Frustrating Brexit? Commencement Dates and Mandatory Orders

Today was supposed to be Brexit Day, the day Britain would leave the European Union, two years after triggering the departure process under Article 50 of the Treaty on European Union. Ironically enough, the United Kingdom would have left not when the clock strikes midnight in London, but at 11pm GMT, midnight in Brussels, a reminder of how the terms of Britain’s departure have largely been dictated by EU law and the power of European institutions.

Section 1 of the European Union (Withdrawal) Act 2018 provides for the severing of Britain’s legal ties with the EU: “The European Communities Act 1972 is repealed on exit day”. But whilst exit day is defined in s.20(1) as “29 March 2019 at 11.00 p.m”, there is also a mechanism in ss.20(2)-(5) to modify the definition of exit day, which has been used to push exit day out to either April 12 or May 22, consistent with last week’s agreement between the UK and the EU to extend the Article 50 period.

There is a further provision worth noting. Section 1 is, in fact, not yet in force. It is subject to the commencement power contained in s.25(4):

The provisions of this Act, so far as they are not brought into force by subsections (1) to (3), come into force on such day as a Minister of the Crown may by regulations appoint; and different days may be appointed for different purposes

Is this an unfettered power? Could ministers frustrate Brexit by refusing to exercise this discretionary authority to bring s.1 into force? It would appear so. I am not aware of any English authority directly on point, but there is a remarkable Irish case, State (Sheehan) v Ireland [1987] I.R. 550, which speaks to the question.

The plaintiff here broke his arm when he tripped on a footpath in Cork City. He sued the local authority for damages. But at common law the Irish courts insist on a distinction between misfeasance and nonfeasance in respect of local authority liability. As the injuries had occurred here as a result of nonfeasance, not misfeasance, the plaintiff had no cause of action against the local authority. To put it bluntly, at common law in Ireland, local authorities are immune even for negligently omitting to keep footpaths safe for use.

Nearly three decades earlier, legislation had been passed to alter the common law position. Section 60(1) of the Civil Liability Act 1961 provided that a “road authority shall be liable for damage caused as a result of their failure to maintain adequately a public road”. A commencement date of April 1967 was mentioned, but the government was given the discretionary authority to fix a new date:

This section shall come into operation on such day, not earlier than the 1st day of April, 1967, as may be fixed therefor by order made by the Government.

However, the provision had never been commenced. The plaintiff sought an order of mandamus compelling the government to bring it into force.

He was successful in the High Court, where Costello J read s. 60 as conferring only a “limited” discretion to change the commencement date:

[I]t seems to me that if Parliament intended (as I think clearly it did) that the law should be reformed, it did not intend to confer a discretion which would permit that intention to be frustrated. This means that the discretion given by sub-s 7 is a limited one, and that it should be construed as requiring the Government to make an order within a reasonable time after the 1st April, 1967.

[1987] I.R. 550 at p. 556.

But the Supreme Court (where, interestingly enough, the government was represented by a certain Frank Clarke SC, now the Chief Justice) reversed this decision.

Henchy J took a different view of s.60. He noted that the text cast the power in directory rather than mandatory form. Moreover, the purpose of s.60 was to effect a radical reform of local authority liability. Read in its wider context, creating an open-ended commencement power made perfect sense, as it would allow the government to take into account all relevant economic and cultural factors before bringing the new regime into force:

I am satisfied that s 60, sub-s 7 is merely enabling. The uses of “shall” and “may”, both in the sub-section and in the section as a whole, point to the conclusion that the radical law-reform embodied in the section was intended not to come into effect before the 1st April, 1967, and thereafter only on such day as may be fixed by an order made by the Government. Not, be it noted, on such date as shall be fixed by the Government. Limiting words such as “as soon as may be” or “as soon as convenient”, which are to be found in comparable statutory provisions, are markedly absent…[Section] 60, sub-s 7 by vesting the power of bringing the section into operation in the Government rather than in a particular Minister, and the wording used, connoting an enabling rather than a mandatory power or discretion, would seem to point to the parliamentary recognition of the fact that the important law reform to be effected by the section was not to take effect unless and until the Government became satisfied that, in the light of factors such as the necessary deployment of financial and other resources, the postulated reform could be carried into effect.

[1987] I.R. 550 at p. 561.

As a result, the discretion “was not limited in any way, as to time or otherwise” (at p. 561).

The considerations of text, purpose and context that led Henchy J to this conclusion would seem to apply with equal force to s.25(4) of the Withdrawal Act. And Henchy J did not even have to rely upon the separation of powers implications of compelling governmental action (see Finlay CJ’s judgment at pp. 559-560, expressly reserving the issue). Such considerations would, however, apply even in the context of the unwritten British Constitution to constrain the ability or willingness of the courts to grant a mandatory order compelling a minister to bring a statute into force.

This content has been updated on March 29, 2019 at 11:00.