Treading a thin political line

Roger Pearson looks at the Lords' decision to overrule Michael Howard's CIC scheme; Roger Pearson

Apart from resulting in a crushing defeat in the courts for Home Secretary Michael Howard, the House of Lords ruling on 6 April, outlawing moves to introduce criminal injury compensation tariffs, is believed to have rated as a 'first' in trade union litigation.

While unions have joined forces in the past to take court action, top union solicitors Robin Thompson & Partners believe this is the first time they have done so on this scale to challenge a constitutional point of law. Past multi-handed, union-backed litigation has centred on employment law.

In this case, however, the Trades Union Congress – 10 named unions representing teachers, firemen, prison officers, nurses, bank staff and security guards whose members are vulnerable to criminal attacks during the course of their work – mounted a head-on attack on the constitutional behaviour of the Home Secretary.

The group inflicted a humiliating defeat on the Home Secretary over his cost-cutting stance in relation to criminal injury compensation.

The Lords, in a majority ruling, threw out the Home Secretary's challenge to an earlier Appeal Court decision under which the tariff-based compensation scheme was declared illegal. And in doing so Lord Lloyd denied the Law Lords were "treading on parliamentary toes". He said ministers had to be taken at their word and if they failed to take actions they had promised, they were "repudiating the power conferred on them by Parliament".

The unions argued that the Home Secretary failed to meet an obligation, under the 1988 Criminal Justice Act, to implement the original Criminal Injury Compensation scheme as a statutory scheme and that introduction of the tariff scheme without parliamentary approval had been an abuse of prerogative power.

The new tariffs were introduced one year ago and are believed to have resulted in savings of around u85 million.

But, as a result of the Lords' decision, around 70,000 compensation applications made in the past year may have to be re-examined.

The scheme was aimed at cutting pay-outs which the Home Office estimated would rise from an annual u224 million prior to introduction of the scheme to u550 million within seven years. Lord Lloyd said it was estimated the annual cost of the scheme would be around u225 million by the year 2000 compared with about double under the original scheme.

However, along with Lords Brownie-Wilkinson and Nicholls, he rejected the Home Secretary's appeal, Lords Keith and Mustill dissenting.

Lord Lloyd in his judgment warned that politicians must honour their promises and said he viewed argument that they were entitled to change their mind as "fanciful".

It had been argued that the court's interference with Howard's plans would be an "intrusion by the courts into the legislative field, and usurpation of the function of Parliament".

However, Lord Lloyd said: "In granting such relief the court is not acting in opposition to the legislature, or treading on parliamentary toes. It is ensuring that the powers conferred by Parliament are exercised within the limits, and for the purposes, which Parliament intended," he says.

Colleen Ettinger, a partner at Robin Thompson, said: "This ruling is of clear constitutional significance. It demonstrates that the courts have indicated they are prepared to interfere with the process of Parliament and will not allow ministers to act against the will of Parliament. This ruling is a warning to ministers generally, this government and future governments."