Mark and Ruth look at the growing fashion for re-writing Bills mid-air as they pass through Parliament, adding on all sorts of policy bells and whistles at the last minute.
Your guide to all the key terms needed to help you understand the delegated legislation system at Westminster and the debates surrounding its reform, from '21-day rule' to 'Tertiary legislation' and everything in between.
Last updated: 6 May 2022
A convention by which, wherever possible, a Statutory Instrument which is subject to the 'made negative' scrutiny procedure is laid before Parliament at least 21 calendar days before it comes into force.
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.
Legislation that has been approved by Parliament and received Royal Assent. Acts of Parliament are primary legislation.
A 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 for 'negative' Statutory Instruments (SIs) proposing that an SI which is subject to the ‘made negative’ procedure be rejected. In the House of Commons, annulment motions are also known as 'prayers' or 'prayer motions'. If a backbench MP wishes to table such a motion, he or she must do so in the form of an Early Day Motion (EDM).
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 delegated power that can be exercised to bring into force all, or part, of an Act of Parliament at a date later than that of Royal Assent.
An Order or set of Regulations bringing into force all, or part, of an Act of Parliament or Statutory Instrument. Commencement Orders are enacted as Statutory Instruments. They are not laid before Parliament.
A clause, typically at the end of a Bill, enabling Ministers to make delegated legislation to tidy up the statute book in consequence of substantive changes in the law made by earlier clauses in the Bill. Amendments to previous legislation that are required for this ‘tidying-up’ reason are known as ‘consequential amendments’.
A clause in a Bill that disapplies the Hybrid Instrument procedure for delegated legislation made under the new powers conferred by the Bill.
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.
A temporary committee of MPs which debates delegated legislation that is subject to the 'affirmative' procedure. Delegated legislation which is subject to the 'negative' procedure may also be referred to a DLC for debate, although this is rare. Under Standing Order No. 118, which governs DLCs, a DLC debate is capped at 90 minutes (except in the case of an Instrument relating exclusively to Northern Ireland, in which case the debate is capped at two-and-a-half hours).
A power to make delegated legislation which is conferred on Ministers (and sometimes other individuals and bodies) in an Act of Parliament.
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.
A 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 2014 Hansard Society book which was 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 the 40-day scrutiny period, it is deemed to have consented and the Minister can make the SI into law.
A Statutory Instrument (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. If an SI is still in draft and has not yet been made, the Government is under no obligation to make it; the Government may formally withdraw the draft SI, if it has been laid before Parliament, or simply never make it.
A type of motion that may be tabled by backbench MPs. Unlike Government business, Opposition Days and Backbench Business Committee debates, no fixed parliamentary time is allocated to EDMs, so very few are debated.
The Committee has ten 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).
A document produced by the government department responsible for a Statutory Instrument and laid together with the SI when the latter is laid before Parliament. An EM contains certain standard sections of information about the SI, in a standard order – such as a statement of the purpose of the Instrument, a brief presentation of its legislative and policy context, a note of any matters of special interest to Parliament, and information on whether it was subject to consultation or is accompanied by an Impact Assessment. The EM also includes any statutory statements that are required about the SI.
A brief summary of the provisions of an Statutory Instrument (SI), 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.
A parliamentary scrutiny procedure for delegated legislation whereby the first use of a power is subject to the 'affirmative' procedure and subsequent uses to the 'negative' procedure.
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.
In a Bill, a clause that contains a ‘Henry VIII power’ is a ‘Henry VIII clause’.
A type of Bill. A Hybrid Bill is a Bill the content of which, though of general application, would affect a particular private interest in a manner different from the private interests of other persons or bodies of the same category or class.
Public, Private and Hybrid Bills are each subject to a different parliamentary procedure. The procedures followed in Parliament in considering Hybrid Bills incorporate aspects of both Public Bill and Private Bill procedures, such as providing time for members of the public who are specially and directly affected by the Bill to submit a petition against it.
A procedure that applies in the House of Lords where an Instrument subject to the 'affirmative' procedure contains provisions which, if contained in a Bill, would render it a Hybrid Bill. The Instrument is subject to a petitioning procedure along the lines of that for Hybrid Bills, under which those whose private interests are directly and specially affected by the instrument may petition against it.
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.
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 (SCSI) for this purpose.
'Laying' is 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 are 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 it must then be actively approved by the House of Commons and in most cases also the House of Lords 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 agreed 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 Statutory Instrument (SI) is made when a Minister or other authorised individual or group of individuals signs it 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.
A 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, within 40 days of the SI being laid, either House agrees a motion – known as a ‘prayer’ – to annul the SI, the government must revoke it.
A motion about a Statutory Instrument (SI) in the House of Lords which, while it may be critical of the SI, does not seek to reject it. Examples include ‘take note’ and ‘regret’ motions.
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.
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’.
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.
In the House of Lords, such motions are among those 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.
A type of Bill. Private Bills are Bills for the particular interest or benefit of one or several individuals, companies or local authorities, and so affect a particular section of the population differently from the whole. Private Bills are promoted by the interested parties themselves. Public, Private and Hybrid Bills are each subject to a different parliamentary procedure.
To revoke a Statutory Instrument (SI) is to make it no longer law. Revocation is the equivalent, for SIs, of repealing an Act of Parliament (or provisions thereof). Only SIs that have already been made can therefore be revoked. It is possible to revoke only some (rather than all) provisions of an SI. An SI may be revoked by either primary or delegated legislation.
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.
A procedural mechanism whereby the Government undertakes not to take forward or agree a proposal until a designated parliamentary committee has reported on it.
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 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).
A Bill, or part of a Bill, that consists entirely of delegated powers, meaning that the real operation of the Bill, or part of the Bill, would be entirely by delegated legislation.
The written rules under which each House of Parliament conducts its business. They regulate the way that Members behave, debates are conducted, and consideration of legislation and other business is organised.
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 Government review of the relative roles of the two Houses of Parliament with respect to delegated legislation. It was initiated after the House of Lords declined to consider the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015. The Review reported in December 2015 and identified three approaches by which to provide the House of Commons with a decisive role on Statutory Instruments.
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.
Exceptionally, Parliament may grant delegated powers that allow delegated legislation to confer power on other people to make law. This is ‘legislative sub-delegation’. Law made at this third level is tertiary legislation.
Delegated legislation is the most common form of legislation in the United Kingdom. It is the legislation of everyday life, impacting millions of citizens daily. But the terminology and procedures that surround it are complex and often confusing. This explainer unpacks delegated legislation - the terminology and Parliament's role in scrutinising it - to reveal more about how delegated legislation really works.
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