Describe and illustrate statutory instruments

Statutory Instruments are a form of secondary, delegated or subordinate legislation. They allow the provisions of an Act to be brought into force or amended without Parliament having to pass a new Act.

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Statutory instruments are a major method of law making in this country – some 3,000 statutory instruments or S.I.s are introduced each year.  Therefore it is important to understand something about the reason for this and their nature.

Parliament only has a limited amount of time to devote to any legislative programme.  Acts of Parliament themselves are subjected to a series of debates and examination in both Houses of Parliament. This can be a lengthy and involved process involving amendments and compromises.

Parliament has authorised other bodies with the power to make delegated or secondary legislation and this includes S.I.s. In the case of S.I.s the power is granted to government ministers under powers given in enabling Acts. Acts of Parliament often confer powers on Ministers to make more detailed orders, these powers vary from the technical, for example to vary the dates on which different provisions of an Act will come into force, to changing the levels of fines or penalties for offences, or to much wider powers such as filling out the broad provisions in Acts. S.I.s can be used to introduce commencement orders and for the implementation of EU directives. Parliament still retains some degree of control over this method of making law as government ministers are accountable to Parliament for their actions.

Enabling Acts are parent Acts which set out the framework of legislation and provides for what is to happen and how the law is to operate. There may be details and provisions which are to be added later, or dates to be stipulated and this can be done by S.I.s. They can deal with regular amendments, such as the change in the annual amounts of the minimum wage under the National Minimum Wage Act 1988. It can be quite common for some parts of enabling Acts to only come into force on the authority of the appropriate minister through a statutory instrument. Some of the provisions may be lengthy and complex or require detailed rules and regulations to make them work, the legal principles having been established by the enabling Act. An example of this was the Hedgerows Regulations 1997 which was made by civil servants concerning important environmental issues such as established hedgerows. This was made under the Environment Act 1995 and was passed by the Secretary of State of Environment.

Ministers and a range of statutory authorities are able to make secondary legislation, in the form of Statutory Instruments, these S.I.s affect virtually every aspect of society. There is an element of control by Parliament but this is not extensive. In the same way that by-laws are made by local politicians so statutory instruments are made by, or in the name of, elected ministers. Parliament clearly has control over the way power is delegated through the enabling Act as this parent Act has to meet parliament’s approval. In addition the enabling Act sets out the limits or extent of the law making powers of the government minister. This appears satisfactory but the modern practice is to include broad powers which, in practice, give government ministers considerable flexibility. The effect of this practice may cause difficulties later for a judge when it comes to applying and interpreting the statute in the event that the matter becomes the subject of a challenge in the Courts as a result of an application for judicial review.

There is a specific Scrutiny Committee which has been set up to consider whether Bills delegate legislative power properly and this is the Delegated Powers Scrutiny Committee. This Scrutiny Committee was set up in 1993 in the House of Lords. The problem is that the committee can only make recommendations and has no power to amend Bills.

S.I.s are usually drafted by the legal office of the Government Department concerned. There may be consultations with interested parties or experts both prior to and during the drafting stage of the S.I. The instrument is laid before Parliament in draft form, this entails putting a copy of the Instrument with the Votes and Proceedings desk in the Journal Office. (Laid on the table of the House). A Statutory Instrument is made when it is signed by a minister or other person with the authority to do so, at that point it is no longer in draft. The S.I. will be “made” in the name of the person authorised by the parent Act. Each S.I. Is given a number starting each year from number 1 (S.I. 2015 No:123)

 

Statutory Instruments can either be introduced by an ‘affirmative procedure’ which involves some debate, a 'super affirmative resolution' whereby material changes to the order are allowed if made within 60 days, (this new resolution procedure amends the rule and now allows changes to be made even after being laid before parliament) or a ‘negative resolution procedure' where there is no debate.


The affirmative procedure can be commended on the basis that it brings about a debate and therefore increases awareness. It also means that in effect this form of delegated legislation can only be brought into effect if approved of by Parliament.  

In reality only a small number of S.I.’s are introduced in this way. The enabling Act sets out whether an affirmative resolution is required. The procedure has been used where individual rights are affected an example of this being that any new or revised Codes of Practice under the Police and Criminal Evidence Act 1984 can only be introduced using this method. It is a significant matter that Parliament cannot amend the statutory instrument. Under this procedure it can only be approved, annulled or withdrawn.

Super affirmative resolutions mean that both houses must vote on the S.I. and that the appropriate Minister must have regard to responses made as a result of consultations and any committee report and any resolution of either House.

Negative resolutions are much more common.  This means that under this procedure the new regulations will become law unless they are rejected by a resolution within 40 days.

The opportunity can be taken to seek out information, by MPs questioning the appropriate government minister during question time sessions in Parliament about the use and extent of his powers in relation to specific legislation.

The Select Committee on Statutory Instruments met for the first time on 14th July 2010 after being re-established. Its role is 'to consider statutory instruments made in exercise of powers granted by Act of Parliament which are subject to the House of Commons scrutiny but not the House of Lords.'  The SCSI is not responsible for discussing the benefits or drawbacks of the S.I.

Instruments subject to the authority of both Houses are considered by the Joint Committee on Statutory Instruments which met for the first time on 14 July 2010 after being re-established. Its role is to 'to consider statutory instruments made in exercise of powers granted by Act of Parliament. Instruments not laid before Parliament are included within the Committee's remit; but local instruments are not considered by JCSI unless they are subject to parliamentary procedure and instruments made by devolved administrations are not to be considered by JCSI unless they are required to be laid before Parliament.' The JCSI is not responsible for discussing the benefits or drawbacks of the S.I. this remains the responsibility of other Parliamentary Committees. It scrutinises statutory instruments to ensure that they do not impose a tax or charge as only an elected body has the right to do this.

The Secondary Legislation Scrutiny Committee replaces the Merits of Statutory Instruments Committee. This committee is responsible for examining the policy merits of any S.I.s or regulations laid before the House of Lords and which are subject to parliamentary procedure. It considers every SI, both negative and affirmative, and decides whether the contents should receive the attention of the House of Lords. There is no such committee for the House of Commons.

The Delegated Powers and Regulatory Reform Committee is required "to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny".

 

 

Word Count 1349

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This essay describes and illustrates statutory instruments and covers the following relevant points:

  • the importance of statutory instruments;
  • Parliament's limited time;
  • Parliament's authority;
  • Enabling or Parent Acts;
  • control by Parliament and the courts;
  • specific scrutiny committees;
  • the 'affirmative procedure' and the 'negative resolution procedure';
  • revised Codes of Practice under PACE 1984 by way of illustration.



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