H O U S E o f L O R D S

aka Subordinate

Legislation

aka Delegated Legislation aka Statutory Instruments

aka SIs, Orders, Regulations ...Legislation OfficeNovember 2013

Secondary Legislation

H O U S E o f L O R D S

Volume of delegated legislation

In 2009 Acts of Parliament – 27

UK Statutory Instruments – 2008

H O U S E o f L O R D S

Levels of Delegation

Complete

Negative instrume

nt

Affirmative

instrument

Minister can make law on own authority eg closing a road or commencement orders

Must lay before Parliament for 40 days – can be rejected by a motion (“Prayer”/EDM)

Laid as draft.Cannot come into effect until both Houses have debated and approved itCan only be amended by another

instrument

2,000 per year 700 per year 150- 200 per year

Affirmative “plus”

Affirmative with additional tests set out in Acteg Public Bodies Order, LRO

30 per year ???Limited

amendments possible

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Delegated Powers Committee

“whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny”

Dislike Skeleton Bill Henry VIII

Government submits Memorandum seeking permission

DPRRC Reports before Bill’s Committee stage

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Welfare Reform, 2010-12

(power to calculate who is entitled to Universal Credit. Wrong level of Parliamentary control)

“We therefore recommend that regulations made under clause 9(3) and 10(4) should also be subject to affirmative procedure on the first exercise of the powers.”

H O U S E o f L O R D S

When SIs arrive in Parliament ...

Instrument laid in PPO and Journal Office (on same day)

with an Explanatory Memorandum that sets out in plain English what the instrument does and why

may also have– Impact Assessment on costs

and benefits– Transposition Note – if implementing EU legislation

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www.legislation.gov.uk

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Secondary Legislation Scrutiny Committee

Considers policy intent

Usually reports on SIs within 12-16 days of instrument being laid – to allow Members to follow up reports

May seek further information or correspondence (delay of 1 week) – material usually published.

Also takes oral evidence Affirmative debates are not

scheduled until after report

H O U S E o f L O R D S

SLSC: Terms of RefThe grounds for reporting an SI are that it

is: politically or legally important, or gives

rise to issues of public policy likely to be of interest

[inappropriate in view of changed circumstances since passage of parent Act]

inappropriately implements European Union legislation

imperfectly achieves policy objectives

H O U S E o f L O R D S

Examples of Reports to House Tobacco Advertising and Promotion (Display and Specialist

Tobacconists) (England) (Amendment) Regulations 2011 (SI 2011/1256)

The two policy aims of the Regulations are ... to mitigate burdens on business "while maintaining the expected public health gains." If the figures set out in the Impact Assessment to the Health Act 2009 are taken as the baseline it would appear that a deferment of 18 months may result in up to 4,000 more young people taking up smoking with consequent long-term health effects. On the basis of the ...minimal information provided in the EM, the House may wish to seek further explanation from the Health Minister on how these Regulations will achieve both policy objectives.

Merits Committee 32nd Report, session 2010-12But not always critical National Health Service (Primary Dental Services)

(Miscellaneous Amendments) Regulations 2011 (SI 2011/1182)

... we commend the Department of Health's clear Explanatory Memorandum and its approach of piloting to enable it to take policy decisions on the basis of evidence from practical experience.

Merits Committee 31st Report, session 2010-12

H O U S E o f L O R D S

Example of an information paragraph

AUDIOVISUAL MEDIA SERVICES REGULATIONS (SI 2009/2979) 4.  This instrument ... extends the coverage of the existing Television without Frontiers Directive to other media, for example satellite, up-link or the internet, and to include on-demand programmes such as the iPlayer services... The AVMS Directive also allows Member States to decide whether to permit product placement in broadcasting: the Government currently permits product placement in on-demand services and when incorporated in films originally made for the cinema, but is consulting further on whether on nor to permit product placement more widely in television broadcasting.[web link]

H O U S E o f L O R D S

Debates on affirmative instruments

in the LordsGenerally debated in Grand Committee (taken in the Chamber if it is controversial and/or there may be a vote). Lords spokesman for the Government presents the case.

Formal clearance follows in main Chamber of both Houses (usually on the nod)

H O U S E o f L O R D S

In the Business BulletinSecondar y

Legislation Scrutiny Committee

To be considered

Waiting for consideration by the Joint Committee on Statutory Instruments

Draft Social Security (Electronic Communications) Order 2013

Referred to a Grand Committee and Waiting for Affirmative Resolution

Draft Civil Legal Aid (Costs) Regulations 2013 29 March

Export Control (Amendment) (No. 2) Order 2013 24th Report 29 March

Waiting for Affirmative Resolution

Draft Media Ownership (Radio and Cross-media) Order 2013

Draft Employment and Support Allowance (Work-Related Activity) Regulations 2013

24th Report

Draft Orders reported from the Secondary Legislation Scrutiny Committee under the enhanced affirmative procedure

Scrutiny period expires

Draft Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013, 15th report from the Joint Committee on Statutory Instruments, 25 th Report from the Secondary Legislation Scrutiny Committee

16 March

H O U S E o f L O R D S

Debates on negative instruments

Normally becomes law without discussion but

in the Lords: Any Member may table a prayer motion, almost always debated (Chamber or Grand Committee). Can seek to “annul”, “regret” or simply probe:

Lord Kirkwood of Kirkhope: That this House takes note of the Flexible New Deal (Miscellaneous Provisions) Order 2009 (SI 2009/1562). 12th report from the Merits Committee– ... This is not an attack or an attempt to annul the

order; I am absolutely content with its provisions. However, there are some issues that it would be to the benefit of the House to have raised before the order passes into effect and leaves the parliamentary process entirely. ...

H O U S E o f L O R D S

In the Business Bulletin

Negative Instruments  Instruments reported by the Secondary Legislation Scrutiny Committee

Praying time expires To be considered

24th Report

Immigration (Designation of Travel Bans) (Amendment) Order 2012 27 April

Libya (Asset-Freezing) Regulations 2012 30 April

26th Report

Accession (Immigration and Worker Registration) (Revocation, Savings and Consequential Provisions) Regulations 2012

7 May

H O U S E o f L O R D S

2(b) for Rule 2 and Rule 3 substituteIf the amount of contributions paid in respect of

contracted-out employments exceeds the amount found by the following formula, the amount to be returned is the excess.

53 x [((UAP-PT) x 9.4%) + ((UEL –UAP) x11%)]

  Social Security (Contributions) (Amendment No. 3) Regulations 2010

(SI 2010/646)

EM because the effect is not always obvious!

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EXPLANATORY MEMORANDUM TO THE [TITLE OF INSTRUMENT][Year] No. [XXXX]

1. This explanatory memorandum has been prepared by [Name of department] and is laid before [Parliament or the House of Commons] by Command of Her Majesty.

2. Purpose of the instrument – 3 sentences

3. Matters of special interest to the Joint Committee on Statutory Instruments

4. Legislative Context

5. Territorial Extent and Application

6. European Convention on Human Rights

7. Policy background• What is being done and why

• Consolidation

8. Consultation outcome

9. Guidance

10. Impact

10.1 The impact on business, charities or voluntary bodies is

10.2 The impact on the public sector is .

10.3 An Impact Assessment is attached to this memorandum or An Impact Assessment has not been prepared for this instrument.

11. Regulating small business

12. Monitoring & review

13. Contact

H O U S E o f L O R D S

2. Description 3 sentences PLAIN ENGLISH

This Order makes supplementary and transitional provision in respect of new provisions regarding police authority membership which are being commenced under the Police and Justice Act 2006 (“the 2006 Act”). The new regime will come into operation, in the case of police authorities established under section 3 of the Police Act 1996, on 1 April 2008 and, in the case of the Metropolitan Police Authority, on 3 July 2008. This Order ensures that, until that new scheme comes into operation, existing lay justice members of police authorities in England and Wales whose appointments would otherwise expire on or after 15 January 2007 shall have their appointments extended until 31 March 2008 or, in the case of the Metropolitan Police Authority, 2 July 2008.

This Order makes transitional provisions to extend existing lay justice appointments to police authorities until the new scheme under the Police and Justice Act 2006 takes effect in

2008.

H O U S E o f L O R D S

4. Legislative Context

Why is the SI being made– Set it in context eg one of a group,

implements an Act or Directive, new case law– If specific undertakings were given in debate/

question/Committee give Hansard references– Produce a single EM for a group of linked SIs

to prevent unnecessary duplication of common background and ensure reader is aware of links

Do not repeat the powers information from the regulations

H O U S E o f L O R D S

EM7: Policy Background

What this SI does and why

How this instrument fulfils the policy objectives of the parent Act/Directive

Evidence to support the chosen policy solution (including why legislation is necessary)

Don’t use jargon or assume too much knowledge of the context eg ODN (Ordnance

Datum Newlyn), Snellen Scale

H O U S E o f L O R D S

EM8: Consultation outcome Include a brief explanation of who

was consulted If consultation was less than 12

weeks explain why Give % analysis of responses and

how Department has accommodated suggestions

Full analysis should be available at time SI is laid – include weblink – but this cross reference is in addition to above, not instead.

H O U S E o f L O R D S

EM 10. Impact AssessmentFull Impact Assessment required for: Any proposal that imposes or reduces costs

on businesses or charities And for public sector, unless the costs fall

beneath £5m – includes proposals that redistribute

administrative costs.– If high levels of political or media interest,

a full IA is required, even if the total cost is below £5 million.

Summary in EM, full IA attached, signed by

a Ministeror

Explanation of why IA not required and indicative costs

H O U S E o f L O R D S

13. Contact Name, e-mail and phone number

should be given in all cases Only exemption is where there are

security considerations eg animal rights

Make sure named contact is there for 40 days after SI laid

H O U S E o f L O R D S