Traffic Regulation Orders and the Equality Act

January 19th, 2017 by James Goudie KC

In Hamnett v Essex County Council (2017) EWCA 6, the Appellant, who is disabled, and the group which she chairs, were concerned at the impact upon them of Experimental Traffic Regulation Orders (“ETROs”), and in particular the removal of disabled parking.  She made an application for statutory review of the ETROs under the Road Traffic Regulation Act 1984 (“RTRA 1984”).  Her case alleged not only breach of the PSED but also breach of Section 29 of the Equality Act 2010 (“the 2010 Act”).  It failed for lack of jurisdiction.  Gross LJ, with whom Tomlinson and King LJJ agreed, said:-

“22.    I begin with the common ground or matters not in dispute:

  1. i) First, the High Court has jurisdiction to deal with claims of a breach of the public sector equality duty (s.149 of the 2010 Act);
  2. ii) Secondly, there is a conflict between the RTRA 1984 and the 2010 Act with regard to jurisdiction for the resolution of claims alleging contraventions of s.29 of the 2010 Act.
  3. … there cannot be a lacuna. An individual, who has a right under s.29 of the 2010 Act, must have a forum in which to pursue a remedy for alleged contravention of that right. …
  4. Reverting to the jurisdictional conflict, I am not sure that there was consensus as to the reasons for it, still less its resolution which plainly is in dispute. My own reasons for thinking that there is such a conflict are as follows:
  5. i) By virtue of the provisions of Part VI of Schedule 9 to the RTRA, any application questioning the validity of an ETRO on the ground that it is not within the “relevant powers” (as defined) must be brought in the High Court – and only the High Court – within the time limit there provided.
  6. ii) The wording “relevant powers” appears to mean those powers governing the making of an order which are to be found within the four corners of the RTRA 1984. However, I do not think and did not understand it to be contended that the validity of an ETRO could only be challenged on a basis falling within the four corners of the RTRA 1984 – for example, that an ETRO purported to be in force for longer than 18 months and thus contrary to s.9(3) of that Act. To my mind, the better view is that the Schedule 9 provisions additionally encompass challenges to an ETRO on grounds outside of the RTRA 1984, for instance non-compliance with a provision of other primary legislation. This view accords with the general position in law, namely that an order such as an ETRO can be impugned on public law grounds for non-compliance with either or both the enabling Act and/or any other primary legislation.

iii)       If right so far, then, as s.29 of the 2010 Act confers a right not to be discriminated against, the ETROs could be challenged on the ground that they do not comply with s.29 – but Schedule 9 to the RTRA 1984 Act, if it stood alone, requires that challenge to be brought in the High Court as there provided.

  1. iv) The RTRA 1984 does not, however, stand alone. As has been seen, S.113(1) of the 2010 Act provides that “Proceedings relating to a contravention of this Act must be brought in accordance with this Part…” of the 2010 Act, i.e., Part 9. As is clear from s.114 of the 2010 Act, Part 9 provides for County Court (and only County Court) jurisdiction.
  2. v) On the face of it, there is thus a conflict. An alleged contravention of s.29 of the 2010 Act must be pursued by way of statutory review in the High Court if the RTRA 1984 prevails. Yet the same contravention must be pursued in the County Court, if Part 9 of the 2010 Act prevails.
  3. vi) In this regard, I am unable accept either of the two escape routes for which Ms Casserley contended. First, I can see no warrant for not giving the word “Proceedings” in s.113(1) of the 2010 Act its ordinary meaning. On this footing, a statutory review pursuant to Schedule 9 to the RTRA 1984 comes within the wording of s.113(1). Secondly, for the reasons given by Singh J (at [58] and following of the judgment), with which I respectfully agree, I cannot accept that the statutory review here in issue could be characterised as an application for judicial review and therefore within the s.113(3) exception. Not least, no substantive claim for judicial review can proceed without permission, whereas a statutory review under the RTRA 1984 can be pursued as of right.
  4. There is thus a conflict as to the forum in which a claim for contravention of s.29 of the 2010 Act must be pursued. Is it the High Court or the County Court? What is the solution to the conundrum?
  1. To my mind, the answer lies in the well-known common law doctrine of implied repeal: where the provisions of two statutes cannot stand together, the later provisions prevail and the earlier provisions are treated as repealed by implication or amended to the extent necessary to remove the inconsistency. As expressed in Bennion on Statutory Interpretation (6th ed., 2013), at Section 87(1):

” Where a later enactment does not expressly repeal an earlier enactment which it has power to override, but the provisions of the later enactment are contrary to those of the earlier, the later by implication repeals the earlier in accordance with the maxim leges posteriors priores contrarias abrogant (later laws abrogate earlier laws). This is subject to the exception embodied in the maxim generalia specialibus non derogant…

It must be underlined that the Court will not lightly invoke the doctrine of implied repeal; necessary repeals are usually effected expressly:

” The rule is, therefore, that one provision repeals another by implication if, but only if, it is so inconsistent with or repugnant to that other that the two are incapable of standing together…..”

                         Halsbury’s Laws of England, Vol. 96 (2012 ed.), at para. 698.

See too, Ellen Street Estates Ltd. v Minister of Health [1934] 1 KB 590, at pp. 595-6 and 597; Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151, esp., at [42] and following and [60], per Laws LJ (a decision dealing with “constitutional statutes”, with which we are not concerned). As to the exception or qualification spoken of by Bennion, the doctrine is inapplicable or more difficult to apply where the earlier enactment is particular and the later general, in nature: see, Pattison v Finningley Internal Drainage Bd. [1970] 2 QB 33, at pp. 37-39.

  1. In the present case, as I have sought to demonstrate, the Appellant, insofar as she alleges that the ETROs contravene s.29 of the 2010 Act, faces irreconcilable provisions as to jurisdiction: the RTRA 1984 providing for the High Court and the 2010 Act providing for the County Court. Those provisions cannot be made to stand together. Nor can it be said that the RTRA 1984 provisions were “special” and the 2010 Act provisions “general” in nature. They are either both “general” or, if anything, the provisions of the 2010 Act are more “special” in nature, dealing as they specifically do with discrimination. In my judgment, therefore, the High Court jurisdiction provided for in Schedule 9 to the RTRA 1984 must, to the extent necessary, be regarded as impliedly repealed by the provision for County Court jurisdiction contained in Part 9 of the 2010 Act.
  2. Spelling this out: the High Court did not have jurisdiction to entertain the Appellant’s challenge to the validity of the ETROs on the ground of alleged contravention of s.29 of the 2010 Act because of the effect of Part 9 of that Act. The Appellant ought instead to have proceeded in the County Court, utilising the custom-made procedure found in the 2010 Act for doing so. Para. 37 of Schedule 9 to the 1984 Act must be treated as impliedly repealed, insofar (and only to such extent) as it prohibits recourse to the County Court in respect of such proceedings.
  3. The practical attractions of this solution are readily apparent. As is not in dispute, questions as to the public sector equality duty (s.149 of the 2010 Act) – a duty of process, as described to us – remain in the High Court. If, however, separate questions arise as to an alleged contravention of s.29 – going to substantive matters – then they fall to be resolved in the County Court, which is well-equipped to resolve such factual disputes as may well be encountered, while at the same time enjoying the power (pursuant to s.119(2)(b) of the 2010 Act) to grant any remedy which could be granted by the High Court on a clam for judicial review.
  4. I would therefore uphold the decision of the Judge (if for the somewhat expanded reasons set out above) and dismiss the appeal on the Jurisdiction Issue. My conclusion is that the County Court not the High Court had jurisdiction in this case to consider the challenge to the validity of the ETROs, insofar as the Appellant sought to rely upon an alleged contravention of s.29 of the 2010 Act.”

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