Companion to the Standing Orders and guide to the Proceedings of the House of Lords

Companion to the Standing Orders and guide to the Proceedings of the House of Lords

CHAPTER 9 DELEGATED LEGISLATION

9.01 Acts of Parliament do not make detailed provision for many of the subsidiary and procedural matters necessary to give effect to the policy embodied in the Act. So legislative power is often conferred upon the government by statute. This legislative power is exercised by means of "delegated" (or "secondary") legislation. Delegated legislation is made most often by ministers but may also be made by other persons and bodies. The statutory basis for delegated legislation is usually a provision in an Act of Parliament, often referred to as the "parent Act".

General powers of the House over delegated legislation

9.02 The Parliament Acts do not apply to delegated legislation. So delegated legislation rejected by the Lords cannot have effect even if the Commons have approved it. Neither House of Parliament has the power to amend delegated legislation.[396] The House of Lords has only occasionally rejected delegated legislation.[397] The House has resolved "That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration".[398] Delegated legislation may be debated in Grand Committee, but must return to the floor of the House if a formal decision is required.[399]

Critical amendments and motions

9.03 There are two ways in which members of the House can table amendments or motions on a statutory instrument to express criticism without challenging the instrument directly.[400]

9.04 First, an amendment or motion may be moved regretting some aspect of a statutory instrument but in no way requiring the government to take action. This provides an opportunity for critical views to appear on the order paper and be voted upon which would otherwise simply be voiced in the debate. Such motions are invitations to the House to put on record a particular point of view. Even if carried, the motion or amendment has no practical effect: the House passes the instrument in any event.

9.05 Secondly, a motion or amendment may be moved calling on the government to take some specific action. Such motions have been used to invite the government to amend subordinate legislation, thereby avoiding the need to vote on the legislation itself.[401]

9.06 It is usual for such motions to be moved at the same time as the substantive motion on the legislation.

Types of delegated legislation

9.07 Delegated legislation consists mostly of statutory instruments.[402] But there are several kinds of delegated legislation, which can be distinguished by the parliamentary procedures to which they are subject. The parent Act makes clear which procedures apply to the delegated legislation made under its various provisions.

9.08 The most common forms of delegated legislation are:

affirmative instruments[403] which must be approved by resolutions of both Houses if they are to come into force, or remain in force having been made, or which may not be made except in response to an Address by each House to Her Majesty;
negative instruments which are subject to annulment by a resolution of either House, i.e. have effect unless specifically rejected;
"general instruments", which may be required to be laid before Parliament for information but are not subject either to approval or annulment or to any other kind of proceedings;
instruments not laid before Parliament.

9.09 There are other kinds of delegated legislation, subject to their own variety of parliamentary procedure, including:

regulatory reform orders;
human rights remedial orders;
hybrid instruments, which are affirmative instruments which, if they were primary legislation, would be subject to private business standing orders;
special procedure orders, which are required where certain protected categories of land (such as a common, open space or fuel or field garden allotment[404]) are subject to compulsory purchase.

Scrutiny of delegated legislation

9.10 The Joint Committee on Statutory Instruments and the Merits of Statutory Instruments Committee consider and report on both affirmative and negative instruments (see paragraph 10.55). The Delegated Powers and Regulatory Reform Committee examines the way in which bills delegate legislative power, and also regulatory reform orders (see paragraphs 10.46-10.48). The Joint Committee on Human Rights examines remedial orders proposed by the government to remove incompatibilities between United Kingdom primary legislation and the European Convention on Human Rights (see paragraphs 9.32-9.35).

Affirmative instruments

9.11 Affirmative instruments require the express approval of Parliament, or sometimes of the Commons only.[405] The affirmative procedure takes one of three forms, depending on the parent Act:

an instrument may be made and have immediate effect, but not continue in force beyond a specified period[406] unless both Houses agree to the appropriate resolutions approving the instrument;
an instrument may be required to be laid in draft before both Houses and will not be made or have effect unless both Houses agree to resolutions approving the draft instrument;[407]
an instrument may be made by a minister and laid before Parliament but it will have effect only after resolutions have been passed approving it.

9.12 No motion to approve an affirmative instrument[408] may be moved until the report on the instrument from the Joint Committee on Statutory Instruments has been laid before the House.[409] Special considerations apply to orders under the Legislative and Regulatory Reform Act 2006 and hybrid instruments (see paragraphs 9.17, 9.31 and 9.32).

9.13 A motion to approve an affirmative instrument must be moved by a minister of the Crown. If the responsible minister is unable to be in the Chamber, another minister may move the motion on his behalf.

MOVING AFFIRMATIVE INSTRUMENTS EN BLOC

9.14 If several affirmative instruments are closely enough related to justify being taken together, the motions for resolutions or Addresses on them may be moved en bloc.[410] It is for the minister in charge, in the first instance, and ultimately for the House, to decide whether groups of instruments qualify for this procedure. An en bloc motion may be moved only with the unanimous leave of the House; if any member objects, motions on the individual instruments must be moved separately to the extent desired.[411] Notice of a motion to take instruments en bloc is given by means of an italic note reminding members of their right to object to taking the instruments en bloc. The italic note must appear in at least two issues of House of Lords Business.

AFFIRMATIVE INSTRUMENTS IN GRAND COMMITTEE

9.15 Affirmative instruments may be considered in Grand Committee. Each instrument is referred on a motion moved by the Leader of the House and each is then approved by the House, after the debate, on another separate motion.

9.16 Motions to refer affirmative instruments to a Grand Committee, and motions to approve affirmative instruments after they have been debated in Grand Committee, are normally taken en bloc in the House. The requirements for two sitting days' notice and for the unanimous leave of the House apply as for other en bloc motions.[412]

Negative instruments

9.17 Negative procedure is the most common form of parliamentary control over delegated legislation. The parent Act provides that instruments made under it take effect either immediately or on a specified future day but are subject to annulment in pursuance of a resolution of either House adopted within a specified time limit. A resolution to reject a negative instrument takes the form of a motion praying Her Majesty that the instrument be annulled.[413] Since 1948 the period during which a negative resolution may be moved ("praying time") has been 40 days in respect of either the negative procedure for annulment or the negative procedure for preventing further proceedings in the case of a draft instrument. Swearing-in days in either House[414] and days on which the House of Lords sits for judicial business only (unless such days are during prorogation) are included in the reckoning of the 40 days, but periods of dissolution, prorogation or adjournment of both Houses for more than four days are not. Praying time in respect of an instrument laid during the recess does not therefore begin to run until one of the Houses sits.

NEGATIVE INSTRUMENTS IN GRAND COMMITTEE

9.18 Negative instruments may be considered in Grand Committee. A motion to consider the instrument, in the name of the Lord seeking the debate, is referred on a Business of the House motion.

396 Except in the very small number of cases where the parent act specifically provides for such amendment, e.g. Census Act 1920 s. 1(2), Civil Contingencies Act 2004 s. 27(3). Back

397 The last two instances of the rejection of an affirmative instrument were 18 June 1968: Southern Rhodesia (United Nations Sanctions) Order 1968; and 22 February 2000: Greater London Authority (Election Expenses) Order 2000. A motion for an address praying against a negative instrument (Greater London Authority Elections Rules 2000) was agreed to on 22 February 2000. Back

398 LJ (1993-94) 683, HL Deb. 20 October 1994 cols 356-83. Back

399 Procedure 3rd Rpt 2003-04. Back

400 Procedure 1st Rpt 1990-91. Back

401 e.g. 27 January 1998: Beef Bones Regulations 1997; 5 December 1995: Probation (Amendment) Rules 1995. Back

402 The Statutory Instruments Act 1946 defines the main categories of statutory instrument. Other kinds of delegated legislation include codes of practice and conduct. Back

403 SO 73. Back

404 See Acquisition of Land Act 1981, c. 67, s. 19(1). Back

405 These are primarily financial instruments. The rest of this paragraph refers to both Houses but it must be remembered that some instruments need only be laid before and approved by the House of Commons. Back

406 Stated in the parent Act and usually 40 days in duration. Back

407 In some cases one or both Houses must present Addresses to the Crown praying that the Order be made. Back