What is secondary legislation?
Secondary, or delegated, legislation is used to add information or make changes to an existing Act of Parliament (primary legislation). Normally, this can only happen if the Act itself states that changes can be made to it in this way.
Secondary legislation allows the Government to make a small change to the law without having to introduce an entirely new Bill to Parliament. This might be done for a variety of reasons: from adjusting a figure to take account of inflation to updating the law in light of events.
For example, in response to new information about the dangers of using ‘legal highs’, the Coalition Government used delegated legislation to add new substances to the list of those banned under the Misuse of Drugs Act 1971.
What are statutory instruments?
Statutory instruments (SIs) are the most frequently used type of secondary legislation. They are typically brief documents drafted by the relevant government department that contain only the exact textual changes that are made to the legislation.
Each Statutory Instrument must be published with an explanatory note that explains in simpler language, what the effect of the instrument will be. These notes are not primarily intended for legal experts, but members of the public who may not be familiar with Sis.
Affirmative resolution procedure
SIs subject to the affirmative procedure must be actively approved by both Houses of Parliament. Usually, this approval is required before it becomes law. Sometimes, an SI can become law beforehand, but will stop being law if Parliament does not approve within a specified timeframe (typically 28 or 40 days).
Affirmative SIs are debated by each House, in committee or in the Chamber, before a decision is made on whether to approve.
Negative resolution procedure
Negative resolution SIs do not require approval by Parliament. They are formally issued to each House and automatically come into force on a fixed date unless an objection is raised within 40 days.
A negative resolution SI is debated in the Commons only if there is sufficient opposition to it. Debates on negative SIs in the Lords occur more frequently. It is very rare for an SI to be annulled (prevented from passing) by either House. The House of Commons last annulled a statutory instrument in October 1979, while the House of Lords last annulled one in February 2000.
Past and current Statutory Instruments
Statutory Instrument procedure in the Commons
Some SIs are not subject to any parliamentary procedure other than being checked by the Joint Committee on Statutory Instruments.
The two main parliamentary procedures used by an SI are affirmative resolution procedure and negative resolution procedure. The original Act would determine which of these procedures is used.
Joint Committee on Statutory Instruments
The Joint Committee on Statutory Instruments [JCSI] is made up of MPs and Lords. It checks almost all SIs to make sure they are legal and do not stray beyond the powers delegated by the original Act.
Like other Select Committees, the JCSI can take oral and written evidence. Unlike other committees, the JCSI can only take evidence from the government department responsible for the statutory instrument.
The JCSI can make recommendations on a statutory instrument before it begins proceedings in either House.
A statutory instrument that deals with financial matters is considered by the Members of this committee from the Commons only.
Delegated Legislation Committees
A delegated legislation committee (DLC) is a House of Commons committee formed of 16 – 18 MPs who debate the merits of an SI. They do not check the legality of an SI, as this is done by the JCSI. Any Member may attend and speak (but only the nominated members of the Committee are entitled to vote).
SIs using the affirmative procedure are automatically referred to a DLC. A committee is only created for the negative resolution procedure if a Minister specifically requests it.
A DLC considers an SI but does not have the power to stop it.
Hansard records these debates and the official report of the proceedings is published online.
Statutory Instrument procedure in the Lords
The House of Lords Delegated Powers and Regulatory Reform Committee
The Delegated Powers and Regulatory Reform Committee (established in 1992) is a House of Lords committee that keeps under constant review the extent to which legislative powers are delegated by Parliament to government ministers, and examines all Bills with delegating powers which allow SIs to be made before they begin their passage through the House.
There is an informal understanding in the Lords that, when the Delegated Powers and Regulatory Reform Committee has approved provisions in a Bill for delegated powers, the form of those powers should not normally be the subject of debate during the Bill's subsequent passage.
The House of Commons has no equivalent committee.
The House of Lords Secondary Legislation Scrutiny Committee (formerly the Merits Committee)
Established in 2003, the Lords Secondary Legislation Scrutiny Committee considers every negative and affirmative SI (or draft SI) laid before Parliament - about 1200 per year - with a view to determining whether the special attention of the House should be drawn to it on any of the following grounds that:
it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House
it may be inappropriate in view of the changed circumstances since the passage of the parent Act
it may inappropriately implement EU legislation
it may imperfectly achieve its policy objectives
the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation
there appear to be inadequacies in the consultation process which relates to the instrument.
The Secondary Legislation Scrutiny Committee reports every week, normally considering SIs written 12-15 days of being laid before the House.
Like the Delegated Powers and Regulatory Reform Committee, the Secondary Legislation Scrutiny Committee's role is to advise the House of Lords, and it is for the House to decide whether or not to act on the Committee's conclusions.
The House of Commons has no equivalent committee.