R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513
Citation:R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513
Rule of thumb:If Parliament passes an Act stating that the Government has to pass Regulations or another Act on a certain date to give effect to the original act, and the Government makes no effort to do this, what happens to people who have missed out on attaining the rights in the new Act or Regulation to be introduced? The Government must be Judicially Reviewed to introduce the new Act or Regulation and the rights from it backdated to the final date from when the Government was supposed to introduce it.
Rule of thumb:What is meant by the separation of powers? The Court in this case affirmed some basic powers about the basic constitution of the UK and ‘the separation of powers’. It affirmed that it is Parliament’s power to make the laws, the Executive’s power to apply the laws out as they run the public sector, and the Court’s power to interpret if the law has been broken.
Background facts:
The facts of this case were that Parliament passed an Act which gave citizens who were the subject of a violent crime the right to apply for compensation for this – the Act gave the Executive discretion to consider what exact amount of state money it could put into the fund and when it wished to formally make the Act finalised. The Executive after many years never bothered to do this. A member of the Fire Brigade Union was the victim of a violent crime but unable to apply for compensation so the trade union raised a Judicial Review on his behalf.
Judgment:
The Court affirmed that where the Executive fetters the discretion Parliament has given it like this, this is a blatant act of procedural impropriety and a breach of administrative law. The Court further explained that this was effectively the repealing of a law by the Executive which was also a direct breach of further Act and offended against the separation of powers principle of Parliament having the right to make the laws.
Ratio-decidendi:
‘It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed. This requires the courts on occasion to step into the territory which belongs to the executive, to verify not only that the powers asserted accord with the substantive law created by Parliament but also that the manner in which they are exercised conforms with the standards of fairness which Parliament must have intended. Concurrently with this judicial Parliament has its own special means of ensuring that the executive, in the exercise of delegated functions, performs in a way which Parliament finds appropriate. Ideally, it is these latter methods which should be used to check executive errors and excesses; for it is the task of Parliament and the executive in tandem, not of the courts, to govern the country’, Lord Mustill, ‘(a minister had)... struck out down a different and thereby disabled himself from properly discharging his statutory duty in the way Parliament intended... It is for Parliament, not the executive, to repeal legislation...’ Lord Browne Wilkinson
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.