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31.16A time limit will not be relevant to an instrument that cannot be made or come into effect at all until approved. When a limit is put on proceedings in Parliament in relation to delegated legislation to which the first form of affirmative procedure applies, ie an instrument which has effect immediately on making, but which must be approved within a particular time, the parent statute itself lays down details.
The period during which a negative resolution in relation to a statutory instrument may be moved is standardised at 40 days in respect of either the negative procedure for annulment, or the negative procedure for preventing further proceedings in the case of a draft instrument.1 In the case of documents which are statutory instruments, the period begins for each House when a copy is laid before it. If, however, the document is a draft of a statutory instrument and is laid before each House on a different day, the period begins with the later of these days. In reckoning this period of 40 days, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.2
A further informal time limit in parliamentary scrutiny and control of delegated legislation is the ‘21-day rule’ operated by the Joint and Select Committees on Statutory Instruments. This rule is the embodiment of an undertaking that, wherever possible, an instrument subject to the negative procedure will be laid at least 21 days before it is to come into effect. This enables those affected to make necessary changes before the instrument comes into force. There is therefore also an opportunity for scrutiny of the instrument before its provisions come into force, qualified by the fact that laying in adjournment periods is possible.3 Breaches of the 21-day rule are usually reported by the JCSI for failure to comply with proper legislative practice as part of the residual ground at the end of para 1(B) of House of Commons Standing Order No 151 and para 74(2) of House of Lords Standing Order No 74.
- 1. Statutory Instruments Act 1946, ss 5, 6: for the position of delegated legislation other than statutory instruments, see para 31.5.
- 2. Statutory Instruments Act 1946, s 7. Practical difficulties and questions of calculation which arise in the operation of this section were discussed by the Joint Committee on Delegated Legislation (HL 184, HC 475 (1971–72); and HL 188, HC 407 (1972–73)). See also the Speaker's ruling that time continued to run during the ‘swearing in’ days following the death of the King (HC Deb (1951–52) 497, c 1515). Unless the parent Act otherwise provides (see Customs and Excise Duties (General Reliefs) Act 1979 (c 3), s 17(4)), calculations based on the sitting days of the Lords will affect praying time for instruments laid before the Commons only.
- 3. This is a convention established by Government and set out in successive editions of the Government's Statutory Instrument Practice, now reflected in para 2.11, 5th edn, November 2017. The Joint Committee on Statutory Instruments commented on this rule in their First Special Report in 1973 (HC 184, HL 76 (1972–73)), para 6 and in their First Special Report (2017–19) (HL 151, HC 1158) paras 2.15–2.23. The scrutiny committees expect to be informed of the reasons for non-compliance with the rule in any case.