Statutory Instrument No. 58 Of 2020

[Kum Dana]

Statutory instruments (or 'regulations')[1] are primarily governed by the Statutory Instruments Act 1946,[2] which replaced the system of statutory rules and orders governed by the Rules Publication Act 1893.

Following the 2016 EU membership referendum and the subsequent publication of the European Union (Withdrawal) Bill, there has been concern that its powers enabling ministers to issue statutory instruments under the bill may enable the government to bypass Parliament. Although this has been criticised by some as being undemocratic, draft regulations must be "laid before" Parliament, which may always demand a full debate on contentious issues.[3]

In the Republic of Ireland the term "statutory instrument" is given a much broader meaning than under the UK legislation. Under the Statutory Instruments Act 1947 a statutory instrument is defined as being "an order, regulation, rule, scheme or bye-law made in exercise of a power conferred by statute".

However, only certain statutory instrument are published and numbered by the Stationery Office, this being mostly where the statute enabling the enactment of delegated legislation required that any such legislation be laid before the Houses of the Oireachtas.

Canada uses statutory instruments for proclamations by the King of Canada. For example, the Proclamation of the Queen of Canada on April 17, 1982 brought into force the Constitution Act 1982, the UK parts of which are known as the Canada Act 1982.

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 and Welsh governments, and oversight to the Scottish Parliament and Welsh Parliament. Instruments made by the Scottish Government are now classed separately as Scottish statutory instruments.

Minister of the Crown includes the Welsh Ministers[2] and various Acts provide that delegated legislation, although made by another person (for example, the General Dental Council[3]), is also to be made by statutory instrument. Often the Minister authorised to issue a statutory instrument is "the Secretary of State", which the Interpretation Act 1978 defines as "one of Her Majesty's Principal Secretaries of State"; this form effectively allows the Prime Minister to create new departments and define or redefine their responsibilities at will.

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,[5] and by-laws made by a local council may be publicised through an announcement in local newspapers.[6]

The main effect of delegated legislation being made by statutory instrument is that it is effective as soon as it is made, numbered, catalogued, printed, made available for sale[7] and published on the Internet.[8] This ensures that the public has easy access to the new laws.

Numbers are assigned by His 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, 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):

Most statutory instruments (SIs) are subject to one of two forms of control by Parliament, depending on what is specified in the parent Act. 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. Whether or not a statutory instrument is subject to affirmative or negative resolution procedure is dictated by the parent act.

Any member of either House can put down a motion that an instrument should be annulled, although in the Commons, 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 such a motion is seldom actually voted upon.

If a resolution to annul an instrument is passed, it will be revoked by the King 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.[11]

The last occasion on which a statutory instrument was annulled was on 22 February 2000, when the House of Lords passed a motion to annul the Greater London Authority Elections Rules.[12] 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).[13]

Statutory instruments which are subject to affirmative resolution are less common, making up about 10% of the total.[13] 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 be 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:

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.[14]

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 as part of the Act, a special form of affirmative procedure has been introduced.[15]

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.

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.

Some statutory instruments are made under provisions of Acts which allow the instrument to change the parent Act itself, or to change other primary legislation. These provisions, allowing primary legislation to be amended by secondary legislation, are known as Henry VIII clauses, or Henry VIII powers,[17] because an early example of such a power was conferred on King Henry VIII by the Statute of Proclamations 1539.[18] After the enactment of the Nationality, Immigration and Asylum Act 2002 (which permitted the Secretary of State to make changes using Henry VIII powers), the Delegated Powers and Regulatory Reform Select Committee of the House of Lords issued a report concerning the use and drafting of such clauses,[19] which its chairman remarked go "right to the heart of the key constitutional question of the limits of executive power".[20] Such clauses have often proved controversial, because they allow changes to the law without a vote in Parliament at any stage.[21]

Lord Judge spoke strongly against such clauses when he was Lord Chief Justice of England and Wales: "You can be sure that when these Henry VIII clauses are introduced they will always be said to be necessary. William Pitt[disambiguation needed] warned us how to treat such a plea with disdain. Necessity is the justification for every infringement of human liberty: it is the argument of tyrants, the creed of slaves."[22]

The government (specifically the Department for Business, Energy and Industrial Strategy) controversially used Henry VIII powers to abolish EU rules on state aid (which had been incorporated into UK domestic law after Brexit). In 2021, the Good Law Project has challenged this move, arguing that the use of Henry VIII powers for such a purpose is constitutionally questionable.[21]

The Joint Committee on Statutory Instruments (a 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:

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