Statutory instruments and deregulation orders

House of Common Factsheet No 14

Statutory instruments and deregulation orders

Revised June 1998

Statutory instruments

The primary domestic legislation of the country is carried through Parliament in the form of Bills (see Factsheets Nos 1 and 4).  These, when duly passed through all their stages, become Acts of Parliament.  Acts, however, do not always provide for the regulation of every detail of the subject with which they deal, and there may be a number of such matters in a complex Act.  The reason for this is that an Act will often specify details which may subsequently need updating (fees, time limits, etc), and, in order to enable the minister to update matters of this nature without the need to pass a new Act of Parliament every time, an Act will often confer powers for the making of more detailed rules, orders or regulations by means of Statutory Instrument (or SI), which also have the force of law.  These rules are often called secondary, delegated or subordinate legislation, although not all legislation known by these terms is an SI.

The need for a subsequent SI is stated within the text of an Act.  Section 64 of the Road Traffic Regulation Act 1967, relating to traffic signs, states:

“In this Act ’traffic sign’ means any object or device … for conveying, to traffic … warnings, information, requirements, restrictions or prohibitions of any description -(a) specified by regulations made by Ministers acting jointly, or (b) authorised by the Secretary of State.”

The resulting SI (the Traffic Signs Regulations and General Directions, 1981 - SI 1981/859 and many subsequent amendments), provides for the scope and design of all road signs and markings.  Alternatively, an SI can cover a much more restricted matter.  For example, the Soft Fruit Plants (Scotland) Order 1991 - SI 1991/1905, issued under the Plant Health Act 1967, prohibited the sale of strawberry plants, raspberry canes and blackcurrant bushes from non-inspected stock.

Another reason for the issue of an SI is the fixing of fees or charges, or for the varying of financial limits.  For instance, the Gaming Act 1968 provided that the total amount paid out to bingo competitors should not exceed by more than £250 the total stake money paid in any one week, but gives the Home Secretary power to vary that amount by order.  In 1975, it was decided to raise the limit to £400.  This was done by the Gaming Act (Variation of Monetary Limits and Fees) Order 1975 (SI 1975/608).  The limit has been since raised several times by further SIs.  Various other limits specified by the Act are also increased from time to time by similarly titled SIs.

Statutory Instruments are issued by the Stationery Office, and are just as much a part of the law of the land as the parent Act of Parliament.  The Courts, however, can question whether a Minister, when issuing an SI, is using a power he has actually been given in the parent Act, whereas they cannot question the validity of the Act itself.

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Some SIs are local in character, and are classified as such if its provisions are in the nature of a local and personal, or private Act (see Factsheet 33).  This does not mean, however, that a local SI is only issued under the authority of a local and personal or private Act - many public and general Acts have provisions which result in a local SI.  This has major implications with respect to publishing and distribution of the SI.

Each order has a preamble stating the authority or the primary legislation for its production.  For example the Gaming Order states:

“In exercise of the powers conferred on me by Section 20(3) and (8) and 51(4) of the Gaming Act 1968, I hereby make the following Order … “.

Statutory Instruments are usually drafted by the legal department of the Ministry concerned, often following consultations with interested bodies and parties whilst the SI is in draft; and theyare then “made” in the name of the person (usually a Secretary of State or Minister), to whom authority is given in the parent Act.  Each is given a number in the SI series, which runs from number 1 each year, and is quoted in the form: SI 1992/372.  There are about two thousand SIs each year, varying in size from a single sheet to several hundreds of pages.  Like Acts of Parliament, some SIs apply to the whole of the UK, some to the individual countries only.

All general Statutory Instruments have also an explanatory note, which explains their scope and purpose.  That for the Gaming Orders simply reads “This Order increases the monetary limits specified in the Gaming Act 1968 for the prizes, stakes and other matters mentioned …”.  The explanatory note has no legal force, however; an SI’s power rests on what is stated in the citation clause.

It should be mentioned that before 1948 instruments were known as Statutory Rules and Orders (SR & O).

Parliament and Statutory Instruments

Some SIs are not subject to any Parliamentary procedure and simply become law on the date stated in them.  Such Instruments are, in general, not contentious, nor often particularly important.  Commencement Orders (see below) generally fall into this category, as do Orders in Council.

Other Instruments are subject to Parliamentary procedure, however, and these follow one of two different procedures, laid down in the Statutory Instruments Act 1946 (Cap 36).  The two procedures are as follows:

1. Negative Procedure

Some SIs become law on the date stated on them, but will be nullified if either House (the Commons only, in the case of instruments dealing with financial matters) passes a Motion calling for their annulment within a certain time, usually 40 days including the day on which it was laid.  No account is taken of any time during which Parliament is dissolved or prorogued, or during which both Houses are adjourned for more than four days, and the time period resumes in a new session of Parliament, or after a recess.  Such a Motion is known as a prayer, couched in such terms as, eg, “That an humble address be presented to Her Majesty praying that the Education (Mandatory Awards) Regulations 1995 … be annulled”. (All the Instruments quoted on page 1 were subject to this procedure).

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Any Member may put down a Motion to annul an SI subject to the Negative Procedure.  In practice such motions are now generally put down as Early Day Motions - that is, motions for which no time has been fixed, and in the vast majority of cases, for which no time is likely to be available (see Factsheet No 30).  A motion put down by the Official Opposition will often be accommodated, although there is no absolute certainty of this; but an annulment motion put down by a backbencher is not certain to be dealt with, though a debate may be arranged if much interest is shown.

2. Affirmative Procedure

This is less common than the negative procedure, but provides more stringent parliamentary control, since the Instrument must receive Parliament’s approval before itcan come into force.  To do this, a Motion approving it has to be passed by both Houses (or by the Commons alone if it is a financial Instrument) within a period of 28 days (or more unusually, 40 days, which would be specified in the parent Act), againexcluding periods when Parliament is dissolved, prorogued or adjourned for more than four days.  The Motion is generally prepared by the relevant Department, who are also responsible for ensuring that the Motion is discussed within the necessary time limit.  Many of these Instruments appear in the form of a draft Order, which is properly printed and added to the numerical run of SIs when it has been approved by both Houses.

Whether an SI is subject to the negative or affirmative procedure is indicated in the parent Act, as well as in an appendix to the Votes and Proceedings of the House on the day in which it is laid.

The procedures described above embody the major thrust of the Parliamentary approval of SIs, although detailed variations exist to this system.  It is important to note that SIs cannot, except in extremely rare instances where the parent Act provides otherwise, be amended or adapted byeither House.  Each House simply expresses its wish for them to be annulled or passed into law, as the case may be.

Joint Committee on Statutory Instruments

To help the Parliamentary examination of SIs there is a Joint Committee of both Houses on Statutory Instruments (sometimes called the Scrutiny Committee), the Commons Members ofwhich sit separately for some purposes.  They have the services of Counsel to the Speaker and the Lord Chairman of Committees available to them during their deliberations.  They may, like other Select Committees, take oral or written evidence from the responsible Government Department on instruments they are considering.  Some Statutory Instruments (e.g. local orders not laid before Parliament) are not scrutinised by the Committee, and others, which are not technically Statutory Instruments, but which may need an affirmative resolution, are.

These Committees may not consider the merits of any SI: they exist to see that the exercise of the Minister’s powers has been proper and carried out in accordance with the provisions of the enabling Act.  They report to the House inter alia any instance where the authority of the Act has been exceeded, or any which reveal an “unusual or unexpected” use of the powers; or have been drafted defectively, or where the instrument might require elucidation.  These Reports are printed as House of Commons and House of Lords papers and their publication is noted in the Weekly Information Bulletin (see Factsheet No 29).

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Debates on Statutory Instruments and the Standing Committees

In recent decades, the number of SIs considered in some form by the House of Commons has risen considerably, with the result that the House has found difficulty in making enough time available for the debate of SIs.  These debates, normally on Motions to approve or annul Instruments, may take place on the floor of the House - they are commonly, but not exclusively taken late in the parliamentary day - or in Standing Committees on Delegated Legislation.  These were first set up (as Standing Committees on Statutory Instruments: the title was changed at the beginning of the 1995/96 Session) in the 1973-74 session in order to relieve pressure of time in the House itself, and are of course quite distinct from the Joint Select Committee mentioned above.  Debates on the floor of the House on Statutory Instruments constitute exempted business under either Standing Orders No 14 or No 15, and if taken after 10 pm may generally be debated for an hour and a half.  Prayers (see above) cannot be debated after 11.30 pm.

Standing Committees on Delegated Legislation are commonly composed of 17 members, though any Member may attend and speak (but only the original members of the Committee are entitled to vote).  SIs are referred to such Standing Committees on a Motion made in the Chamber in the form:

“That the draft Firearms Acts (Amendment) Regulations 1996 be referred to a Standing Committee on Delegated Legislation”

Only a Minister may make this Motion, and it will be agreed only if fewer than 20 Members object to such a course at the time the Motion is made.  If more than 20 Members object, then the SI has to be considered on the floor of the House.

A Standing Committee on Delegated Legislation can only consider an SI on the motion “That the Committee has considered the instrument”.  The debate can take up to 1 1/2 hours, or 2 1/2 hours if the instrument relates exclusively to Northern Ireland.  Reports of the debates are published by the Stationery Office, normally the following day.

The issue of an SI is noted on the day following its publication in the Stationery Office Daily List.  SIs subject to parliamentary approval appear in an Appendix to the daily Votes and Proceedings; and a list of them, compiled by the Journal Office, with number of ’praying’ days left, is issued each week.  Neither of these last two papers is given wide public circulation, but the House of Commons Information Office will make information available from them on request.

Debates on SIs to be held in the following week are noted with other business in the appropriate sections of the Weekly Information Bulletin, depending on whether the debate is to be taken on the floor of the House or in Standing Committee.

There are various types of Instrument outside the scope of these notes.  These include those by which most primary legislation for Northern Ireland has of late been embodied (Factsheet No 15 deals with these), and those subject to the Statutory Orders (Special Procedure) Act 1945.  The Northern Ireland equivalent of SIs are called Statutory Rules (NI) (= SR).

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Commencement orders

Commencement Orders (or Appointed Day Orders) are a form of Statutory Instrument designed to bring into force the whole or part of an Act of Parliament which for some reason it is not desired to put into effect immediately upon Royal Assent (see Factsheet No 1).  There may be more than one per Act (the Town and Country Planning Act 1971 had 75 such Orders) and there is in general no requirement as to the time after Royal Assent in which such an Order must be brought in - e.g. the Easter Act of 1928 (which stipulates a fixed date for Easter) has not yet had a Commencement Order made, though it would be open to the Home Secretary to make one.

Orders in Council

Orders in Council are issued “by and with the advice of Her Majesty’s Privy Council”, and are usually classified as secondary legislation (although some can be primary legislation), and are made under powers given in a parent Act.  They can be used for a wide variety of purposes, but most frequently when an ordinary Statutory Instrument would be inappropriate, such as for transferring responsibilities between Government Departments, or where it effects the constitution by extending legislation to the Channel Islands, for example.  An example of theformer is the SI which set up the Department of National Heritage in June 1992, the Transfer of Functions (National Heritage) Order 1992 (SI 1992/1311).  An example of the latter is the Serbia and Montenegro (United Nations Sanctions) (Channel Islands) Order 1992, which gave the Channel Islands legal authority to implement sanctions on Serbia and Montenegro.

Orders of Council are made by the Privy Council in exercise of powers conferred upon them alone, and usually relate to the regulation of professions or professional bodies.

Henry VIII clauses

The House of Lords Select Committee on the Scrutiny of Delegated Powers defined a Henry VIII clause as, “… a provision in a bill which enables primary legislation to be amended or repealed by subordinate legislation with or without further Parliamentary scrutiny” (HLP 57 1992/93).  The clauses were so named from the Statute of Proclamations 1539, which gave King Henry VIII power to legislate by proclamation.

This procedure is now embodied extensively in the powers given to Ministers under the Deregulation and Contracting Out Act 1994.

Deregulation Orders

The Deregulation and Contracting Out Act 1994 enables the Government to make an Order to amend or repeal a provision in primary legislation which is considered to impose a burden on business or others, and which could be reduced or removed without removing any necessary protection.  The relevant Government Department must first draft a proposal for the Order and consult representatives of those who are substantially affected and anyone else the Government consider appropriate.  After considering the results of the consultation, the Government may decide to change all or part of the proposal, or even withdraw it completely.

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The exacting procedure for Parliament’s examination of deregulation proposals and draft orders was introduced in response to concern that the sweeping powers given to Ministers in the 1994 Act should be properly accountable.

When the Government are satisfied with the proposal, it is laid before Parliament, with a detailed Explanatory Memorandum describing the proposal and the form and results of consultation.  There is a period of 60 days, excluding any time when Parliament is prorogued or dissolved or when either House has adjourned for more than four days, during which Select Committees in both Houses scrutinise the proposal (the Deregulation Committee in the Commons and the Delegated Powers Scrutiny Committee in the Lords).  In the Commons, the Committee must examine each proposal against nine criteria, including the maintenance of “necessary protection” for those who may be affected, the adequacy of public consultation, the extent of the burden to be lifted, vires, drafting, financial implications and compliance with European law.  In the Lords, the Committee examines a proposal’s compliance with the 1994 Act.  Each committee may examine witnesses (who are not confined to those already consulted), call for evidence from the relevant department and consider other representations.

The Committees report to their respective House, and they may recommend that the proposal should proceed, not proceed, or proceed only in an amended version.  The Government must take account of the Committees’ reports and any other representations made, before finalising the draft Order.

After the 60 days have elapsed, a draft Order is laid, with a statement detailing any changes made.  The Committees must consider the draft Order again within 15 sittting days and make a further report, recommending whether the draft Order should or should not be approved.

The Government can then bring forward the draft Order for approval by a resolution of each House.  The Lords generally debate all such Orders, but procedure in the Commons varies according to the report of the Deregulation Committee:

a) if the recommendation of the Committee was for approval, without a division in committee, then the Question for approval by the House must be put forthwith (ie without debate);

b) if the recommendation of the Committee was for approval, with a division in committee, then the Motion to approve the Order may be debated by the House for up to one and a half hours;

c) iif the recommendation of the Committee was that the draft Order should not be approved, but the Government wish to proceed, then:

the Government have to table a Motion to disagree with the Committee’s report, which may be debated for up to 3 hours.  If that Motion is approved by the House, then the Question on the draft order is put forthwith.

The draft Orders are then published as Statutory Instruments by the Stationery Office.

The dates of all stages in both Houses and publication of the reports by the Committees are noted in the Weekly Information Bulletin.

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Publication and bibliographic control

Generally, all Instruments, other than local Instruments, are required to be printed and put on sale by the Stationery Office.  (In fact, some local SIs are sold by the Stationery Office).  Drafts of Statutory Instruments laid under the affirmative procedure are also usually on sale at the Stationery Office, but these are naturally not included in the numbered series until after approval by Parliament.  The Statutory Publications Office produces a numerical Table to Statutory Instruments together with an Index to those in force in three volumes, approximately every two years, and the general Statutory Instruments for each year are issued in a number of volumes for permanent record purposes.  The Table indicates whether an Order is still in force, and how it was amended or revoked.  Local SIs are excluded from these volumes; and tracing even the text of a local SI can be a troublesome business.  Ascertaining whether a local SI is in force is extremely difficult (as, of course, is the case with a Local Act - see Factsheet No 44).  The best sources of references to texts of Local SIs are the Statutory Publications Office and the British Library Official Publications Library, or by referral to the body affected by the SI (eg, a local authority).  It is hoped that a List of Local SIs from 1922 will be published by the Stationery Office in due course.

The Stationery Office also issue excellent monthly and annual Lists of Statutory Instruments, available on subscription, with publishing details, the effect of each instrument on other legislation, details on its commencement and comprehensive subject indexing.

Acknowlegement

The writer of this Factsheet is much indebted to Alan Sandall, formerly of the Ways and Means Office, House of Commons, for his help in preparation for the section on Statutory Instruments: and is further indebted to Robert Rogers and Elizabeth Flood, Clerks to the Deregulation Committee of the House of Commons, for their help and advice for the section on Deregulation orders.

		C C Pond, December 1981 Revised by Aileen Walker, June 1998
June 1998 No 14 Ed 13 Pr 3 500 ISSN 0144-4689		PARLIAMENTARY COPYRIGHT (HOUSE OF COMMONS) 1998 May be produced for purposes of private study or research without permission. Reproduction for sale or other commercial purposes not permitted.