Cecily Zamora
Laws can be removed, but the process varies across different countries and jurisdictions. In the United States, for example, a law can be removed by being repealed, which happens when Congress passes a new law with repeal language and the codified statute's location in the US Code. This can be done for all or specific clauses of a previous act. In other cases, laws may become void or redundant if they can no longer be applied or are deemed incompatible through judicial action. Similarly, in the United Kingdom and Ireland, the removal of secondary legislation is referred to as revocation, and a partial repeal can occur when only a specified part of a previous Act is repealed. While laws can be removed, it is important to note that in many cases, they are simply left unenforced, becoming obsolete over time.
Characteristics of Law Removal
| Characteristics | Values |
|---|---|
| Process | Passing a new law with repeal language, judicial action, built-in sunset provisions, or legislative action |
| Impact | Obliterated from the records, no longer enforceable, or replaced with modern legislation |
| Types | Express, implied, partial, or without replacement |
| Considerations | Inconsistent with other laws, negative consequences, outdated, or lack of enforcement |
| Examples | Corn Laws in England, Prohibition in the US, outdated laws in Massachusetts and Oregon |
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What You'll Learn
Repealing a law
Laws can be removed through a process called repeal. Repeal occurs when a new law is passed that conflicts with an existing law, or when a new law explicitly states its intention to repeal the existing law. This is known as implied repeal and express repeal, respectively. In the United States, 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. Once a statute is repealed, its text is deleted from the Code and replaced by a note summarizing its contents.
There are two ways to repeal legislation. The first is by adopting an Act that repeals all or part of an existing Act. The second is by including a 'saving' provision within a new Act, which repeals specific sections of other related Acts. A saving provision preserves the effect of the repealed statute for limited purposes, such as preventing the reversal of any repeals contained within it or ensuring that rights granted under its authority are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, the Interpretation Act 1978 sets out general savings for all repeals.
A typical situation where an Act is repealed and re-enacted is when the law in the area is being updated but needs to be replaced with a modern version. Re-enactment can be with or without amendment, although repeal and re-enactment without amendment usually occur in the context of a consolidation bill. 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 is causing more negative consequences than were originally intended. Many repeals without replacement are the result of significant changes in society. For example, the Corn Laws in England were repealed in 1846 after a passionate campaign, and the prohibition of alcoholic beverages in the United States was repealed by the Twenty-first Amendment.
In the United Kingdom and Ireland, the removal of secondary legislation is referred to as revocation rather than repeal. 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." However, this is now subject to savings provisions within the Interpretation Act 1978.
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Implied and express repeal
Laws can be removed through a process called repeal. There are two types of repeal: express and implied.
Express Repeal
In the case of express repeal, a new law is passed that expressly mentions that an earlier law will no longer be applicable. The new law must contain repeal language and the codified statute's location in the U.S. Code, including the title, chapter, part, section, paragraph, and clause. The Legislature doesn’t need to use any particular words or phrases, but it must clearly state its intention to repeal the statute in question. Typically, phrases like “shall cease to have effect” or “all provisions that are inconsistent with this Act are hereby repealed” are used.
Implied Repeal
Implied repeal occurs when a new law is passed that conflicts with an existing one, and the new law takes precedence, rendering the conflicting parts of the earlier Act legally inoperable. In this case, there is no express indication provided by the Legislature, as it is based on presumption or inference. The doctrine of implied repeal is based on the Latin maxim "leges posteriores priores contrarias abrogant", which means that the later laws shall abrogate the earlier laws that are contrary or in conflict with the subsequent laws. This usually applies to cases where two or more statutes are mutually inconsistent to such an extent that it becomes impossible for them to be in force concurrently. However, this doctrine must only be applied when there is no possibility of a harmonious construction of the conflicting laws, and the two cannot coexist. Thus, a repeal may not be necessarily inferred if the two Acts can be read together.
In both types of repeal, the intention of the Legislature must be inferred from the later statute to determine if it proposed to preserve, modify, or completely obliterate the rights and liabilities attached to the earlier statute.
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Removal of secondary legislation
The removal of secondary legislation is typically referred to as revocation rather than repeal in the United Kingdom and Ireland. In the UK, secondary legislation is law created by ministers or other bodies under powers given to them by an Act of Parliament. It is used to fill in the details of Acts (primary legislation) and provide practical measures for their enforcement and application in daily life.
Secondary legislation can be used to set the date for provisions of an Act to come into effect or to amend existing laws. For instance, governments often use secondary legislation to ban new substances by adding them to a list under the Misuse of Drugs Act 1971. Statutory Instruments (SIs) are the most common form of secondary legislation, with approximately 3,500 passed per year. SIs are created by Members of Cabinet to delegate another body or person to carry out an action. They are drafted by a government department and published with an explanatory memorandum outlining their purpose and necessity.
While primary legislation is created through a full Act of Parliament, secondary legislation does not receive the same level of parliamentary time and scrutiny. This has led to complaints from opposition parties that governments use secondary legislation to pass complex legislation without sufficient oversight. In response to these concerns, proposals have been made to limit the power of the House of Lords over secondary legislation, giving the House of Commons the final say.
The process of removing secondary legislation, or revocation, involves passing a new law with repeal language and the codified statute's location in the US Code. This effectively deletes the statute's text from the Code and replaces it with a summary note. Once deleted, the repealed statute no longer has the force of law. Repeals can be express or implied. An express repeal explicitly states the statute being repealed, while an implied repeal occurs when two statutes are mutually inconsistent, with the later statute implicitly repealing the earlier one.
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Judicial action to remove laws
Judicial action can be taken to remove laws, and this has happened throughout history. In the US, the federal judiciary's authority was expanded after the Civil War, and in 1875, Congress granted US circuit courts the jurisdiction to hear cases arising under the Constitution and US laws. This act also allowed plaintiffs and defendants in state court cases to remove a case to a US circuit court if federal law was involved or if the parties were from different states.
In terms of removing laws, courts generally avoid implicitly repealing existing laws. For example, in Penziner v. West American Finance Co., the California Supreme Court stated that " [t]he presumption is against repeals by implication, especially where the prior act has been generally understood and acted upon." The court clarified that for implicit repeal to occur, "the two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation."
In the UK and Ireland, the removal of secondary legislation is referred to as revocation rather than repeal. Under the common law of England and Wales, repealing a statute used to mean "to obliterate it completely from the records of Parliament as though it had never been passed." However, this is now subject to savings provisions within the Interpretation Act 1978. A partial repeal can occur when only a specified part of a previous Act is repealed, while other provisions remain in force.
In the US, to repeal any element of an enacted law, Congress must pass a new law with repeal language and the codified statute's location in the US Code. Once deleted, the repealed statute no longer has the force of law. Repeals can be with or without savings. A repeal without savings eliminates the statute entirely, while a repeal with savings preserves the statute's effect for limited purposes, such as retaining rights granted under its authority.
Historically, various laws have been repealed and replaced with more modern and suitable legislation. For example, the Poor Laws in England were repealed in 1948 and replaced by modern social welfare legislation. The repeal of Prohibition in the US, enacted by the Eighteenth Amendment, was repealed by the Twenty-first Amendment, the only constitutional amendment to have been repealed.
While some laws are no longer enforced, they have never been officially removed from the books.
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Sunset clauses
Laws can be removed through a process called repeal. This can occur with or without savings. A repeal without savings eliminates the repealed statute completely, whereas a repeal with savings preserves the effect of the repealed statute for limited purposes. For instance, to prevent the reversal of any repeals contained within it or to ensure that rights granted under its authority are retained.
A sunset provision, or sunset clause, is a measure within a statute, regulation, or other law that provides for the law to cease to be effective after a specified date, unless further legislative action is taken to extend it. Sunset provisions are automatic and do not require further authorization. They are distinct from most laws, which remain in force indefinitely unless they are amended or repealed. Sunset provisions, on the other hand, have a specified expiration date.
Sunset provisions can also be found in contractual agreements, where they are used as insurance against changing market conditions. They provide an exit strategy for one or both parties, allowing them to end their obligations under the contract without pursuing a formal end to the provision. Sunset provisions can be negotiated upfront and planned for, reducing the likelihood of combative legal situations.
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Frequently asked questions
The removal of a law is called a repeal. A government can repeal a law by passing a bill. For example, in the US, to remove a Federal law, Congress must pass a bill that "repeals" the law. This bill must be approved by the House and Senate and then signed by the President. A repeal can be with or without savings. A repeal without savings eliminates the repealed statute completely, whereas a repeal with savings preserves the effect of the repealed statute for limited purposes.
Yes, laws can be repealed without replacement. This usually happens when a law is no longer effective or is shown to have more negative consequences than were originally intended.
Yes, laws can be removed by Judicial action in many jurisdictions, for example, if they are declared unconstitutional or incompatible.
