R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513

The Criminal Justice Act 1988 created a statutory scheme for compensating victims of violent crime, but its commencement depended on an order by the Secretary of State. Successive governments left the provisions uncommenced and continued a non-statutory scheme under the prerogative. The Home Secretary later announced a new tariff-based scheme under prerogative powers and stated that the statutory scheme would not be brought into force. Trade unions representing injured members challenged the decision. Parliament had not imposed a date for commencement, yet the announced policy would replace the existing arrangements in a way inconsistent with the more generous statutory framework that Parliament had approved.

Could the Home Secretary lawfully use prerogative power to introduce a different compensation scheme while treating Parliament's uncommenced statutory scheme as something the government would never implement?

By a majority, the House of Lords held the decision unlawful. The Secretary of State retained a discretion over when to commence the statutory provisions and could consider whether amendment should be proposed. However, he had to keep the statutory scheme under review and could not use the prerogative to frustrate Parliament's will by introducing an inconsistent replacement. Lord Browne-Wilkinson treated the executive's action as an abuse of power because it pre-empted Parliament rather than asking Parliament to repeal or amend its enactment. The case did not hold that courts could compel commencement on a particular date. It constrained the way the prerogative was used alongside the statute.

The executive may not exercise prerogative power in a manner that frustrates or is inconsistent with legislation enacted by Parliament. A minister given discretion over commencement cannot treat an unrepealed statutory scheme as abandoned and substitute a conflicting prerogative scheme.

Fire Brigades Union develops the principle in Attorney-General v De Keyser's Royal Hotel that statute controls the prerogative within its field. It also illustrates constitutional separation: ministers may propose repeal, but cannot achieve its practical equivalent without Parliament. The decision is carefully limited because Parliament had left commencement to ministerial discretion. It does not mean that every delay in commencing legislation is unlawful, nor that courts routinely order ministers to activate provisions. The focus is executive action that positively undermines the enacted scheme.