LORDS

Frequently Asked Questions

This page provides answers to some frequently asked questions about Statutory Instruments (SIs) and the Secondary Legislation Scrutiny Committee (SLSC).

All Government Departments can lay SIs, as can some professional organisations such as the General Medical Council. Laying is the process of formally depositing a copy in each House of Parliament. Once this is done the instrument should be published on the legislation.gov.uk website, run by the National Archives, within 24 hours.

The SLSC serves a purely advisory role. The Committee scrutinises the policy merits of Instruments and offers additional information and recommendations, but does not have any power to amend or stop legislation. Backbenchers often follow up the reports that the Committee makes in a debate, which may result in the Minister offering clarifications or concessions.

These are the most common forms of Statutory Instrument. The format is dictated by the 'parent' Act, that is the Act under which the instrument is made. There is very little practical difference between them. Whether a SI is affirmative or negative is also set out in the 'parent' Act.

No, Parliament can either accept or reject a Statutory Instrument but cannot amend it.

Both Houses must separately approve affirmative instruments that are laid before Parliament. Additionally certain SIs dealing with tax or financial matters are only considered by the Commons. Negative SIs become law without debate unless a motion is laid against them in either House.

There is no requirement for one House to debate an SI before the other. But under its Standing Orders the House of Lords cannot debate an affirmative instrument until it has been considered by the Joint Committee on Statutory Instruments (JCSI) which checks that the legislation is properly drafted.

Only Negative instruments can be annulled and it is very rare. The House of Commons last annulled a statutory instrument in October 1979, while the House of Lords last annulled one in February 2000. More recently the Lords have declined to approve certain affirmative SIs (which is the equivalent process): they debated the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (amendment of Schedule 1) Order 2013, asking that it "be not made".

The SLSC scrutinises the policy intention of all SIs and, through its reports draws any to attention of the House that are either interesting or flawed. That consideration happens in parallel with the Joint Committee on Statutory Instruments (JCSI), which performs a technical scrutiny of the legislation to consider whether the legal drafting is correct, clear, and within the powers given by the Act under which it is made.

A separate Lords-only Committee – the Delegated Powers and Regulatory Reform Committee – considers the proposals in Bills for Ministerial power to make regulations. It is this consideration that decides whether the SI will follow the negative or affirmative procedure.

A separate Commons-only Committee - the European Statutory Instruments Committee - fulfils the same scrutiny process for 'proposed negative' instruments as the SLSC does in its Stage 1 scrutiny.

The journey of an Instrument

Find out about the journey of negative and affirmative instruments.