Criminal Injuries Compensation: The Constitutional Issue
Even amongst recent causes celebresl R v Secretary of State for the Home Department, ex parte Fire Brigades Union2 stands out as exceptional. It is concerned with the most fundamental issues of our unwritten Constitution, namely the relationships between Parliament, the executive and the courts. It recognises explicitly, albeit in a dissenting judgment,3 the function of the courts to compensate for the deficiencies of Parliament, in holding the executive responsible for the misuse of powers, which Sedley J has characterised extrajudicially as 'judicial assertiveness to compensate for, and in places repair, dysfunctions in the democratic process'.4 It is indeed a landmark decision which together with other notable recent casesS heralds the assumption of a constitutional role by the judiciary in redrawing the boundaries between the courts and Parliament. In the light of its seismic importance it is perhaps not surprising that there were deep divisions between the judges involved in the case. On a headcount they were evenly divided but there was a crucial majority of 2:1 in the Court of Appeal6 and 3:2 in the House of Lords against the Home Secretary. The legal issues are complex and were differently decided in the Court of Appeal and the House of Lords. In analysing them it is easy to lose the wood for the trees and in particular the political reality and practical outcome of the case. It is best to start with a brief history of events. In 1964 a Criminal Injuries Compensation Scheme for victims of violent crimes was announced in Parliament and set out in a White Paper.7 It had no statutory basis except for the annual Appropriation Acts which authorised expenditure for the scheme. Payments were made on the same basis as tort damages. As a result of the recommendation of the Royal Commission on Civil Liability8 the scheme was finally embodied in the Criminal Justice Act 19889 but the relevant provisions were not to come into force until the Home Secretary made an order to that effect. 10 As the cost of the scheme escalated, the government changed its mind and