Subordinate legislation is exercised via four main channels. Orders in Council for constitutional matters with powers exercised by the Cabinet as Privy councillors, Bye-laws of local authorities under specific Acts and approved by ministers, Rules of the Supreme Court and County Courts made by rules committees drawn from the legal profession and Statutory instruments.
The Statutory Instruments Act 1946 provides that where a parent Act confers authority on a minister to make subordinate legislation which is to be laid down in law, any document produced as a result of that authority is to be called a statutory instrument.
Although the power is conferred by the parent Act (eg the provisions in Part XV of the Insolvency Act 1986), the resulting legislation (eg Insolvency Rules 1986) is made by means of statutory instrument and in accordance with the provisions of the Statutory Instruments Act 1946 must be published by Her Majesty’s Stationery Office (HMSO) and given a number for identification. The Insolvency Rules 1986 are identified as S.I. 1986 No. 1925.
The Statutory Instruments Act 1946 lays down general provisions for the making of statutory instruments but the procedure by which they are to be made is set out in the parent Act. For example, sections 411 and 412 contained in Part XV of the Insolvency Act 1986 provide that subordinate legislation under those provisions in the form of rules is to be made by the Lord Chancellor with the concurrence of the Secretary of State and (section 413) that before making such rules the Lord Chancellor must consult the Insolvency Rules Committee. These rules are made by statutory instrument subject to annulment by either House of Parliament. Section 419 of the Insolvency Act provides that regulations may be made by the Secretary of State for the purpose of giving effect to Part XIII of the Act which deals with insolvency practitioners and that such regulations are to be made by statutory instrument, again subject to annulment by either House of Parliament.
‘Laying before Parliament’ is a requirement which is generally imposed by a parent Act for the making of subordinate legislation under it. In some cases (for example, section 416 (3) of the Insolvency Act 1986) the enabling provision states that the statutory instrument shall not be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament. This procedure is called the ‘affirmative resolution’ procedure.
In other cases (for example, sections 411,412 and 419 of the Insolvency Act 1986), the enabling provision states that the statutory instrument is subject to annulment by either House of Parliament. Under this procedure (which is called the ‘negative resolution’ procedure) the statutory instrument is laid after it has been made. If, during the forty days after it has been laid either House resolves that an address be presented to Her Majesty praying that the instrument be annulled, then no more proceedings may be taken under it.
In other cases (for example, in sections 414 (6) and 415 (5) of the Insolvency Act 1986), the enabling provision merely provides for the instrument to be laid before both Houses after it has been made. This is the lightest form of Parliamentary control.
The terms ‘rule’, ‘regulation’ and ‘order’ are used relatively indiscriminately as categories of subordinate legislation. In 1932 the Donoughmore Committee attempted to introduce some consistency to use of the terms by giving definition to each; ‘regulation’ to describe the instrument by which the substantive law is exercised, ‘rule’ to describe the instrument by which power to make law of procedure is exercised and ‘order’ to describe the instrument of the exercise of executive power. The over-riding principle is that subordinate legislation must be in the form provided for in the enabling provision. If, therefore, that provision enables rules to be made, the subordinate legislation must be described as rules in its title.
The Joint Committee on Statutory Instruments which is on made up from members of both Houses of Parliament considers all statutory instruments which are laid before either House of Parliament, and all general statutory instruments not required to be laid, with a view to determining whether the special attention of Parliament should be drawn to the instrument on grounds set out in the Committee’s terms of reference. For example, purporting to give an instrument retrospective effect when the enabling provision does not provide for this would be a ground for drawing the attention of Parliament to the instrument, as would any doubt as to whether the instrument was within the powers of the enabling provision. The Committee can draw the special attention of the House to the instrument on any ground which does not impinge on its merits or the policy behind it. Before deciding whether to draw the attention of the House to an instrument, the Committee usually invites officials in the Department responsible for it to submit a memorandum explaining the instrument and responding to the Committee’s points. Occasionally officials are required to give oral evidence for this purpose.