Parliamentary control and scrutiny

31.8The conditions of the making of statutory instruments and the degree of parliamentary control over them will depend in each case upon the particular statute which authorises them, although the Statutory Instruments Act 1946 standardised certain procedures. It should be remembered that a great many statutory instruments are not subject to any parliamentary control:

  • their parent Act may provide for them to be laid before Parliament, but for no proceedings to ensue;
  • they may not be required to be laid before Parliament (this is the case, for example, for most commencement orders bringing into force all or part of an Act); or
  • they may be local in character.

There have been attempts to ensure a connection between the subject-matter of a particular instrument and the procedure to which it may be subjected, although these have not resulted in uniformity.1 In 1973, the Joint Committee on Delegated Legislation established some general presumptions about how to assess the significance of an instrument. There are three criteria:

  • Do the powers ‘substantially affect’ the provisions of an Act of Parliament?
  • Do the powers allow the imposition or increase of taxation?
  • Are there other powers of special importance—for example, creating serious criminal offences?2

In general, the more significant an instrument, the greater the degree of scrutiny which is appropriate. In the Lords, the Delegated Powers and Regulatory Reform Committee scrutinises all bills (other than consolidation and, save in exceptional circumstances, supply bills3 ) and reports on whether the provisions of any bill inappropriately delegate legislative power or subject the exercise of delegated power to an inappropriate degree of parliamentary scrutiny (see para 40.48 ).

If the enabling Act seeks a high level of parliamentary supervision, it will probably direct that the document be laid as a draft and that it be not made unless approved, or that, if made, it shall cease to have effect unless approved within a specified time. This is known as the affirmative procedure. Thus the instrument has no effect, or no continuing effect, unless Parliament has expressly approved it.

Under another type of procedure, the negative procedure, the instrument may be annulled if, within a time limit, either House records its disapproval; the Address to Her Majesty praying that an instrument be annulled is colloquially known as a ‘prayer’.

There is also a more rare ‘super-affirmative’ procedure, based on a model initially set out in the Deregulation and Contracting Out Act 1994. There are variations on super-affirmative models, but in essence the procedure provides for increased parliamentary scrutiny, based on an initial examination of a legislative proposal, recommendations for amendment, if appropriate, and further scrutiny of a draft instrument. These three types of procedure are examined in more detail below (paras 31.1331.15 ).

If the subject of the instrument is taxation, the required resolution will be that of the House of Commons only. Thus, draft Orders in Council affording relief from double taxation are not submitted to Her Majesty unless they have been laid before and approved by a resolution of the House of Commons.4 Orders under the Customs and Excise Duties (General Reliefs) Act 1979 (c 3), s 17(4), which restrict relief from customs or excise duty or value added tax, lapse within 28 days unless approved by that House. Draft Orders in Council defining certain Treaties as Community Treaties within the meaning of the European Communities Act 1972 are nevertheless subject to affirmative procedure in both Houses, even if a charge arises from an obligation under such a Treaty.5

Certain instruments made under the European Communities Act 1972 (sch 2, para 2(2)) may be subject to either affirmative or negative procedure, at the option of the executive.6 Similar provisions apply in relation to certain instruments laid under the European Union (Withdrawal) Act 2018 (s 22, sch 7), although there is provision for parliamentary scrutiny of the Government's decision to use the negative procedure, described in more detail in Chapter 32.

Footnotes

  1. 1. See Joint Committee on Delegated Legislation, Second Report, HL 204, HC 468 (1972–73), and Procedure Committee, Fourth Report, HC 152 (1995–96) paras 6–8.
  2. 2. Second Report from the Joint Committee on Delegated Legislation, Session 1972–73, HL 204, HC 468, para 46; Procedure Committee, Sixth Report of Session 2017–19, Scrutiny of delegated legislation under the European Union (Withdrawal) Act 2018, HC 1395.
  3. 3. See report on the Taxation (Cross-border Trade) Bill, a supply bill, which the Committee reported on whilst in the House of Commons (Delegated Powers and Regulatory Reform Committee, Eleventh Report, HL 65 (2017–19)).
  4. 4. Taxation (International and Other Provisions) Act 2010 (c 8), ss 2 and 5(2).
  5. 5. European Communities Act 1972 (c 68), s 1(3) as read with s 2(3); HC Deb (1978–79) 964, cc 49–51.
  6. 6. The manner in which this choice should be exercised has been commented on by the scrutiny committees (Joint Committee on Statutory Instruments, Second Report of Session 2010–12, HL 23, HC 354-ii, paras 1.8–1.10. A different power is available under s 81D of the Banking Act 2009 (c 1), where an instrument may be approved in draft or, if it is necessary to make it without laying a draft, expires unless approved within 28 days of making.