Statutory instrument (UK)
A statutory instrument is the principal form in which delegated legislation is made in the United Kingdom.
Statutory instruments are governed by the Statutory Instruments Act 1946. They replaced statutory rules and orders, made under the Rules Publication Act 1893, in 1948.
Most delegated legislation in Great Britain is made in the form of a statutory instrument. 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 Senedd. Instruments made by the Scottish Government are now classed separately as Scottish statutory instruments. Instruments made by the Welsh Government are now classed separately as Welsh statutory instruments.
When a statutory instrument is required
A statutory instrument is used when an Act of Parliament passed after 1947 confers a power to make, confirm or approve delegated legislation on:- the King and states that it is to be exercisable by Order in Council; or
- a minister of the Crown and states that it is to be exercisable by statutory instrument.
A statutory instrument is also used when the King in Council or a Minister exercises a power under an Act passed before 1947 which is legislative, rather than executive, in character.
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, and by-laws made by a local council may be publicised through an announcement in local newspapers.
Features
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 and published on the Internet. 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, 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 :
- : Commencement and/or Appointed Day orders which bring into force an Act or part of an Act.
- : legal series: relating to fees or procedures in courts in England and Wales.
- : Scottish series: instruments made by the United Kingdom Government which apply to Scotland only.
- : Northern Ireland series: Orders in Council made by the United Kingdom Government under its "direct rule" powers.
- : Wales series: statutory instruments made by the Welsh Government and applying to Wales only. Welsh language versions are numbered.
Printed copies of a statutory instrument will generally be on sale within a week of the date it is made.
Parliamentary control
Most statutory instruments 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 amend or change it. Whether or not a statutory instrument is subject to affirmative or negative resolution procedure is dictated by the parent act.Negative resolution procedure
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 have passed unless either House passes a resolution disapproving it, or
- laid before Parliament after it is made, but will be revoked if either House passes a resolution annulling it within 40 days.
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.
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. The last time the House of Commons annulled a statutory instrument was in 1979 when it rejected the Paraffin Order 1979.
Affirmative resolution procedure
Statutory instruments which are subject to affirmative resolution are less common, making up about 10% of the total. 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 either:
- before it is made,
- 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 unless approved within that period.
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.
Regulatory reform orders and legislative reform orders
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.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.
One example of the use of Regulatory Reform Orders have included the Regulatory Reform Order 2004 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. Another example is the Regulatory Reform Order 2005 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. The powers have been described by David Howarth MP as the "Abolition of Parliament Bill" and by Daniel Finkelstein as the "Bill to End All Bills".
Remedial orders under the Human Rights Act 1998
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.
Henry VIII clauses
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, because an early example of such a power was conferred on King Henry VIII by the Statute of Proclamations 1539. After the enactment of the Nationality, Immigration and Asylum Act 2002, the Delegated Powers and Regulatory Reform Select Committee of the House of Lords issued a report concerning the use and drafting of such clauses, which its chairman remarked go "right to the heart of the key constitutional question of the limits of executive power". Such clauses have often proved controversial, because they allow changes to the law without a vote in Parliament at any stage.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.
The government controversially used Henry VIII powers to abolish EU rules on state aid. 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.