriation
Act of 1994
directed specifically to the Criminal Injuries
Compensation Authority a
mandate to spend money on the new scheme.
The Secretary
of State now appeals against the decision of the majority
in the
Court of Appeal that he had abused his powers by introducing the
new
scheme in face of Part VII and the two Schedules, and the
applicants cross-
- 19 -
appeal against
the ruling (unanimous in the result, but not as to the
reasoning)
that the Secretary of State was not in breach of duty
by declining to bring Part
VII into force.
III.
It will be seen
that two, and only two, aspects of the controversy are
before the
court. The proceedings call in question first the announcement
that
Part VII of the Act of 1988 will not be brought into force
(at any rate during
the lifetime of the present Government), and
secondly the plan to pre-empt the
unimplemented statutory scheme
by installing a wholly different regime. It
is with these
challenges, and with these alone, that the Appellate
Committee,
reporting to your Lordships' House in its judicial
capacity, can be concerned.
My Lords, I put
the matter in this way to emphasise that although the
issues
arising on the appeal are of great constitutional importance they
are
limited in range. The present appeal is directly concerned
only with the
relationship between the executive and the public.
Save to the extent
necessary for a ruling upon the lawfulness of
what the Secretary of State has
said and done the Appellate
Committee has no competence to express any
opinion on the
relationship between the executive and Parliament. By way of
example,
stress was laid by the applicants on the statement in the White
Paper
(Cm. 2434, paragraph 38) that the provisions of the Act of
1988 relating to
compensation for criminal injuries "... will
accordingly be repealed when
a suitable legislative opportunity
occurs" as demonstrating at the best a
forgetfulness that it
is Parliament, not the Secretary of State or a Government,
which
decides whether an existing enactment shall be repealed. This may
be
so, or it may not, but it is of no consequence here. If the
attitude of the
Secretary of State is out of tune with the proper
respect due to parliamentary
processes this is a matter to which
Parliament must attend. It is true that in
some cases the frame of
mind in which a Minister approaches the exercise of
a statutory or
common law discretion may be relevant to the lawfulness of
his
decision. But this is not such an occasion. It is not
suggested that the
Secretary of State has acted in bad faith,
simply that when his duties under
statute and at common law are
properly understood it can be seen that what
he has done, omitted
to do and proposed to do are contrary to law. Criticisms
of the
manner, rather than the matter, of his actions are for political
debate,
not legal argument.
Equally, your
Lordships are not concerned in your appellate capacity
to inquire
whether the Secretary of State's decisions were sound. The task
of
the courts is to ensure that powers are lawfully exercised by
those to whom
they are entrusted, not to take those powers into
their own hands and exercise
them afresh. A claim that a decision
under challenge was wrong leads
nowhere, except in the rare case
where it can be characterised as so obviously
and grossly wrong as
to be irrational, in the lawyers' sense of the word, and
hence a
symptom that there must have been some failure in the
decision-
making process. No such proposition is advanced here,
nor could it have
- 20 -
been; for,
whatever their rights and wrongs, if the decisions manifested by
the
Secretary of State's words and actions are otherwise lawful it is
impossible
to say that no decision-maker acting rationally could
have arrived at them.
Once again, it is for Parliament to
intervene if it finds the new policies
unacceptable.
My Lords, I
have begun in this way because the narrow focus of the
inquiry is
blurred if factors, highly relevant in a wider perspective but
not
germane to the questions of law for decision, are allowed to
intrude. In broad
terms, these questions are as follows.
First, does
section 171(1) impose on the Secretary of State a legally
enforceable
duty to bring into force all the provisions of the Act to which
it
applies, including Part VII? If so, what considerations are
relevant to
determining when the duty must be performed? Was the
announcement that
Part VII would not be implemented a separate
breach of duty? Second, was
either the winding up of the existing
scheme or the inauguration of the new
scheme, or both, (a) a
breach of a duty created by section 171(1), or (b) an
abuse of the
prerogative power?
IV.
I will begin
with the first question, since in my opinion the answer to
it is
an essential starting-point for consideration of the second. It is
common
ground that this part of the dispute turns on the
interpretation of section
171(1). There are I believe three
possible meanings. The first is that the
Secretary of State has no
obligations at all as regards the implementation of
the sections
to which it applies; his discretion is entirely free from
control.
This need not be considered at length, for the Lord
Advocate does not propose
it, and indeed it must be unsound.
Parliament cannot have intended that the
Minister could simply
ignore the power, or exercise it for his own personal
advantage.
He must give consideration to the exercise of the power, and do
so
in good faith.
At the other
extreme is the interpretation for which the applicants
contend,
that the Secretary of State is under a legally enforceable
obligation
to bring the relevant sections into force, not
immediately— for that would be
absurd— but as soon is
it is administratively practicable to do so. For this
purpose, so
they maintain, questions such as financial and political
feasibility
must be left entirely out of account. I am quite
unable to accept that
Parliament can have intended to hamstring
the discretion in such a mechanical
and unrealistic way.
Parliamentary Government is a matter of practical
politics.
Parliament cannot be taken to have legislated on the assumption
that
the general state of affairs in which it was thought
desirable and feasible to
create the power to bring a new regime
in effect will necessarily persist in the
future. Further study
may disclose that the scheme has unexpected
administrative flaws
which would make it positively undesirable to implement
it as
enacted, or (for example) it might happen that a ruling of the
European
- 21 -
Court of Human
Rights would disclose that persistence with the scheme
would
contravene the international obligations of the United
Kingdom. Financial
circumstances may also change, just as the
Secretary of State maintains that
they have changed in the present
case: the scheme may prove unexpectedly
expensive, or a
newly-existing or perceived need for financial stringency may
leave
insufficient resources to fund public expenditures which might
otherwise
be desirable. I cannot attribute to Parliament an
intention that all the
provisions of this Act falling within
section 171(1), not limited as we have
seen to the criminal
injuries scheme, and all the relevant provisions of the
numerous
other statutes in which a similar formula is used, will be
brought
inexorably into effect as soon as it is physically
possible to do so, even if the
country can no longer afford them.
A less extreme
version of this submission, albeit one which would not
yield
success for the applicants in the present dispute, is that the
Secretary of
State is entitled and bound to take into account all
relevant considerations,
including financial practicability, but
that as soon as it becomes feasible in
the more general sense to
do so he is compelled to appoint a day. My Lords,
I am constrained
to hold that this alternative must also be rejected, for more
than
one reason. In the first place, it postulates that instead of
reserving to
itself the power, through the use of its own methods,
to ensure that ministers
do not delay unduly in the appointment of
a day, Parliament has chosen to
create and through the medium of
section 117(1) has expressed in the Act, a
duty owed to the public
at large and capable of enforcement in the courts.
If this is
right, it must follow inevitably that though there is implicit
in
section 171(1) a surrender by Parliament to the courts of a power not
only
to investigate whether the Secretary of State in failing to
appoint a day and
hence to bring primary legislation into force
has acted in a way which is, in
a legal sense, irrational but
also, if all else fails, and if the Secretary of State
is obdurate
in the face of a declaration as to the true legal position, to
make
an order of mandamus against him, backed by the threat of
imprisonment.
That this is indeed the consequence of the
applicants' submission is shown by
the fact that just such an
order forms part of the relief claimed in these
proceedings. For
the courts to grant relief of this kind would involve a
penetration
into Parliament's exclusive field of legislative activity far
greater
than any that has been contemplated even during the rapid
expansion of
judicial intervention during the past twenty years.
Recalling that your
Lordships, in your appellate capacity, are
concerned when dealing with the
first question brought before them
solely with a question of statutory
interpretation it must be
asked whether Parliament, jealous as it is of its
prerogatives and
possessed as it is of its own special means to scrutinise and
control
the actions of Ministers, can have intended to create, through
the
medium of section 171(1) any such rights and remedies. I do
not believe that
it can.
The second
reason is that a legal regime of this kind would be so
lacking in
precision that it can scarcely have been the intention of Parliament
- 22 -
to create it.
Where the exercise of power is challenged it is possible for
the
court to assess the question of irrationality in the light of
the relevant factors
as they stood at the relevant time. Once
taken, the decision can once and for
all be put in question. But
if the applicants are right and the non-exercise of
the power was
intended by Parliament to be controllable by the courts, a
continuing
omission to appoint a day, under any one of the innumerable
statutory
provisions subject to the same regime as is created for the 1988
Act
by section 171(1), would be continuously open to challenge in
the light of the
changing interplay of practicality and policy in
the light of which decisions of
this kind must be made. It seems
to me highly improbable that Parliament
would have wished to make
justiciable in court what are essentially political
and
administrative judgments, rather than retain them for its own
scrutiny and
enforcement.
The third and
simplest reason is that the words of section 171(1) do not
mean
what the applicants wish them to say. It is true that "may"
is capable
of denoting "shall," if the context so
demands, but this is not the customary
usage. If one looks to the
Act at large, taking Part VII as an example, the
words appear more
than thirty times, omitting compound expressions such as
"shall
only" and "shall not". It is to my mind beyond doubt
that in every one
of these instances "may" invokes a
choice and "shall" an order. Looking next
at the
immediate context of the word "may" in section 171(1), we
find that,
only a few words before, "shall" is used in
its natural sense, which makes it
unlikely that the draftsman
immediately afterwards chose "may" to convey the
same
meaning; and if one seeks guidance elsewhere in the section there is
no
need to go further than subsection (3), where it is quite clear
that "may" does
not denote an unqualified obligation. If
Parliament had intended to compel the
Secretary of State to bring
Part VII and all the other provisions governed by
section 171(1)
into force just as soon as practicable, it could easily have said
so.
In my opinion it has not.
V.
For these
reasons I would reject the argument that the continuing
omission
to implement the statutory scheme was a breach of any duty
arising
from section 171(1). There remains the question whether
the positive act of
the Secretary of State in announcing that he
would not implement the scheme
in the interval which remained
before the statutory underpinnings were
removed was in itself an
unlawful act. At first acquaintance an alternative
answer can be
made to seem quite plausible. The tone of the White Paper and
of
the utterances in Parliament can be presented as a defiance of the
will of
Parliament, embodied in Part VII of the Act. There may be
substance in this
complaint, which has already been voiced in
Parliament, and which may be
voiced again if the Houses ever have
occasion to discuss the obligations owed
by a Minister to
Parliament in respect of powers entrusted to him under
provisions
such as section 171(1). But the substance, if there is any, is one
of
Parliamentary practice, expectation and courtesy, not of public law.
If
there is no duty to bring the relevant provisions into force,
there can be no
- 23 -
breach of duty
simply by announcing in advance that the non-existent duty will
not
be performed. I must emphasise the words "simply by", for
it is possible
that such an announcement could be evidence of a
lack of the good faith
which, as the Lord Advocate freely
acknowledged, is an indispensable element
of the lawful exercise
of the discretion conferred by section 171(1), as much
as of any
other statutory discretion. But this is out of context here.
Although
the applicants, and no doubt others, object to the
substance of the change as
well as to the way in which it has been
done, it has not been suggested, and
on the facts could not
properly have been suggested, that the Secretary of
State has
acted in bad faith, in any sense relevant to such control of
his
discretion as the courts can properly exercise through the
medium of judicial
review.
VI.
I turn to the
second area of complaint, which relates to the
implementation of
the new scheme, in a form which differs radically from that
contained
in Part VII of the Act. This complaint is advanced in two ways.
First
that the actions and statements of the Secretary of State were an
abuse
of the powers conferred by section 171(1). Secondly, that
the powers
exercisable under the Royal prerogative were limited by
the presence in the
background of the statutory scheme.
At first sight
a negative answer to each of these averments seems
inevitable,
once given the premise that section 171(1) creates no duty to
appoint
a day. As regards the Act, in a perspective which may never yield
a
statutory scheme, the possibility of substituting one non-statutory
scheme for
another must have been just as much envisaged and
tolerated as was the
continuation of the existing non-statutory
scheme, or indeed the termination
of any scheme at all. The
interval between the passing of the Act and the
bringing into
force of Part VII, if it ever happened, was simply a statutory
blank.
So too, it
would appear, as regards the argument based on the Royal
prerogative.
The case does not fall within the principle of Attorney-General
v.
De Keyser's Royal Hotel Ltd. [1920] AC 508. There, in the words
of
Lord Dunedin, at p. 526, it was established that "if the
whole ground of
something which could be done by the prerogative
could be done by the
statute, it is the statute that rules".
Thus, if in the present case Part VII had
been brought into force
there was no room left for the exercise of that aspect
of the
prerogative which had enabled the Secretary of State to establish
and
maintain the scheme. Once the superior power of Parliament has
occupied the
territory the prerogative must quit the field. In the
present case, however, the
territory is quite untouched. There is
no Parliamentary dominion over
compensation for criminal injuries,
since Parliament has chosen to allow its
control to be exercised
today, or some-day, or never, at the choice of the
Secretary of
State. Until he chooses to call the Parliamentary scheme
into
existence there is a legislative void, and the prerogative
subsists untouched.
- 24 -
The position is
just the same as if Part VII had never been enacted, or had
been
repealed soon afterwards.
This is not to
say that the decisions of the Secretary of State in the
exercise
of the prerogative power to continue, modify or abolish the
scheme
which his predecessor in the exercise of the same power had
called into
existence are immune from process. They can be called
into question on the
familiar grounds: Reg. v. Criminal
Injuries Compensation Board, Ex parte
Lain [1967] 2 Q.B. 864.
But no question of irrationality arises here, and the
decision to
inaugurate a new scheme cannot be rendered unlawful simply
because
of its conflict on paper with a statutory scheme which is not part
of
the law.
VII.
My Lords, I
introduced the preceding discussion with the words "At
first
sight ..." because the applicants have a further (and to my
mind
altogether more formidable) argument which challenges the
implicit
assumption that in the absence of a duty to appoint a day
the Secretary of
State's dealings with the compensation scheme are
entirely free from statutory
restraint. Contrary to this
assumption, it is said, there is no statutory void;
for although
Part VII is not itself in force, section 171(1) is in force and
must
not be ignored. The continued existence of section 171(1)
means that, even
if there is no present duty to appoint a day,
there is a continuing duty, which
will subsist until either a day
is appointed or the relevant provisions are
repealed, to address
in a rational manner the question whether the power
created by
section 171(1) should be exercised. This continuing duty
overshadows
the exercise by the Secretary of State of his powers under the
royal
prerogative.
To some degree
this argument is uncontroversial. I accept, and indeed
the Lord
Advocate does not dispute, that the Secretary of State cannot
simply
put out of his mind the subsisting discretion under section
171(1). But I part
company with the argument at the next stage.
One must look at the
practicalities, which Parliament must be
taken to have envisaged. Pending the
appointment of a day it is
impossible for the Secretary of State to remain
completely
inactive. He has no choice but to do something about
compensation
for criminal injuries: whether wind up the existing scheme and
put
nothing in its place; or keep the existing scheme in force; or modify
it; or
copy the statutory scheme. It seems to me inevitable, once
it is acknowledged
that it may be proper at any given time for the
Secretary of State to say, "It
is inappropriate at present to
put the statutory scheme into force", that it can
be proper
for him to install something different from the statutory
scheme.
Otherwise there would be the absurdity that the Secretary
of State is obliged
to do something under the royal prerogative
which he is not obliged to do
under the statute. Thus, merely to
introduce a cheaper scheme cannot in itself
be an abuse of the
prerogative powers which subsist in the interim. If the
Secretary
of State had made an announcement as follows:
- 25 -
"I have
come to the conclusion after careful study that for the reasons
which
I have explained the Parliamentary scheme must now be seen as
too
expensive, slow and top-heavy; that its priority is not
sufficiently
high to justify the great expense when there are
other calls on the
country's resources; that the scheme which I
propose will do
substantial justice in a more efficient way; and
that accordingly I shall
run the scheme for a while to see how it
works and if, as I confidently
expect, it is a success I will ask
Parliament to agree with me and
repeal the statutory scheme ..."
it is hard to
see what objection could have been taken. Does not the
Minister's
actual stance, although perhaps more likely to provoke
hostility,
really come to the same thing?
The applicants
reply that it does not, essentially for two reasons. First,
they
contend that the Secretary of State has renounced the statutory duty
which
still dominates the prerogative in this field: not the duty,
as under the
argument already discussed and rejected, to bring
Part VII into force, but the
duty to keep under review the powers
conferred by section 171(1). I would
reject this argument. Perhaps
the Secretary of State has laid himself open to
attack more than
he need have done by the tone of his announcement, but I
cannot
read him as having said that however much circumstances may change
he
will never think again; and even if he had said this his statement
would
have been meaningless since, leaving aside questions arising
from the doctrine
of "legitimate expectation" which do
not arise here, nothing that he says on
one day could bind him in
law, or bind his successor, not to say and do the
opposite the
next day.
Furthermore,
even if the argument were sound it would not yield any
useful
relief. The most that the court could do would be to grant a
declaration
that the Secretary of State is now and in the future
obliged to keep the power
under review in a spirit of good faith:
something which the Lord Advocate on
his behalf has not denied. To
this declaration he could respond:
"As for
the present, you can see that I have not only kept the
appointment
of a day under review but have examined it in depth, and
have come
to a conclusion which, even if you do not care for it, is
undeniably
rational. As for the future, I will continue to keep the
power
under review, although I cannot at present foresee
circumstances
which will impel me or my successors to a different
view."
Such a reply
would in practice be impregnable, and for my part I would not
be
prepared as a matter of discretion to grant relief so empty of
content.
The applicants'
second contention is that the Secretary of State has
frustrated
the intentions of Parliament by bringing in his own
inconsistent
scheme and hence nullifying any realistic possibility
that he will perform his
- 26 -
continuing duty
to keep the implementation of the statutory scheme under
review. I
do not accept this. No doubt if Part VII had been the subject
of
section 171(6) and hence due to come into force inevitably on a
fixed date the
creation of any different scheme otherwise than
purely as an interim measure
would have been a breach of duty. It
is also possible to imagine cases where
the provisions to be
brought into force on an appointed day are such as to
become
incapable of execution if irreversible changes have been made in
the
meantime, and it may be that to make such changes would be an
abuse of the
prerogative. But this is not so here. The new scheme
is not in tablets of
stone. Certainly, it would be an
inconvenient, time-consuming and expensive
business to dismantle
the scheme and return to something on the former lines.
But it
would be feasible to do so, just as it proved feasible to pull down
the
original scheme which has been firmly established over many
years. Nothing
is certain in politics. Who is to say that a
successor in office, under the
present or some future
administration, with wholly different ideas on social
policy and
financial means and priorities, might not decide that the
present
Secretary of State has taken a completely wrong turning
and that after all the
Parliamentary scheme is best? If he did so,
and made an order under section
171(1), accompanied by the
necessary regulations and by executive action to
wind up the new
scheme, there is nothing in what the present Secretary of
State
has done that could stand in his way. His words have no lasting
effect;
he has not put an end to the statutory scheme; only
Parliament can do that.
So long as he and his successors in office
perform in good faith the duty to
keep the implementation of Part
VII under review there is in my opinion no
ground for the court to
interfere.
In reaching
these conclusions I have left out of account the evidence
as to
subsequent debates and votes in Parliament upon which the Secretary
of
State has sought to rely, for these cannot be permissible
guides to the meaning
of the 1988 legislation and its relationship
to the Minister's powers. In
particular I have attached no direct
significance to the fact that Parliament has
recently thought fit,
through the medium of the Appropriation Act 1994, to
make public
money available for the conduct of the scheme which is now
under
attack. Nevertheless, it is I believe legitimate to observe, in
company
with Hobhouse L.J. [1995] 2 W.L.R. 1, 21, that there is
something strange
about the proposition that it is an abuse for
the minister to apply moneys voted
by Parliament for a stated
purpose to that purpose, and I believe that all other
considerations
apart the court should hesitate long before employing
its
discretionary remedies in such a case.
This prompts
one final observation. It is a feature of the peculiarly
British
conception of the separation of powers that Parliament, the
executive
and the courts each have their distinct and largely
exclusive domain.
Parliament has a legally unchallengeable right
to make whatever laws it thinks
right. The executive carries on
the administration of the country in
accordance with the powers
conferred on it by law. The courts interpret the
laws, and see
that they are obeyed. This requires the courts on occasion to
step
into the territory which belongs to the executive, not only to verify
that
- 27 -
the powers
asserted accord with the substantive law created by Parliament,
but
also, that the manner in which they are exercised conforms
with the standards
of fairness which Parliament must have
intended. Concurrently with this
judicial function Parliament has
its own special means of ensuring that the
executive, in the
exercise of delegated functions, performs in a way which
Parliament
finds appropriate. Ideally, it is these latter methods which
should
be used to check executive errors and excesses; for it is
the task of Parliament
and the executive in tandem, not of the
courts, to govern the country. In
recent years, however, the
employment in practice of these specifically
Parliamentary
remedies has on occasion been perceived as falling short,
and
sometimes well short, of what was needed to bring the
performance of the
executive into line with the law, and with the
minimum standards of fairness
implicit in every Parliamentary
delegation of a decision-making function. To
avoid a vacuum in
which the citizen would be left without protection against
a
misuse of executive powers the courts have had no option but to
occupy the
dead ground in a manner, and in areas of public life,
which could not have
been foreseen thirty years ago. For myself, I
am quite satisfied that this
unprecedented judicial role has been
greatly to the public benefit.
Nevertheless, it has its risks, of
which the courts are well aware. As the
judges themselves
constantly remark, it is not they who are appointed to
administer
the country. Absent a written constitution much sensitivity
is
required of the parliamentarian, administrator and judge if the
delicate balance
of the unwritten rules evolved (I believe
successfully) in recent years is not to
be disturbed, and all the
recent advances undone. I do not for a moment
suggest that the
judges of the Court of Appeal in the present case overlooked
this
need. The judgments show clearly that they did not. Nevertheless
some
of the arguments addressed would have the court push to the
very boundaries
of the distinction between court and Parliament
established in, and recognised
ever since, the Bill of Rights
1688. Three hundred years have passed since
then, and the
political and social landscape has changed beyond recognition.
But
the boundaries remain; they are of crucial significance to our
private and
public lives; and the courts should I believe make
sure that they are not
overstepped.
appeal.
VII.
For
these reasons I would allow the appeal and dismiss the cross-
LORD LLOYD OF BERWICK
My Lords,
Until 1964
victims who suffered personal injuries as a result of crimes
of
violence had no remedy other than the right, almost always worthless,
to
sue the person who caused the injury. On 24 June 1964 a scheme
was
- 28 -
announced in
both Houses of Parliament whereby ex gratia payments were to
be
paid to victims of violent crime. The scheme was widely welcomed.
It
was regarded by many as long overdue. Compensation was assessed
on an
individual basis by the Criminal Injuries Compensation
Board, a non-statutory
body consisting of Queen's counsel and
other senior lawyers experienced in
the personal injury field. The
basis of compensation was the amount which
the victim would have
been entitled to recover in action for tort against the
wrongdoer,
including damages for pain and suffering, and loss of
earnings,
subject, however, in the case of loss of earnings to an
upper limit.
In March 1978
the Royal Commission on Civil Liability and
Compensation for
Personal Injury (Cmnd. 7054-1), under the chairmanship of
Lord
Pearson, recommended that the scheme should be put on a
statutory
basis, and that compensation should continue to be based
on damages
recoverable in tort. Six years later the Home Secretary
of the day appointed
an interdepartmental working party to review
the position, and make
recommendations. The Government accepted
the working party's
recommendations. They introduced legislation,
now contained in sections 108
to 117 and Schedules 6 and 7 to the
Criminal Justice Act 1988. The Act
received the Royal Assent on 29
July 1988. But the statutory scheme has
never been brought into
force. Furthermore, in a White Paper published in
December 1993
(Cm. 2434, paragraph 38) the Government announced that the
relevant
provisions of the 1988 Act "will not now be implemented".
It might cause
surprise to the man on the Clapham omnibus that
legislative
provisions in an Act of Parliament, which have passed both Houses
of
Parliament and received the Royal Assent, can be set aside in this
way by
a member of the executive. It is, after all, the normal
function of the
executive to carry out the laws which Parliament
has passed, just as it is the
normal function of the judiciary to
say what those laws mean. The
explanation, if there is one, is to
be found in section 171 of the Act of 1988,
to which I will
shortly return.
But first I
should mention the history of the proceedings so far. On
23
November 1992 the Home Secretary announced the Government's
intention
of introducing a new scheme. This scheme, known as the
tariff scheme, was
published on 9 March 1994. It differs in
certain fundamental respects from
the statutory scheme. On 22
March 1994 the Fire Brigades Union, and a
number of other unions,
whose members are especially exposed to injuries
from crimes of
violence, obtained leave to apply for judicial review. In
their
evidence they point out that the tariff scheme is less
favourable to their
members, first, because it is based on a flat
rate instead of being assessed on
a case-by-case basis by members
of the Board and, secondly, because it
excludes altogether
compensation for loss of earnings. One can get some idea
of how
much less favourable the new scheme is from figures produced by
the
Home Office. By the beginning of the next century the
estimated annual cost
under the tariff scheme will be about £225
million, whereas under the
- 29 -
statutory
scheme it would be about double. No doubt part of this
difference
can be explained by a saving in the cost of
administration.
The applicants
challenge the decision of the Home Secretary not to
bring into
force the relevant sections of the Act of 1988. They also
challenge
his decision to implement the tariff scheme, which they
say is altogether
inconsistent with the statutory scheme approved
by Parliament.
Staughton L.J.
and Buckley J. in the Divisional Court dismissed the
application.
They held that the Home Secretary was under no duty to bring
the
statutory scheme into force. But their decision was reversed by the
Court
of Appeal, on a ground which may not have been fully
developed in the court
below. The Master of the Rolls held that
the Home Secretary was under a
duty to bring the statutory scheme
into operation as soon as he might properly
judge it appropriate,
but, on the facts, he found that the Home Secretary was
not in
breach of that duty. The Master of the Rolls went on to hold,
however,
that the Home Secretary was not entitled to introduce a
scheme radically
different from what Parliament has approved so
long as the 1988 provisions
stand unrepealed as an enduring
statement of Parliament's will.
Morritt L.J.
disagreed with the Master of the Rolls on the first point.
He held
that there was no duty to bring the statutory scheme into force.
But
he agreed with the Master of the Rolls on the second point,
that it was an
abuse of the discretionary statutory power
conferred on the Crown under
section 171 of the Act of 1988 to
introduce a compensation scheme "wholly
at variance"
with the statutory scheme.
Hobhouse L.J.
dissented. In a forceful judgment he held that there
was no duty
to implement the statutory scheme, in this respect agreeing
with
Morritt L.J. But he also held that there was no abuse of
power. I quote the
last paragraph of his judgment, at p. 21:
"The
argument on abuse of power is really another way of putting the
same
arguments. The difference is that the applicants do not need for
this
purpose to say that the Minister has acted ultra vires. But
they
still have to make good the proposition that there is
something
unlawful about what the Minister has done in introducing
the tariff
scheme. That they cannot do. There is no law in force
which make
the Minister's actions unlawful. There is no excess of
authority or
infringement of authority. The only authority which
the Minister
requires is that which he has received from
Parliament in the
constitutional fashion. How it can be said that
it is an abuse for the
Minister to apply moneys voted by
Parliament for a stated purpose to
that purpose escapes me.
Similarly, it cannot be said that it is contrary
to the will of
Parliament. The argument on abuse of power is not
founded upon any
coherent principle nor is the legal basis for it made
good."
- 30 -
I now come to
section 171 of the Act. A number of provisions of the
Act came
into force on the day the Act was passed, including section
171
itself: see section 171(5). Other provisions came into force
two months later:
see section 171(6). Sections 108 to 117 are not
covered by either of these
subsections. They are covered by
section 171(1) to (3) which are as follows:
"(1)
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.
"(2) An
order under this section may make such transitional
provision as
appears to the Secretary of State to be necessary or
expedient in
connection with any provision thereby brought into force
other
than a provision contained in sections 108 to 117 above or
in
Schedule 6 or 7 to this Act.
"(3) The
Secretary of State may by regulations made by statutory
instrument
make such provision as he considers necessary or expedient
in
preparation for or in connection with the coming into force of
any
provision contained in those sections or Schedules."
Mr. Elias
argues that the purpose of conferring on the Home Secretary
the
power to bring sections 108 to 117 into force is apparent from
section
171(3). It was to enable the Home Secretary to make
regulations by statutory
instrument "in preparation for or in
connection with the coming into force" of
those sections.
Parliament could not tell how long it would take to make
the
necessary regulations. So instead of providing that sections
108 to 117 should
come into force after six months or a year, or
other finite period, it left the
date blank. It was for the Home
Secretary to fill in the blank when the
necessary administrative
arrangements had been put in place.
I agree with
Mr. Elias that section 171(3) throws light on the purpose
for
which Parliament conferred on the Home Secretary the power to bring
the
sections into force. But quite apart from section 171(3), I
would construe
section 171 so as to give effect to, rather than
frustrate, the legislative policy
enshrined in sections 108 to
117, even though those sections are not in force.
The mistake
which, if I may say so, underlies the dissenting judgment of
Hobhouse
L.J. is to treat these sections as if they did not exist. True,
they
do not have statutory force. But that does not mean they are
writ in water.
They contain a statement of Parliamentary
intention, even though they create
no enforceable rights.
Approaching the matter in that way, I would read
section 171 as
providing that sections 108 to 117 shall come into force
when
the Home Secretary chooses, and not that they may
come into force if he
chooses. In other words, section 171 confers
a power to say when, but not
whether.
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If that is the
right construction of section 171, then the intention of
Parliament
in enacting that section is exactly, and happily, mirrored by
the
reaction of the hypothetical man on the Clapham omnibus. The
Home
Secretary has power to delay the coming into force of the
statutory provisions
in question; but he has no power to reject
them or set them aside, as if they
had never been passed.
I now return to
the facts. The initial delay in bringing the sections into
force
may have been regrettable, but was hardly surprising, considering
that
it took over ten years for the Government to act on the
recommendations of
the Royal Commission. Moreover, as the evidence
makes clear, the Board
itself requested some delay owing to its
heavy workload at the time. I do not
think anything which the Home
Secretary did, or failed to do, during the
period of four years
between 1988 and 1992 can be characterised as a misuse
of his
power under section 171. As Staughton L.J. pointed out, the
statute
book is littered with statutory provisions which have
never been brought into
force, for one reason or another. The
Easter Act 1928 is a good example.
The situation
changed on 23 November 1992 when the Home Secretary
announced in
Parliament that he intended to replace the existing
non-statutory
scheme by the tariff scheme; and this was confirmed
on publication of the
White Paper which stated in terms that the
statutory scheme "will not now be
implemented".
I can find
nothing in section 171 which, on its true construction,
justifies
the Home Secretary's refusal to implement the statutory
scheme.
Whether that refusal should be regarded as an abuse of the
power which he
was given under section 171, or as the exercise of
a power which he has not
been given, does not matter. The result
is the same either way. By
renouncing the statutory scheme, the
Home Secretary has exceeded his
powers, and thereby acted
unlawfully. It is the paramount duty of the courts
to say so. If
authority is needed for the simple proposition that a Minister
must
act within the powers granted by Parliament, and for the purposes
for
which those powers were conferred, it is to be found in
Padfield's case [1968]
A.C. 997. In this connection it is
worth emphasising, yet again, that although
sections 108 to 117
have not been brought into force, section 171 has been in
force
since the day the Act was passed.
The Lord
Advocate advanced an ingenious argument in reply. Given
that the
Home Secretary has power to say when the sections come into
place,
let it be assumed that he had appointed a day five years
hence. Surely, goes
the argument, the Home Secretary must have
power to substitute a non-
statutory scheme in the meantime?
There is a
short answer to this argument. If one assumes that the
postponement
for five years was a valid exercise of the power conferred
by
Parliament, then of course the Home Secretary would be free to
continue the
existing non-statutory scheme in the meantime, as he
has in the past, or
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substitute
another scheme, whether more or less favourable to the victims
of
violent crime. But the assumption begs the question. It is the
decision of the
Home Secretary to renounce the statutory scheme,
and to surrender his power
to implement it, which constitutes the
abuse of power in the present case, not
the substitution of an
interim measure. In any event, it is clear from the
White Paper
that the tariff scheme is not an interim measure.
Then it was
said that the Home Secretary has not abused his power
under
section 171 of the Act because it is always open to him to change
his
mind. He cannot bind his successors, whether in this or any
other
administration. So another Home Secretary may at any time
decide to
implement the statutory scheme after all.
I regard this
as little short of fanciful. Ministers must be taken at their
word.
If they say that they will not implement the statutory scheme, they
are
repudiating the power conferred on them by Parliament in the
clearest possible
terms. It is one thing to delay bringing the
relevant provisions into force. It
is quite another to abdicate or
relinquish the power altogether. Nor is that all.
The Government's
intentions may be judged by their deeds as well as their
words.
The introduction of the tariff scheme, which is to be put on
a
statutory basis as soon as it has had time to settle down, is
plainly inconsistent
with a continuing power under section 171 to
bring the statutory scheme into
force.
Finally, it is
said that to grant the applicants relief in a case such as
this
would be an intrusion by the courts into the legislative field, and
a
usurpation of the function of Parliament. If the Home Secretary
has
trespassed, it is for Parliament to correct him. It is most
unlikely, so the
argument goes, that Parliament intended to confer
on the courts the power to
declare that the Home Secretary has
acted unlawfully.
I find this
argument difficult to understand. The duty of the court to
review
executive action does not depend on some power granted by
Parliament
in a particular case. It is part of the court's
ordinary function in the day to
day administration of justice. If
a minister's action is challenged by an
applicant with sufficient
locus standi, then it is the court's duty to determine
whether the
minister has acted lawfully, that is to say, whether he has
acted
within the powers conferred on him by Parliament. If the
minister has
exceeded or abused his power, then it is the ordinary
function of the
Divisional Court to grant appropriate
discretionary relief. In granting such
relief the court is not
acting in opposition to the legislature, or treading on
Parliamentary
toes. On the contrary: it is ensuring that the powers conferred
by
Parliament are exercised within the limits, and for the purposes,
which
Parliament intended. I am unable to see the difference in
this connection
between a power to bring legislation into force,
and any other power.
Nor, with
respect, can I understand the concept, or relevance, of a
duty
owed to Parliament, as distinct from a duty owed to the public at
large.
- 33 -
Some cases are
more likely to attract Parliamentary attention than others. But
the
availability of judicial review is unaffected.
No court would
ever depreciate or call in question ministerial
responsibility to
Parliament. But as Professor Sir William Wade points out
in Wade
and Forsyth Administrative Law 7th ed. at p. 34,
ministerial
responsibility is no substitute for judicial review.
In Reg. v. Inland Revenue
Commissioners, Ex parte National
Federation of Self-Employed and Small
Businesses Ltd. [1982] AC 617, Lord Diplock said:
"It is
not, in my view, a sufficient answer to say that judicial review
of
the actions of officers or departments of central government
is
unnecessary because they are accountable to Parliament for the
way in
which they carry out their functions. They are accountable
to
Parliament for what they do so far as regards efficiency and
policy,
and of that Parliament is the only judge; they are
responsible to a court
of justice for the lawfulness of what they
do, and of that the court is
the only judge."
It may be that
I have misunderstood the Lord Advocate's argument on
this point.
But if I have stated it correctly, then I fear that it would,
if
accepted, put the clock back thirty years or more.
There was much
discussion in the courts below, and before your
Lordships, about
the scope of the prerogative, and reference was made in
that
connection to Attorney-General v. De Keyser's Royal Hotel
Ltd. [1920] A.C.
508. I agree with Hobhouse L.J. that the
principles established in that case
do not touch directly on the
present problem.
I do not find
it necessary to decide whether, as the Master of the Rolls
held,
the Home Secretary was under a duty to bring the sections into force
as
soon as he judged it appropriate, or whether, as the Lord
Advocate conceded,
his duty was limited to keeping the exercise of
the power under review. I can
see that the former view might
present difficulties. I prefer to decide the
appeal on the
alternative ground favoured by the Master of the Rolls, and
Morritt
L.J., namely, that the Home Secretary has exceeded or abused
the
power conferred on him by Parliament, and thereby acted
unlawfully. I
would dismiss both appeal and cross-appeal.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
This case
involves two powers, one statutory and the other common
law. The
statutory power is the power given to the Secretary of State
by
section 171(1) of the Criminal Justice Act 1988. This section
came into force
- 34 -
on the day the
Act received the Royal Assent: 29 July 1988. By this section
the
Secretary of State was empowered to make an order, by
statutory
instrument, appointing a day on which other sections of
the Act, including
sections 108 to 117, shall come into force.
Sections 108 to 117 set up the
criminal injuries compensation
scheme. This scheme would put the existing
ex gratia scheme on to
a statutory footing.
The common law
power is the prerogative power of the Crown. In
this context the
prerogative power can be sufficiently described as the residue
of
discretionary power left at any moment in the hands of the Crown.
The case turns
on the interaction of these two powers. The
commencement day power
in section 171(1) is in force, but it has not been
exercised in
respect of sections 108 to 117. The question of law which has
to
be addressed is whether, so long as this remains the position, this
power
nevertheless operates to limit the manner in which, or the
purposes for which,
the prerogative power may lawfully be
exercised in the field to which sections
108 to 117 relate. The
question of fact which arises is whether, if the
existence of
section 171(1) does operate to curtail the prerogative power,
the
Secretary of State has overstepped the mark in introducing the
new, ex gratia
"tariff" scheme.
There would be
no difficulty if sections 108 to 117 were repealed.
The field of
compensation for victims of criminal injuries would then be wide
open
for the prerogative power. The position in law would become as it
was
before the 1988 Act was passed. There could then be no
question of a
statutory impediment to setting up and making
payments under a new, tariff
scheme in exercise of the
prerogative. Likewise, although for a different
reason and with a
different result, the position would be straightforward if
the
commencement day power in section 171(1) were exercised and
sections 108
to 117 came into force. With the new statutory scheme
in operation, the
present problem could not arise. The problem
arises only because at present
sections 108 to 117 exist, but
exist only in embryonic form.
The commencement day provision
I must start
with some general comments about commencement day
provisions. The
first point to note is that section 171(1) is a common
form
provision. This form of words is widely used, in many Acts of
Parliament.
There is nothing special about the wording of the
provision in this Act.
Secondly, the purpose for which this common
form provision exists is to
facilitate bringing legislation into
force. Parliament enacts legislation in the
expectation that it
will come into operation. This is so even when Parliament
does not
itself fix the date on which that shall happen. Conferring power
on
the executive to fix the date will often be the most convenient
way of coping
with the practical difficulty that when the
legislation is passing through
Parliament, it is not always
possible to know for certain what will be a
suitable date for the
legislation to take effect. Regulations may need drafting,
- 35 -
staff and
accommodation may have to be arranged, literature may have to
be
prepared and printed. There may be a host of other practical
considerations.
A wide measure of flexibility may be needed. So
the decision can best be left
to the minister whose department
will be giving effect to the legislation when
it is in operation.
He is given a power to select the most suitable date, in the
exercise
of his discretion.
Thirdly,
although the purpose of the commencement day provision is
to
facilitate bringing legislation into effect, the width of the
discretion given
to the minister ought not to be rigidly or
narrowly confined. The common
form commencement day provision is
applicable to all manner of legislation
and it falls to be applied
in widely differing circumstances. The range of
unexpected
happenings is infinite. In the course of drafting the
necessary
regulations, a serious flaw in the statute might come to
light. An economic
crisis might arise. The government might
consider it was no longer
practicable, or politic, to seek to
raise or appropriate the money needed to
implement the legislation
for the time being. In considering whether the
moment has come to
appoint a day, as a matter of law the minister must be
able to
take such matters into account. Of particular relevance for
present
purposes, as a matter of law the minister must be entitled
to take financial
considerations into account when considering
whether to exercise his power
and appoint a day. It goes without
saying that the minister will be answerable
to Parliament for his
decision, but that is an altogether different matter.
A duty to consider
The next point
to note is that in the present case the complaint is not
about the
exercise by the Secretary of State of the power given him by
section
171(1). The complaint is about the non-exercise of
the power. A failure to
exercise a power can only be the subject
of complaint if the person entrusted
with the power has thereby
acted in breach of some duty imposed on him, or
acted
improperly in some other respect.
On its face the
commencement day provision confers on the minister
a power to
appoint a commencement day, rather than imposing upon him a
duty
to do so. In my view, this provision is not to be read as imposing a
duty
which, if not carried out, could be the subject of a
mandatory order by a court
directing him to appoint a day on pain
of being in contempt of court. In the
first place, a legal duty to
appoint would be substantially empty of content in
view of the
wide range of circumstances the minister can properly take
into
account in deciding whether or not to appoint a commencement
day.
Secondly, and much more importantly, a court order compelling
a minister to
bring into effect primary legislation would bring
the courts right into the very
heart of the legislative process.
But the legislative process is for the
legislature, not the
judiciary. The courts must beware of trespassing upon
ground
which, under this country's constitution, is reserved exclusively to
the
legislature. Clearer language, or a compelling context, would
be needed
- 36 -
before it would
be right to attribute to Parliament an intention that the
courts
should enter upon this ground in this way.
Nevertheless,
although he is not under a legal duty to appoint
a
commencement day, the Secretary of State is under a legal duty
to consider
whether or not to exercise the power and appoint a
day. That is inherent in
the power Parliament has entrusted to
him. He is under a duty to consider,
in good faith, whether he
should exercise the power. Further, and this is the
next step, if
the Secretary of State considers the matter and decides not
to
exercise the power, that does not end his duty. The statutory
commencement
day power continues to exist. The minister cannot
abrogate it. The power,
and the concomitant duty to consider
whether to exercise it, will continue to
exist despite any change
in the holders of the office of Secretary of State. The
power is
exercisable, and the duty is to be performed, by the holder for
the
time being of the office of one of Her Majesty's Principal
Secretaries of State:
see the Interpretation Act 1978, sections 5
and 12(2) and Schedule 1. So
although he has decided not to
appoint a commencement day for sections 108
to 117, the Secretary
of State remains under an obligation to keep the matter
under
review. This obligation will cease only when the power is exercised
or
Parliament repeals the legislation. Until then the duty to keep
under review
will continue.
This statutory
duty is not devoid of practical consequence. By
definition, the
continuing existence of this duty has an impact on the Secretary
of
State's freedom of action. Since the legislature has imposed this
duty on
him, it necessarily follows that the executive cannot
exercise the prerogative
in a manner, or for a purpose,
inconsistent with the Secretary of State
continuing to perform
this duty. The executive cannot exercise the
prerogative power in
a way which would derogate from the due fulfilment of
a statutory
duty. To that extent, the exercise of the prerogative power
is
curtailed so long as the statutory duty continues to exist. Any
exercise of the
prerogative power in an inconsistent manner, or
for an inconsistent purpose,
would be an abuse of power and
subject to the remedies afforded by judicial
review.
The non-introduction of the statutory scheme
I turn now to
the facts of the present case. The Home Secretary has
made plain
that he has decided not to bring sections 108 to 117 into force.
The
statutory scheme would be too expensive. The picture, he says, has
been
changing dramatically, even since the passing of the 1988
Act. Administrative
costs continue to escalate. The volume of
cases has gone up by one half and
is still rising. The amount paid
out in compensation has increased threefold.
Without change, the
estimated annual cost of compensation by the year 2000-
2001 would
be some £550 million. The view of the government is that
this
rate of growth is not sustainable or appropriate for a state
scheme funded by
the taxpayer. Growth in expenditure on
compensation for criminal injuries
- 37 -
can only be
provided at the cost of other socially desirable objectives such
as
schools and hospitals. The country cannot now afford the
scheme.
It follows from
what I have set out above that in my view the Home
Secretary was
entitled, as a matter of law, to take these financial
considerations
into account when deciding whether to bring sections 108 to
117
into force.
The Secretary
of State went further than merely deciding not to bring
sections
108 to 117 into force for the time being. He went further, in
two
interlinked respects. First, the government has made plain
that it regards the
statutory scheme as a dead letter. Paragraph
38 of the White Paper (Cm.
2434), presented to Parliament in
December 1993 by the Secretary of State for
the Home Department
and the Secretary of State for Scotland, stated:
"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."
As to this, it
follows from the general observations made above that by
treating
his decision as the last word on this subject, the Secretary of
State
misunderstood the extent of his duty in respect of the
commencement day
power. He failed to appreciate that, so long as
the commencement day power
remains unrepealed, he is obliged to
keep the exercise of that power under
review.
I do not
consider this misapprehension by the Secretary of State is a
matter
calling for relief. In the course of his submissions the Lord
Advocate
accepted that the Secretary of State is under a duty to
keep the exercise of the
commencement day power under review.
Sending the matter back to the
Secretary of State to consider this
afresh now would be a pointless exercise.
There can be no doubt
that, for the financial reasons already noted, his
decision would
still be against bringing sections 108 to 117 into operation
at
present.
The introduction of the tariff scheme
In a second
respect the Home Secretary went further than deciding not
to bring
the statutory scheme into operation. He decided to replace
the
existing ex gratia scheme with a new, less expensive scheme.
Under the tariff
scheme the estimated annual cost of compensation
by the year 2000-2001
would be about £225 million. This is
half the corresponding estimated cost
of the statutory scheme and,
hence, of the existing ex gratia scheme.
Herein lies the
real difficulty in this case. In the ordinary run of
things, where
the carrying out of legislation would be too expensive in the
view
of the minister, the answer may be simple: postpone bringing
the
legislation into force. In the present case that simple course
will not provide
- 38 -
an answer to
the financial problem perceived by the government. Letting
matters
continue as they are, with the existing ex gratia scheme in
force,
would cost just as much as the statutory scheme.
In these
circumstances, so the argument runs, the Secretary of State
cannot
be obliged to continue the existing ex gratia scheme. If he is
entitled
to decide not to bring sections 108 to 117 into operation
for financial reasons,
he cannot be under a legal obligation to
maintain in force the equally
expensive ex gratia scheme. That, it
is said, cannot be the effect of the
commencement day provision.
That would be to read far too much into this
common form
provision. The Secretary of State must be at liberty, while
keeping
the exercise of the commencement day power under review, to cut
the
cost of the ex gratia scheme. He must be at liberty to reduce
the amounts
paid out to victims as compensation. He must be able
to make other
alterations, designed to reduce administrative costs
and to produce a scheme
which is fair but simpler and speedier to
operate. In other words, he must be
entitled to introduce and
operate a revised scheme while keeping the exercise
of the
commencement day power under consideration from time to time. That
is
what he has done.
This argument
brings me to the crucial question in the present case.
As already
noted, pending the exercise of the commencement day power or
its
repeal the Secretary of State can act only within the constraint
imposed by
the duty attendant upon the continuing existence of
that power. He cannot
lawfully do anything in this field which
would be inconsistent with his
thereafter being able to carry out
his statutory duty of keeping the exercise of
the commencement day
power under review. If he wishes to act in a manner
or for a
purpose which would be inconsistent in this respect, he must
first
return to Parliament and ask Parliament to relieve him from
the duty it has
imposed on him. Parliament should be asked to
repeal sections 108 to 117
and the relating commencement day
provision.
The crucial
question is whether the Secretary of State has taken such
an
inconsistent step in this case. Expressed in different words, but to
the
same effect: is the introduction of the tariff scheme
inconsistent with the
Secretary of State being able henceforth to
keep under consideration the
practicability and desirability of
exercising the commencement day power and
bringing the statutory
scheme into effect? The answer to this question
depends upon an
appraisal of the facts. It is on this point that the views of
your
Lordships are divided.
It is true that
the Secretary of State has done nothing which is
irrevocable. The
terms of the new scheme are not immutable. In that sense,
despite
the introduction now of the tariff scheme, it would still be open to
him
at a future date to discontinue the new scheme and bring the
statutory scheme
into operation in its place. However, it seems to
me that such an evaluation
of the facts is detached from reality.
The new tariff scheme is not intended
as a temporary solution
while the minister awaits a more propitious moment
- 39 -
at which to
bring sections 108 to 117 into operation. The new ex gratia
scheme
is intended to mark out the way ahead for the foreseeable future.
It
is intended to be the long-term replacement of the existing ex
gratia scheme
and its statutory embodiment. It is an alternative,
not a stopgap. It is being
brought into operation on the footing
that sections 108 to 117 will never come
into operation. The Home
Secretary will, of course, monitor the operation of
the tariff
scheme. He will consider recommending to Parliament that the
tariff
scheme itself should be put on to a statutory basis once it
has had time to
settle down and any teething troubles have been
resolved. But there is no
expectation of ever bringing the
statutory scheme into operation.
This is not
just a matter of words, or of presentation. The matter goes
beyond
ministerial statements of intention. The steps being taken would
in
practice make it very difficult, if not impossible, for the
Home Secretary at
any time in the future to exercise the
commencement day power. The
Criminal Injuries Compensation Board
will be dismantled, and a new authority
will replace it. There
will be other major procedural changes. The
inescapable conclusion
is that the Home Secretary has effectually "written off"
the
statutory scheme and that once the tariff scheme has been introduced,
there
would be no realistic prospect of him being able to keep the
exercise of the
commencement day power under review. By setting up
the tariff scheme the
minister has set his face in a different
direction. He has struck out down a
different route and thereby
disabled himself from properly discharging his
statutory duty in
the way Parliament intended. For this reason the new
scheme is
outside the powers presently vested in him. I would dismiss both
the
appeal and the cross-appeal.
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