Q&As

What is the effect/rule for interpreting legislation that specifically refers to enactments that have been repealed and replaced? Should the replacement enactments be applied instead?

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Published on LexisPSL on 12/07/2018

The following Public Law Q&A provides comprehensive and up to date legal information covering:

  • What is the effect/rule for interpreting legislation that specifically refers to enactments that have been repealed and replaced? Should the replacement enactments be applied instead?
  • General principles―Parliamentary supremacy and implied repeal
  • Savings and transitional provisions
  • Saving provisions
  • Transitional provisions
  • Consequential amendments
  • Judicial correction of mistakes―rectifying construction

General principles―Parliamentary supremacy and implied repeal

The doctrine of parliamentary sovereignty requires that Parliament is not bound by its predecessors, and cannot bind its successors. This means that where an Act of Parliament conflicts with earlier legislation, the later Act cannot be read as being conditioned by, or subject to, the earlier legislation.

Instead, the later Act is considered to have repealed the earlier legislation by implication (even if this is not done so expressly). Where two Acts or provisions are so inconsistent that they cannot stand together, the effect of the later Act may be to repeal the earlier legislation by implication to the extent necessary to remove the inconsistency.

There is a general presumption against implied repeal. This means that courts interpret the provisions of a later Act in a way that is compatible with the earlier one wherever possible. Over time it has also become accepted that in certain contexts (eg in the context of constitutional statutes and the supremacy of EU law), Parliament may enact provisions which, condition and limit the effect of later enactments unless expressly repealed or amended.

For example, in Factortame Ltd and others v Secretary of State for the Environment, Transport and the Regions (No 2), it was held that the European Communities Act 1972 could not be impliedly repealed by subsequent legislation conflicting with EU obligations. The Merchant Shipping

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