9.11 Affirmative instruments require the express
approval of Parliament, or sometimes of the Commons only.
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
unless both Houses agree to the appropriate resolutions approving
- 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;
- 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
may be moved until the report on the instrument from the Joint
Committee on Statutory Instruments has been laid before the House.
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.
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.
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.
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
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
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
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
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
LJ (1993-94) 683, HL Deb. 20 October 1994 cols 356-83. Back
Procedure 3rd Rpt 2003-04. Back
Procedure 1st Rpt 1990-91. Back
e.g. 27 January 1998: Beef Bones Regulations 1997; 5 December
1995: Probation (Amendment) Rules 1995. Back
The Statutory Instruments Act 1946 defines the main categories
of statutory instrument. Other kinds of delegated legislation
include codes of practice and conduct. Back
SO 73. Back
See Acquisition of Land Act 1981, c. 67, s. 19(1). Back
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
Stated in the parent Act and usually 40 days in duration. Back
In some cases one or both Houses must present Addresses to the
Crown praying that the Order be made. Back
As defined for this purpose in SO 73. Back
SO 73. The work of the Joint Committee is described at paragraph
10.55. The House has agreed from time to time to dispense with
the standing order, e.g. 1 & 14 July 1999. Certain orders
are not subject to the scrutiny of the Joint Committee, namely:
any Order in Council or draft Order in Council made or proposed
to be made under paragraph 1 of the Schedule to the Northern Ireland
Act 2000; any remedial order or draft remedial order under Schedule
2 to the Human Rights Act 1998; and any draft order proposed to
be made under Part 1 of the Legislative and Regulatory Reform
Act 2006. Back
Procedure 2nd Rpt 1970-71. Back
Procedure 3rd Rpt 1971-72. Back
Procedure 1st Rpt 2005-06. Back
The procedure is set out in the 1946 Act. Back
See paragraph 2.01. Back