What happens to statutory instruments made under the European Communities Act 1972 if the 1972 Act is repealed?
The referendum vote to leave the European Union raises a number of complex legal questions, some of which are going to be addressed in the upcoming litigation considering whether Parliament must be involved in the decision to trigger Article 50. In a recent post at IPKat Ellie Wilson raises a query about the impact of repeal of the European Communities Act 1972 on the secondary legislation implementing European Union law made under section 2(2) that Act.
The query is
“One apparently insignificant footnote in the Opinion caught the IPKat’s eye. Footnote 18 states “Although secondary legislation enacted under section 2(2) of the European Communities Act 1972 will lose its legal basis, and therefore its effect, upon the repeal of that Act.” No further explanation is given of this assertion. The IPKat has seen this suggested before, but has also seen suggestions to the contrary. EU Directives are implemented in UK law either as primary legislation (Acts of Parliament), in which case it is universally agreed that unless amended or repealed such legislation remains in force, or by secondary legislation (Statutory Instruments [Orders in Council]) deriving legal basis from section 2(2) of the ECA.
“In the case of such Statutory Instruments, some commentators believe that they will survive the UK leaving the EU, either because the ECA will not in fact be repealed (and some authors believe that the repeal is not necessary upon the UK leaving the EU, the ECA simply ceases to have any EU legislation to bite on), or because repeal of the ECA does not invalidate SIs that were at the time lawfully enacted under Section 2(2) ECA. The CIPA impact paper supposes that secondary legislation will remain in force for one or other of these reasons. But the real constitutional status of such secondary legislation seems to be unclear, and so the IPKat wonders whether any readers can provide reasoning or legal basis for whether or not an SI remains in force, once lawfully enacted, if the Act giving it legal basis is later repealed.”
So, what happens to the secondary legislation made under the 1972 Act if that ACt is repealed with no saving provisions?
The general principle on repeal of legislation is set out in Kay v Goodwin (1830) 6 Bing 576, 582. There, Tindal, CJ, said
“I take the effect of repealing a statute to be to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purposes of those actions which were commenced, prosecuted and concluded whilst it was an existing law.”
The starting assumption then is that the legislation and everything done under it (which would include subordinate legislation made under it) is repealed. This represents the orthodox view and can be seen (albeit without authority) in texts such as the Sources of Law (Formal) title in the Stair Memorial Encyclopaedia Volume 22 — where at para 183 it baldly states,
“The repeal of a parent Act necessarily extinguishes all statutory instruments made under it, unless they are specially saved”.
Carl Gardner, an experienced former government lawyer, has argued though that the general position may not apply. He argues:
“Bennion and Greenberg I think say yes, but I wonder why s16(1)(b) [Interpretation Act] 1978 doesn’t save them.”
The argument has a superficial attraction. Section 16 of the Interpretation Act 1978 makes various provisions for savings in the event of repeal of legislation. The specific provision noted by Mr Gardner is
“…where an Act repeals an enactment, the repeal does not, unless the contrary intention appears
“(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment
“and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”
At first sight it appears that this saves those actions taken under an Act subsequently repealed.
However, when interpreting legislation it is important to remember that an Act must be interpreted in the context of the legislation as a whole — see, for example, Attorney General v Prince Ernest Augustus of Hanover  AC 436, a p 461 (per Vicount Simonds), and for further discussion see Bell and Engle, Cross on Statutory Interpretation (3rd edn) pp 55–6.
“Where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears, —
“(b) in so far as any subordinate legislation made or other thing done under the enactment so repealed, or having effect as if so made or done, could have been made or done under the provision re-enacted, it shall have effect as if made or done under that provision.”
Section 17 (2)(b) makes express provision to save subordinate legislation in the event that a statute is repealed AND re-enacted. In that case the subordinate legislation is treated as being made under the new provision — even if the re-enacted provisions modifies the original terms of the statute. If section 16 (1)(b) generally saves subordinate legislation made under a repealed Act then section 17 (2)(b) would not be necessary.
The implication seems clear. The repeal of the parent Act (such as the European Communities Act 1972) will by implication repeal the subordinate legislation made under that Act.
This, though, is only the case insofar as there is no “contrary intention”. It is therefore open in the drafting of the legislation repealing the 1972 Act to provide either in general or specific terms to save subordinate legislation made under that Act. To make specific provision would be a substantial undertaking requiring an audit of the existing subordinate legislation made under s 2 (2) of the 1972 Act. However, given the terms of much of that legislation (for example, in imposing reporting requirements to European Union authorities) failure to carry out such an audit and instead rely on a general saving (as some MPs have suggested) will cause its own difficulties, but that is a matter for a further post.