A subsequent Home Secretary decided not to bring the statutory scheme into force, but instead to introduce by the prerogative a different scheme which would be less favourable to those injured by criminals. The English Court of Appeal held that, while the provisions of the 1988 Act remained unrepealed, though not in force, they remained as an enduring statement of Parliamentary will and decision, and it was an abuse of power for the Home Secretary to seek to use the prerogative to introduce a scheme wholly at variance with the statutory provisions.

In these cases it was argued by Advocate Barnes that since the United Kingdom Parliament had laid down a scheme for responding to requests for assistance in obtaining evidence from foreign states in the 1990 and 1994 Acts which could be extended to Guernsey by order in Council with any appropriate modification, it was repugnant to that United Kingdom legislation for Guernsey to pass local legislation giving powers to HM Procureur inconsistent with the terms of the UK legislation.

In our judgment this argument is not well founded, and the suggested analogy with the Fire Brigades Union case is not a valid one. The United Kingdom legislation in the 1990 and 1994 Acts does not represent legislation laying down a scheme for Guernsey, but a scheme for the United Kingdom which can, if the States of Guernsey and the Home Secretary so wish, be extended to Guernsey by order in Council if approved by Parliament. There is no repugnancy and no abuse of power if with the assent of the Queen in council the States of Guernsey legislate for a different scheme.