Abstract The current law and the Brexit implications. INTRODUCTION The problem of implied repeal has long been troublesome in statutory interpretation, indicative of a possible drafting oversight or error. Some modern statutes drafted in general terms have not fully and perceptively considered the existing relevant legislation. Brexit, the transformation of a huge body of EU law into UK law, must carry a huge risk of inadvertent implied repeal. Where the later statute is intended to repeal the earlier statute, the competent draftsman and competent legislator make sure that the repeal is express, for the benefit of all. An inconsistency or repugnancy or possible inconsistency or repugnancy between the two statutes requires reluctant resort to the principle that the later statute repeals the earlier statute, an unclear and fragile and difficult principle, unlikely to have been the intention of Parliament, and anyway a principle modified by the further principle that a general statutory provision does not normally overrule or override a specific or special statutory provision, unless a clear intention of universal application can be seen.1 ‘In any event, the courts presume that Parliament does not intend an implied repeal…In modern times, when standards of parliamentary draftsmanship are high, the presumption against implied repeal is strong…And it is even stronger the more weighty the enactment that is said to have been impliedly repealed…’2 Parliament cannot be prevented from altering or repealing an earlier statute; in the absence of express repeal, there may be an implied repeal.3 The latest restatement of the rule is to be found in the judgment of Gross LJ in Hamnett v. Essex County Council.4 The implied repeal principle is not to be lightly invoked. The principle applies where the earlier and the later statutes are inconsistent or repugnant, incapable of standing together. The principle means that the later abrogates the earlier, the later prevails. A later general statute does not impliedly repeal an earlier particular or special statute. Where both the earlier and the later statutes are general in nature the principle applies. In Hamnett, on the facts, a breach of the Road Traffic laws gave a remedy in the High Court, whereas on the same facts, a breach of the Equality Act gave a remedy in the County Court. The two provisions conflicted, they could not be reconciled. Both provisions were general in nature. The later prevailed. In Pattinson, the earlier statute entitled the drainage board to enter land for the purpose of maintenance and the later statute entitled the drainage board to enter land for any purpose. Both were general provisions. The judge held that the provisions were inconsistent and repugnant, and the later went further than the earlier and therefore was impliedly the valid provision.5 CONTEMPORARY PROBLEMS In three important areas of legal activity, the problem of implied repeal has been of particular significance, namely the power of competence of the local authority, assisted dying and suicide, and EU law and Brexit. The General Power of Competence of the Local Authority A potentially very significant area for the operation of the principle of implied repeal has arisen in the Localism Act 2011 sections 1–8. The traditional legal position has been that the local authority is a creature of statute, an artificial person, and can do nothing unless statutorily authorized to do so. The same goes for a company. Whereas an individual, a person, can do whatever he likes unless prohibited by law. Over the years, Parliament has gradually increased the scope of the powers of the local authority to do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any of its functions (1972); to exercise a power of economic, social and environmental well-being (2000); and to exercise a general power of competence (2011).6 The local authority now has the discretionary power to do anything that an individual with full capacity may do 2011 Act section 1. The 2011 Act does not relieve the local authority of its statutory duties. The purpose behind the 2011 Act was said to be the recognition of the importance of the contemporary role of local government in public administration, to relieve local government of continually having to seek express statutory authority for every action, and the risk of inadvertent illegality, and to enable the local authority to fulfil public duties and responsibilities in a modern, imaginative, innovative, and constructive manner. The local authority is empowered to run trading, commercial and investment activities through the medium of a company.7 For a local authority to raise revenue8 to be spent on public services is in one sense commendable, but venturing into commercial activities carries risk and a local authority may lack commercial knowledge and expertise and experience. Investing council tax pagers’ money in Iceland banks at seemingly attractive high rates of interest led to disaster and recession in 2008. Currently, a local authority is often borrowing substantial sums of money from the Treasury at low rates of interest and ‘investing’ the money in commercial properties with a high yield, at risk. The function of a local authority is to provide public services, and to ensure contract compliance by contractors providing public services, not to compete in commercial activities with the private sector. There are boundaries imposed upon the general power. ‘If the exercise of a pre-commencement power of a local authority is subject to restrictions, those restrictions apply also to exercise of the general power so far as it is overlapped by the pre-commencement power’ 2011 Act section 2(1). ‘The general power does not enable a local authority to do: (a) Anything which the authority is unable to do by virtue of a pre-commencement limitation, or (b) Anything which the authority is unable to do by virtue of a post commencement limitation which is expressed to apply: (i) To the general power, (ii) To all of the authority’s powers, or (iii) To all of the authority’s powers but with exceptions that do not include the general power’ 2011 Act section 2(2). The Victorians in effect created the concept of public health and public amenity and public service, principally provided by the local authority. Many open spaces, parks, and recreation grounds were provided by the local authority, usually under a statutory power not a statutory duty. The practical pragmatic Victorians tended to legislate for particular or specific problems and places, rather than in general terms. For example, there was much local legislation relating to particular parks or particular types of parks. Furthermore, the Victorians recognized that the parks and similar facilities would be vulnerable to abuse of one kind or another, so they often imposed restrictions or limitations upon the local authority.9 For example, commercial activities may be prohibited10 or entertainment activities may be limited or restricted to certain types of entertainment or to a maximum area of the park and to a maximum number of days.11 Where a specific local statute prevents or restricts a local authority from exercising the general power of competence (or there is doubt as to the extent of implied repeal), the Secretary of State may make an order amending, repealing, revoking, or disapplying the local statute Localism Act 2011 section 5—a Henry VIII clause, subject to the affirmation procedure. An order was made in order to enable the Tour de Yorkshire cycle race to take place on The Stray in Harrogate. In times of austerity, the local authority argues that the public welcome all sorts of entertainments, shows, circuses, fairs, markets, exhibitions, and commercial displays in the parks, which are very suitable locations for such purposes; also, such activities raise valuable revenue for the local business community and indeed for the local authority, some of the revenue perhaps being used to maintain and to enhance the parks. The general power of competence gives the local authority the power to let out and to charge for the parks for some or all of these activities, in the same way that a private landowner may do so (subject to any relevant planning regime). The new general power impliedly repeals any previous incompatible restrictions or limitations. Objectors argue that, although the general power of competence may empower the local authority to let a park where previously this could not be done, the pre-existing restrictions and limitations made for the protection of the public are not just swept away by the new general power of competence. General powers do not impliedly repeal specific powers; very clear words would be required.12 In 2011, in connection with the Localism Bill, Government ministers did not suggest that the Bill was intended to have any such drastic or dramatic effect. However, the issue remains one of doubt until judicially resolved. Meanwhile, friends of the local park are concerned at what the local authority is doing to the park and feel inhibited from engaging in costly litigation. Assisted Dying and Suicide The suicide problem, namely suicide Suicide Act 1961 section 1, criminal liability for complicity in another’s suicide, Suicide Act 1961 sections 2, 2A and 2B assisted dying and euthanasia (putting a person painlessly to death), and the law of murder, a combination of statute and common law, continue to raise most serious legal, constitutional, social and moral issues, divisive issues, for society. A number of cases have come before the courts by or on behalf of a person of sound mind actually or potentially suffering irreversible physical disabilities of a terminal or probably terminal nature who wishes to die but is unable to commit suicide and needs a third party to take him to Switzerland or to supply or to administer or to assist in self-administration of a lethal drug, and seeking immunity from criminal prosecution for those assisting suicide or assisting dying. Liability under English criminal law on the matter is abundantly clear. The Director of Public Prosecutions (DPP) exercises the discretion whether or not to prosecute. Under the direction of the judges, the DPP has published a policy or code in respect of prosecution for assisted dying, the contents determined by the DPP—and in practice, in recent years, nobody acting from genuine compassion has been prosecuted.13 So far as the European Convention on Human Rights and the Human Rights Act 1998 is concerned, the human rights to the right to private life (Article 8) and the right to self-determination might appear to render English law incompatible with the Convention. The Supreme Court has held that the matter lies within the margin of appreciation of the member state, namely balancing the wishes of a particular person against the need to protect the vulnerable; the Court could declare the English law incompatible, impliedly repealed by the Convention, but the Court would not do so because on so fundamental a matter the responsibility lay with Parliament. In the event, following the decision of the Supreme Court,14 Parliament did consider the matter, whether to rely upon palliative care as at present or to permit assisted dying in certain circumstances, as in some foreign jurisdictions, but decided to make no change in the law. Following the refusal of Parliament to change the law, Noel Conway, who is suffering from incurable motor neurone disease, not expected to live for more than 12 months, persuaded the Court of Appeal to allow his claim for assisted dying to proceed to hearing. The Court said, ‘We consider that, in the context of considering permission for judicial review, the fact that since Nicklinson Parliament has made a decision not to change the law and the matter is no longer under active consideration means that Mr Conway should be entitled to argue that it is no longer institutionally inappropriate for the court to consider whether to make a declaration of incompatibility between the existing law and the rights of Mr Conway under the European Convention on Human Rights’.15 EU Law and Brexit EU law is not impliedly repealed by inconsistent UK law. EU law applies in the UK by reason of a constitutional statute, namely the European Communities Act 1972. Specific UK legislation could expressly purport to repeal an EU law—but that would then be struck down by the ECJ.16 EU law cannot be impliedly repealed by UK law. Interestingly, in 2002, Laws LJ thought that withdrawal from the EU was theoretically and legally possible though not as a matter of realpolitik.17 The European Communities Act 1972 is an unusual UK statute because it may be described as a fundamental or constitutional statute, which gives an automatic overriding primacy to EU law, taking precedence over UK law whether pre-1972 or post-1972.18 EU law is an independent and overriding source of law in the United Kingdom. UK law must be compatible or consistent with EU law, and there can be no express or implied repeal of EU law.19 However, ultimately with parliamentary authority, the UK may withdraw from the EU and has given notice of an intention to do so. The 1972 Act is to be repealed, not by the exercise of prerogative power but by legislating in the normal way.20 Only Parliament can, by repealing the 1972 Act, take away the rights acquired under the 1972 Act and EU law thereafter. But however all embracing the European Communities Act 1972 may be so long as it remains on the UK statute book it cannot be described as ‘entrenched’, for entrenchment is a concept unknown to the sovereign UK Government. Theoretically, all our UK constitutional statutes could be expressly repealed, although regard must be had to political reality. The repeal, express or implied, of a statute granting independence to a former colony would be most unlikely to have any geo-political effect. For legal purposes, Brexit means the repeal of the European Communities Act 1972 and the consequent UK withdrawal from the EU on de-accession day in March 2019.21 The fundamental concept is that all existing EU law affecting the UK on the withdrawal date will simply become UK law and cease to be EU law. The same laws that applied the day before Brexit will apply the day after Brexit. There will be a smooth transition. EU law will simply convert to UK law. The UK will simply take over retained EU law. The volume of law involved will be enormous, some 40 years of EU law! There will be no repeal and no implied repeal. The UK statute book, albeit mightily enlarged, will continue to apply. What used to be EU will become UK law, overnight. The UK statute book will continue to function as before. The retained EU law, now UK law, will continue as before, unless and until altered by the UK Parliament. All litigious disputes will be resolved by the UK courts, and the Supreme Court will be the final court of appeal for all purposes. There will be no repeal, and so theoretically no opportunity for implied repeal either. The Supreme Court will accept pre-de-accession ECJ judgments as binding, unless it decides to depart from precedent, and presumably will regard post-de-accession judgments as persuasive but not binding.22 Naturally, the process will not be quite so simple. Deficiencies are inevitable. The transformed EU law may not be able to stand alone. Disentanglement may not be possible. There will be deficiencies requiring correction or adjustment. Some form of reciprocal involvement or dependency may be inherent and inescapable. Examples given include civil aviation,23 safety of chemicals, pollution control, environmental protection,24 reciprocal anti-crime co-operation, and international competition law. UK international law obligations must be observed, breaches avoided. Within the United Kingdom, some of the retained EU laws will be devolved matters for the three devolved countries, namely Scotland, Wales, and Northern Ireland. Wherever possible, the correction process will be done by statutory instrument, preferably the negative procedure rather than the affirmative procedure. Primary legislation should be avoided because of the obvious temporal and political difficulties. However, because of the sheer volume involved, the Bill does provide for the Henry VIII power to amend primary legislation. Though this power will be limited, no taxation, no interference with human rights, no creation of criminal offences, nothing retrospective, no change to the Belfast ‘Good Friday’ Agreement. Criticism of the Henry VIII clause and attributing it to Henry VIII is somewhat unfair. In search of legitimacy for the Tudor monarchy, Henry VIII usually sought parliamentary approval for his measures, for example the reformation statutes, albeit he was confident of gaining that approval. The Human Rights Act 1998 provides for judicial declaration of incompatibility (section 4), and in consequence the Minister may, for compelling reasons, by order make such amendments to the legislation as he considers necessary to remove the incompatibility section 10(2), and also in the case of subordinate legislation section 10(3). So the draftsmen and legislators must ensure that they include any new UK law needed to make the retained EU law work and that they exclude, expressly exclude, any EU law which for any reason is not required or desired. Any lack of certainty and clarity must be avoided. Implied repeal by mistake would be highly regrettable. Implied repeal by design would represent a poor technique in a highly complicated situation. 1 D Greenberg Implied Repeal, Statutes and the Legislative Process in Halsbury’s Laws of England (5th edn 2012) vol 96, paras 698–701, pp 516–19. 2 Lord Hope in H v. Lord Advocate  UKSC 24,  1 AC 412, para 30. 3 Ellen Street Estates Ltd v. Minister of Health  1 KB 590, CA. Acquisition of Land (Assessment of Compensation) Act 1919 and Housing Act 1925. 4  EWCA Civ 6,  1 WLR 1155, paras 22–31. Seward v. Vera Cruz (1884) 10 App Cas 59, 68–69. Blackpool Corporation v. Starr Estate Co  1 AC 27, 34, Lord Haldane. Kutner v. Phillips  2 QB 267, 271–272. Pattinson v. Finningley Internal Drainage Board  2 QB 33, 37C–39D. 5 Pattinson v. Finningley Internal Drainage Board  2 QB 33, 39–40,  1 All ER 790. Land Drainage Act 1930 and the Land Drainage Act 1961. 6 Local Government Act 1972 section 111, Local Government Act 2000 section 2, Localism Act 2011 sections 1–8. For an exposition of the background, see Current Law Statutes Annotated (2011) vol 2, ch. 20, pp 20/1–9. 7 The scope of local authority power to engage in commercial waste collection and disposal activities, and the VAT implications, are open to doubt R (Durham Co Ltd)  UKU 417 (TCC). 8 T Cloynes ‘Income Generation for Local Authorities’  161 SJ (13) 34. 9 See the Public Health Acts Amendment Act 1890, the Open Spaces Act 1906, the Local Government Act 1972 section 144 and section 145, the Commons Act 2006 and the Hampshire Act 1983 section 60. 10 Local Government Act 1972 section 144. 11 Local Government Act 1972 section 145. Hampshire Act 1983 section 60. R (Friends of Finsbury Park) v. Haringey LBC  EWHC 1454—proposal covered by existing legislation. 12 Vinos v. Marks and Spencer plc  3 All ER 784, para 27. Hamnett v. Essex County Council  EWCA Civ 6,  1 WLR 1155, paras 22–31. 13 R (Kenward) v. DPP  EWHC 3508 (Admin),  2 Cr App R 16. 14 R (Nicklinson) v. MOJ  UKSC 38,  AC 657—nine judges. Z (a child)  EWHC 1191 (Fam),  FLR 327. 15 R (Conway) v. MOJ, Court of Appeal, 12 April 2017. The substantive hearing took place in July 2017. 16 Thoburn v. Sunderland City Council  EWHC 195 (Admin),  QB 151,  4 All ER 156, DC, paras 60–67, 68–70. The ECHR found an application inadmissible on 12 February 2004. M Shrimpton ‘For Good Measure’  NLJ 159, 248. R v. Secretary of State for Transport ex parte Factortame  2 AC 85 and  1 AC 603. 17 Thoburn, para 57. 18 Other such constitutional instruments or statutes include Magna Carta, the Petition of Right 1628, the Bill of Rights 1689, the Act of Settlement 1701, the Parliament Act 1911 and the Human Rights Act 1998—R (Buckinghamshire County Council) v. Secretary of State for Transport  UKSC 3,  1 WLR 324, para 207. 19 R (Miller) v. Secretary of State for Exiting the European Union  UKSC 5,  2 WLR 583, majority judgment paras 1–125, especially paras 60–68. R (Buckinghamshire County Council) v. Secretary of State for Transport  UKSC 3,  1 WLR 325, paras 206–207 and 78–79. R v. Secretary of State for Transport ex parte Factortame Ltd (no 2)  1 AC 603. Thoburn v. Sunderland City Council  EWHC 195 (Admin),  QB 151,  4 All ER 156, DC. Sir William Wade ‘Sovereignty: Revolution or Evolution?’  LQR 112, 568–75. The UK Constitutional Law Association. R Gordon QC and T Pascoe Preparing for Brexit: The Legislative Options (Constitution Society 2017). S Styles ‘Article 50’  Aberdeen Law Review. Walker v. Innospec Ltd  UKSC 47, pp 25. 20 Miller, paras 101 and 124–125. 21 European Union (Withdrawal) Bill 2017. Explanatory Note EN 005 2017-19-EN pdf 703 KB. The ‘Great Repeal Bill’ and delegated powers, ninth report of session 2016–17, p 16. Legislating for the United Kingdom’s withdrawal from the European Union, Government White Paper, March 2017. David Pannick QC ‘What Happens to the European Courts’ Judgments Post-Brexit?’ The Times (13 April 2017). Delegated Powers and Regulatory Reform Committee of the House of Commons. 30 Special Report Second Submission to the House of Commons Procedure on the Great Repeal Bill, 2016–2017. 22 The doctrine of precedent is essential for the clarity, certainty, consistency, coherence and predictability of the law. Practice Statement (Judicial Precedent)  1 WLR 1234,  3 All ER 77, HL. Willers v. Joyce (no 2)  UKSC 44,  3 WLR 534, para 7. 23 Civil Aviation European Air Safety Authority (EASA). 24 Environmental Impact Assessment (EIA). © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: firstname.lastname@example.org.
Statute Law Review – Oxford University Press
Published: Sep 15, 2017
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