BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) obligation in question: Oyarce v Cheshire County Council [2008] EWCA Civ 434, [2008] 4 All ER 907. Page 256 Relevant Index entry: Attorney General v Great Eastern Railway Co., rule in See Re Application by Local Government Auditor [2005] NIQB 52. Page 256 Relevant Index entry: consultation [New entry, not in fifth edition] Once a decision to carry out a statutory consultation is made „the consultation must be carried out properly . . . at a time when the proposals are still at a formative stage. Sufficient reasons must be given to allow those consulted to give intelligent consideration and an intelligent response. There must also be adequate time for such a response . . .‟: R (on the application of Boyejo & Ors) v Barnet London Borough Council [2009] EWHC 3261 (Admin) at [67]. Pages 258-259 Section 58(2) Relevant Index entry: severance:delegated legislation For an example of severance of a byelaw see Tabernacle v Secretary of State for Defence [2008] EWHC 416 (Admin). For an example of severance{ } of an Order in Council see A and others v HM Treasury [2008] EWCA Civ 1187, [2009] 2 All ER 747. Section 59. Delegated legislation: the rule of primary intention Pages 262-263 Relevant Index entry: delegated legislation:primary intention, rule of Code s 59 was applied in: R (on the application of Sarwar & Anor,) v Secretary Of State For Social Security [1996] EWCA Civ 801; HM Revenue & Customs v Dunwood Travel Ltd [2008] EWCA Civ 174; Clyde Francis Munnings v DW Smith [1987] FCA 281; 22 IR 254 at [9]; Re Aboriginal Development Commission [1988] FCA 160 at [37]. As to this rule see HM Revenue & Customs v Dunwood Travel Ltd [2008] EWCA Civ 174 at [14], [15], [23]. Section 65. Types of delegated legislation: (5) byelaws Page 270 Relevant Index entry: byelaws:uncertainty, void for For an example of severance of a byelaw see Tabernacle v Secretary of State for Defence [2008] EWHC 416 (Admin). Section 66. Types of delegated legislation: (6) other instruments Page 272 Relevant Index entry: direction See N & Anor, Re Application for Judicial Review [2005] NIQB 75 at [8](2). Part IV. Commencement, Amendment and Repeal of Acts Section 78. Textual amendment Page 288-292 Relevant Index entry: amendment to Act:textual In Shields v Chief Commissioner of Police [2008] VSC 2 at [102]-[104] the Supreme Court of Victoria applied the sentence on p. 290 „However it is submitted that under modern practice the intention of Parliament when effecting textual amendment of an Act is usually to produce a revised text of the Act which is thereafter to be construed as a whole.‟ The passage on p. 291 headed Effect of amending Act was applied by the House of Lords in Medcalf v Weatherill and Another [2002] UKHL 27 at [20]. www.francisbennion.com/5th-edn 28
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Section 81. Amendment by delegated legislation Page 294 Relevant Index entry: amendment to Act:delegated legislation, by Lord Bingham of Cornhill said that recognition of Parliament‟s primary law making role requires the narrow approach indicated on p. 294: R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Limited [2001] 2 AC 349 at 382. See also Traynor & Anor, Re Judicial Review [2007] ScotCS CSOH_78 at [8]. Section 82. Consequential amendment Pages 296-297 Relevant Index entry: amendment to Act:missed consequential [New entry, not in fifth edition] For an example of a missed consequential see Revenue and Customs Commissioners v Stringer and others [2009] UKHL 31, [2009] 4 All ER 1205, at [28]. Section 83. References to an amended enactment Page 298 Relevant Index entry: amendment to Act:reference to amended Act Code s 83 was discussed by the Federal Court of Australia in Austereo Limited v Trade Practices Commission [1993] FCA 301 at [39]. Section 85. Meaning of ‘repeal’ Page 300 Relevant Index entry: repeal:nature of Code s 85 has been approved in Australia: R v Abdul Haque Omarjee [1995] VSC 94 at [46]. Section 87. Implied repeal Page 304 Relevant Index entry: repeal:implied (1) The first two sentences of the Comment on Code s 87 were followed in R (on the application of Secretary Of State For Home Department) v Burke [1998] EWHC Admin 913 at [4]. (2) Regarding the sentence before Example 87.1 beginning „The possibility of implied repeal goes wider . . .‟ Buxton LJ said in relation to the reference to anomaly: „No authority is cited for the latter proposition and I am unable to act on it‟: O’Byrne v Secretary of State for Environment, Transport & Regions & Anor [1996] EWCA Civ 499 at paragraph 26. In view of this dictum the reference to anomaly should be treated as withdrawn. Page 305 Relevant Index entry: repeal:implied The Court of Appeal followed what is said on p. 305 regarding the presumption against implied repeal in Henry Boot Construction (UK) Ltd v Malmaison Hotel Ltd [2000] EWCA Civ 175. Substitution To substitute a new provision for an existing provision is by implication expressly to repeal the existing provision: R v Abdul Haque Omarjee [1995] VSC 94 [Australia]. Section 88. Generalia specialibus non derogant Page 306 Relevant Index entry: generalia specialibus non derogant Henry LJ applied Code s 88 in Hyde Park Residence Ltd v Secretary For Environment, Transport & Regions & Anor [2000] EWCA Civ 13 at [31]. See also Re McE, Re M , Re C and another [2009] UKHL 5, [2009] 4 All ER 335, at [98]. For a mistaken use of this maxim, corrected by the High Court of Australia, see Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841, at [78]-[81]. www.francisbennion.com/5th-edn 29
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