Statutory instrument (UK)

The more common form of control is the negative resolution procedure. This requires that the instrument is either:

• 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
• 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.[10]

A motion to annul a statutory instrument is known as a "prayer" and uses the following wording:

That an humble address be presented to His 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 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:

• before it is made (i.e. 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.[10]

Once the instrument is laid before Parliament, the Government will move a motion in each House that the instrument be 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.[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.

Examples of the use of Regulatory Reform Orders have included 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 The Regulatory Reform (Trading Stamps) Order 2005 (SI 2005/871) which repealed the entirety of the Trading Stamps Act 1964.

The 2001 Act was repealed and replaced by the Legislative and Regulatory Reform Act 2006, which created significantly wider powers and has been the subject of considerable concern.[16]

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.

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 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]

There are three Committees which have a general supervisory role in relation to statutory instruments.

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:

• imposes a cost on the public finances,
• requires payments of fees to a public authority,
• is made under powers which prevent it from being challenged in the courts,
• attempts to have retrospective effect (i.e. 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, or
• appears to contain mistakes.

Where an instrument is required to be laid before the House of Commons only, then the Commons' Select Committee on Statutory Instruments undertakes a similar examination.

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).

Most Acts of Parliament stipulate that their provisions shall not come into force until a date to be fixed by one or more Commencement Orders made by the Government,[23] thereby giving the authorities time to make necessary preparations.[24] 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.[25]