the Consumer Protection Act 1987, Liverpool County Council had the power
to issue a suspension notice of up to six months duration where there were
reasonable grounds to suspect that a safety provision of the regulations had
been contravened, against which the person on whom the notice had been
served had the right to apply to a Magistrates’ Court to have it set aside. It
was common ground that the intention of Liverpool City Council was to cause
a suspension of the supply of the baby walkers described in the press release.
Liverpool County Council contended that it had a statutory power to issue the
press release under its general ancillary powers in the Local Government Act
1972 and as weights and measure authority under the Weights and Measures
Act 1985.
52
Lord Bingham’s conclusion was baldly stated but, on the facts, was plainly
justified: Liverpool County Council was attempting to achieve, by the exercise
of ancillary powers in general legislation defining their functions, a specific
purpose which could only be achieved by the exercise of powers under the
regulations and the 1987 Act. It has no application to the circumstances we
are considering, for four reasons:
(i) The regulations contained no saving provision for other statutory
powers. By contrast, s.80 of RIPA expressly preserves the power to
issue directions such as those under s.94.
(ii) As set out in paragraph 41 above, s.94 was still effective, as
amended in 2003, after RIPA.
(iii) The powers relied on by Liverpool County Council were general
and ancillary powers. Again by contrast, s.94 is not a general and
ancillary power. It may only be exercised on one of two grounds -national security or foreign relations -- and may only be exercised in
relation to the director of Ofcom and a person who is a public
telecommunications operator or an approved contractor (s.94(8)).
(iv) The exercise of the power to give directions under s. 94 does not
defeat the provisions of Part I, Chapter II of RIPA. It is the exercise of
a different and separate power, by the Secretary of State, not by
designated persons.
53
Mr. Eadie mounted a sustained argument to the effect that Mr. de la Mare’s
submission could only succeed if he could show that RIPA had repealed or
circumscribed the s.94 power to give directions. He relied on settled case law
- primarily principles enunciated by AL Smith J in Kutner v Phillips [1981]
2 QB 267 at 271 and by Laws LJ in O’Byrne v Secretary of State for the
Environment, Transport and the Regions [2001] EWCA [2002] HLR 30
Civ 499 at para.68 - that there is a strong presumption against implied repeal
(see also Waller LJ in Henry Boot Construction (UK) Limited v Malmaison
Hotel (Manchester) Limited [2001] QB 388), and that the later enactment
must be so inconsistent with or repugnant to the provisions of the earlier Act
that they cannot stand together, or that there must be an insuperable logical
contradiction between the two. We agree that neither situation applies here;
but do not consider it necessary to undertake an elaborate analysis, because
s.80 (a) and (c) of RIPA expressly preserves the pre-existing power to obtain
communications data, ruling out any question of implied repeal.
21