A bill becomes law when it is signed by the President. However, the legislation may not take effect immediately. Commonly, there is provision for particular parts of an Act or the Act as a whole, to be commenced by on or more commencement orders. Commencement orders are generally made by the Minister. They are published by way of a statutory instrument. The Order specify the day and days on which the act is to become into force.
Different parts of an Act may come into force on different days. This may occur, where the Act deals with distinct subject matters or schemes, which cannot be immediately put into force or which require a phased commencement.
The Interpretation Act provides that where an Act is specified ti come into force on a particular day, it is come into force at the end of the day, before the designated day. Legislation may never be commenced. Most of the Mental Health Act 1981 was never brought into force and the Act was ultimately was superseded and repealed.
Section 60 of the Civil Liability Act, 1961 made a very significant change in the law to the liability of local authorities for so called “non-feasance” damage caused by non-repair of the roads. The legislation has never been commenced, although the legislation contemplated that it would commenced at any time after 1st April 1967.
A challenge was made in the 1980s to the failure of the Government to commence the section. The Supreme Court decided that the wording enabled the Government to postpone commencement of the statute indefinitely.
The Interpretation Act provides that where there is a power to commence an Act or part of and Act by ministerial order, the power may be exercised after the passing of the Act but before the commencement date itself. This is to prevent the problematic proposition that the power to commence, could not exist prior to commencement of the Statute.
The amendment of an Act is a variation or alteration. Typically, this happens by substitution of new words, the deletion of new words or by way of new provision. The power to amend laws is vested in the Oireachtas under the Constitution. Clauses which allow amendment of principal Acts by the Executive / Government are described as “Henry VIII” clauses.
The European Communities Act, 1972 specifically allows the amendment of existing legislation by Ministerial order, in order to give effect to European Union obligations. This is expressly protected and allowed by the Constitution.
An amendment may be express or implicit. An express amendment involves the substitution of words or variation of words. An indirect amendment, or an amendment by implication, may occur where a new office or role is established. In this case, the legislation will usually provide that reference to the substituted body in the old legislation is to apply to the substituted body.
Adaptation of Acts
On the foundation of the Irish Free State, the Adaptation of Enactments Act, 1922 provided that reference to bodies under the prior UK legal system, was to be interpreted as a reference to the substituted body under the law of the Irish Free State.
In the case of a range of bodies, the reference was to one of the new Ministers . Government Departments. There was are a residual sweep up clause, which provided generically that reference to any non-specified body was to refer to the equivalent body under the Irish Free State legal system.
Complex issues can arise where there are cumulative implicit amendments, supplemented, perhaps by express amendments. This matter is ultimately one for determination and resolution by the court, in the event of a dispute..
Amendment / Repeal
Legislation is generally interpreted as a whole. The meaning of a provision should not be taken in isolation. It should be given effect in the context of the entire Act. A further aspect of this principle is that the courts endeavour to give effect to the whole of the legislation, even if it appears at first that a part is superfluous.
The presumption is that an amendment should not implicitly change other unamended sections. However, in many cases, this will be necessary as a matter of statutory interpretation to give effect to the new statutory schemes. However, in appropriate cases an intention to implicitly amend provisions of another Act may be discerned.
Later amendments of an Act may not be used to assist interpretation of the original legislation. Although the courts must interpret legislation as a whole, it would be inconsistent with the Constitution that the legislature, by later legislation, should prescribe the interpretation of existing legislation. The fact that legislation is passed to remove doubts in earlier legislation, cannot affect the proper interpretation of the earlier legislation.
The repeal of legislation refers to its revocation or termination. A repeal of legislation is a legislative act so that clear intention must be found in the later act either expressly or impliedly. It is therefore reserved exclusively to the Oireachtas.
Legislation may have a temporary life, in which event it may terminate automatically on expiry of the relevant period. Legislation may be found unconstitutional by the High Court or Supreme Court on appeal. Statutory provisions may be repealed or annulled by the Oireachtas. They may be revoked by later statutory instruments made by the Minister or other authority, within the scope of the legislation itself.
Effect of Repeal I
The Interpretation Act provides that notwithstanding the repeal of a law, the existing law remains valid and in force until the repeal is commenced / takes effect. A repeal does not revive anything that was not in force prior to the repeal. Therefore the repeal of a repealing provision does re-enact or revive legislation which was repealed by that legislation.
An repeal does not affect anything done pursuant to the previous legislation. Legal acts, criminal and civil, under the old legislation continue to have full effect. In the same way, a repeal does not affect any private rights, obligations or liabilities accrued or incurred under the repealed legislation. Vested rights which accrued prior to the repeal, continue to subsist. Questions of interpretation can arise, as to whether a particular right has vested. The fact that an application is pending may not be sufficient.
Repeals do not affect any punishment, fines or forfeiture imposed in respect to the contravention of the repealed legislation, prior to the repeal. A repeal does not affect any legal proceedings, civil or criminal, which are pending at the time of the repeal in respect of rights, privileges, obligations and offences.
Effect of Repeal II
The Interpretation Act deals with legislation, which repeals and re-enacts earlier legislation, with or without modification. This commonly occurs when legislation is consolidated, so that it is restated in a single statute. This also occurs in less obvious circumstances, where more minor areas of law are repealed and re-enacted.
Where legislation is repealed and re-enacted by later legislation, the following principles apply:
A person appointed for a period under former legislation, period continuous to be appointed under the replacement. Bonds, securities, documents and proceedings under the former legislation continue as before. Legal proceedings continue insofar as they may be done consistent with the new legislation.
If a provision of any substituted legislatiion that provided for making of statutory rules is repealed and re-enacted, with or without modifications, statutory instruments in force before the repeal and re-enactment are deemed to be made under the new provision, to the extent otherwise not inconsistent with the new legislation. They remains in force until repealed or until they otherwise cease to have effect.
To the extent that new legislation expresses the same idea in different words, the idea in the newer Act shall not be taken to be different, merely because different forms of words are used. A reference in legislation to a former enactment shall with respect to any subsequent transaction matter or thing, be taken to refer to the new enactment relating to the same subject matter as that of the former legislation.
Effect of Repeal III
Where there is nothing in the new legislation relating to the same subject matter, the former legislation shall be disregarded, where it is necessary to maintain and give effect to the newer legislation.
Ultimately, it is a matters the courts to determine the meaning of legislation in the event of disputes. They may determine what provisions remain in force and which have been repealed. They decide whether statutory instruments have been impliedly repealed.
Some legislation applies for transitional arrangements to cover the crossover period between old and new legislation. Typically the transitional legislation will maintain particular obligations, functions and duties. Where there are no express transitional provisions, the courts interpret the legislation to discern the intention of the lawmakers.
There is a presumption that the legislature did not intend to make radical amendments to the law. It is presumed that radical departures in the pre-existing system of law and commercial practice are intended, unless they are very expressly provided.
Legislation continues to apply, notwithstanding that it may fall out of use. The Statute Law Revision Acts, passed at various times over the last 50 years, have repealed large amounts of obsolete and outdated laws. Ultimately the Statute Law Revision Act of 2007 repeals all pre 1922 22 statutes, other those expressly preserved.
Legislation cannot cease simply because it is not enforced. Even if legislation is completely absurd and outdated, it remains in force until it is repealed. In some cases, however, legislation will simply be inapplicable to modern circumstance. In these cases, it may become ineffective.
An Act or Statutory Instrument may be repealed by implication. Contradictory interpretations are not permissible. If a later provision is inconsistent with an earlier provision, the courts are likely to hold that the earlier provision is impliedly repealed or amended by the later legislation in so far is necessary in order to avoid inconsistency.
The courts lean against finding repeals, other than where absolutely necessary. It is a principle that general words do not modify specific provisions, unless this is very clear. Where a legislation deals in a general way with a number of different cases, an earlier more specific act will not be readily presumed to have been repealed by a later general acts, unless this is very clear. This derives from he principle that the legislature is unlikely to have directed its attention to earlier specific cases.
Presumption against Retrospective Legislation
A law may have retrospective effect where it affects pre-existing vested rights under the existing law or if it creates new obligations, in respect to past matters. There is distinction between retroactive statutes dealing with procedural matters and those dealing with substantive rights. There is a presumption that there is no intention to change the law, retrospectively. Alterations to procedural rules and rules of evidence are generally permissible.
There is a presumption against the retroactive operation of laws. Where there are two possible interpretations, the Court will adapt an interpretation that upholds this rule. If, however, the language is very clear it appears that it is possible to change civil laws, retrospectively. Despite the absence of a specific prohibition on retroactive civil changes to law, there is a strong presumption under the Constitution, against civil legislation retrospectively.
The courts endeavour to interpret legislation so that it is not retrospective. Where, however, the statue is clearly retrospective, the presumptions will not override the position, unless specific Constitutional rights are infringed.
Retrospection and the Constitution
The Constitution prohibits retroactive criminal legislation. The Constitutional prohibition against retroactive declarations of infringement of law is not restricted to criminal actions. It also covers civil sanction and penalties.
Article 15.5 of the Constitution prohibits the retrospective criminalisation of conduct. There is no equivalent express prohibition in retrospect changes in civil law. However, it is widely assumed that retrospect of changes to civil law runs a high risk that it might constitute a breach of the constitutional rights of persons affected.
Retroactive changes to procedural legislation is less objectionable. There is no presumption that changes to evidential or procedurals are intended to be for the future only. Where the change in procedure or evidence might impact upon a party’s substantive rights, the court may refuse to apply the provisions retrospect.
Generally laws are restricted to the State. There is presumption that laws should not operate outside the State. Generally, acts committed outside the state are not subject to Irish law even if they are done by Irish residents. However, legislation may provide to the contrary. Legislation may expressly provide that it applies to acts dome abroad, by persons who are resident in or citizens of the State.
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