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
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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.
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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,
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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.
-
-
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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
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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
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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
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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
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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
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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
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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.
– 31 –
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
– 32 –
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.
– 40 –
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