Delegated legislation - how Delegated Legislation is made

What are Statutory Instruments

Two types of Statutory instrument (SIs)

There are two main types of statutory instrument:

affirmative instruments, which Parliament must expressly approve; and
negative instruments, which become law without a debate or vote - but may be opposed, or “prayed against”, by a member of either House.

In both cases, Parliament’s room for manoeuvre is limited. Parliament can accept or (theoretically) reject an instrument but cannot amend it. In practice, time for debating statutory instruments is limited.

They have the full force of law.

The need for SIs is stated within the text of an Act.

How Delegated Legislation is made

Delegated legislation, some general points

Most Acts of Parliament nowadays include provisions giving powers to Ministers to make delegated (or secondary) legislation and most delegated legislation takes the form of statutory instruments.
In order to reduce pressure on parliamentary time, Acts of Parliament often give government ministers or other authorities the power to regulate administrative details (Ministerial Regulations).
These are as much the law of the land as are Acts of Parliament.
Statutory Instruments (SIs) are normally drafted by the legal department of the ministry concerned and may be subject, when in draft, to consultations with interested parties.
Between 2,000 - 4,000 SIs are issued each year.
(3,699 in 2005) increasing yearly.
To minimise any risk that delegating powers to the executive might undermine the authority of Parliament, such powers are normally only delegated to authorities directly accountable to Parliament.
The relevant Acts concerned sometimes provide for some measure of direct parliamentary control over proposed delegated legislation, by giving Parliament the opportunity to affirm or annul it.
Parliament always has the right to consider whether the SI is made in accordance with the powers that it delegated.
SIs are usually drafted by the legal department of the Ministry concerned, often following consultations with interested bodies and parties whilst the SI is in draft; and they are then "made" in the name of the person (usually a Secretary of State or Minister), to whom authority is given in the parent Act.

Numbered in the SI series, which runs from number 1 each year, and is quoted in the form: SI 2003/872.

There are about three thousand each year, from a single sheet to several hundreds of pages.

Some apply to the whole of the UK, some to the individual counties only.

SIs must be printed and sold

The Statutory Instruments Act 1946 (amended in 1996) requires statutory instruments to be printed and sold as soon as possible unless they are local, temporary, or sensitive and not yet in operation, and printing would not be expedient.

R v Sheer Metalcraft Ltd (1954)

Held: A statutory instrument was valid despite non-compliance with the publication requirements.

Examples of Statutory Instruments

Example 1: Section 41 of Road Traffic Act 1988
Regulation of construction, weight, equipment and use of vehicles

"41.—(1) The Secretary of State may make regulations generally as to the use of motor vehicles and trailers on roads, their construction and equipment and the conditions under which they may be so used."

Similarly SIs may be made under section 14 Road Traffic Act 1988 regarding seat belts in vehicles

For example The Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations 2006.

These Regulations make provision relating to the wearing of seat belts and other restraints by children and adults in motor vehicles.

Although this is a Statutory Instrument, and therefore subordinate legislation it was used to amend the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988.

They also amend The Motor Vehicles (Wearing of Seat Belts) Regulations 1993.

These regulations were needed to implement requirements of Council Directive 2003/20/EC and did so by using section 2(2) of the European Communities Act 1972.

Example 2:

Police and Criminal Evidence Act - Codes of Practice

Section 66 of The Police and Criminal Evidence Act 1984 (PACE) says that The Secretary of State shall issue codes of practice in connection with: -
Police powers of stop and search and the detention, treatment, questioning and identification of persons by police officers; and searches of premises by police officers; and the seizure of property found by police officers on persons or premises.

There has to be consultation with interested parties (e.g. the police, the Bar Council, the Law Society) and an affirmative resolution by both Houses of Parliament (below).

Example 3:

Court Rules are made by committee and approved by Parliament

Criminal courts rules:

The Lord Chancellor has the power (under section 144 Magistrates' Courts Act 1980) to make Court Rules in respect of the way magistrates' courts are run. He has to first consult with the rule committee. The Rules are usually administrative, for example how forms should be completed and served.

Civil Courts rules:

The rules affecting conduct of civil courts (Court of Appeal (Civil Division - the High Court - county courts) are made by The Civil Procedure Rule Committee under section 2 of the Civil Procedure Act 1997 after consulting with whomever they consider appropriate (2(6)(a)).

In both cases rule changes are brought into effect by a Statutory Instrument subject to the annulment procedure (below).

Example 4:

Fine for use a mobile phones whilst driving

It is now a specific offence to use a hand-held phone, or similar device, when driving. The penalty is a £30 fixed penalty or up to £1,000 on conviction in court (£2,500 for drivers of goods vehicles, buses or coaches).

These regulations were created by the Transport Minister (or at lease his officials) using The Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003 under authority of the parent Act, the Road Traffic Act 1988 section 41(1) and (5).

Example 5:

Statutory grievance procedures

When problems arise in the workplace many people think they can have their day in court by taking an employer to an Employment Tribunal (ET). Any application to the ET will be rejected if the employee has not attempted to resolve the dispute with the employer using the organisation's internal grievance procedure. Failure to participate in a timely manner can see any eventual award being reduced by 10-50%.

These rules were created by The Employment Act 2002 (Dispute Resolution) Regulations 2004 which was made under section 51(4) of the Employment Act 2002.