Ministerial Orders

Regulatory Reform Orders

Repeal of primary legislation by Order.

Statutory Instruments (SIs) ... can amend primary legislation (Acts of Parliament)

Ministers make statutory Instruments under the authority of an enabling Act.

• Some statutes have 'Henry VIII clauses', which allow primary legislation to be amended or repealed by secondary legislation without parliamentary scrutiny; e.g. The Criminal Justice Bill 1990, which allowed criminal offences to be added or removed by instrument. Other Henry VIII bills include the Child Support (1991), and Education (Student Loans) (1990) Bills.

Henry VIII Clauses

"… a provision in a bill which enables primary legislation to be amended or repealed by subordinate legislation with or without further Parliamentary scrutiny"

The clauses were so named from the Statute of Proclamations 1539, which gave King Henry VIII power to legislate by proclamation.

Formerly called Deregulation and Contracting Out Act 1994 and Henry VIII Clause

The Regulatory Reform Act 2001 enables the Government to make an Order to amend or repeal a provision in primary legislation which is considered to impose a burden on business or others, as long as it can be reduced or removed without removing necessary protection.

This Act extended the provisions of the Deregulation and Contracting Out Act 1994 under which the orders were known as 'deregulation orders'.

Repealed by the Legislative and Regulatory Reform Act 2006

Legislative and Regulatory Reform Act 2006

The Legislative and Regulatory Reform Act 2006  from 8 January 2007 gave ministers new powers to strip away red tape.

The Act is seen as the way forward to fight bureaucracy. Although there are provisions that will ensure Parliament can block controversial decisions it has been dubbed “The Destruction of Parliament Act”, because the provisions allow ministers to avoid the full process needed for a full Act but to achieve the same result.

The effect of the Act will be to create a new form of Delegated Legislation which empowers a minister to make an order to improve business, including creation or removal of a criminal sanction from almost any other legislative form from byelaws to Acts of Parliament themselves.

Orders will be created by Statutory Instrument made by:
(i) the negative resolution procedure;
(ii) the affirmative resolution procedure; or
(iii) the super-affirmative resolution procedure (this new procedure allows material changes to the order if made within 60 days)

The super-affirmative resolution procedure changes the rule that Statutory Instruments cannot be amended following being laid before Parliament.

This Act is now the procedure for implementing EU Obligations.

Controls of Ministerial Orders

Concern that Ministerial Orders were too powerful

Parliament's examination of deregulation proposals and draft orders was introduced in response to concern that the sweeping powers given to Ministers to make Ministerial Orders under primary legislation should be properly accountable.

Complex and thorough procedure

During a period of 60 days, select committees in both Houses scrutinise the proposal.

The Commons: Regulatory Reform Committee

In the Commons, the Committee which consists of eighteen members must examine each proposal against fourteen criteria.
These include:

• the maintenance of "necessary protection" for those who may be affected,

• the adequacy of public consultation,

• the extent of the burden to be lifted,

• financial implications and

• compliance with European law.

The House of Lords: Select Committee on Delegated Powers and Regulatory Reform

(“the Jellicoe
Committee”)

The draft Orders are subject to a thorough and complex procedure

When they are approved by both Houses, they are made by the Minister responsible and are then printed and published as Statutory Instruments by the Stationery Office.

Remedial Orders under the Human Rights Act 1998

The procedure followed is similar to that for regulatory reform orders

If a court makes a declaration of incompatibility with the European Convention on Human Rights in relation to a statute, the Government is able to propose draft Orders or make Orders to amend primary legislation in order to remove any incompatibility.

An example of a remedial order is given here. 

It corrects an unfairness in Courts Martial where the Judge Advocate of a Naval Court Martial was appointed by Naval officers (unlike the Army and the Air Force), this lead to an appeal to the UCtHR - Grieves v United Kingdom [2003] ECtHR - which declared that such a Naval tribunal was not 'independent' as required by Article 6 of the Convention. 

The Remedial Order provides that Judge Advocate of Her Majesty's Fleet, a civilian, will now appoint judicial officers and judge advocates. 

Once laid before Parliament it has 120 days before it becomes a permanent piece of legislation.

So, a resolution has to be passed by each House of Parliament approving the Order.

Remedial Orders - procedure, proposal 60 day period.

First, a Minister must lay a proposal for a draft remedial order before Parliament.

The proposal must be accompanied by an explanation of the circumstances that led to the need for the proposal.

The same 60 day period as for regulatory reform orders applies during which representations may be made on the order.

Also, during this period, the Joint Committee on Human Rights must report on whether an order in the same terms as the proposal should be laid.

Draft order another 60 day period.

At the end of this first sixty day period, the Minister may lay a draft remedial order.

There is then a further 60 days period after which a motion may be moved to approve the draft order.

Again, the Joint Committee must report on whether the draft order should be approved.

Once this order is approved by both Houses the Order may be made and brought into effect.

Urgent procedure

There is also an urgent procedure for remedial orders where the order is made at the same time as it is laid before Parliament.

Other Ministerial Orders

Ministers also create Orders in Council in the guise of delegated legislation either under an Act or by Royal Prerogative.