Statutory Instrument
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A Statutory Instrument (SI) is a form of delegated or secondary legislation in Great Britain which is governed by the Statutory Instruments Act 1946.[1] Most secondary legislation in Great Britain is made in the form of a statutory instrument.
A distinctive feature of statutory instruments is that as soon as one is made it must be given a unique number (in practice a new series of number is started for each year), printed and made available for sale.[2] While most statutory instruments share common features and obey similar rules – which are detailed in the rest of the article – there are many exceptions.
Statutory Instruments replaced Statutory Rules made under the Rules Publication Act 1893. In Northern Ireland, secondary legislation is organised into Statutory Rules, rather than Statutory Instruments. As noted below in this article, statutory instruments are also employed in other Commonwealth of Nations countries besides the Great Britain, and also the Republic of Ireland.
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[edit] Requirement for a statutory instrument
Where an Act of Parliament passed after the commencement of the Statutory Instruments Act confers a power to make subordinate legislation, it must be made in the form of a statutory instrument in the following circumstances:[3]
- where the power is conferred on the Queen in Council and expressed to be exercisable by Order in Council
- where the power is conferred on a Minister of the Crown, to be exercisable by statutory instrument.
Prior to its 2007 election, 'Minister of the Crown' included the National Assembly of Wales[4]. It now applies to the Welsh Ministers[5]
A Statutory Instrument must also be used when exercising powers that required the use of a Statutory Rule under the Rules Publication Act 1893.[6]
[edit] Legal framework
Statutory Instruments (SIs) come in three forms: those passed by affirmative resolution procedure, where they must be approved by the two Houses of Parliament before they can become law, and those passed by negative resolution procedure, where they are merely laid before Parliament, with Parliament able to annul them if it desires. The third form is those which are not laid before Parliament, but which Parliament can annul, usually within 40 days. The section of the Act of Parliament that grants the power will usually state whether the power is to be exercised by Statutory Instrument and which (if any) parliamentary procedure is to apply. Generally, if it is a potentially contentious power, the affirmative route will be used. A new, 'super-affirmative' procedure has been proposed for certain Statutory Instruments that could be made under the Legislative and Regulatory Reform Act 2006.
Statutory Instruments are not necessarily the same thing as an Order-in-Council: Statutory Instruments are 'delegated legislation' (the power is delegated by Parliament), whereas Orders-in-Council either operate through the Royal Prerogative or are made under powers created in statute. The latter will generally be made by Statutory Instrument, the former not.
Statutory Instruments are used because they are much faster and simpler to implement than a full Act of Parliament. SIs are sometimes described as 'secondary legislation, not second class legislation'. They have the same force as an Act of Parliament, and the great majority of the United Kingdom's law is made in this way. Two or three thousand SIs are passed each year, compared to only a few dozen Acts.
If a Statutory Instrument exceeds the powers granted for it in the relevant primary legislation, it can be found to be ultra vires by a court, and therefore invalid.
Some Acts of Parliament grant ministers 'reformative powers', with future Statutory Instruments able to modify the Act themselves; this capability is sometimes pejoratively called 'Henry VIII powers' in reference to Henry VIII's powers to change statutes by letters patent, for example as set out in the 1536 Act allowing the King at twenty-four to repeal Acts of Parliament passed during his minority, or in the Act of Succession 1543. This type of authorisation became popular in government in the 1920s, but became rarely used due to accusations of excessive power.
[edit] Use
Statutory Instruments are frequently used to make detailed provisions that are left out of primary legislation. They are also used to incorporate the provisions of Directives of the European Union into UK law, with the instruments being made under the provisions of the European Communities Act 1972.
[edit] Delayed primary legislation
Statutory Instruments are also used to bring Acts of Parliament into force: it is not uncommon for quite major pieces of legislation to be passed by Parliament with all the sections 'turned off', and a power for the Minister to 'turn them on' (or 'bring into force' as it is properly called) at a later date by means of a commencement, or appointed day, order. Some sections have never brought into force at all, or were repealed or superseded by later acts before they were activated. A notable example of the former is the Easter Act 1928 which received Royal Assent on 3 August 1928 and as of 2006 has not been brought into force. An example of the latter is certain sections of the Companies Act 1989 which are scheduled to be repealed by the Companies Act 2006 when that law eventually receives Royal Assent and is brought into force. Some acts have had as many as 75 commencement orders to bring them into force.
[edit] Reformative powers
Reformative powers were put in place in the Electronic Communications Act 2000 to allow the modification of any law that went against the Act; it was designed to be used by the DTI to allow Internet-based publishing of annual reports and the like, amongst other measures. A more significant use of 'Henry VIII powers' was the Regulatory Reform Act 2001, which provides for affirmative route Statutory Instruments to modify any legislation older than two years. Examples of its use have included Statutory Instrument 2004 No. 470 which repealed section 26 of the Revenue Act 1889 (and so re-legalised the selling of methylated spirits on a Saturday night or a Sunday), and Statutory Instrument 2005 No. 871 which repealed the entirety of the Trading Stamps Act 1964.
Significantly wider powers exist in the Legislative and Regulatory Reform Act 2006, which was described by David Howarth MP as the 'Abolition of Parliament Bill',[7] and by Daniel Finkelstein as the 'Bill to End All Bills'.[8] Clifford Chance LLP consider that the Bill would "usurp the power of Parliament".[9]
[edit] Devolution
The advent of devolution in 1999 resulted in many powers to make Statutory Instruments being transferred to the Scottish Executive and Welsh Assembly Government, and oversight to the Scottish Parliament and National Assembly for Wales. Instruments made by the Scottish Executive are now classed separately as Scottish Statutory Instruments.
[edit] Ireland
Statutory Instruments are frequently used in the Republic of Ireland. The term "Statutory Instrument" is given a broad meaning under the Irish Interpretation Act 2005 to include "an order, regulation, rule, bye-law, warrant, licence, certificate, direction, notice, guideline or other like document made, issued, granted or otherwise created by or under an Act [of the Oireachtas]".
Since Ireland joined the European Union, the degree to which very important legal measures are adopted via Statutory Instruments rather than through Acts of the Oireachtas (which require a positive vote of members of the Oireachtas) has increased greatly. In broad terms this is because, on joining the EU, Ireland's constitution was amended to allow certain laws, "necessitated" by Ireland's membership of the EU, to be adopted without a vote of the Oireachtas. There is little doubt, given the sheer quantity of legislation emenating from the European Union and the need for uniformity of EU law throughout the EU that this development was necessary. Nevertheless, it has undoubtedly enhanced the individual power of Government Ministers at the expense of the Oireachtas.
[edit] Other countries
Similarly to the United Kingdom, national and state/provincial governments in Australia and Canada also call their delegated legislation Statutory Instruments.
Canada uses statutory instruments for proclamations by the Queen of Canada. For example, the Proclamation of the Queen of Canada on April 17, 1982 brought into force the Constitution Act 1982, the UK parts of which are known as the Canada Act 1982.
[edit] Examples of Statutory Instruments
[edit] See also
- List of Statutory Instruments of the United Kingdom
- {{UK SI}} template for referencing UK Statutory Instruments
[edit] Bibliography
- Factsheet guide to SIs from the House of Commons Information Office.
- Guide to SIs and other forms of delegated powers to Government Departments from the House of Lords's Delegated Powers and Regulatory Reform Committee, April 2005.
- Post from June 2005 to UK-Crypto discussing specific SIs.
[edit] External links
- All United Kingdom Acts of Parliament from 1988 onwards and Statutory Instruments from 1987 onwards are available free on-line under Crown copyright terms from the Office of Public Sector Information (HMSO) at http://www.opsi.gov.uk/
- Acts of the Scottish Parliament and Scottish Statutory Instruments are available free on-line under Crown copyright terms from HMSO at http://www.scotland-legislation.hmso.gov.uk
- List of Canadian Statutory Instruments
- Republic of Ireland:
- eSIL website (searchable) — complete HTML text from 1922 to Number 350 of 2005
- Irish Legal Information Initiative — 2005 and 2006 most titles, with complete PDF text for some instruments
- 2007 Statutory Instruments — most titles, with complete PDF text, from Attorney General of Ireland website
- House of Commons Information Office - Factsheet L7 - Statutory Instruments
[edit] References
- ^ Statutory Instruments Act 1946, section 1
- ^ Statutory Instruments Act 1946, section 2
- ^ Statutory Instruments Act 1946, section 1
- ^ Statutory Instruments Act 1946, section 1A, inserted by Section 125 and Schedule 12, Paragraph 2 of the Government of Wales Act 1998
- ^ Statutory Instruments Act 1946, Section 1A, substituted by Section 160(1) and Schedule 10, Paragraph 1 of the Government of Wales Act 2006
- ^ Statutory Instruments Act 1946, Section 1(2)
- ^ http://www.timesonline.co.uk/article/0,,6-2049791,00.html
- ^ http://www.timesonline.co.uk/article/0,,6-2040625,00.html
- ^ http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/02/09/nlaw09.xml
