Our explanations of key terms to help you understand the delegated legislation system at Westminster and the debate about its reform
A convention by which, wherever possible, a Statutory Instrument which is subject to the negative procedure is laid before Parliament at least 21 calendar days before it comes into force.
40-day scrutiny period
The period prescribed by the Statutory Instruments Act 1946 during which Parliament may reject a Statutory Instrument which is subject to the negative procedure. Periods when Parliament is prorogued or dissolved, or adjourned for more than four days, do not count towards the 40 days.
Act of Parliament
Legislation that has been approved by Parliament and received Royal Assent.
Acts of Parliament are primary legislation.
Parliamentary scrutiny procedure under which delegated legislation requires the active approval of the House of Commons and in most cases also the House of Lords. Under the ‘draft affirmative’ procedure, delegated legislation is laid before Parliament as a draft, and cannot be made into law by the Minister unless and until it has been approved by the House of Commons and in most cases also the House of Lords. Under the ‘made affirmative’ procedure, delegated legislation is laid before Parliament after it has been made – signed – into law by the Minister, but cannot remain law unless it is approved by the House of Commons and in most cases also the House of Lords within a statutory period – usually 28 or 40 days.
A motion tabled for parliamentary debate within the 40-day scrutiny period proposing that an SI which is subject to the ‘made negative’ procedure be rejected. In the House of Lords, annulment motions are among the types of motions known as ‘fatal’ motions.
A proposal for a new Act of Parliament, once it has been introduced to Parliament (at First Reading) and before it has received Royal Assent. A Bill goes through several stages in both Houses and can be amended. If a version of a Bill is agreed by Parliament and receives Royal Assent it becomes an Act of Parliament.
A draft Bill may be published and subject to pre-legislative scrutiny by a parliamentary committee before being formally introduced to Parliament.
A type of Statutory Instrument that brings into force all, or part, of an Act of Parliament at a date later than that of Royal Assent.
Law made by Ministers (and sometimes other authorised individuals and bodies) using delegated powers granted to them in Acts of Parliament. Statutory Instruments (SIs) are the most common form of delegated legislation. Orders and Regulations are among the categories of delegated legislation enacted in SIs.
Delegated legislation is also known as secondary or subordinate legislation.
Delegated Legislation Committee (DLC)
A temporary committee of MPs which debates delegated legislation that is subject to the affirmative procedure. Under Standing Orders, debates on such legislation in the House of Commons are capped at 90 minutes.
A power to make delegated legislation which is conferred on Ministers (and sometimes other individuals and bodies) in an Act of Parliament.
Delegated Powers Memorandum (DPM)
A document produced by the government department responsible for a Bill and published with the Bill when it is introduced to Parliament. The DPM identifies every delegated power in a Bill, its justification, and any parliamentary scrutiny procedure that is proposed for it.
The DPM assists the House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC) when that Committee scrutinises and reports on the delegated powers in a Bill.
Delegated Powers and Regulatory Reform Committee (DPRRC)
House of Lords Select Committee appointed to examine almost all Bills on their introduction to the House of Lords, to determine whether they contain any inappropriate delegation of power, or subject those powers to an inappropriate level of scrutiny. In certain circumstances, the DPRRC may consider some Bills that start in the House of Commons before they are introduced to the Lords.
The Devil is in the Detail
The Hansard Society’s 2014 book – the first comprehensive study of the delegated legislation system at Westminster in nearly a century.
The 1932 Report of the Committee on Ministers’ Powers chaired by the Earl of Donoughmore. The inquiry was announced in 1929 amid growing disenchantment with the parliamentary safeguards put in place to protect against the abuses of delegation.
A type of parliamentary procedure, and also the type of Statutory Instrument (SI) to which the procedure applies. Under the ‘draft affirmative’ procedure, an SI is laid before Parliament as a draft, and cannot be made into law by the Minister unless and until it has been approved by the House of Commons and in most cases also the House of Lords.
A type of parliamentary procedure, and also the type of Statutory Instrument (SI) to which the procedure applies. Under the ‘draft negative’ procedure, an SI is laid before Parliament as a draft, and if Parliament does not reject it within 40 days, it is deemed to have consented and the Minister can make the SI into law.
Draft Statutory Instrument
An SI which has not yet been made – signed – into law. Depending on the scrutiny procedure to which it is subject, a draft SI may have been laid before Parliament, or it may only have been published for consultation.
Early Day Motion (EDM)
A motion tabled by a backbench MP for debate in the House of Commons for which no fixed parliamentary time is allocated.
European Statutory Instruments Committee (ESIC)
A Select Committee established by the House of Commons in 2018 to ‘sift’ certain ‘proposed negative’ SIs laid under the EU (Withdrawal) Act 2018. The Committee’s responsibilities were subsequently extended to cover certain ‘proposed negative’ SIs laid under the EU (Future Relationship) Act 2020. The Committee has 10 sitting days, beginning the day after the ‘proposed negative’ instrument is laid, to scrutinise the Instrument and, if it wishes, recommend that it be ‘upgraded’ to the ‘affirmative’ procedure. If the Committee recommends that a ‘proposed negative’ Instrument should be upgraded to the ‘affirmative’ procedure, the Minister may either accept the recommendation or reject it. If the recommendation is rejected, the Minister must make a written statement explaining this decision. In the House of Lords, this ‘sifting’ task under the two Acts was given to the existing Secondary Legislation Scrutiny Committee (SLSC).
Explanatory Memorandum (EM)
A short document accompanying a Statutory Instrument (SI) which summarises key features of the Instrument and sets out what it does and why. The EM also includes any statutory statements that are required about the Instrument and provides further supporting information, such as whether it is accompanied by an Impact Assessment or was subject to consultation.
A summary statement of what a Statutory Instrument (SI) does, typically published at the end of the SI.
A document that accompanies a Bill when the Bill is introduced to Parliament, setting out what the Bill does and why.
In the House of Lords, the name given to all types of motion which – if agreed by the House – would amount to a rejection of a Statutory Instrument (SI).
In the House of Commons, general committees are the bodies – apart from the whole House – which consider legislation. They include Public Bill Committees (PBCs) and Delegated Legislation Committees (DLCs).
General committees are distinct from select committees.
In the House of Lords, some business may be taken in Grand Committee instead of in the Chamber. Any Peer may attend a Grand Committee and proceedings there are identical to those in the Chamber except that voting is not permitted. Any decisions must therefore be made unanimously.
Henry VIII power
A type of delegated power. A ‘Henry VIII power’ enables Ministers to amend, repeal, or otherwise alter the effect of primary legislation by delegated legislation.
In a Bill, a clause that contains a ‘Henry VIII power’ is a ‘Henry VIII clause’.
A type of delegated legislation that sets out the practices to be followed in the administration of immigration law in the UK. The Immigration Rules are not a Statutory Instrument, but they are in effect subject to the ‘made negative’ scrutiny procedure.
Joint Committee on Statutory Instruments (JCSI)
A Select Committee of both Houses of Parliament appointed to consider the technical qualities of all Statutory Instruments (SIs) made using powers granted by Acts of Parliament (except SIs made by the devolved administrations, unless these are required to be laid before Parliament). The Committee assesses the technical qualities of each SI and draws to the special attention of each House any that give rise to specified technical concerns, such as defective drafting or doubt as to whether the SI is within the scope of the relevant powers (‘intra vires’). The JCSI does not assess the substantive merits of an SI or the underlying policy. Any SI which is subject to scrutiny only in the House of Commons (generally because it relates to taxation) is considered only by the MPs on the JCSI. These MPs sit as the House of Commons Select Committee on Statutory Instruments for this purpose.
Formally presenting a Statutory Instrument (SI) or other document to Parliament. When an SI is subject to a parliamentary scrutiny procedure, laying is the start of the process. Some SIs are laid before Parliament but not subject to a parliamentary procedure; in this case, they are ‘laid only’ SIs.
The date on which an SI is laid is its ‘laid date’.
A type of parliamentary procedure, and also the type of Statutory Instrument (SI) to which the procedure applies. Under the ‘made affirmative’ procedure, an SI is laid before Parliament after it is made into law by the Minister, but Parliament must then actively approve the SI within a statutory period (usually 28 or 40 days) for it to remain law. ‘Made affirmative’ SIs are usually reserved for ‘urgent’ circumstances and are normally relatively rare.
A type of parliamentary procedure, and also the type of Statutory Instrument (SI) to which the procedure applies. Under the ‘made negative’ procedure, an SI is laid before Parliament after it is made into law by the Minister. If Parliament does not reject the SI within 40 days, it is deemed to have consented. If a motion to annul the SI – known as a ‘prayer’ – is passed by either House within 40 days of the SI being laid before Parliament, the government must revoke the SI. ‘Made negative’ SIs are by far the largest group of SIs.
A Minister or other authorised individual signing a Statutory Instrument (SI) into law. The date on which this takes place is an SI’s ‘made date’.
Once an SI has been made, it may come into force: there is no minimum or maximum period between an SI being made and it coming into force. However, there is a convention – the 21-day rule – by which, wherever possible, a Statutory Instrument which is subject to the ‘made negative’ procedure is laid before Parliament at least 21 calendar days before it comes into force.
A proposed decision or expression of opinion that is tabled for consideration in Parliament.
Parliamentary scrutiny procedure under which a piece of delegated legislation or other measure does not require active parliamentary approval. Under the ‘made negative’ procedure, a piece of delegated legislation is laid before Parliament after it has been made – signed – into law by the Minister. If Parliament does not reject it within 40 days, it is deemed to have consented. For a ‘made negative’ Statutory Instrument, if either House passes a motion – known as a ‘prayer’ – to annul the SI within 40 days of it being laid, the government must revoke it. Under the ‘draft negative’ procedure, an SI is laid before Parliament as a draft, and if Parliament does not reject it within 40 days, it is deemed to have consented and the Minister can make the SI into law.
A motion in the House of Lords about an SI which, while it may be critical of the SI, does not seek to reject it. Examples include ‘take note’ and ‘regret’ motions.
Office of the Parliamentary Counsel (OPC)
The group of government lawyers responsible for drafting all government Bills, advising departments on the rules and procedures of Parliament, reviewing Statutory Instruments which amend Acts of Parliament, and assisting government on a range of legal and constitutional issues. The team is headed by the First Parliamentary Counsel, who is also Permanent Secretary of the Government in Parliament Group in the Cabinet Office.
Parent Act/parent legislation
Legislation that grants a delegation of power to Ministers or other individuals or bodies to make delegated legislation. It may also be known as an ‘enabling Act’ or ‘enabling legislation’.
Parliamentary Business and Legislation Committee (PBL Committee)
A Cabinet Committee, chaired by the Leader of the House of Commons, which decides which Bills will be included in the government’s programme for each parliamentary session. Bills are approved by the Committee before they are introduced to Parliament.
A motion tabled by an MP or Peer calling for the annulment of a Statutory Instrument which is subject to the ‘made negative’ procedure. Such a motion may also be known as an annulment motion. In the House of Lords, such motions are among those also known as fatal motions (because, if passed, they would be ‘fatal’ to the piece of delegated legislation in question).
For the UK, law made by Parliament (subject to Royal Assent) and comprising Acts of Parliament. Primary legislation is not subject to judicial review.
Public Bill Committee (PBC)
A temporary cross-party committee in the House of Commons which is appointed to conduct line-by-line scrutiny of a Bill during its Committee stage. PBCs may also take evidence on a Bill from external witnesses.
Revoking a Statutory Instrument means that an SI which has been made is no longer law. It is the equivalent, for SIs, of repealing an Act of Parliament (or provisions thereof). It is possible to revoke only some provisions of an SI. An SI may be revoked by either primary or delegated legislation.
In Parliament, a motion that an SI should be revoked is a revocation motion. If parliamentarians wish to reject a ‘made negative’ SI after the 40-day scrutiny period has ended, they must do so through a revocation motion (instead of an annulment motion).
The 1993 Hansard Society Commission on ‘Making the Law’, chaired by Lord Rippon of Hexham. It examined how primary and delegated legislation should be prepared in Whitehall and scrutinised at Westminster.
An undertaking by government that it should not take forward or agree a proposal until a designated parliamentary committee has reported on it.
An alternative term used for delegated legislation.
Secondary Legislation Scrutiny Committee (SLSC)
A House of Lords Select Committee appointed to examine the policy merits and implications of delegated legislation which is laid before the House of Lords and which is subject to a parliamentary procedure. The grounds on which the Committee may draw delegated legislation to the special attention of the House include that it: is politically or legally important or gives rise to issues of public policy likely to be of interest to the House; may be inappropriate in view of changed circumstances since the enactment of the parent legislation; may imperfectly achieve its policy objectives; is accompanied by inadequate explanatory material; or is associated with a consultation process in which there appear to be inadequacies.
A committee of Members appointed by one or both Houses of Parliament to carry out particular tasks on behalf of the House or both Houses, or to work on a particular issue or policy area. Select committees work by taking and considering evidence, and then producing a report.
Select committees are distinct from general committees. General committees exist only in the House of Commons. In the Commons, general committees are the bodies – apart from the whole House – which consider legislation. They include Public Bill Committees (PBCs) and Delegated Legislation Committees (DLCs).
The written rules under which each House of Parliament conducts its business. They regulate the way that Members behave, debates are conducted, and legislation and other business is organised.
Statutory Instrument (SI)
The most common form of delegated legislation. The term ‘Statutory Instrument’ is given to most, but not all, forms of delegated legislation made after the Statutory Instruments Act 1946 came into force in 1948.
A review which reported in December 2015. It identified three approaches by which to provide the House of Commons with a decisive role on Statutory Instruments. The review was initiated by the government after the House of Lords declined to consider the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015.
Strengthened scrutiny procedure
A higher level of parliamentary scrutiny than the ‘affirmative’ procedure. Strengthened scrutiny is usually reserved for the exercise of significant powers that are conferred on a Minister to amend primary legislation. It involves scrutiny by a designated committee(s) and can include, among other possible required elements, statutory consultation and even a committee veto. Examples include ‘enhanced affirmative’ and ‘super-affirmative’ procedures.
An alternative term used for delegated legislation.