Statutory instruments

Statutory instruments are a major method of law making in this country.

Statutory instruments are a major method of law making in this country – some 3,000 statutory instruments or S.I.s are introduced each year. This figure has risen steadily from 2010 to 2012 and shows no sign of decreasing in 2013.  Therefore it is important to understand something about the reason for this and their nature.

Parliament only has a limited amount of time to devote to any legislative programme. New laws are subjected to a series of debates and examination in both Houses of Parliament before they become Acts. At this stage the proposals are called Bills.  This can be a lengthy and involved process involving amendments and compromises. Once both Houses have voted for the proposals the Bill will receive the Royal Assent and become an Act. The Act may not always cover every fine detail of the subject they deal with and SIs give the Government the power to amend them to prevent the need for an Act of Parliament each time a detail has to be added or updated. Laws made in this way are known as secondary or delegated legislation.
This means that Parliament still retains some degree of control over this method of making law as government ministers are accountable to Parliament for their actions but the process is less time consuming.

Statutory instruments are made in various forms, the most common are Orders in Council, regulations, rules and orders.  Enabling Acts are parent Acts which set out the framework of legislation and provides for what is to happen and how the law is to operate.  There may be details and provisions which are to be added later or dates to be stipulated e.g. it is quite common for some parts of enabling Acts to only come into force on the authority of the appropriate minister through a statutory instrument.   Some of the provisions may be lengthy and complex or require detailed rules and regulations to make them work, the legal principles having been established by the enabling Act.

They can extend or update an Act of Parliament without a new Act having to be passed:

Commencement Orders can be used to bring into force the whole or part of an Act when it was not put into immediate effect after the Royal Assent.

Orders in Council can be used to regulate professions or professional bodies.

Legislative Reform Orders can be used to amend or repeal part of an Act which may cause a burden on businesses.

Local Statutory Instruments can be used to legislate for particular areas of the country or a particular group of people or for construction works projects

 

 There are three types of procedure for Statutory Instruments (SIs):

  • Affirmative - Both Houses of Parliament must expressly approve them

  • Negative - become law without a debate or a vote but may be annulled by a resolution of either House of Parliament

  • Super Affirmative -whereby material changes to the order are allowed if made within 60 days. This new resolution procedure amends the rule and now allows changes to be made even after being laid before parliament.

In all cases, Parliament's room for manoeuvre is limited. Parliament can accept or reject an SI but cannot amend it except in the instance of super-affirmative SIs.

The instrument is laid before Parliament in draft form, this entails putting a copy of the Instrument with the Votes and Proceedings desk in the Journal Office. (Laid on the table of the House)

A Statutory Instrument is made when it is signed by a minister or other person with the authority to do so, at that point it is no longer in draft.

The Select Committee on Statutory Instruments met for the first time on 14th July 2010 after being re-established. Its role is 'to consider statutory instruments made in exercise of powers granted by Act of Parliament which are subject to the House of Commons scrutiny but not the House of Lords.'  The SCSI is not responsible for discussing the benefits or drawbacks of the SI.

Instruments subject to the authority of both Houses are considered by the Joint Committee on Statutory Instruments which met for the first time on 14 July 2010 after being re-established. Its role is to 'to consider statutory instruments made in exercise of powers granted by Act of Parliament. Instruments not laid before Parliament are included within the Committee's remit; but local instruments are not considered by JCSI unless they are subject to parliamentary procedure and instruments made by devolved administrations are not to be considered by JCSI unless they are required to be laid before Parliament.' The JCSI is not responsible for discussing the benefits or drawbacks of the SI this remains the responsibility of other Parliamentary Committees.

The Secondary Legislation Scrutiny Committee replaces the Merits of Statutory Instruments Committee. This committee is responsible for examining the policy merits of any SIs or regulations laid before the House of Lords and which are subject to parliamentary procedure. It considers every SI, both negative and affirmative, and decides whether the contents should receive the attention of the House of Lords. There is no such committee for the House of Commons.

The Delegated Powers and Regulatory Reform Committee is required "to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny".

 

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