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Repeal

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"Repeal Bill" redirects here. For the specific UK bill previously known by that name, seeEuropean Union (Withdrawal) Act 2018.

Arepeal(O.F.rapel,modernrappel,fromrapeler,rappeler,revoke,reandappeler,appeal)[1]is the removal or reversal of alaw.There are two basic types of repeal; a repeal with a re-enactment is used to replace the law with an updated, amended, or otherwise related law, or a repeal without replacement so as to abolish its provisions altogether.

Removal ofsecondary legislationis normally referred to as revocation rather than repeal in theUnited KingdomandIreland.Under thecommon lawofEngland 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."[2]This, however, is now subject to savings provisions within theInterpretation Act 1978.

Inparliamentary procedure,themotionto rescind, repeal, or annul is used to cancel or countermand an action or order previously adopted by theassembly.

Partial or full repeals[edit]

Apartial repealoccurs when a specified part or provision of a previous Act is repealed but other provisions remain in force.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for the union between the formerly separate kingdoms ofGreat BritainandIrelandas theUnited Kingdom,was partially repealed in 1922, when (as a consequence of the 1921Anglo-Irish Treaty), twenty-six of the thirty-two counties of Ireland were constituted as theIrish Free State,and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

Afull repealoccurs where the entire Act in question is repealed.

Repeal with or without re-enactment[edit]

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typical situation where an Act isrepealed and re-enactedis where the law in the area is being updated but the law being repealed needs to be replaced with one suitable for the modern era.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

For example, the repeal of thePoor Lawsin England in 1948 reflected their replacement by modern social welfare legislation.

Arepeal without replacementis 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 momentum, an advocate of the repeal might become known as a "repealer". TheRepeal Associationin 19th-century Ireland advocated Irish independence through repeal of theActs of Union 1800.

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

Express or implied repeal[edit]

The repeal of astatutemay be either express orimplied.[3]

Express repealoccurs 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 theUnited 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 repealoccurs where two statutes are mutually inconsistent. The effect is that the later statute repeals the earlier statutepro tanto(in so far as it is inconsistent).[3]As past and future parliaments are equally sovereign, later parliaments can carry out implied repeal of earlier statute by passing an inconsistent statute, but inconsistency needs to be established before implied repeal can occur.[4]

Repeals with or without savings[edit]

Repeals can be with or without savings.

Arepeal without savingseliminates the repealed statute completely.

Arepeal with savingspreserves the effect of the repealed statute for limited purposes, such as preventing the reversal of any repeals contained within it, or ensuring that rights granted under its authority are retained. In England and Wales, sections 15 to 17 and 19(2) of the Interpretation Act 1978 set out general savings for all repeals. These re-enact similar provisions from theInterpretation Act 1889,and before 1953 allStatute Law Revision Actscontained a different general savings provision deemed theWestburysaving,which has now fallen out of use. Similar provisions exist in the law of Ireland and other common law countries.

Parliamentary procedure[edit]

Robert's Rules of Order Newly Revised (RONR)[edit]

Rescind, repeal, or annul or Amend something previously adopted (RONR)
ClassMotion that brings a question again before the assembly
In order when another has the floor?No
Requires second?Yes
Debatable?Yes
May be reconsidered?Negative vote only
Amendable?Yes
Vote requiredMajority with notice; or two-thirds; ormajority of entire membership

Inmeetingsof a deliberative assembly, the motions torescind(or "repeal" or "annul" ) andamend something previously adoptedare used to change action that was taken. They are two forms of the sameincidental main motionand they follow the same rules.[5]A motion to postpone an event or action previously scheduled is a particular case of the motion to amend something previously adopted.[6]

UnderRobert's Rules of Order,the rules for this motion protect against instability arising from small variations in attendance from one meeting to the next. For this reason, the requirements for changing a previous action are greater than those for taking the action in the first place.[7]A motion to rescind, repeal, annul or amend something already adopted requires atwo-thirds vote,amajority votewithprevious notice,or a vote of amajority of the entire membership,any one of which would suffice.[8]Demeter's Manualimposes a similar requirement.[9]

When this motion is used in acommittee,RONR requires a two-thirds vote unless all committee members who voted for the motion to be rescinded or amended are present or have received ample notice; in which case a majority vote is required.[8]

The Standard Code of Parliamentary Procedure (TSC)[edit]

UnderThe Standard Code of Parliamentary Procedure,a repeal or amendment of something already adopted requires only the same vote (usually a majority) and notice that was needed to adopt it in the first place.[10]This book states, "As a general rule, fewer than a majority should not be authorized to decide anything, and more than a majority should not be required for most decisions"; the book further states that the problem with situations in which a supermajority is required is that "the minority, not the majority, controls."[11]

Legislative use[edit]

In legislative bodies, the motion to rescind is used for much the same purpose as the motion toreconsider;many court decisions treat the two motions as one motion. However, in legislative contexts, it is not the same as a motion to repeal. The difference between rescind and reconsider is that the motion to rescind is ordinarily applied to actions that have been taken and are already in effect. It has been described as being in the nature of a motion to amend by striking out the entire proposal and leaving nothing remaining. It is not in order when the question can be reached by a motion to reconsider. Once legislation has been actually enacted, it is too late to rescind. The vote required to rescind is the same as would be required to repeal the act which it sought to rescind (usually a majority).[12]

Rescind and expunge from the minutes[edit]

The motion torescind and expunge from the minutesis used to express the strongest disapproval about action previously taken by a deliberative assembly. UsingRoberts Rules of Order Newly Revised,this motion requires a vote of a majority of the entire membership.[13]UsingThe Standard Code of Parliamentary Procedure,the motion to expunge requires a majority vote (of those voting). The secretary does not erase the expunged motion, but draws a line around it, marks it "expunged by order of this assembly," gives the date of the expunging, and signs the notation.[13]The expunged motion is not included in anyminutespublished thereafter.[10]

See also[edit]

References[edit]

  1. ^One or more of the preceding sentences incorporates text from a publication now in thepublic domain:Chisholm, Hugh,ed. (1911). "Repeal".Encyclopædia Britannica(11th ed.). Cambridge University Press.
  2. ^Kay v. Goodwin (1830) 6 Bing. 576, per Tindal C.J.
  3. ^abVauxhall Estates, Ltd. v. Liverpool Corporation [1932] 1 KB 733
  4. ^Ellen Street Estates v. Minister of Health [1934] 1 KB 590
  5. ^Robert, Henry M.; et al. (2011).Robert's Rules of Order Newly Revised(11th ed.). Philadelphia, PA: Da Capo Press. p. 305.ISBN978-0-306-82020-5.
  6. ^Robert 2011,p. 180
  7. ^Robert 2011,p. li
  8. ^abRobert 2011,pp. 306–307
  9. ^ Demeter, George (1969). Demeter's Manual of Parliamentary Law and Procedure,Blue Book, p. 165
  10. ^ab Sturgis, Alice (2001). The Standard Code of Parliamentary Procedure,4th ed., p. 43 (TSC)
  11. ^TSC, p. 130
  12. ^ National Conference of State Legislatures (2000). Mason's Manual of Legislative Procedure,2000 ed., p. 321–323
  13. ^abRobert 2011,p. 310
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