Published: Wed, 07 Mar 2018
R v Secretary of State for the Home Department, ex parte Fire Brigades Union  2 AC 513
Royal Prerogative – Orders in Council – Criminal Justice Act 1988 – Tariff Scheme – Parliamentary Sovereignty – Statutory Powers – Judicial Independence
A House of Lords case concerning how compensation is awarded under the Criminal Injuries Compensation Scheme. The case is considered a very important ruling on the extent of the Ministerial prerogative powers. The crux of the case was the consideration as to whether the executive in the UK can use the prerogative powers with the actual effect that an Act of Parliament (legislation) could be prevented from coming into force.
The case considered The Criminal Injuries Compensation Scheme, which was introduced in the UK in 1964, under claims that it was formed using prerogative powers. This was followed in 1988 by the enactment of the Criminal Justice Act – this legislation was enacted in order to solidify the scheme in stature. Despite the Criminal Justice Act 1988 having received the royal assent, the provisions were subject to a caveat in that they were to only come into effect on the appointment of the secretary of state. This requirement was never met, as a date for effect by the Secretary of State was never made.
6 years later the Home Secretary announced that the compensation structure was to be modified/lowered from that set out in the non-statutory scheme and the Criminal Justice Act. This was then followed by the revelation that the entire Act was to be repealed. This decision left victims at a great loss in terms of what they would be entitled to under compensation.
The question at issue was whether when the bringing into power of legislation is hung on the act of the executive, is it a duty or an option for this duty to be seen through and the provisions brought into power?
At the House of Lords, it was ruled by a 3-2 majority that the actions of the Home Secretary were unlawful. The progression of the acts and provisions led the general public to have legitimate expectations of the enactment of the new law. The failure of the Secretary of State to ‘sign off’ on the 1988 Act breached this.
“It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each 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, to verify not only that 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 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.”
This case has been cited in the following case:
R (Wheeler) v Office of the Prime Minister  EWHC 1409
R v Secretary of State for Wales, ex parte Emery  1 All ER 367
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