repeal

A repeal is the removal or reversal of a law. There are two basic types of repeal, a repeal with re-enactment (or replacement) of the repealed law, or a repeal without replacement. The motion to rescind, repeal, or annul is used in parliamentary procedure to cancel or countermand an action or order previously adopted by the assembly. Removal of secondary legislation is normally referred to as revocation rather than repeal in the United Kingdom and Ireland. Under the common law of England and Wales, the effect of repealing a statute was "to obliterate it completely from the records of Parliament as though it had never been passed."^[1] This, however, is now subject to savings provisions within the Interpretation Act 1978.

Partial or full repeals

A partial repeal occurs when a specified part or provision of a previous Act is repealed but other provisions remain in force. For example, the Acts of Union 1800, providing for the union between the formerly separate kingdoms of Great Britain and Ireland as the United Kingdom, was partially repealed in 1922, when (as a consequence of the 1921 Anglo-Irish Treaty), twenty-six of the thirty-two counties of Ireland were constituted as the Irish Free State, and ceased to form part of the United Kingdom.

A full repeal occurs where the entire Act in question is repealed.

Repeal with or without re-enactment

A typical situation where an Act is repealed and re-enacted is where the law in the area is being updated but the law being repealed needs replaced with a modern version. Re-enactment can be with or without amendment, although repeal and re-enactment without amendment normally occurs only in the context of a Consolidation Bill (a bill to consolidate the law in a particular area).

For example the repeal of the Poor Laws in England in 1948 reflected their replacement by modern social welfare legislation.

A repeal without replacement is generally done when a law is no longer effective, or it is shown that a law is having far more negative consequences than were originally envisioned.

If a campaign for the repeal of a particular law gains particular moment, an advocate of the repeal might become known as a "repealer". This happened in 19th century Britain to a group in favour of the re-separation of Ireland from the United Kingdom.

Many repeals without replacement are the result of significant changes in society. Major examples include:

• the old Jim Crow laws or blue laws in the US
• The Corn Laws in England, repealed in 1846 after a passionate campaign.
• Repeal of Prohibition in the United States. Enacted by the Eighteenth Amendment to the United States Constitution, it proved to be so ineffective that it had to be repealed by the Twenty-first Amendment. This is the only constitutional amendment to be repealed in the U.S.
• The massive Statute Law Revision Act 2007 in the Republic of Ireland, through which 3,225 Acts were repealed, dating back over eight centuries to 1171 and the earliest laws enacted by England when it began its invasion of Ireland. The statutes repealed include a number of Acts of significant historical interest, including an Act of 1542 providing that the Kings of England shall be Kings of Ireland. This Act is the largest single repealing statute in the history of Ireland.

Express or implied repeal

The repeal of a statute may be either express or implied.^[2]

Express repeal occurs where express words are used in a statute to repeal an earlier statute. They are now usually included in a table in a schedule to the statute, for reasons of convenience.

In the United States, when a bill is passed by the House and Senate and signed by the president, or Congress overrides a presidential veto, the various provisions contained within the newly enacted law are rearranged according to their policy content and cataloged in the United States Code—a compilation of the general and permanent federal laws of the United States. To repeal any element of an enacted law, Congress must pass a new law containing repeal language and the codified statute's location in the U.S. Code (including the title, chapter, part, section, paragraph and clause). In this way, Congress (and the president) must follow the same rules and procedures for passing any law. When statutes are repealed, their text is simply deleted from the Code and replaced by a note summarizing what used to be there. Once deleted, the repealed statute no longer has the force of law. All repeals of parts of the US Code are, therefore, express repeals.

Implied repeal occurs where two statutes are mutually inconsistent. The effect is that the later statute repeals the earlier statute pro tanto (in so far as it is inconsistent).^[3] There is a presumption against implied repeal.^[4]

Repeals with or without savings

Repeals can be with or without savings. A repeal without savings eliminates the repealed statute completely. A repeal with savings preserves the effect of the repealed statute for limited purposes, such as acts already done or in hand, or regulations made under the repealed Act are continued in force. In England and Wales, sections 15 to 17, and section 19(2), of the Interpretation Act 1978 set out general savings and similar provisions exist in the law of Ireland and other common law countries.

References