Ex parte Fire Brigades Union [1995]
Facts: Minister decided (use of royal prerogative) to modify the compensation to those injured by violent crime (a govt scheme under the Criminal Justice Act 1988), to be less generous and save cost. Special damages or loss of earning are no longer considered but the act hasn't been repealed.
Issue : Was the Home Secretary’s decision to have not enforced the statutory scheme in the CJA unlawful, and was the tariff scheme unlawful?
Held: The matter is judiciable; although in this case, minister did not act ultra- vires because: 1) the act has not been in force; 2) compensation is not a right but an ex-gratia scheme, claimant was not deprived of right. BUT Home Secretary unlawfully breach the duty to keep under active consideration implementation of statutory compensation scheme (by introducing this scheme, HS renounced the statutory scheme and it’s unlawful) Obiter: Minister cannot repeal laws (that is for parliament). The minister was in effect claiming that the purpose of the statutory power had been frustrated by his own act in choosing to introduce a different non- statutory scheme.
Important remarks:Case led to huge debate on judiciability. Majority thinks its judiciable, minority thinks no.
At Court of Appeals, Sir Thomas Bingham MR (overruled) : the statutory provisions were ‘not a discussion paper but a blueprint approved in the most solemn form for which our constitution provides’. The minister should have invited Parliament to repeal them; he could not simply decide to ignore them. Three of the judges thought it was appropriate for the court to intervene to strike down the Home Secretary’s decisions. Two of the judges thought that the essentially political character of the issue made judicial intervention inappropriate. (Elliott & Thomas
Lord Lloyd and Lord Browne-Wilkinson : Distinguish from AG v De Keyser’s Royal Hotel [1920]. The principle X apply where the statute was not yet in force. The subject right is not deprived because there’s no right to receive compensation - it’s an ex-gratia scheme.
Lord Lloyd thinks this is not a “unwarrantable intrution” of SoP because the court is ruling the case in the context of ensuring conferred powers are not exercised ultra vires. 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.
Lord Keith (dissenting) It’s a political issue. Introducing new scheme didn't mean that the minister was not still considering the old one to allow the applicants’ claim would ‘represent an unwarrantable intrusion by the court into the political field and a usurpation of the function of Parliament’. Legitimate expectation cannot be reasonably be extended to the public at large Disagreement. The new scheme may not be in line with the act anyway.
Lord Mustill (dissenting) The act conferred a power not a duty, furthermore the legislation is not fully in force yet. The judiciary cannot regulate the relationship between legislature and the executive - it’s a political issue: the real check and balance could be met on parliament’s platform more legitimately. The court had ‘no competence to express any opinion on the relationship between the executive and Parliament’. If the minister’s actions were disrespectful to Parliament, MPs should complain: ‘Criticisms of the manner, rather than the matter, of his actions are for political debate, not legal argument.’ Mustill also thought it was it ‘highly improbable that Parliament would have wished to make justiciable in court’ what were ‘essentially political and administrative judgments’.