Statutory Instrument
Encyclopedia : S : ST : STA : Statutory Instrument
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Statutory instruments are one form of delegated legislation or secondary legislation: other examples are Orders-in-Council and Local Authority byelaws.
As noted below in this article, statutory instruments are also employed in other Commonwealth of Nations countries besides the United Kingdom, and also the Republic of Ireland.
Legal framework
Statutory Instruments come in three forms: those passed by affirmative resolution procedure, where they must be approved by the two Houses of Parliament before they can become law, and those passed by negative resolution procedure, where they are merely laid before Parliament, with Parliament able to annul them if it desires. The third form is those which are not laid before Parliament, but which Parliament can annul, usually within 40 days. The section of the Act of Parliament that grants the power will usually state whether the power is to be exercised by Statutory Instrument and which (if any) parliamentary procedure is to apply. Generally, if it is a potentially contentious power, the affirmative route will be used. A new, "super-affirmative" procedure has been proposed for certain Statutory Instruments that could be made under the Legislative and Regulatory Reform Bill.
Statutory Instruments are not necessarily the same thing as an Order-in-Council: Statutory Instruments are 'delegated legislation' (the power is delegated by Parliament), whereas Orders-in-Council either operate through the Royal Prerogative or are made under powers created in statute. The latter will generally be made by Statutory Instrument, the former not.
Statutory Instruments are used because they are much faster and simpler to implement than a full Act of Parliament. SIs are sometimes described as "secondary legislation, not second class legislation". They have the same force as an Act of Parliament, and the great majority of the United Kingdom's law is made in this way. Two or three thousand SIs are passed each year, compared to only a few dozen Acts.
If a Statutory Instrument exceeds the powers granted by it by primary legislation, it can be found to be ultra vires by a court, and therefore invalid.
Some Acts of Parliament grant ministers "reformative powers", with future Statutory Instruments able to modify the Act themselves; this capability is sometimes pejoratively called "Henry VIII powers" in reference to Henry VIII's noted ability to do anything he desired. This type of authorisation became popular in government in the 1920s, but have become rarely used due to accusations of too much power.
Use
Statutory Instruments are frequently used to make detailed provisions that are left out of primary legislation. They are also used to incorporate the provisions of Directives of the European Union into UK law, with the Instruments being made under the provisions of the European Communities Act 1972.
Delayed primary legislation
Statutory Instruments are also used to bring Acts of Parliament into force: it is not uncommon for quite major pieces of legislation to be passed by Parliament with all the sections 'turned off', and a power for the Minister to 'turn them on' (or 'bring into force' as it is properly called) at a later date by means of a commencement, or appointed day, order. Some sections are never brought into force at all before being repealed by later acts. A notable example of the former is the Easter Act 1928 which received Royal Assent on 3 August 1928 and as of 2006 has not been brought into force. An example of the latter is certain sections of the Companies Act 1989 which are scheduled to be repealed by the Company Law Reform Act 2006 when that law eventually receives Royal Assent and is brought into force. Some acts have had as many as 75 commencement orders to bring them into force.
Reformative powers
Reformative powers were put in place in the Electronic Communications Act 2000 to allow the modification of any law that went against the Act; it was designed to be used by the DTI to allow Internet-based publishing of annual reports and the like, amongst other measures. A more significant use of "Henry VIII powers" was the Regulatory Reform Act 2001, which provides for affirmative route Statutory Instruments to modify any legislation older than two years. Examples of its use have included Statutory Instrument 2004 No. 470 which repealed section 26 of the Revenue Act 1889 (and so re-legalised the selling of methylated spirits on a Saturday night or a Sunday), and Statutory Instrument 2005 No. 871 which repealed the entirety of the Trading Stamps Act 1964.
Signifcantly wider powers are proposed in the 2006 Legislative and Regulatory Reform Bill, which has been described by David Howarth MP as the "Abolition of Parliament Bill"[link], and by Daniel Finkelstein as the "Bill to End All Bills" [link]. Clifford Chance LLP consider that the Bill would "usurp the power of Parliament" [link].
Devolution
The advent of devolution in 1999 resulted in many powers to make Statutory Instruments being transferred to the Scottish Executive and Welsh Assembly Government, and oversight to the Scottish Parliament and National Assembly for Wales. Instruments made by the Scottish Executive are now classed separately as Scottish Statutory Instruments.
Other countries
Similarly to the United Kingdom, national and state/provincial governments in Australia, Canada and the Republic of Ireland also call their delegated legislation Statutory Instruments.
As well, Canada uses statutory instruments for Proclamations by the Queen of Canada. For example, the Proclamation of the Queen of Canada on April 17, 1982 brought into force the Constitution Act 1982, the UK parts of which are known as the Canada Act 1982.
Examples of Statutory Instruments
See also
References
- [Factsheet guide to SIs] from the House of Commons Information Office.
- [Guide to SIs and other forms of delegated powers] to Government Departments from the House of Lords's Delegated Powers and Regulatory Reform Committee, April 2005.
- [Post from June 2005] to UK-Crypto discussing specific SIs.
External links
- All United Kingdom Acts of Parliament from 1988 onwards and Statutory Instruments from 1987 onwards are available free on-line under Crown copyright terms from the Office of Public Sector Information (HMSO) at http://www.opsi.gov.uk/
- Acts of the Scottish Parliament and Scottish Statutory Instruments are available free on-line under Crown copyright terms from HMSO at http://www.scotland-legislation.hmso.gov.uk
- [List of Canadian Statutory Instruments]
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