The negative procedure

31.15The commonest type of parliamentary control is a provision in the parent Act that the instruments made under it, though taking effect forthwith or on some named future date, shall be subject to annulment in pursuance of a resolution of either House of Parliament, provided that the resolution is adopted within a specified time limit. In pre-1948 Acts there was necessarily a provision that the instrument, when made, should be laid before Parliament; since 1947 this stage has been universally required by the standardised procedure prescribed by the Statutory Instruments Act 1946. If the parent Act stipulates that a statutory instrument made under its provisions ‘shall be subject to annulment in pursuance of a resolution of either House of Parliament’, this formula attracts the requirement of laying and the conditions of annulment contained in s 5(1) of that Act.1 Under the same section, a resolution to annul does not prejudice the making of a new instrument of similar effect or the validity of anything previously done under the instrument, although no further proceedings can take place on its authority.2

The negative method very occasionally occurs in a different form. A draft of the document is required to be laid before Parliament; if, within a time limit, either House resolves that the statutory instrument be not made (or, in the case of an Order in Council, that the draft be not submitted to Her Majesty), then no further proceedings are to be taken on it. This procedure does not prevent a fresh draft being laid before Parliament.3 Power has, extremely rarely, been given to both Houses to resolve against part of an instrument subject to annulment.4

Footnotes

  1. 1. Examples of annulments: CJ (1945–46) 119, 121; ibid (1950–51) 273, 278; ibid (1969–70) 220, 230; ibid (1978–79) 45; ibid (1979–80) 188. For instances of annulments in the House of Lords, see para 31.27, fn 1. For an instance of regulations made in the form of a statutory instrument and laid before Parliament subject to the negative procedure, which in the event were shown to be neither of such a character nor subject to such procedure, see Eleventh Report of the Joint Committee on Statutory Instruments, HL 75, HC 29-xiv (1986–87). A motion to oppose changes in the immigration rules is tabled as a motion that the statement ‘be disapproved’ (see eg EDM 595, 2010–12).
  2. 2. HC Deb (1950–51) 478, c 466. See eg the Fats, Cheese and Tea (Rationing) (Amendment No 2) Order 1951 (SI 1951/470), revoked by SI 1951/640, and HC Deb (1974–75) 885, cc 1107–8, and 887, cc 506–7W.
  3. 3. See the Second Report of the Joint Committee on Delegated Legislation, HL 204, HC 468 (1972–73) para 49, for the Government's agreement in normal circumstances to avoid the use of this type of procedure in future enactments. For a recent power to lay a draft instrument (subject to annulment by virtue of s 6(1) of the 1946 Act), see the Local Democracy, Economic Development and Construction Act 2009 (c 20), s 59(9). For a resolution that a draft instrument be not made and the laying of a fresh draft, see CJ (1978–79) 45, 48.
  4. 4. For example, Census Act 1920 (c 41), s 1(2).