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    FAQs
    publications / 2021

    Delegated Legislation: Frequently Asked Questions

    What is delegated legislation? What is Parliament’s role in it? And what is a ‘Henry VIII’ power? We answer your questions

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    What is delegated legislation?

    What is delegated legislation?

    Delegated legislation is a form of law. It is one of two main types of legislation in the UK. The other is primary legislation. Delegated legislation is also referred to as ‘secondary’ or ‘subordinate’ legislation.

    In contrast to primary legislation, delegated legislation:

    • is made by government Ministers, or sometimes other authorised executive individuals and bodies (not Parliament);
    • can only be made if Ministers (or other authorised individual and bodies) have been given a power to do so, usually in an Act of Parliament; and
    • is subject to judicial review.

    Delegated legislation makes up most of the UK’s general public law.

    Statutory Instruments (SIs) are the most common form of delegated legislation.

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    Why do we need delegated legislation?

    Why do we need delegated legislation?

    Modern governance requires a large amount of legislation, which may often be technical and need speedy amendment or regular updating. Parliament does not have the capacity to legislate at the pace, scale or level of technical detail needed. Putting the required level of technical detail into Acts of Parliament would in any case make these much longer and harder to understand. Parliament therefore often establishes the framework of policy in Acts, and delegates the power to make more detailed legislation – within that framework – to government Ministers and other executive individuals and bodies. Delegated legislation is very common and a necessary feature of modern governance. It becomes a problem only when it is used inappropriately.

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    What are Statutory Instruments?

    What are Statutory Instruments?

    Statutory Instruments (SIs) are the most common form of delegated legislation.

    SIs are made by Ministers or other individuals or bodies who have been given a power to do so, usually in an Act of Parliament.

    An SI is a legislative vehicle or ‘container’. It contains, and makes into law, the measures that Ministers or other authorised bodies want. These measures typically comprise Regulations, Orders or Rules.

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    What is a ‘Henry VIII power' and a ‘Henry VIII clause'?

    What is a ‘Henry VIII power' and a ‘Henry VIII clause'?

    A ‘Henry VIII power’ is a power in an Act of Parliament that allows Ministers to amend, repeal, or otherwise alter the effect of primary legislation by delegated legislation.

    A ‘Henry VIII clause’ is a clause in a Bill that contains a ‘Henry VIII power’.

    Some applications of ‘Henry VIII powers’ can be purely technical and anodyne, but others can have serious constitutional implications.

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    What is Parliament’s role in delegated legislation?

    What is Parliament’s role in delegated legislation?

    Delegated legislation can only be made by using, and in accordance with, powers granted in an Act of Parliament (known as the ‘parent Act’). These powers specify which person or body can make the delegated legislation, what the legislation may or must do, any parliamentary scrutiny process to which it may be subject, and any other requirements that must be met in its making.

    The delegated legislation system therefore has two main stages:

    • the delegation of powers in Acts of Parliament; and
    • the use of those powers by Ministers and other authorised bodies and individuals to make delegated legislation – most commonly Statutory Instruments (SIs).

    Parliament has a role in the first and often also the second stage of the system:

    • Parliament passes the Acts that delegate powers; and
    • it scrutinises and sometimes must approve many of the SIs that Ministers make using those powers.

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    What are the scrutiny procedures for Statutory Instruments?

    What are the scrutiny procedures for Statutory Instruments?

    There are four main parliamentary scrutiny procedures for Statutory Instruments (SIs):

    Click ‘show more’ to learn more

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    • ‘Draft negative’: The SI is laid before Parliament in draft. If Parliament does not reject the SI within 40 days, it is deemed to have consented and the Minister can make the SI into law (by signing it). In the House of Commons, there is no guarantee that a debate and vote to reject a ‘draft negative’ SI will be scheduled within the 40 days. ‘Draft negative’ SIs are rare.
    • ‘Made negative’: The SI is laid before Parliament after it is made into law by the Minister. If Parliament does not reject the SI within 40 days, it is deemed to have consented. In the House of Commons, there is no guarantee that a debate and vote to reject a ‘made negative’ SI will be scheduled within the 40 days. ‘Made negative’ SIs are by far the largest group of SIs.
    • ‘Draft affirmative’: The SI is laid before Parliament in draft. The Minister cannot make (sign) it into law unless and until it has received active parliamentary approval, following debate, in the House of Commons and usually also the House of Lords. In the House of Commons, ‘draft affirmative’ SIs are normally debated in a Delegated Legislation Committee (DLC), although the debate may instead take place in the Chamber. The ‘draft affirmative’ process normally takes 4-6 weeks. ‘Draft affirmative’ SIs normally make up around 20-25% of all SIs laid before Parliament.
    • ‘Made affirmative’: The SI is laid before Parliament after it is made into law by the Minister. The House of Commons and usually also the House of Lords must then actively approve the SI, following debate, within a statutory period (usually 28 or 40 days) for the SI to remain law. In the House of Commons, ‘made affirmative’ SIs are normally debated in a Delegated Legislation Committee (DLC), although the debate may instead take place in the Chamber. ‘Made affirmative’ SIs are usually reserved for ‘urgent’ circumstances and are normally relatively rare.

    ‘Made’ SIs may come into force as soon as they are made (signed) by the Minister. However, there is a convention that ‘made negative’ SIs are laid before Parliament at least 21 days before they come into force.

    In addition to these four main procedures, there is a range of ‘strengthened’ scrutiny procedures. These are applied to SIs which are made using powers for which the regular scrutiny procedures were deemed inadequate.

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    Does Parliament approve Statutory Instruments?

    Does Parliament approve Statutory Instruments?

    Sometimes.

    It depends on the scrutiny procedure that the parent Act of Parliament prescribes for the SI in question. If the SI is subject to the ‘negative’ procedure, it does not require active parliamentary approval. If the SI is subject to the ‘affirmative’ procedure, it must be debated and approved by the House of Commons and usually also the House of Lords. In the House of Commons, SIs are usually debated in a Delegated Legislation Committee (DLC), but they may instead be debated in the Chamber. The government decides where the debate takes place. If an ‘affirmative’ SI is debated in a DLC, it must still then be approved by the whole House.

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    Can Parliament amend Statutory Instruments?

    Can Parliament amend Statutory Instruments?

    No, with only a very few exceptions.

    Parliament cannot amend Statutory Instruments because SIs are made by Ministers or other authorised individuals or executive bodies, not Parliament.

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    Has Parliament ever rejected a Statutory Instrument?

    Has Parliament ever rejected a Statutory Instrument?

    Very rarely.

    As of December 2021, only 16 SIs have been rejected since 1950 (11 by the House of Commons, and five by the House of Lords). No SI has been rejected by the House of Commons since 1979.

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    What parliamentary committees scrutinise delegated legislation?

    What parliamentary committees scrutinise delegated legislation?

    There are dedicated parliamentary scrutiny committees at both stages of the delegated legislation process:

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    Delegated powers in Bills are scrutinised by the:

    • House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC); and the
    • House of Lords Constitution Committee.

    Statutory Instruments (SIs) are scrutinised by the:

    • Joint Committee on Statutory Instruments (JCSI) (and, for House of Commons-only SIs, the House of Commons Select Committee on Statutory Instruments); and the
    • House of Lords Secondary Legislation Scrutiny Committee (SLSC).

    In addition, ‘affirmative’ SIs must be debated, before the relevant House is asked to approve them. In the House of Commons, debates on ‘affirmative’ SIs normally take place in Delegated Legislation Committees (DLCs), although they may instead take place in the Chamber. A DLC is a temporary committee of MPs set up to scrutinise an individual SI (or group of SIs).

    Other Committees, including the House of Commons Business, Energy and Industrial Strategy Committee, the Joint Committee on Human Rights and the Ecclesiastical Committee also have scrutiny roles for particular (relatively rare) types of SI.

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    What happens to Statutory Instruments when Parliament is not sitting?

    What happens to Statutory Instruments when Parliament is not sitting?

    1. Statutory Instruments that have already been laid before Parliament before the period of adjournment, progration or dissolution

    These do not fall when Parliament is adjourned, prorogued or dissolved. Their scrutiny simply awaits Parliament’s return.

    The countdown to the expiry of statutory scrutiny periods is usually suspended when Parliament is prorogued or dissolved, or adjourned for more than four days.

    Motions that have been tabled to approve or reject SIs do not fall when Parliament is adjourned, but do fall when Parliament is prorogued or dissolved.

    1. New SIs that have not been laid before Parliament before the period of adjournment, prorogation or dissolution

    When it has a relevant power, the government may make new SIs when Parliament is not sitting.

    Whether it can lay new SIs before Parliament depends on the type of SI and the type of non-sitting period:

    • When Parliament is adjourned, some ‘made’ SIs may be laid before it; draft SIs may not.
    • When Parliament is prorogued, some ‘made’ SIs may be laid before it; draft SIs may not.
    • When Parliament is dissolved, no new SIs may be laid.

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