SIs and Repeal of the Parent Act

Victor · 28-11-2020 5:52pm #1

If an act is repealed and there are no savers, do any SIs made under that act automatically fall, even if the repeal is silent about the SIs?

Peregrinus · 30-11-2020 2:31am

Victor wrote: »

If an act is repealed and there are no savers, do any SIs made under that act automatically fall, even if the repeal is silent about the SIs?

The default is that, if an enabling power for secondary legislation is repealed, secondary legislation that has been made under that enabling power lapses. But the Oireachtas can provide otherwise, and an Act which repeals an enabling power also often contains a provision saving and continuing secondary legislation made under it.

GM228 · 16-12-2020 4:44pm

To add to what Peregrinus said, strictly speaking such SIs require ttobe formally revoked themselves as the primary Act being revoked does not in and of itself revoke them, they just become obsolete.

Peregrinus · 17-12-2020 5:59am

GM228 wrote: »

To add to what Peregrinus said, strictly speaking such SIs require ttobe formally revoked themselves as the primary Act being revoked does not in and of itself revoke them, they just become obsolete.

I'd put it a bit more strongly than that. Delegated legislation for which the enabling power has been repealed, and for which no saving provision is in force, isn't just obsolete. It's no longer legislation; it doesn't have the force of law.

Note that there are some generic savings provisions in the Interpretation Act that deal with cases in which an enabling power is repealed and replaced with a new enabling power. So the saving provision doesn't have to be included in the same legislation that repeals the enabling power. But it has to be somewhere; if there's no saving provision then the delegated legislation made in reliance on the repealed enabling power ceases to have the force of law. The effect is exactly the same as if it had been revoked.

GM228 · 17-12-2020 9:25am

Peregrinus wrote: »

I'd put it a bit more strongly than that. Delegated legislation for which the enabling power has been repealed, and for which no saving provision is in force, isn't just obsolete. It's no longer legislation; it doesn't have the force of law.

Note that there are some generic savings provisions in the Interpretation Act that deal with cases in which an enabling power is repealed and replaced with a new enabling power. So the saving provision doesn't have to be included in the same legislation that repeals the enabling power. But it has to be somewhere; if there's no saving provision then the delegated legislation made in reliance on the repealed enabling power ceases to have the force of law. The effect is exactly the same as if it had been revoked.

The law reform commission has previously commented on this very issue in their issues paper and the later published paper on Accessibility, consolidation and online publication of legislation, and concluded without strictly being revoked the effect is that such secondary legislation is not itself revoked and remains in force, but becomes obsolete or spent, but yes it has the same effect of no force of law as you note, the LRC actually even list some (but not all) of these very SIs in their Classifies List of Legislation in force in Ireland, and note that they require future revocation.

Peregrinus · 17-12-2020 9:49am

Mmm. I think you could quibble with a categorisation of regulations as being "in force" in this circumstance.

I also query:

(a) Whether "revoking them" would have any meaning. If they aren't in force as law, what is there to revoke?

(b) Whether there is any power to revoke them. Under Interpretation Act 2015 s. 22(3), a power to make an SI is to be read as as including a power, exercisable in the like manner and subject to the like consent and conditions (if any), to repeal it. That's where the power of revocation is normally found. But if the power to make the SI is gone, then where is the power to revoke it now found?

GM228 · 17-12-2020 9:50am

Peregrinus wrote: »

Mmm. I think you could quibble with a categorisation of regulations as being "in force" in this circumstance.

I also query:

(a) Whether "revoking them" would have any meaning. If they aren't in force as law, what is there to revoke?

(b) Whether there is any power to revoke them. Under Interpretation Act 2015 s. 22(3), a power make a statutory instrument is to be read as as including a power, exercisable in the like manner and subject to the like consent and conditions (if any), to repeal it. That's where the power of revocation is normally found. But if the power to make the SI has been repealed, then where is the power to revoke it now found?

I suppose the meaning would be to remove them formally from the books, it could also apply to superseded SIs too, for example there are over 300 Orders of Court which are superseded, but not revoked.

IIRC, the LRC did note that the law needed to be looked at to give a general power for revoking obsolete or spent SIs.

Edit, indeed they did:-

Another approach that could be used is the creation of a general power to revoke spent statutory instruments. This would facilitate ongoing review and revocation of obsolete statutory instruments. An example of such a power of revocation is section 48E of the Australian Commonwealth Legislation Act 2003 which provides a general power to revoke statutory instruments, provided that the Australian Attorney-General is satisfied that the statutory instrument is spent or is no longer required.

Peregrinus · 17-12-2020 10:04am

I don't think it's the practice, though, to exercise the s. 48E power when AN enabling provision is repealed without a saver for the secondary legislation already made. In such a case the secondary legislation already made is simply deleted from the statute book from the operative date of the repeal of the enabling provision. But where an enabling provision is repealed and existing secondary legislation is continued by a saving provision, s.48E provides the power for the subsequent repeal of the continued secondary legislation if and when it is no longer required.

GM228 · 17-12-2020 2:16pm

Peregrinus wrote: »

I don't think it's the practice, though, to exercise the s. 48E power when AN enabling provision is repealed without a saver for the secondary legislation already made. In such a case the secondary legislation already made is simply deleted from the statute book from the operative date of the repeal of the enabling provision. But where an enabling provision is repealed and existing secondary legislation is continued by a saving provision, s.48E provides the power for the subsequent repeal of the continued secondary legislation if and when it is no longer required.

I think it was just given as an example that there is a general power to make regulations to repeal secondary legislation when it is considered spent.

Something probably rarely if ever used due to the Sunsetting nature of Australian SIs.

Peregrinus · 18-12-2020 2:01am

GM228 wrote: »

I think it was just given as an example that there is a general power to make regulations to repeal secondary legislation when it is considered spent.

There is such a power in Australia, because Parliament has enacted one. But is there such a power in Ireland? If the LRC suggests that such a power should be enacted, presumably it considers that it is currently lacking. (And, if the Commission does think that, I agree with it.)

SIs and Repeal of the Parent Act

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