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[Delegated legislation - control of delegated legislation]
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Control of delegated legislation.

By Parliament

Where a government minister or public department makes a piece of delegated legislation (e.g. a statutory instrument) Parliament retains some measure of control.  

 

This is particularly true in the case of general subordinate legislation and sometimes if the legislation is of a local nature.

 

All general instruments are scrutinised by a joint select committee of both Houses of Parliament.

 

Financial instruments are scrutinised by a select committee of the House of Commons.

 

Special procedures apply in both Houses for the in respect of orders under the Deregulation and Contracting Out Act 1994.

Local

A statutory instrument which is in the nature of a local and personal or private Act shall be classified as local.

General

A statutory instrument which is in the nature of a Public General Act is classified as general.

Statutory Instruments Act 1946 s 4

Other Parliamentary controls

Parliament also controls delegated legislation by means of the positive and negative processes, and Ministerial approval, which is described here.

Parliament and Statutory Instruments

Some not scrutinised by Parliament

Some are not subject to any Parliamentary procedure and simply become law on the date stated in them e.g. Commencement Orders & Orders in Council.

 

There are two (resolution) procedures

Procedure 1: Negative resolution - annulment

Acquiescence (agreeing by silence) means that if there is no motion of either House within the statute-specified time (almost always 40 days) the instrument becomes law.

Having instruments on annulment is the most common form of control, with all EU statutory instruments so passed.

[No negative motions have been carried since October 1979, less than 2% of SIs are considered at all].

Nullified if either House (the Commons only, in the case of instruments dealing with financial matters) passes a Motion calling for their annulment within 40 days.

Motions are generally put down as Early Day Motions. It is not certain to be dealt with, though a debate may be arranged if much interest is shown.
 

Procedure 2: Positive resolution

Less common than the negative procedure, but provides more stringent parliamentary control.
Both houses have to vote for the SI to become law.

Most instruments are laid before Parliament in draft form.

Parliament does not amend statutory instruments, scrutiny prior to promulgation allows drafting errors to be corrected.

To help the Parliamentary examination there is a Joint Committee of both Houses on Statutory Instruments (sometimes called the Scrutiny Committee)

SIs are considered in standing committee with about 1/3 of such committees are carried out on the floor of House.

No instruments defeated since July 1978.
These are mainly commencement orders and local legislation.

Parliament has a copy of the instrument laid before it for information only.

About 1 in 10 of all statutory instruments (that is about 400 per year) are passed under this 'control'.

Instrument must receive Parliament's approval before it can come into force. A Motion approving it has to be passed by both Houses (or by the Commons alone if it is a financial Instrument) within 28-40 days.

Some Statutory Instruments (e.g. Local orders not laid before Parliament) are not scrutinised by the Committee.

This is little more than symbolic scrutiny.
 

Scrutiny by Standing Committees

  • SIs considered by Joint Committee on Statutory Instruments. The maximum number of Members is 50, the minimum 16.
     

  • Committee has no formal power - votes against Statutory Instruments in committee have no legal effect - it is a technical committee rather than one concerned with merit.
     

  • It is required to draw Parliament's attention to instruments that:

    • Impose a charge on the public purse or require

    • payment to be made to any executive body or set the charge for such a payment, or

    • Exclude challenge in the courts, or

    • Have retrospective effect without express statutory authority, or

    • Have been unduly delayed in publication or laying  before Parliament, or

    • Have come into operation before being laid before Parliament, where there is undue delay in informing the Speaker of the fact, or

    • May be ultra vires, or

    • Are unclear, or

    • Are defective in drafting, or

    • Any other reason excluding "its merits or on the policy behind it".

House of Lords  Committees scrutinise delegated legislation

Lords Select Committees, there are about 12.

e.g.

The European Union Committee (a permanent committee*)

This committee bring to the attention of Parliament the more important pieces of European legislation (made under the European Communities Act 1972 s. 2(2), which allows Orders in Council to be made under the Royal Prerogative, or statutory instruments implementing EU obligations). Almost all EU legislation has to be cleared by this committee before being passed.

 

Delegated Powers and Regulatory Reform Committee  - examines delegated powers in primary legislation.
 

Merits of Statutory Instruments Committee - examines the secondary legislation.


There is some improvement in drafting by committees, but the Hansard Society Commission still believes that the "whole approach of Parliament [is] ... Highly unsatisfactory."
 

*The other 3 permanent committees are:-

The Constitution Committee
The Economic Affairs Committee
The Science and Technology Committee

Parliamentary control - passing of SIs

  • SIs cannot be amended.

  • Rejection is fatal.

  • Lords are not constrained by the Parliament Acts.

  • Controls are specified in the enabling Act.

Debates on Statutory Instruments and the Standing Committees

The number of SIs is rising all the time. There is insufficient time for the debates.

Standing Committees on Delegated Legislation are commonly composed of about 17 members, though any Member may attend and speak (but only the original members of the Committee are entitled to vote).
 

Commencement Orders

Commencement Orders (or Appointed Day Orders) are a form of Statutory Instrument designed to bring into force the whole or part of an Act of Parliament which for some reason it is not desired to put into effect immediately upon Royal Assent

There is in general no requirement as to the time after Royal Assent in which such an Order must be brought in - e.g. The Easter Act of 1928 (which stipulates a fixed date for Easter) has not yet had a Commencement Order made, though it would be open to the Home Secretary to make one. An attempt in 1999 to pass the necessary legislation failed.
 

Publication and Bibliographic Control

Generally, all Instruments, other than local Instruments, are required to be printed and put on sale by the Stationery Office.

The Statutory Publications Office produces a numerical Table to Statutory Instruments, this indicates whether an Order is still in force, and how it was amended or revoked.
Ascertaining whether a local SI is in force is extremely difficult.
 

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