ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Singh
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE GROSS
LADY JUSTICE KING
|- and -
|ESSEX COUNTY COUNCIL
Barbara Hewson (instructed by Essex Legal Services) for the Respondent
Hearing dates: 13 December, 2016
Crown Copyright ©
Lord Justice Gross:
" (i) In exercising its powers to make the Orders the Council breached sections 29(6) and (7) of the Equality Act 2010, in that it discriminated against the Claimant by reason of her disability and failed to make reasonable adjustments in the exercise of making the Orders, by failing to allow Blue Badge holders to access the streets and to park on them.
(ii) In exercising its power to make the Orders the Council failed to have due regard to the public sector equality duty pursuant to section 149 of the Equality Act 2010.
(iii) In exercising its power to make the Orders, by acting contrary to sections 29 and 149 of the Equality Act 2010 and the considerations underpinning the Badge Scheme, the Council acted irrationally as a rational authority would obey the law. "
THE STATUTORY FRAMEWORK
" 34 (1) This Part of this Schedule applies –
(a) to any order made under or by virtue of any of the following provisions of this Act, namely sections ….9….
(2) In this Part of this Schedule –
(a) 'the relevant powers', in relation to any such order as is mentioned in sub-paragraph (1)(a) above, means the powers with respect to such an order conferred by the Act….."
Pausing there, ETROS are made pursuant to s.9 of this Act. Continuing:
" 35. If any person desires to question the validity of, or any provision contained in, an order to which this Part of this Schedule applies, on the grounds –
(a) that it is not within the relevant powers, or
(b) that any of the relevant requirements has not been complied with in relation to the order,
he may within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court….
36. (1) On any application under this Part of this Schedule the court –
(a) may, by interim order, suspend the operation of the order to which the application relates, or of any provision of that order, until the final determination of the proceedings; and
(b) if satisfied that the order, or any provision of the order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements, may quash the order or any provision of the order.
(2) An order to which this Part of this Schedule applies, or a provision of any such order, may be suspended or quashed under sub-paragraph (1) above either generally or so far as may be necessary for the protection of the interests of the applicant.
37. Except as provided by this Part of this Schedule, an order to which this Part of this Schedule applies shall not, either before or after it has been made, be questioned in any legal proceedings whatever."
" (6) A person must not in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination….
(7) A duty to make reasonable adjustments applies to –
(b) a person who exercises a public function that is not the provision of a service to the public or a section of the public."
" (1) This section applies if a county court ….finds that there has been a contravention of a provision referred to in section 114(1).
(2) The county court has power to grant any remedy which could be granted by the High Court –
(a) in proceedings in tort;
(b) on a claim for judicial review."
" (1) A public authority must, in the exercise of its functions, have due regard to the need to –
(a) eliminate discrimination….and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it….
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities."
"….important to recall that the public sector equality duty does not require any particular outcome to be achieved by a public authority; rather it imposes a procedural duty (and an important one) to have due regard to various matters in the process by which an outcome is reached. "
Accordingly, the Appellant's claim failed, insofar as it was based on alleged breach of s.149 of the 2010 Act. The Appellant has not pursued an appeal on that point before us. She has likewise not pursued any appeal against the Judge's conclusion (at  – ) that the Respondent's decision was not irrational.
THE RIVAL CASES
"58. It is not necessary to insert s.29 into the statutory review by the interpretative device proposed by the Appellant. There is no breach of her Article 6 rights in this result. There is no statutory lacuna as a result of the ouster clause to which she objects.
59. The proper safeguard for the exercise of the Respondent's statutory functions as a traffic and highways authority when making ETROs is the public sector equality duty under s.149. The Respondent discharged that duty …The ETROs were experimental and flexible, and open to modification in any event. "
Finally, statutory review was not to be equated with "judicial review". The courts had been particularly slow to allow judicial review of a decision in respect of which there were other remedies, as here; the judicial review jurisdiction was a "long-stop": Hickinbottom J, in R (On the Application of Great Yarmouth Port Company Ltd v Marine Management Organisation)  EWHC 3052 (Admin), at  – .
i) Issue I: Jurisdiction;
ii) Issue II: An academic appeal?
Issue I: Jurisdiction
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);
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.
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.
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.
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.
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.
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  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.
" 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  1 KB 590, at pp. 595-6 and 597; Thoburn v Sunderland City Council  EWHC 195 (Admin);  QB 151, esp., at  and following and , 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.  2 QB 33, at pp. 37-39.
Issue II: An academic appeal?
" ….and appeals which are academic should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."
"Both the cases and general principle seem to suggest that, save in exceptional circumstances, three requirements have to be satisfied before an appeal, which is academic as between the parties, may (and I mean 'may') be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated."
Even taking into account that Hutcheson did not involve a public authority or a question of public law, the caution needed before exercising the discretion to proceed in a case which has become academic is readily apparent.
Lady Justice King:
Lord Justice Tomlinson: