2 Timing of publication
2.1In relation to timing of publication, the Committee is principally concerned with three issues:
- unjustifiable delay in laying before Parliament;
- the 21 day rule; and
- section 4(1) of the Statutory Instruments Act 1946.
Unjustifiable delay in laying before Parliament
2.2Most statutory instruments subject to negative resolution procedure are required to be laid before Parliament (section 5, Statutory Instruments Act 1946).
2.3A statutory instrument is made when it has been signed and any other necessary formalities have been completed (for example, consent or concurrence of the Treasury or other persons).
2.4Arrangements for registration and printing are made by the National Archives. The relevant Department submits the instrument for registration and requests a “laid date” to be inserted (for those instruments that are required to be laid). Registration checks are completed by the National Archives within 24 hours and the statutory instrument is numbered, the laid date is inserted in the italic rubric on the front page of the instrument, and a “Certified copy from legislation.gov.uk Publishing” banner is added.
2.5Laying must take place on the date printed on the instrument (otherwise the National Archives will withdraw the statutory instrument from the system). The parliamentary clerk for the relevant Department lays a physical copy of the Statutory Instrument at the Journal Office (Commons) and Printed Paper Office (Lords). The Journal Office notifies National Archives when the instrument has been laid. Laying then triggers the publication process.1
2.6Delays in laying before Parliament can be as a result of delay in sending the completed instrument for registration, or a delay as a result of the Department requesting a laid date at some point in the future.
2.7The Committee has noticed and reported on a number of instruments where there is a significant delay between making the instrument and laying it before Parliament. One of the Committee’s express reporting grounds in Standing Orders is that there appears to have been unjustifiable delay in the laying of a statutory instrument before Parliament. The ground also covers the situation where there is a delay in publication of an instrument where it is not required to be laid (House of Commons Standing Order No. 151 (paragraph (1)(B)(iv)) and House of Lords Standing Order No. 73 (paragraph (2)(d)).
The Committee’s view
2.8Laying before Parliament is not a meaningless formality, but an important part of access to justice and the rule of law. The statutory arrangements for laying before Parliament are part of the required formal measures by which publicity is assured. Once a statutory instrument has been made, it is law from that point (although of course whether it is law in force is a matter for the commencement arrangements of the instrument). The instrument should therefore be laid before Parliament as soon as possible. Even if the instrument comes into force some months later after being made, Parliament and the general public are entitled to as much notice of the prospective law as the Government has itself, and the legal and practical effects of an instrument may be felt long before the date on which it comes into force.
2.9There is no reasonable excuse for delay in such a simple administrative step as laying before Parliament.
2.10The Committee also notes that there is a statutory duty imposed on Departments to engage with the National Archives’ registration and publication process “immediately after the making of any statutory instrument” (section 2(1), Statutory Instruments Act 1946).
2.11It has been represented (informally) to the Committee that in some cases a Department’s Press Office requests a delay in laying instruments before Parliament in order to coordinate publication of their initiatives. The Committee does not consider this practice acceptable. If a delay is required in order to coordinate a number of legislative changes or other matters, the solution is to delay the making of the instrument; once it has been made it is wrong in principle to delay laying before Parliament. The importance to the rule of law of not allowing law to remain secret once made is obvious, and clearly overrides any interests of the Government in controlling publicity.
2.12The following examples, taken from JCSI reports, will generally be regarded as unacceptable delays by the Committee. This list is not exhaustive:
- Delays in printing and publication.2
- Desirability of a package of documents being laid at the same time.3
- Administrative matters such as cross-Government business-planning concerns.4
- Machinery of Government delays.5
- Political or presentational reasons.6
- Delay in clearing the impact assessment.7
2.13The Committee considers that, as a general rule and unless there are exceptional circumstances, a delay of 10 calendar days or more will amount to an unjustifiable delay.8 This period is for guidance only. There may be some instances where a period of longer than 10 calendar days is acceptable or instances where a period of less than 10 calendar days is considered to be an unjustifiable delay.
2.14Most affirmative instruments are approved in draft by resolution of each House but certain affirmative instruments (generally called “made affirmatives”) must be laid before Parliament after being made, and cease to have effect at the end of a specified period, normally 40 days, 28 days or a month beginning with the day on which the instrument was made, unless before the end of that period the instrument is approved by resolution of each House. In such cases, it is obviously particularly important to minimise the period between making and laying. The Committee’s view is that curtailment of the period potentially available to Members of each House to examine the instrument during the specified approval period cannot be justified.9
The 21 day rule
2.15The 21 day rule is that, if an instrument is subject to negative procedure,10 it should generally be laid at least 21 days before it is due to come into force, including the date of laying, and only be brought into force on the twenty-second day at the earliest. The 21 days are calendar days and days on which Parliament, or either House, is not sitting (or is dissolved) are not excluded. The 21 day period should be treated as a minimum period. This is a convention established by Government and set out in successive editions of the Government’s Statutory Instrument Practice (now reflected in paragraph 2.11, 5th Edition, November 2017).
2.16The Committee has noticed and reported on a number of breaches of the 21 day rule.
2.17Breaches of the 21 day rule are usually reported for failure to comply with proper legislative practice as part of the residual ground at the end of paragraph 1(B) of House of Commons Standing Order No. 151 and paragraph 73(2) House of Lords Standing Order No. 73.
The Committee’s view
2.18The Committee stresses the importance of compliance with the 21 day rule, which is designed to protect those affected by changes in the law made by subordinate legislation from being subject to the effect of the changes before they have had a reasonable opportunity to understand the effects and what they must do to satisfy any requirements.
2.19The Committee is aware of the pressures faced by Departments in producing legislation and that an allowance also has to be made in any timetable for registration and printing. At peak times (for example, around the common commencement dates in April and October), those responsible for handling these administrative tasks may need significantly more time than usual to cope with the volume of instruments in a Department.
2.20The following examples, taken from JCSI Reports, will not generally be regarded as justification for breach of the 21 day rule by the Committee. This list is not exhaustive:
- Administrative oversight.11
- Problems or delays within Government.12
- Failure to settle policy within Government.13
- Time needed for co-ordination among Government Departments and the need to obtain concurrence.14
- Insufficient time allowed within Government for consideration of consultation responses.15
- Lack of resources leading to prioritisation of other instruments.16
- Desire to cut down Government expenditure.17
- Raising fees as soon as possible.17
- Desirability of making changes on a common commencement date.18
- Desirability of a package of instruments coming into force simultaneously.19
- Mere assertion of a desire to avoid delay.19
2.21The Committee accepts that some instruments must take effect on shorter notice (see paragraph 2.22 below). Where it is not possible to comply with the 21 day rule the Explanatory Memorandum should explain why the instrument could not have been made and laid sooner, the reason it has to come in to effect on the date specified and the consequences of delaying the legislation to comply with the 21 day rule. The Committee will consider these reasons and state whether or not it finds them acceptable in the circumstances.
2.22The following examples may, depending on the circumstances, be regarded as sufficient justification for breach of the 21 day rule by the Committee. Again, this list is not exhaustive:
- Urgency (for example, the imposition of sanctions where it is necessary to maximise the effectiveness of the sanctions and to minimise the risk of asset flight or in the case of public health measures).
- EU instruments published with close implementation deadlines.20
- Significant operational difficulties in changing a date on which fee changes are to take effect.18
- Existence of unexpected external factors that justify the breach.21
- Delays to Royal Assent for a Finance Act where an instrument is dependent on that Act.
2.23Although the 21 day rule applies only to negative instruments, the Committee considers that the rationale for the convention applies with equal force to affirmative instruments (that have not been published in draft for approval by resolution of each House). As a starting assumption, the Committee considers that a date of coming into force earlier than 21 days after an affirmative instrument is made is unlikely to be reasonable where the instrument:
- significantly diminishes the legal rights of persons affected,
- imposes new duties on such persons which are significantly more onerous than before, and requires them to adopt different patterns of behaviour, or
- creates criminal sanctions for a failure to comply with an obligation.22
Section 4(1) of the Statutory Instruments Act 1946
2.24Section 4(1) of the Statutory Instruments Act 1946 provides that instruments that are to be laid before Parliament after being made should be laid before the instrument comes in to operation provided that if it is essential that an instrument comes into operation before copies can be laid (for example, instruments imposing sanctions), the instrument may come into operation before it has been laid; and in such a case, notification must be sent to the Speaker of the House of Commons and the Speaker of the House of Lords drawing attention to the fact that copies of the instrument have yet to be laid before Parliament and explaining why such copies were not laid before the instrument came into operation (section 4 letter).
2.25One of the Committee’s reporting grounds (House of Commons Standing Order No. 151 (paragraph (1)(B)(v)) and House of Lords Standing Order No. 73 (paragraph (2)(e)) is that there appears to have been an unjustifiable delay in sending a notification under the proviso to section 4(1) where an instrument has come in to operation before it has been laid before Parliament.
The Committee’s view
2.26The proviso in section 4(1) of the Statutory Instruments Act 1946 only applies where it is essential that an instrument should come into force before it is laid before Parliament. The Committee suspects that section 4 is being invoked for non-essential reasons, for example, delays within Government, administrative errors or forgetting to lay the instrument in a timely manner. Processes must be put in place within Government to avoid these errors and delays.
2.27The Committee will report if it considers that there has been an unjustifiable delay in making the notification required to be given in a section 4 letter. Even if there has been no delay in sending the section 4 letter, the Committee may still report the instrument for breach of the 21 day rule.
2.28Although normally of limited practical significance, care should be taken with instruments that come into force on the day that they are laid. By virtue of section 4 of the Interpretation Act 1978, where an instrument is stated to come into force on a particular day, it comes into force at the beginning of that day. Unless the position is made clear by including times of coming into force and laying, an instrument expressed to come into force on the same day that it is laid will be in breach of section 4(1).23
Defence of non-publication
2.29As an addendum to this section, the Committee draws attention to section 3(2) of the Statutory Instruments Act 1946:
“In any proceedings against any person for an offence consisting of a contravention of any such statutory instrument, it shall be a defence to prove that the instrument had not been issued by or under the authority of Her Majesty’s Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged.”
2.30The Committee believes that this provision–which represents a significant exception to the principle that ignorance of the law is no excuse–illustrates the importance attached by Parliament to prompt publication of law once made, and the inherent unfairness of expecting citizens to comply with law that has not been published.
1 The National Archives procedures for the registration, laying and publishing of statutory instruments are set out in Part 4 of Statutory Instrument Practice, 5th Edition (November 2017).
2 Twenty-third Report of Session 2015/16 in relation to S.I. 2016/190 and Ninth Report of Session 2013/14 in relation to S.I. 2013/1474.
3 Twenty-third Report of Session 2015/16 in relation to S.I. 2016/185.
4 Twelfth Report of Session 2015/16 in relation to S.I. 2015/1776.
5 Twenty-fourth Report of Session 2015/16 in relation to S.I. 2016/484 and Seventeenth Report of Session 2014/15 in relation to S.I. 2014/2821.
6 Twenty-fourth Report of Session 2015/16 in relation to S.I. 2016/484.
7 Fifth Report of Session 2017/19 in relation to S.I. 2017/855.
8 Twenty-sixth Report of Session 2016/17 in relation to S.I.s 2017/66 and 2017/112.
9 Second Report of Session 2015/16 in relation to S.I. 2015/1396.
10 Under the negative procedure the person in whom the power is vested can exercise it to make a statutory instrument without the approval of Parliament but Parliament has a period within which to object (usually 40 days). If no resolution for annulment of the instrument is passed within that period, the statutory instrument continues to have effect.
11 Fourth Report of Session 2017/19 in relation to S.I. 2017/555 and First Report of Session 2013/14 in relation to S.I.s 2013/707 and 725.
12 Twelfth Report of Session 2016/17 in relation to S.I. 2016/954, Eleventh report of Session 2014/15 in relation to S.R. 2014/224 and Tenth Report of Session 2014/15 in relation to S.I. 2014/1686.
13 Third Report of Session 2014/15 in relation to S.I. 2014/880.
14 Third Report of Session 2012/13 in relation to S.I. 2012/867.
15 Fifth Report of Session 2012/13 in relation to S.I.s 2012/953 and 954.
16 Forty-third Report of Session 2010/12 in relation to S.I. 2012/20.
17 Twelfth Report of Session 2016/17 in relation to S.I. 2016/954.
18 Fourth Report of Session 2015/16 in relation to S.I. 2015/768.
19 Fifth Report of Session 2014/15 in relation to S.I. 2014/1183.
20 Twelfth Report of Session 2016/17 in relation to S.I. 2016/954.
21 Tenth Report of Session 2014/15 in relation to S.I. 2014/1686.
22 First report of Session 2014/15 in relation to the draft Openness of Local Government Bodies Regulations and Fourth Report of Session 2016/17 in relation to the Draft Pubs Code.
23 Twenty-sixth Report of Session 2014/15 in relation to S.I. 2015/406.
Published: 12 June 2018