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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. Acts of Parliament themselves are subjected to a series of debates and examination in both Houses of Parliament. This can be a lengthy and involved process involving amendments and compromises.
Parliament has authorised other bodies the power to make delegated or secondary legislation and this includes S.I.s. In the case of S.I.s the power is granted to government ministers under powers given in enabling Acts. Parliament still retains some degree of control over this method of making law as government ministers are accountable to Parliament for their actions.
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. For example 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.
There is an element of control by Parliament but this is not extensive. Parliament clearly has control over the way power is delegated through the enabling Act as this parent Act has to meet parliament’s approval. In addition the enabling act sets out the limits or extent of the law making powers of the government minister. This appears satisfactory but the modern trend is to include broad powers which give government ministers considerable flexibility in practice. The effect of this is that there may be difficulties later for a judge when it comes to construction and interpretation in the event that the matter becomes the subject of a challenge in the Courts as a result of an application for judicial review.
There is a specific Scrutiny Committee which has been set up to consider whether Bills delegate legislative power properly and this is the Delegated Powers Scrutiny Committee. This Scrutiny Committee was set up in 1992 in the House of Lords. The problem is that the committee can only make recommendations and has no power to amend Bills. 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 and 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".
Statutory Instruments can either be introduced by an ‘affirmative procedure’ (which involves some debate) a 'super affirmative resolution' (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.) or a ‘negative resolution procedure' (where there is no debate). The affirmative procedure can be commended on the basis that it brings about a debate and therefore increases awareness. It also means that this form of delegated legislation can only be brought into effect if approved by Parliament.
However, in reality, only a small number of S.I.’s are introduced in this way. The enabling Act sets out whether an affirmative resolution is required. The procedure has been used where individual rights are affected and an example of this is that any new or revised Codes of Practice under the Police and Criminal Evidence Act 1984 can only be introduced using this method. A significant matter is that Parliament cannot amend the statutory instrument. Under this procedure it can only be approved, annulled or withdrawn.
Super affirmative resolutions mean that both houses must vote on the SI and that the appropriate Minister must have regard to responses made as a result of consultations and any committee report and any resolution of either House.
Negative resolutions are much more common. This means that under this procedure the new regulations will become law unless they are rejected by a resolution within 40 days. The opportunity can be taken to seek out information, by MPs questioning the appropriate government minister during question time sessions in Parliament, about the use and extent of his powers in relation to specific legislation.
We turn now to the matter of Orders in Council . Orders in Council are published in the London Gazette. Authority has been granted by the Emergency Powers Act 1920 and the Civil Contingencies Act 2004 for legislation to be introduced by an Order in Council when it is not possible or appropriate for legislation to be made by Parliament.
Acts of Parliament or statutes are a major source of legislation in England and Wales. Such acts are considered to be primary legislation. Draft legislation is introduced in the form of a bill which then goes through a series of stages commencing with the First Reading. These stages or processes are conducted in both Houses of Parliament and once the final debate has taken place, and provided the Bill is approved, it is then passed to the Queen for her Royal assent. It is unlikely for the Bill not to be approved once it has reached the final debate stage. There are very good reasons for subjecting proposed legislation to such public debate and scrutiny, not least being the fact that it recognises the sovereignty of Parliament to legislate. It is also a fundamental part of our democratic system.
However there are times when it is simply not possible to legislate in this way. For example there are times, such as during the summer recess when Parliament is not sitting and therefore unable to conduct formal business. Similarly at times of emergency, the elaborate process through which draft legislation is submitted would not be appropriate. Authority has been granted by the Emergency Powers Act 1920 and the Civil Contingencies Act 2004 for legislation to be introduced by an Order in Council. This power is to be exercised in times of emergency and when Parliament is not sitting. There is also authority to give effect to EU proposals under the European Communities Act 1972.
Under this power draft legislation is drafted by a government department and approved by the Privy Council and signed by the Queen. It could be argued that Orders in Council are undemocratic and, to a large extent, they are in that the power rests with a small group and is far removed from the close scrutiny and debate reserved for legislation passing through Parliament.
However it could be argued that such emergency legislation is drafted by government departments so the legislation is likely to achieve what it set out to do and is therefore effective. It could also be said that as the members of the Privy Council are made up of the Prime Minister and leading members of the government there is accountability as those individuals are ultimately answerable to Parliament.
This form of delegated legislation effectively allows the government to introduce legislation without the approval of Parliament. Examples of Orders in Council and their use include giving effect to European Directives.
Directives are binding upon the national country with regard to the result to be achieved but it is left to the individual member state to implement the directive within a set time-scale.
Orders in Council have been used in times of emergency such as the fuel crisis in September 2000 when the government controlled fuel supplies. Another example would be at times of war as was the case with the Gulf war and subsequent invasion of Iraq.
Occasionally Orders in Council will be used to introduce other laws of general application. This was the case with the Misuse of Drugs Act 1971.
(Word count 1653)
This essay describes and illustrates Orders in Council and Statutory Instruments and includes references to the following matters:
authority under the Emergency Powers Act 1920 and the Civil Contingencies Act 2004;
the sovereignty of Parliament;
times of emergency and when Parliament is not sitting;
the Privy Council and the Queen;
examples of Orders in Council.
the importance of statutory instruments;
Parliament's limited time;
Enabling or Parent Acts;
control by Parliament and the courts;
specific scrutiny committees;
the 'affirmative procedure' the 'super affirmative procedure' and the 'negative resolution procedure';
(Word Count 1653)
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