Most SIs must be considered by both Houses of Parliament before becoming law. Some, for example those that deal with taxation matters, are only considered by the Commons.
SIs generally pass through the Lords under one of two procedures, affirmative or negative. The procedure an SI follows is determined by its parent Act.
Negative statutory instruments
Starting from the date the government department lays a negative SI, each House has 40 sitting days to decide if they want to stop the legislation in the SI. If no one objects to it or if a motion to object is not agreed to in a vote, the law continues in force.
If a motion to object is agreed to in a vote, the law in the SI stops having effect from that day. In the Lords it only takes one Member to table a motion to ensure a debate.
As negative SIs aren’t usually discussed, Lords can also table a motion to ‘regret’ an aspect of the SI or to 'take note' of it. These debates are an opportunity for the House to put its opinion on record but cannot stop the law coming into effect. These motions are the most frequently tabled as they enable discussion of a negative SI.
Affirmative statutory instruments
Each House must debate and approve affirmative SIs before the government can make it law but no time limit applies, and there is no requirement for one House to do it before the other.
However, in the Lords the debate cannot take place until the Joint Committee on Statutory Instruments (JCSI) and Secondary Legislation Scrutiny Committee (SLSC) have considered the instrument and given their advice.
The JCSI gives its view on the legal content and the SLSC gives its view on the policy and the supporting information that the government has provided.
After consideration by the committees, the debate on the SI will:
- involve speakers from all sides of the House
- be held in the Chamber or in Grand Committee (a room to one side of the main Chamber)
- allow any member of the House to participate
If the debate is held in Grand Committee, it returns to the Chamber a day or so later for the formal decision to approve as decisions can only be made in the Chamber.
If the debate is held in the Chamber then the debate and the decision to approve can happen at the same time. SIs that are controversial are always debated in the Chamber.
Both Houses need to approve an affirmative SI before it can be made law, but it only needs one House to reject it to prevent it from becoming law.
As well as deciding whether or not to approve an affirmative SI, Lords can table a motion to comment on it which will be discussed at the same time.
These motions can ‘decline to approve’ the SI, which would stop it becoming law, or ‘regret’ a part of it. Regret motions cannot stop the SI becoming law but may influence how it is put into operation.
Secondary Legislation Scrutiny Committee (SLSC)
The Lords SLSC has an advisory role. It scrutinises the policy content of all SIs. It publishes a report each week, raising concerns about any SIs that are interesting or flawed.
The SLSC offers further information and recommendations, and does not have the power to change or stop secondary legislation.
Individual members of the Lords often follow up the reports in a debate. A minister from the government department who created the SI must respond and may offer clarifications or adjustments in their answer. There is no Commons equivalent to this committee.
The SLSC takes submissions from the public but because they need to report within two weeks of the SI being laid, you will only have about a week to comment. They want to hear about practical issues rather than whether you simply like or dislike the policy.
To find out more, read the guidance on how to write to the SLSC ( PDF 99 KB).
Joint Committee on Statutory Instruments (JCSI)
The JCSI consideration happens in parallel with the SLSC. As a joint committee, the JCSI includes members of both Houses. The JCSI scrutinises the technical content of the draft SI. Lawyers consider whether the legal text is correct, clear and within the powers given by the parent Act (primary legislation).
Delegated Powers and Regulatory Reform Committee
The Lords Delegated Powers and Regulatory Reform Committee considers the government’s proposals in new Bills (draft primary legislation) for ministerial power to make regulations.
The Committee tells the House when it thinks the proposal that an SI will follow the negative or affirmative procedure is not appropriate for what the regulations will do and makes alternative recommendations. There is no Commons equivalent to this committee.
Find a statutory instrument
Once they have been laid in Parliament you can find SIs and follow their progress.
The full text of SIs and related explanatory memoranda, which explain what the instrument does and why, are published on legislation.gov.uk.