1. Secondary Legislation
aka Subordinate Legislation
aka Delegated Legislation
aka Statutory Instruments
aka SIs, Orders, Regulations ...
Legislation Office
March 2013
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2. Delegated legislation
Law made by ministers (or others)
under a power given (“delegated”) to
them by an Act of Parliament
amendmen
ts
Bill ACT
SI SI
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3. Types of Delegated Legislation
Usually Statutory
Instrument (SI)
– Little practical difference
between Orders, Rules
and Regulations
But not always –
e.g.
Immigration Rules,
PACE Codes,
Codes of Practice
– Procedures in “parent”
Act
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4. Levels of Delegation
Complete Negative Affirmative Affirmative
instrument instrument “plus”
Minister can Must lay Laid as draft. Affirmative
make law on before Cannot with
own authority eg Parliament for come into additional
closing a road or 40 days – can effect until tests set out
commencement be rejected by both Houses in Act
orders a motion have eg Public
(“Prayer”/EDM debated and Bodies
) approved it Order, LRO
2,000 per year 700 per year 150 + per year 30 per year ???
Limited
Can only be amended by another amendments
instrument possible
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5. Volume of delegated legislation
In 2009
Acts of Parliament – 27
UK Statutory Instruments – 2008
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6. Delegated Powers Committee
“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”
Dislike
Skeleton Bill
Henry VIII
Government submits Memorandum seeking
permission
DPRRC Reports before Bill’s Committee stage
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7. Welfare Reform, 2010-12
(power to calculate who is entitled to Universal
Credit. Wrong level of Parliamentary control)
“We therefore recommend that regulations made
under clause 9(3) and 10(4) should also be subject
to affirmative procedure on the first exercise of
the powers.”
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8. What happens when SIs
arrive in Parliament?
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9. Laying of instruments
Instrument laid in PPO and Vote
Office (on same day)
with an Explanatory Memorandum that
sets out in plain English what the
instrument does and why
may also have
– Impact Assessment on costs and benefits
– Transposition Note – if implementing EU
legislation
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10. EM because the effect is not always
obvious!
2(b) for Rule 2 and Rule 3 substitute
If the amount of contributions paid in respect of contracted-
out employments exceeds the amount found by the
following formula, the amount to be returned is the
excess.
53 x [((UAP-PT) x 9.4%) + ((UEL –UAP)
x11%)]
Social Security (Contributions) (Amendment No. 3) Regulations 2010
(SI 2010/646)
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11. EXPLANATORY MEMORANDUM TO THE [TITLE OF INSTRUMENT]
[Year] No. [XXXX]
1. This explanatory memorandum has been 8. Consultation outcome
prepared by [Name of department] and
is laid before [Parliament or the House
of Commons] by Command of Her 9. Guidance
Majesty.
2. Purpose of the instrument – 3 10. Impact
sentences
10.1 The impact on business, charities or
3. Matters of special interest to the voluntary bodies is
Joint Committee on Statutory 10.2 The impact on the public sector is .
Instruments
10.3 An Impact Assessment is attached
4. Legislative Context to this memorandum or An Impact
Assessment has not been prepared for
5. Territorial Extent and Application this instrument.
6. European Convention on Human
Rights 11. Regulating small business
7. Policy background 12. Monitoring & review
• What is being done and why
13. Contact
• Consolidation
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12. www.legislation.gov.uk
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13. JCSI
Commons Chairman : 7 MPs, 7 Lords
Considers legal drafting
Standing Order 74 sets out the terms of
reference, including:
– “that it purports to have retrospective effect...”
– “a doubt whether it is intra vires”
– “it appears to make some unusual or unexpected
use of the powers conferred by the statute under
which it is made”
– “that its drafting appears to be defective”
Has scrutiny reserve – affirmative SI cannot
be debated until the Committee has cleared
it.
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14. Defective drafting:
eg conceptual unclearness or
incompleteness
• leaving the term “Nepalese person”
unspecified further, when it could relate to
birth, domicile or citizenship;
Or unusual use of
powers!
“Any person who fails to
comply with any of the
requirements specified… shall
be guilty of an offence and
liable to summary execution”
[of a fine]
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15. Secondary Legislation Scrutiny
Committee
Considers policy intent
Usually reports on SIs within 12-16
days of instrument being laid – to
allow Members to follow up
reports
May seek further information or
correspondence (delay of 1 week)
– material usually published.
Also takes oral evidence
Affirmative debates are not
scheduled until after report
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16. SLSC: Terms of Ref
The grounds for reporting an SI are that it is:
politically or legally important, or gives rise to
issues of public policy likely to be of interest
[inappropriate in view of changed circumstances
since passage of parent Act]
inappropriately implements European Union
legislation
imperfectly achieves policy objectives
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17. In the Business Bulletin Secondar y To be considered
Legislation Scrutiny
Committee
Waiting for consideration by the Joint Committee on Statutory Instruments
Draft Social Security (Electronic Communications) Order 2013
Referred to a Grand Committee and Waiting for Affirmative Resolution
Draft Civil Legal Aid (Costs) Regulations 2013 29 March
Export Control (Amendment) (No. 2) Order 2013 24th Report 29 March
Waiting for Affirmative Resolution
Draft Media Ownership (Radio and Cross-media) Order 2013
Draft Employment and Support Allowance (Work-Related Activity) Regulations 24th Report
2013
Draft Orders reported from the Secondary Legislation Scrutiny Committee under Scrutiny period expires
the enhanced affirmative procedure
Draft Public Bodies (Abolition of Administrative Justice and Tribunals Council) 16 March
Order 2013, 15th report from the Joint Committee on Statutory Instruments, 25th
Report from the Secondary Legislation Scrutiny Committee
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18. Debates on affirmative
instruments
in the Commons
Considered in a Delegated Legislation Committee by
a randomly selected group of MPs. Proposing
Minister generally attends to present case.
in the Lords
Generally debated in Grand Committee (taken in the
Chamber if it is controversial and/or there may be a
vote). Lords spokesman for the Government presents
the case.
Formal clearance follows in main Chamber of both
Houses (usually on the nod)
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19. Debates on negative instruments
Normally becomes law without discussion but
in the Commons: Any Member may seek a
debate (often by Early Day Motion), but only a minority
are actually discussed.
in the Lords: Any Member may table a prayer
motion, almost always debated (Chamber or Grand
Committee). Can seek to “annul”, “regret” or “take
note”:
Lord Kirkwood of Kirkhope: That this House takes note of the Flexible New
Deal (Miscellaneous Provisions) Order 2009 (SI 2009/1562). 12th report from the
Merits Committee
– ... This is not an attack or an attempt to annul the order; I am absolutely
content with its provisions. However, there are some issues that it would be to
the benefit of the House to have raised before the order passes into effect and
leaves the parliamentary process entirely. ...
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20. In the Business Bulletin
Negative Instruments Praying time expires To be considered
Instruments reported by the Secondary
Legislation Scrutiny Committee
24th Report
Immigration (Designation of Travel Bans) (Amendment) Order 27 April 24 April
2011
Libya (Asset-Freezing) Regulations 2011 30 April
26th Report
Accession (Immigration and Worker Registration) (Revocation, 7 May
Savings and Consequential Provisions) Regulations 2011
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21. Sunsetting
Instrument includes
• Obligation to review and publish report
and/or
• Termination date for SI
- “Renewal” process not clear
- House expects evidence from that review
to demonstrate the need for further
legislation
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23. Further information
Companion, chapter 10
Back of the Business Bulletin
Home pages of JCSI, SLSC and Delegated Powers
Committees
Debates on SIs in Hansard
Lords and Commons factsheets
Better Regulation Executive guidance
http://www.bis.gov.uk/policies/bre
Legislation website http://www.legislation.gov.uk/uksi
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