Form and character of statutory instruments

Contents

31.5The Statutory Instruments Act 1946, which was brought into force for material purposes on 1 January 1948, gave the comprehensive name of ‘Statutory Instruments' to most, but not all, delegated legislation. In cases where the parent statute was passed in or after 1948, every Order in Council is a statutory instrument and every instrument made by a Minister of the Crown1 is a statutory instrument if the parent statute so provides. In cases where the parent statute was passed before 1948 and the provisions of the Rules Publication Act 1893 designated instruments under the parent statute as statutory rules, instruments under the parent statute made after 1948 were similarly named. With a few exceptions, a statutory instrument is defined as every document, being of a legislative and not of an executive character, made after the commencement of the 1946 Act by a rule-making authority2 in the exercise of a statutory power conferred on that authority by or under any Act of Parliament passed before the commencement of the 1946 Act.3 The 1946 Act extended the ambit of ‘statutory instruments’ to cover, if the parent statute so provides, instruments which confirm or approve subordinate legislation made by another authority.4

It should be noted that by no means all instruments made under statutory powers fall within the terms of the 1946 Act. Certain documents, such as Immigration Rules, alterations to the Highway Code, equality codes of practice, and animal welfare codes of practice,5 although technically not statutory instruments, are by virtue of their parent Acts required to be laid before Parliament and are by the provisions of those Acts made subject to approval or disapproval by either House. A parent Act may provide that a Secretary of State may make orders and regulations, but that they shall not be exercisable by statutory instrument: such instruments are not therefore subject to the provisions of the 1946 Act.6 In addition, the various classes of by-laws made under statutory powers by local authorities or public corporations, though they may require confirmation by a Minister, are neither made nor confirmed by statutory instrument and are not required to be laid before Parliament. Statutes under which other delegated legislation not subject to the terms of the 1946 Act is made may also prescribe a different period during which parliamentary control may be exercised, which may be longer or shorter than the 40 days prescribed by the 1946 Act (for which, see, para 31.16 ), and may even be calculated in a different manner.7

All instruments are published online at legislation.gov.uk. By the Statutory Instruments Act 1946, immediately after a statutory instrument has been made, it must be sent to the Queen's Printer (the Controller of HM Stationery Office, which is now part of the National Archives) and, with certain exceptions, printed and put on sale. Ministers when sending instruments to the Queen's Printer are required to classify them as local or general, according to their subject-matter.8 Those printed and sold are, broadly speaking, ‘general’ instruments, analogous to public general Acts.9 Local instruments are exempt from printing and sale unless the Minister concerned requests otherwise.10 Other instruments are so exempt if the Minister gives the appropriate certificate. In most cases the Minister's certificate may be overridden by the Statutory Instruments Reference Committee (see below).11

The Statutory Instrument Registrar is responsible for allocating statutory instruments to the series of the calendar year in which they are made. They are numbered consecutively in that series as nearly as may be in the order in which they are received by the Registrar. Instruments may be cited by the year and number in the series, as well as by the short title assigned to each.

Footnotes

  1. 1. See the Statutory Instruments Act 1946, s 1(1). Certain statutes (eg Solicitors Act 1974 (c 47), s 46) confer on documents issued by non-governmental bodies the status of statutory instruments.
  2. 2. The Rules Publication Act 1893 (c 66) defined ‘a rule-making authority’ as Her Majesty in Council, all government departments, and any person or body authorised to make rules of court.
  3. 3. The definition is found in reg 2(1) of the Statutory Instruments Regulations 1947 (SI 1948/1), made by the Secretary of State who, with the concurrence of the Speakers of both Houses, is empowered to make regulations determining the classes of cases in which the exercise of power by a rule-making authority does or does not constitute the making of a statutory instrument (Statutory Instruments Act 1946, s 8(1)(d)).
  4. 4. A corresponding extension has been applied in cases where the parent statute was passed before 1948. See Statutory Instruments Act 1946, s 9(1); Statutory Instruments Regulations 1947 (SI 1948/1); Statutory Instruments (Confirmatory Powers) Order 1947 (SI 1948/2).
  5. 5. See, for instance, Immigration Act 1971 (c 77), s 3; Road Traffic Act 1988 (c 52), s 38; Equality Act 2006, (c 3), s 14; Animal Welfare Act 2006 (c 45), ss 14 and 15.
  6. 6. See, for example, the School Standards and Framework Act 1998 (c 31), s 138(2).
  7. 7. See College Charter Act 1871 (c 63), s 2; Universities of Oxford and Cambridge Act 1923 (c 33), sch, para 50.
  8. 8. Statutory Instrument Practice 2017, para 1.4.31.
  9. 9. It is usual to include under ‘general’ those instruments which refer to London.
  10. 10. Statutory Instrument Practice 2017, para 1.4.31.
  11. 11. See Statutory Instruments Regulations 1947 (SI 1948/1), regs 5–8. Such certificates may relate to general instruments regularly printed and made available to persons affected thereby; temporary instruments; related schedules or other bulky documents; and confidential instruments during the period before coming into force.