H O U S E o f L O R D S

aka Subordinate Legislation

aka Delegated Legislation aka Statutory Instrumentsaka SIs, Orders, Regulations ...Legislation Office

March 2013

Secondary Legislation

H O U S E o f L O R D S

Delegated legislationLaw made by ministers (or others) under a power given (“delegated”) to them by an Act of ParliamentSISIBill

amendments ACT

H O U S E o f L O R D S

Types of Delegated Legislation

Usually Statutory Instrument (SI)– Little practical

difference between Orders, Rules and Regulations

But not always – e.g.Immigration Rules,

PACE Codes, Codes of Practice

– Procedures in “parent” Act

H O U S E o f L O R D S

Levels of DelegationComplet

eNegative instrument

Affirmative instrumentMinister can make law on own authority eg closing a road or commencement orders

Must lay before Parliament for 40 days – can be rejected by a motion (“Prayer”/EDM)

Laid as draft.Cannot come into effect until both Houses have debated and approved it

Can only be amended by another instrument

2,000 per year

700 per year 150 + per year

Affirmative “plus”

Affirmative with additional tests set out in Acteg Public Bodies Order, LRO

30 per year ???Limited

amendments possible

H O U S E o f L O R D S

Volume of delegated legislation

In 2009 Acts of Parliament – 27

UK Statutory Instruments – 2008

H O U S E o f L O R D S

Delegated Powers Committee

“whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny”

Dislike Skeleton Bill Henry VIII

Government submits Memorandum seeking permission

DPRRC Reports before Bill’s Committee stage

H O U S E o f L O R D S

Welfare Reform, 2010-12

(power to calculate who is entitled to Universal Credit. Wrong level of Parliamentary control)

“We therefore recommend that regulations made under clause 9(3) and 10(4) should also be subject to affirmative procedure on the first exercise of the powers.”

H O U S E o f L O R D S

What happens when SIs arrive in Parliament?

H O U S E o f L O R D S

Laying of instruments Instrument laid in PPO and Vote

Office (on same day) with an Explanatory

Memorandum that sets out in plain English what the instrument does and why

may also have– Impact Assessment on costs and

benefits– Transposition Note – if

implementing EU legislation

H O U S E o f L O R D S

2(b) for Rule 2 and Rule 3 substituteIf the amount of contributions paid in respect of

contracted-out employments exceeds the amount found by the following formula, the amount to be returned is the excess.

53 x [((UAP-PT) x 9.4%) + ((UEL –UAP) x11%)]

  Social Security (Contributions) (Amendment No. 3) Regulations 2010

(SI 2010/646)

EM because the effect is not always obvious!

H O U S E o f L O R D S

EXPLANATORY MEMORANDUM TO THE [TITLE OF INSTRUMENT][Year] No. [XXXX]

1. This explanatory memorandum has been prepared by [Name of department] and is laid before [Parliament or the House of Commons] by Command of Her Majesty.

2. Purpose of the instrument – 3 sentences

3. Matters of special interest to the Joint Committee on Statutory Instruments

4. Legislative Context5. Territorial Extent and Application6. European Convention on Human

Rights7. Policy background

• What is being done and why• Consolidation

8. Consultation outcome

9. Guidance

10. Impact 10.1 The impact on business, charities or

voluntary bodies is

10.2 The impact on the public sector is .

10.3 An Impact Assessment is attached to this memorandum or An Impact Assessment has not been prepared for this instrument.

11. Regulating small business

12. Monitoring & review

13. Contact

H O U S E o f L O R D Swww.legislation.gov.uk

H O U S E o f L O R D S

JCSI Commons Chairman : 7 MPs, 7 Lords Considers legal drafting Standing Order 74 sets out the terms of

reference, including:– “that it purports to have retrospective

effect...”– “a doubt whether it is intra vires”– “it appears to make some unusual or

unexpected use of the powers conferred by the statute under which it is made”

– “that its drafting appears to be defective”

Has scrutiny reserve – affirmative SI cannot be debated until the Committee has cleared it.

H O U S E o f L O R D S

Or unusual use of powers!“Any person who fails to comply with any of the requirements specified… shall be guilty of an offence and liable to summary execution” [of a fine]

Defective drafting: eg conceptual unclearness or

incompleteness

• leaving the term “Nepalese person” unspecified further, when it could relate to birth, domicile or citizenship;

H O U S E o f L O R D S

Secondary Legislation Scrutiny Committee

Considers policy intent

Usually reports on SIs within 12-16 days of instrument being laid – to allow Members to follow up reports

May seek further information or correspondence (delay of 1 week) – material usually published.

Also takes oral evidence Affirmative debates are not

scheduled until after report

H O U S E o f L O R D S

SLSC: Terms of RefThe grounds for reporting an SI are that it

is: politically or legally important, or gives

rise to issues of public policy likely to be of interest

[inappropriate in view of changed circumstances since passage of parent Act]

inappropriately implements European Union legislation

imperfectly achieves policy objectives

H O U S E o f L O R D S

In the Business BulletinSecondar y

Legislation Scrutiny Committee

To be considered

Waiting for consideration by the Joint Committee on Statutory Instruments

Draft Social Security (Electronic Communications) Order 2013

Referred to a Grand Committee and Waiting for Affirmative Resolution

Draft Civil Legal Aid (Costs) Regulations 2013 29 March

Export Control (Amendment) (No. 2) Order 2013 24th Report 29 March

Waiting for Affirmative Resolution

Draft Media Ownership (Radio and Cross-media) Order 2013

Draft Employment and Support Allowance (Work-Related Activity) Regulations 2013

24th Report

Draft Orders reported from the Secondary Legislation Scrutiny Committee under the enhanced affirmative procedure

Scrutiny period expires

Draft Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013, 15th report from the Joint Committee on Statutory Instruments, 25th Report from the Secondary Legislation Scrutiny Committee

16 March

H O U S E o f L O R D S

Debates on affirmative instruments

in the CommonsConsidered in a Delegated Legislation Committee by a randomly selected group of MPs. Proposing Minister generally attends to present case.

in the LordsGenerally debated in Grand Committee (taken in the Chamber if it is controversial and/or there may be a vote). Lords spokesman for the Government presents the case.

Formal clearance follows in main Chamber of both Houses (usually on the nod)

H O U S E o f L O R D S

Debates on negative instrumentsNormally becomes law without discussion

but in the Commons: Any Member may seek a

debate (often by Early Day Motion), but only a minority are actually discussed.

in the Lords: Any Member may table a prayer motion, almost always debated (Chamber or Grand Committee). Can seek to “annul”, “regret” or “take note”:Lord Kirkwood of Kirkhope: That this House takes note of the Flexible New Deal (Miscellaneous Provisions) Order 2009 (SI 2009/1562). 12th report from the Merits Committee– ... This is not an attack or an attempt to annul the order; I am

absolutely content with its provisions. However, there are some issues that it would be to the benefit of the House to have raised before the order passes into effect and leaves the parliamentary process entirely. ...

H O U S E o f L O R D S

In the Business BulletinNegative Instruments  Instruments reported by the Secondary Legislation Scrutiny Committee

Praying time expires To be considered

24th Report

Immigration (Designation of Travel Bans) (Amendment) Order 2011

27 April 24 April

Libya (Asset-Freezing) Regulations 2011 30 April

26th Report

Accession (Immigration and Worker Registration) (Revocation, Savings and Consequential Provisions) Regulations 2011

7 May

H O U S E o f L O R D S

Sunsetting

Instrument includes • Obligation to review and publish report and/or

• Termination date for SI- “Renewal” process not clear

- House expects evidence from that review to demonstrate the need for further legislation

H O U S E o f L O R D S

H O U S E o f L O R D S

Further information Companion, chapter 10 Back of the Business Bulletin Home pages of JCSI, SLSC and Delegated

Powers Committees Debates on SIs in Hansard Lords and Commons factsheets Better Regulation Executive guidance

http://www.bis.gov.uk/policies/bre Legislation website

http://www.legislation.gov.uk/uksi