Time limits

31.17The time limits applicable to delegated legislation depend on whether an instrument is made or in draft, and the scrutiny procedure applied to it by the parent Act.

There is no time limit for draft affirmative instruments (which cannot be made or come into effect until approved). For made affirmative instruments (see para 31.13 above) which have effect immediately on making, the instrument must be approved within a specified period set out in the parent Act, otherwise the instrument will lapse. The number of days that apply in this case should be included in the rubric at the top of the front page of the instrument. Approval motions which have not been dealt with before a Session ends, by prorogation or dissolution, need to be re-tabled in the new Session although the statutory instruments or drafts laid before Parliament to which those approval motions relate do not require to be laid again.1

For negative instruments, the Statutory Instruments Act 1946 provides for a period of 40 days during which either House may agree a resolution for annulment of a made negative instrument (s 5) or, in the case of a draft instrument, agree a resolution that no further proceedings should be taken on the instrument (s 6).2 The period begins for each House when a copy of the statutory instrument is laid before it. In the case of a draft statutory instrument, if it 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 (meaning that days when either House is sitting alone count towards the calculation of the 40 days).3 Assistance in calculating time limits is provided by the parliamentary website (see Find a Statutory Instrument for the time limit applicable to an instrument).4

A further informal time limit in parliamentary scrutiny and control of delegated legislation is the ‘21-day rule’ overseen 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.5 Breaches of the 21-day rule are usually reported by the Joint Committee 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.