When Is A Repeal Not A Repeal?
| Published date | 01 January 1953 |
| DOI | http://doi.org/10.1111/j.1468-2230.1953.tb02765.x |
| Date | 01 January 1953 |
| Author | Donald B. Murray |
WHEN
IS
A REPEAL NOT
A
REPEAL?
(1)
Section
89
(1)
of the Crown Proceedings Act,
1947,’
provides
that “The enactments set out in the Second Schedule to this
Act are hereby repealed
to
the extent specified in the third column
of
that Schedule.” The Second Schedule contains the following
entry
:-“
28
and
24
Vict.
c.
84.
The Petitions of Right Act,
1860.
The Whole Act.’’
(2)
Section
15
of the Bills of Sale Act
(1878)
Amendment Act,
1882,’
as originally enacted, provided inter
alia
that “The eighth
and twentieth sections of the principal Act [the Bills of Sale Act,
1878’1
.
.
.
are repealed
. . .”
The casual reader, indeed even the careful reader, of the Acts
of
1882
and
1947
might well conclude that,
as
a result
of
the
provisions
set
out above, sections
8
and
20
of
the Bills of Sale
Act,
1878,’
and the whole of the Petitions of Right
Act,
1860,’
have been effectively repealed for all purposes and can be wholly
disregarded in relation to events happening after the coming into
force of the repealing enactments. A decision of
Fry
J.
in
1888
(to be discussed in detail later) shows that this view is wrong
as regards section
20
of the
Bills
of Sale Act-the learned judge
held that the section has not in fact been repealed for all purposes
-and
it
will be submitted in the course
of
this article that the
view is
also
wrong as regards the Petitions
of
Right Act. The
two instances demonstrate clearly the ned for great care in the
interpretation of repeal provisions. These provisions may be,
and often are, traps for the unwary, and
it
is the purpose of this
article
to
describe the approach
to
them which,
in
the writer’s
opinion, must
be
adopted
if
error is to be avoided. The task
involves, first, an examination of the technique
of
the modern
parliamentary draftsman in the matter of repeals and, secondly,
a review
of
the attitude
of
the
courts
to that particular part of
his
handiwork. In the final section of this article it
is
proposed to
test the results obtained from that examination and review by
reference
to
the repeal provisions set out at
(1)
and
(2)
above.
REPEAL
TECHNIQUE
OF
THE
PARLIAMENTARY
DRA~SMAN
The Railway and Canal Commission (Abolition) Act,
194gY5
which
received the Royal Assent
on
March
9,
1949,
will serve
as
an
example. The main purpose of the Act was to abolish the Railway
and Canal Commission and transfer its few remaining functions
1
10
&
11
Geo.
6,
c.
44.
2
46
&
46
Vict. c.
43.
3
41
&
42
Vict.
c.
31.
4
23
&
24
Vict. c.
3r.
5
12
&
13
Geo.
6,
c.
11.
50
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