R v Secretary of State for the Home Department, ex Parte Fire Brigades Union is a famous case from 1995. It was decided by our Supreme Court (then still called the Judicial Committee of the House of Lords). The Government lost.
Under an Act of Parliament of 1988 the Government was meant to bring forward a new criminal injuries compensation scheme specifically in respect of fire fighters. The way things were left under the Act the scheme was to be introduced on “such day as the Secretary of State may by statutory instrument appoint”.
Long story short, the Government subsequently announced it was not going to name a date. In effect by an administrative decision they had frustrated the clearly expressed will of Parliament.
Key excerpts from the court’s decision (pardon the archaic English legalese) are as follows
“It might come as a surprise to the man on the Clapham omnibus that legislative provisions in an Act of Parliament, which have passed both House of Parliament and received Royal Assent, can be set aside in this way by a member of the executive.”
and even more tellingly
” True, [the Sections] do not have statutory force. But that does not mean they are writ in water. They contain a statement of Parliamentary intention, even though they create no enforceable rights. Approaching the matter in that way, I would read section 171 as providing that sections 108 to 117 shall come into force when the Home Secretary chooses, and not that they may come into force if he chooses. In other words, section 171 confers a power to say when, but not whether.”
Is this ringing any bells? It should. It is very close to what happened with the statutory provisions relating to age verification for commercial pornography sites, as enshrined in Part 3 of the Digital Economy Act 2017.
Several companies spent a lot of money getting ready for the commencement of the new policy. Everything was in place then, out of the blue, so to speak, on 16th October 2019, the Government called a halt. Not an abandonment as such but, in effect, an adjournment sine die.
Frying different fish
At the time the Government had one overriding political objective. To secure a General Election.
Because of the then Parliamentary arithmetic the timing of such an election was not in their gift. In some quarters the suspicion therefore is someone in No.10 started to fret. Suppose they suddenly managed to get Parliament’s agreement to hold an election (which they did)? Suppose the new regime of age verification for commercial porn sites kicked in just before or even during the election campaign (which it might have done)?
“Boris the Porn Killer”
Could “Boris the Porn Killer” supplant “Get Brexit Done” as a key theme of the election? Very unlikely. Even so might millions of men be angry because their porn supply had been cut off or interrupted while they completed the age verification process? What if unseen glitches emerged? Who would be blamed? Could it adversely affect votes in marginals?
Did a timid soul in the Conservative Party leadership decide it was best to take no chances? Just pull it. Utter a few warm words about wrapping up the policy with a wider initiative on online harms (which is what they did).
This is just a theory that is doing the rounds but we may be about to find out if there is any substance to it because, for their own different but entirely understandable reasons, the trade association which represents some of the companies that spent millions getting ready for the new scheme are seeking a judicial review of the decision and a number of individual companies are also suing for compensation. It is understood their claims run to around £3 million. Add to that the amounts thought to have been spent by the nominated Regulator (BBFC) and the Government itself and you get to around £5 million.
That’s a lot of money to spend on a pusillanimous and unprincipled panic.
Desiderata 