Ellen Street Estates v Minister of Health

Facts

Section 7(1) of the Acquisition of Land (Assessment of Compensation) Act 1919 provided that the provisions of any other Act inconsistent with that Act would have effect subject to it. The Housing Act 1925 later provided a different basis for assessing compensation for the compulsory purchase of land for slum clearance, which was less favourable to owners. The owners claimed that the compensation should be assessed under the 1919 Act.

Issue

Whether a provision in an earlier Act stating that inconsistent later enactments are to have no effect can prevent a later Act on the same subject from impliedly repealing it to the extent of the inconsistency.

Held

The claim failed. The Housing Act 1925 governed the assessment of compensation, since it was inconsistent with section 7(1) of the 1919 Act and impliedly repealed it to that extent.

Ratio

• The legislature cannot, according to the constitution, bind itself as to the form of subsequent legislation, and it is not possible for Parliament to enact that a later Act dealing with the same subject cannot impliedly repeal it.
• Where a later Act is inconsistent with an earlier one, the earlier one is impliedly repealed to the extent of the inconsistency, whatever the earlier Act says about the effect of later provisions.

The judgments

Key reasoning

• The statement in the 1919 Act purported to control the effect of future Acts, but a Parliament is not bound by the enactments of its predecessors and a later Act may displace an earlier one by necessary implication.
• The two statutes were irreconcilable on the method of calculating compensation, so that the later provision had to prevail and the earlier statement could not be given effect.
• The attempt to require express words to repeal the earlier provision would amount to a limit on the powers of later Parliaments, which the constitution does not permit.

Where it fits in the module

In the question whether Parliament can bind its successors, the case supports the continuing view of sovereignty, in which each Parliament is free of the acts of its predecessors. It is contrasted with the argument that Parliament may bind itself as to manner and form, and with the later view in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) that constitutional statutes are not subject to ordinary implied repeal.

Criticisms

• The statement of principle was made on facts where the inconsistency was plain, and the court did not examine whether Parliament may bind itself as to the manner and form of later legislation.
• The continuing view of sovereignty is a common law rule created by the courts, and so it is open to the argument that the courts can modify it, as later cases on constitutional statutes suggest.
• Implied repeal can lead to the accidental loss of important rights where Parliament did not address the earlier measure, which is why later courts developed approaches that require clear words for some enactments.