Laying before Parliament

31.11The first step in parliamentary control is the requirement that a document be laid before Parliament, though, if its contents are of minor significance only, the enabling Act may not impose such a requirement, or may require nothing more in the way of parliamentary control.

A document prepared for laying must be a hard copy of the imprinted pdf produced by legislation.gov.uk Publishing, which includes the wording ‘certified copy from legislation.gov.uk Publishing’.1 Statutory instruments and other documents which require to be laid must be complete and in full,2 and correct.3 If a mistake in the laid copy is more than an obvious printer's error it must be considered a matter of substance.4 While copies of draft statutory instruments can be withdrawn and relaid, copies of made instruments which are found to be defective cannot be withdrawn. Where the laid copy is a true copy of the original instrument, but the original is found to be defective, it is normally revoked by another instrument.5

Section 4 of the Statutory Instruments Act 1946 requires that, where instruments have to be laid, every copy must bear on the face of it a statement of the date on which it came or will come into operation, and either a statement of the date on which copies were laid or a statement that copies are to be laid. Instruments laid before Parliament other than draft instruments also bear the date on which they were made.

Breach of a statutory duty to lay an instrument before Parliament will not of itself invalidate the instrument. The resulting situation has been dealt with both by statute and by statutory instrument.6

Under the Statutory Instruments Act 1946, s 4, if an enabling statute requires a statutory instrument to be laid before Parliament, a copy must be laid before each House and ‘shall be so laid before the instrument comes into operation’. If, however, it is essential that an instrument should come into operation before copies can be laid, the instrument may be made so as to come into operation before laying; in this event, the Lord Speaker and the Speaker of the House of Commons must forthwith be notified that copies have yet to be laid, with an explanation why there has been no laying before operation.7 By Standing Order No 160 in the House of Commons and Standing Order No 71 in the House of Lords, the Speaker and the Lord Speaker are directed to lay the notification on the Table.

What constitutes laying must be a matter for the decision of each House. In 1948, however, the Laying of Documents before Parliament (Interpretation) Act 1948 was passed ‘for the removal of doubt’. It declares that statutory references to the laying of instruments or other documents before either House are (unless the contrary intention appears) to be construed as references to the taking, during the existence of a Parliament, of such action as, under the standing or sessional orders or other directions of that House, or under the practice of that House, constitutes laying, notwithstanding that the action can be taken at a time when that House is not sitting. By Standing Order No 159, the House of Commons has directed that the delivery of a copy of a statutory instrument to the Votes and Proceedings Office on any day during the existence of a Parliament shall be deemed to be a laying. As a matter of practice, instruments are not normally laid on Saturdays, Sundays, bank holidays, Good Friday, Christmas Day or after 3 pm on Fridays, unless the House is still sitting. The Standing Order does not apply to special procedure orders or to any other instruments, including some of those subject to the affirmative resolution procedure, which are required to be laid before Parliament or before the Commons only before coming into operation. These can be laid only on sitting days, although this proviso does not extend to documents laid under para 3(3)(b) or 17(3)(b) of sch 7 to the European Union (Withdrawal) Act 2018.8 By Standing Order No 70, the House of Lords similarly accepts as laying the deposit of a copy in the Office of the Clerk of the Parliaments, and Standing Order No 70A similarly allows certain documents laid under the European Union (Withdrawal) Act 2018 to be laid when the House is not sitting.9 The times for this are currently between 11 am and 3 pm on any day during the existence of a Parliament when that House is not sitting for public business, except Saturdays, Sundays, bank holidays, Christmas Day or Good Friday.

For the number of copies of each class of instrument to be supplied to the Votes and Proceedings Office, the Vote Office and the Printed Paper Office, see Statutory Instrument Practice.10

Footnotes

  1. National Archives, Statutory Instrument Practice (5th edn, November 2017) para 4.8.17.
  2. HC Deb (1950–51) 486, c 660. See also Parl Deb (1899) 69, cc 625, 647; ibid (1901) 96, c 1007; HC Deb (1910) 17, c 1315; ibid (1950–51) 486, c 205.
  3. HC Deb (1945–46) 422, c 1881; ibid (1985–86) 98, cc 459–60. See also Special Report of the Statutory Instruments Committee, HC 324 (1948–49) p 12. The Joint Committee on Statutory Instruments has drawn attention to an instrument on the ground that the laying copy contained an unacceptable number of manuscript amendments and additions (Twelfth Report, HL 51, HC 34–xii (1995–96)). The Speaker ruled that the form of the instrument was a matter for the department concerned (HC Deb (1995–96) 272, c 733). The House of Lords has declined to approve a code of recommendations which contained obvious errors: HL Deb (2002–03) 644, cc 385–401.
  4. For errors before an instrument is laid see Statutory Instrument Practice (5th edn, November 2017) paras 4.7.2–4.7.5; HC Deb (1945–46) 422, c 1881, and 423, c 998; ibid (1954–55) 535, cc 2704–20; ibid (1978–79) 965, cc 1182–84. See also ibid (1934) 296, cc 918, 967 and the Speaker's comment at c 969.
  5. See eg Education (Publication of School Proposals) (No 2) Regulations 1980 (SI 1980/658). For an instance of a failure to follow this prescription, see Eighteenth Report of the Joint Committee on Statutory Instruments, HL 125, HC 31-xxiii (1985–86). For an instance of mistakes in an instrument corrected by a subsequent statutory instrument, see the Housing Renewal Grants and Home Repair Assistance (Amendment) Regulations 1996 (SI 1996/3119).
  6. The National Fire Services (Regulations) Indemnity Act 1944 and the Town and Country Planning Regulations (London) Indemnity Act 1970 (both now repealed) declared that instruments not laid should be deemed to have been laid. SI 1984/887 and SI 1984/1213 revoked and re-enacted instruments not laid which ought to have been laid. Older statutes (eg Court of Chancery Acts 1841 and 1850) had expressly stipulated that instruments made thereunder, if not laid, should be of no effect. In the absence of such stipulation, the requirement has been deemed to be merely directory, see Stacey v Graham [1899] 1 QB 406, esp per Channell J at 412, and Bailey v Williamson (1873) LR 8 QB 118. See also HC Deb (1969–70) 797, cc 269–72. In R v Secretary of State for Social Services, ex p Camden London Borough Council [1987] 2 All ER 560 it was decided, in the case of regulations which were not to be made until a draft had been approved by Parliament, that, while express approval was required before the regulations could come into force, the reference in the regulations to a separate document that had not been laid did not invalidate the regulations. When it was discovered in 2002 that six Orders of Council made by the General Medical Council under the Medical Act 1983 (c 54) in 2000 had not been laid before Parliament as the Act required, but that the instruments were not thereby invalidated, they were laid forthwith, notwithstanding the elapse of time since the making of the instruments, Thirty-third Report of the Joint Committee on Statutory Instruments, HL 136, HC 135-xxxiii (2001–02), paras 3–6.
  7. Scrutiny committees (see paras 31.3231.33 ) are empowered to draw special attention to any case of unjustifiable delay in sending this notification.
  8. Votes and Proceedings, 16 July 2018.
  9. House of Lords Minute, 11 July 2018.
  10. 5th edn (2017) paras 4.1.4-4.11.6. See also HC Deb (1997–98) 316, cc 126–27.