Affirmative instruments

Some paragraphs in this section have been updated, added or deleted since the publication of the current edition. The most recent updates, made July 2021, can be highlighted by clicking ‘Highlight updates’ below. Read a summary and schedule of latest updates here.

31.28No motion to approve an affirmative instrument (as defined for this purpose in Standing Order No 73)1 may be moved until the report of the relevant committee has been laid before the House. The relevant committee in the case of draft orders proposed to be made under the Legislative and Regulatory Reform Act 2006 is the Delegated Powers and Regulatory Reform Committee. The relevant committee in the case of remedial orders and draft remedial orders under the Human Rights Act 1998 is the Joint Committee on Human Rights. In relation to most other affirmative instruments, the relevant committee is the Joint Committee on Statutory Instruments.2

Affirmative instruments have precedence over motions of a general character on all days except Thursdays, and their place on the Order Paper relative to bills, measures, select committee reports and other affirmative instruments may be varied by agreement.3 A motion relating to a report from the Delegated Powers and Regulatory Reform Committee on a draft legislative reform order is entered before the motion to approve the draft order:4 any other motion relating to an instrument is entered after the motion to approve the instrument but may be advanced by a Business of the House motion.5

If several affirmative instruments have sufficient affinity to justify their being taken together, motions for affirmative resolutions or addresses on them may be moved en bloc. It is for the Minister in charge, in the first instance, and ultimately for the House, to consider whether groups of instruments qualify for this procedure. An en bloc motion may be moved only with the unanimous leave of the House; if any Lord objects, motions on the individual instruments must be moved separately to the extent desired. Notice of a motion to take instruments en bloc is given by means of an italic note reminding Lords of their right to object to taking the instruments en bloc. The italic note must appear in at least two issues of House of Lords Business.6

Opposition to or concern about an affirmative instrument may be expressed in a number of ways (in addition to speaking in the debate on the approval motion):

  • a Lords Member may give notice of direct opposition by means of an amendment to the approval motion, the effect of which would be to withhold the agreement of the House;
  • a Lords Member may, by means of an amendment or a separate motion, call upon the Government to take specified action (but which will not, even if agreed, prevent the approval of the instrument);
  • a Lords Member may, by means of an amendment or a separate motion, invite the House to put on record a particular point of view relating to the instrument, but without calling on the Government to take any specific action.

It is usual for all such amendments and motions to be debated at the same time as the substantive motion on the instrument. Notice should be given of any intention to divide on a motion or amendment concerning delegated legislation.7

Affirmative instruments may be considered in Grand Committee. Each instrument is referred on a motion moved by the Leader of the House; once the debate has been held, the Grand Committee reports to the House that it has considered the instruments; each instrument is then approved by the House on another separate motion.

Footnotes

  1. 1. SO No 73 exempts from this requirement Measures under the Church of England Assembly (Powers) Act 1919, and regulations under Part 2 of the Civil Contingencies Act 2004.
  2. 2. A motion may be moved to dispense with the provisions of SO No 73 to enable the House to consider an order before a report has been made upon it, LJ (1999–2000) 401; ibid (2005–06) 71. The requirements of the Standing Order are satisfied once the report has been made, even if it is not published or otherwise available: a discussion of this may be found at HL Deb (1991–92) 533, cc 1083–86. In practice, an extract of the relevant report is made available wherever possible.
  3. 3. SO No 40. See paras 25.7, 25.16.
  4. 4. SO No 40(6).
  5. 5. For example, HL Deb (1996–97) 576, c 1395.
  6. 6. LJ (1994–95) 522; HL Deb (1970–71) 315, cc 1259–60; ibid (1971–72) 327, cc 179–80. See eg ibid (24 March 2010) 718, c 957.
  7. 7. First Report of the House of Lords Procedure Committee, HL 17 (1990–91).