Statutory Instrument (UK)


Statutory Instrument (UK)

A Statutory Instrument (SI) is the principal form in which delegated or secondary legislation is made in Great Britain.

Statutory Instruments are governed by the Statutory Instruments Act 1946. [http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1946/cukpga_19460036_en_1 Statutory Instruments Act 1946] , section 1] They replaced Statutory Rules and Orders, made under the Rules Publication Act 1893, in 1948.

Most delegated legislation in Great Britain is made in the form of a Statutory Instrument. (In Northern Ireland, delegated legislation is organised into Statutory Rules, rather than Statutory Instruments.) The advent of devolution in 1999 resulted in many powers to make Statutory Instruments being transferred to the Scottish Government and Welsh Assembly Government, and oversight to the Scottish Parliament and National Assembly for Wales. Instruments made by the Scottish Government are now classed separately as Scottish Statutory Instruments.

The Republic of Ireland and Commonwealth countries besides Great Britain also use SIs: see the article Statutory Instruments.

Requirement to use a Statutory Instrument

A Statutory Instrument is used when an Act of Parliament passed after 1947 confers a power to make, confirm or approve delegated legislation on:
# the Queen and states that it is to be exercisable by Order in Council; or
# a Minister of the Crown and states that it is to be exercisable by Statutory Instrument.

'Minister of the Crown' includes the Welsh Ministers [Statutory Instruments Act 1946, section 1A, substituted by Section 160(1) and Schedule 10, Paragraph 1 of the Government of Wales Act 2006] and various Acts provide that delegated legislation, although made by another person (for example, the General Dental Council [ [http://www.opsi.gov.uk/acts/acts1984/pdf/ukpga_19840024_en.pdf Dentists Act 1984] , section 45] ), is also to be made by Statutory Instrument.

A Statutory Instrument is also be used when the Queen in Council or a Minister exercises a power under an Act passed before 1947 which is legislative, rather than executive, in character. [Statutory Instruments Act 1946, section 1(2)]

Use of a Statutory Instrument is not required where the parent Act does not specify it. This may be the case where delegated legislation is of only limited application and therefore not of general importance. Instead, other provisions may be made for publishing the legislation. So, for example, an Order providing for the transfer of contracts from one National Health Service body to another may only be notified to the affected bodies, [Power to make an order under [http://www.opsi.gov.uk/acts/acts2006/ukpga_20060041_en_7#pt4-pb4-l1g95 section 95(1) of the National Health Service Act 2006] excluded from the requirement to use a statutory instrument by [http://www.opsi.gov.uk/acts/acts2006/ukpga_20060041_en_21#pt14-l1g272 section 272(3)(b)] of that Act] and by-laws made by a local council may be publicised through an announcement in local newspapers. [ [http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=local+government+act&Year=1972&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=2431824&ActiveTextDocId=2432115&filesize=26456 Local Government Act 1972, section 236] ]

Features of Statutory Instruments

The main effect of delegated legislation being made by Statutory Instrument is that as soon as it is made it is numbered, catalogued, printed, made available for sale [Statutory Instruments Act 1946, section 2] and published on the internet. [Published at [http://www.opsi.gov.uk Office of Public Sector Information] ] This ensures that the public has easy access to the new laws.

Numbers are assigned by Her Majesty's Stationery Office and are sequential within the year of making. The number provides a means of citing the Statutory Instrument in addition to the title given by the Instrument itself. So, for example, [http://www.opsi.gov.uk/si/si2003/uksi_20031434_en.pdf The Income Tax (Exemption of Minor Benefits) (Amendment) Regulations 2003] are numbered and may be cited as SI 2003 No. 1434 or SI 2003/1434.

In addition to the main numbering system, there are a number of subsidiary numbering systems which may indicate an Instrument's position within a particular series of Instruments (in the following list "n" indicates the number):
* (C "n"): Commencement and/or Appointed Day orders which bring into force an Act or part of an Act.
* (L "n"): legal series: relating to fees or procedures in courts in England and Wales.
* (S "n"): Scottish series: Instruments made by the United Kingdom Government which apply to Scotland only (these are different from Scottish Statutory Instruments made by the Scottish Government under its devolved powers).
* (NI "n"): Northern Ireland series: Orders in Council made by the United Kingdom Government under its ‘direct rule’ powers (delegated legislation made by Northern Ireland Departments are made by Statutory Rule).
* (W "n"): National Assembly for Wales series: Statutory Instruments made by the National Assembly for Wales and applying to Wales only. Welsh language version are numbered (Cy "n").

Statutory Instruments will be classified by subject heading in the annual edition printed by Her Majesty's Stationery Office.

Printed copies of a Statutory Instrument will generally be on sale within a week of the date it is made. [ [http://www.opsi.gov.uk/official-publications/publishing-guidance/si-practice.doc Statutory Instrument Practice] , Table E]

Parliamentary control over Statutory Instruments

Most Statutory Instruments (SIs) are subject to one of two forms of control by Parliament, depending on what is specified in the parent Act.

It should be noted that Parliament's control is limited to approving, or rejecting, the Instrument as laid before it: it cannot (except in very rare cases) amend or change it.

Negative resolution procedure

The more common form of control is the ‘negative resolution procedure’. This requires that either:
* the Instrument is laid before Parliament in draft, and can be made once 40 days (excluding any time during which Parliament is dissolved or prorogued, or during which both Houses are adjourned for more than four days) have passed unless either House passes a resolution disapproving it, or
* the Instrument is laid before Parliament after it is made (but before it comes into force), but will be revoked if either House passes a resolution annulling it within 40 days. Statutory Instrument Practice, Table B]

A motion to annul a Statutory Instrument is known as a 'prayer' and uses the following wording:

:"That an humble address be presented to Her Majesty praying that the [name of Statutory Instrument] be annulled."

Any member of either House can put down a motion that an Instrument should be annulled, although in the Common unless the motion is signed by a large number of Members, or is moved by the official Opposition, it is unlikely to be debated, and in the Lords they are seldom actually voted upon.

If a resolution to annul an Instrument is passed, it will be revoked by the Queen through an Order-in-Council. Between the date of the resolution to annul and the date when the Order-in-Council is made, the Instrument remains law but ineffective. Anything done under the Instrument whilst it was in force remains valid, and the Government is free to make a new Statutory Instrument. [ Statutory Instruments Act 1946, section 5(1)]

The last occasion on which a Statutory Instrument was annulled was when, on 22 February 2000, the House of Lords passed a motion to annul the [http://www.opsi.gov.uk/si/si2000/20000208.htm Greater London Authority Elections Rules 2000] (SI 2000/208). The last time the House of Commons annulled a Statutory Instrument was in 1979 when it rejected the Paraffin (Maximum Retail Prices) (Revocation) Order 1979 (SI 1979/797). House of Commons factsheet L7, page 4]

Affirmative resolution procedure

Statutory Instruments which are subject to affirmative resolution are less common, making up about 10% of the total. This is the more stringent form of parliamentary control as it requires positive approval, rather than the absence of a decision to annul. Accordingly, it is used where the delegated legislation may be more controversial.

The parent Act may require that the proposed Statutory Instrument is approved by both Houses of Parliament (or, in the case of an Instrument which relates to financial matters, by the House of Commons only) either:
* before it is made (ie in draft form),
* after it is made, but before it can come into force, or
* after it is made and has come into force, but it cannot remain in force for longer than a specified period (usually 28 days, excluding periods when Parliament is dissolved, prorogued or adjourned for more than four days) unless approved within that period.

Once the Instrument is laid before Parliament, the Government will move a motion in each House that the Instrument is approved.

The last time a draft Statutory Instrument subject to affirmative procedure was not approved by the House of Commons was on 12 November 1969 when the House rejected four draft Orders relating to parliamentary constituencies. [The draft Parliamentary Constituencies (England) Order 1969, the draft Parliamentary Constituencies (Wales) Order 1969, the draft Parliamentary Constituencies (Scotland) Order 1969 and the draft Parliamentary Constituencies (Northern Ireland) Order. See House of Commons factsheet L7, page 5]

Regulatory Reform Orders

The Regulatory Reform Act 2001 enables the Government to make an Order to change Acts of Parliament so as to remove burdens on business or others, so long as it can be done without removing ‘necessary protections’. Because of the extensive powers given to the Government to amend primary legislation, a special, extra-rigorous, form of affirmative procedure has been introduced. [House of Commons factsheet L7]

Firstly, the Government must produce a draft proposal and consult interested organisations. It must then lay the proposal and the results of the consultation, along with a detailed explanation, before Parliament for 60 days. Select Committees of both Houses then debate the proposal and examine it against criteria including maintenance of "necessary protection" for those who may be affected, the adequacy of public consultation, the extent of the burden to be lifted, financial implications and compliance with European law. The Committees then report their findings to the House. The Government has to take those findings into account when deciding whether to proceed with the proposal. If it does, it then lays a draft Order before Parliament along with an explanation of any changes made, which is again considered by the Committees before finally being put to a vote of each House for approval.

Examples of the use of Regulatory Reform Orders have included [http://www.opsi.gov.uk/si/si2004/20040470.htm The Regulatory Reform (Sunday Trading) Order 2004] (SI 2004/470) which repealed section 26 of the Revenue Act 1889 (and so re-legalised the selling of methylated spirits on a Saturday night or a Sunday), and [http://www.opsi.gov.uk/SI/si2005/20050871.htm The Regulatory Reform (Trading Stamps) Order 2005] (SI 2005/871) which repealed the entirety of the Trading Stamps Act 1964.

Significantly wider powers have recently been created in the Legislative and Regulatory Reform Act 2006, which have been the subject of considerable concern. [ The powers have been described by David Howarth MP as the 'Abolition of Parliament Bill' ( [http://www.timesonline.co.uk/article/0,,6-2049791,00.html Who wants the Abolition of Parliament Bill? | David Howarth - Times Online ] ) and by Daniel Finkelstein as the 'Bill to End All Bills' ( [http://www.timesonline.co.uk/article/0,,6-2040625,00.html How I woke up to a nightmare plot to steal centuries of law and liberty -Times Online ] ). Clifford Chance LLP consider that the Bill would "usurp the power of Parliament" (quote in the [http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/02/09/nlaw09.xml Daily Telegraph] ).]

Remedial Orders under the Human Rights Act 1998

The Human Rights Act 1998 created a procedure under which, if the courts find that an Act of Parliament contravenes the European Convention on Human Rights, the Government can make a Remedial Order to correct the Act in question.

Before making a Remedial Order, the Government must lay a proposal before Parliament for 60 days, during which time it will be considered and reported upon by the Joint Committee of both Houses on Human Rights. After the 60 days have passed, the Government may then lay a draft Order before Parliament, following which there is another 60 day period in which the Joint Committee will make a recommendation to both Houses whether the Order should be approved.

An emergency procedure allows for Remedial Orders to be made immediately and debated afterwards; they must be approved within 120 days or will cease to have effect.

Supervision by Parliamentary Committees

There are two Committees which have a general supervisory role in relation to Statutory Instruments.

A Joint Committee of both Houses of Parliament checks that an Instrument is being made in accordance with the powers granted to the Minister making it. It does not consider the policy of Instruments, but is concerned only with technical matters. The Joint Committee may draw the attention of both Houses to an Instrument if it:
* imposes a cost on the public finances,
* requires payments of fees to a public authority,
* is made under powers which prevent it from be challenged in the courts,
* attempts to have retrospective effect (ie to change the law from a date before the date on which it is made) when the parent Act does not explicitly empower it to do so,
* makes an unexpected or unusual use of the powers conferred by the parent Act, or it may be "ultra vires" (outside the powers granted by the parent Act, and so unlawful),
* requires further explanation,
* has been published or laid before Parliament late,
* appears to contain mistakes.

The House of Lords Committee on the Merits of Statutory Instruments considers the policy of Statutory Instruments and would draw the attention of the House of Lords to a Statutory Instrument if it:
* is politically or legally important,
* is no longer appropriate due to changes in circumstances since the parent Act was passed,
* implements European law inappropriately, or
* fails to achieve its intended purpose.

In addition, the House of Commons may refer a Statutory Instrument to a Standing Committee for detailed debate on the merits of the legislation if a motion to annul (in the case of an Instrument subject to negative resolution) or approve (in the case of an Instrument subject to affirmative resolution) is made. The Committee will report its conclusions to the House which will then vote on the motion to annul or approve (as the case may be).

Instruments not subject to parliamentary control

Most Acts of Parliament stipulate that their provisions shall not come into force until a date to be fixed by one or more Commencement Order made by the Government, [It is quite common for different parts of an Act to be brought into force on different dates, and consequently for their to be several Commencement Orders.] thereby giving the authorities time to make necessary preparations. [Some Acts have never brought into force at all, or were repealed or superseded by later Acts before they were activated. A notable example of the former is the Easter Act 1928 which received Royal Assent on 3 August 1928 and as of 2008 has not been brought into force.] Commencement Orders are laid before Parliament but are not subject to either the affirmative or negative procedure.

Many Statutory Instruments (indeed, the largest group after those subject to the negative resolution procedure) are not required to be laid before Parliament at all, and are therefore not subject to any Parliamentary control. [Statutory Instrument Practice, para 4.7.2]

Judicial controls over Statutory Instruments

As with all delegated legislation, because Statutory Instruments are made by a person exercising a power conferred by an Act of Parliament for a specified purpose, rather than by Parliament exercising its sovereign law-making powers, they can be struck down by the courts if it is concluded that they are "ultra vires" (literally, outside the powers conferred by the parent Act). This would be the case if the Government attempts to use delegated legislation for a purpose not envision by the parent Act, or if the legislation is an unreasonable use of the power conferred by the Act, or if pre-conditions imposed by the Act (for example, consultation with certain organisations) have not been satisfied.

ee also

*List of Statutory Instruments of the United Kingdom
*tl|UK SI template for referencing UK Statutory Instruments
*Scottish Statutory Instrument

Bibliography

* [http://www.opsi.gov.uk/official-publications/publishing-guidance/si-practice.doc Statutory Instrument Practice] , 3rd edition (June 2003), Cabinet Office and Her Majesty's Stationery Office
* [http://www.parliament.uk/documents/upload/L07.pdf House of Commons Information Office Factsheet L7 - Statutory Instruments]
* [http://www.parliament.uk/documents/upload/DPRRguide.pdf Guide to SIs and other forms of delegated powers] to Government Departments from the House of Lords's Delegated Powers and Regulatory Reform Committee, April 2005.
* [http://www.chiark.greenend.org.uk/pipermail/ukcrypto/2005-June/078935.html Post from June 2005] to UK-Crypto discussing specific SIs.

External links

* All United Kingdom Acts of Parliament from 1988 onwards and Statutory Instruments from 1987 onwards are available free on-line under Crown copyright terms from the Office of Public Sector Information (HMSO) at http://www.opsi.gov.uk/
* Acts of the Scottish Parliament and Scottish Statutory Instruments are available free on-line under Crown copyright terms from HMSO at http://www.scotland-legislation.hmso.gov.uk

Notes


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