Statutory Instrument Practice

Her Majesty’s Stationery Office

A manual for those concerned with the preparation of statutory instruments and the parliamentary procedures relating to them

- 4th edition (November 2006)

(incorporating amendments announced by SIP Circulars up to and including Circular 04 (06))

Her Majesty’s Stationery Office – operating within the Office of Public Sector Information, a part of The National Archives

This document may be downloaded, copied and circulated for official use within Government departments and Agencies.

Copies of this Manual may also be obtained from:

The Statutory Instruments Registrar Her Majesty’s Stationery Office Office of Public Sector Information Admiralty Arch (North Side) The Mall London SW1A 2WH

Tel: 020 7276 5209 Fax: 020 7276 5207 Email: [email protected]

Preface

This is the fourth edition of Statutory Instrument Practice and replaces the edition published in June 2003.

This edition has been prepared by Her Majesty’s Stationery Office (HMSO) within the Office of Public Sector Information. HMSO will be pleased to receive any suggestions for improvements and to have any errors or other defects pointed out. These should be sent to the address below.

In the preparation of this edition very valuable advice and comment has been received from Counsel to the Speaker; from officers of each House of Parliament; and from lawyers, parliamentary clerks and officials from other government departments. Their help is gratefully acknowledged.

The full text of this Manual, the Statutory Instrument Practice Circulars and other guidance relevant to the preparation of Statutory Instruments can be downloaded from the OPSI website at: www.opsi.gov.uk/si/statutory-instrument-practice.htm and on LION (the Legal Information Online Network) at: www.knowledgenetwork.gsi.gov.uk/lion2/areapres.nsf

Details of the Statutory Instrument Practice Circulars which have been issued since the previous edition, the contents of which are reflected in this edition, are listed on the following page.

The Statutory Instruments Registrar Her Majesty’s Stationery Office Office of Public Sector Information Admiralty Arch (North Side) The Mall London SW1A 2WH

Email: [email protected]

November 2006

iii

Statutory Instrument Practice Circulars issued since publication of the 3rd edition

Statutory Instrument Practice Circulars issued since the publication of the 3rd edition of the manual and which contain details of amendments which have been incorporated are listed below. The full text of these circulars can be found on the OPSI website at: http://www.opsi.gov.uk/advice/publishing-guidance/statutory-instrument-practice.htm

Circular Date of issue Subject(s) covered No 02 (03) 27 August 2003 Statutory Instrument Practice – 3rd Edition 03 (03) 27 August 2003 HMSO Contact Arrangements and Departmental Liaison Officers 04 (03) 27 August 2003 Production of SIs using the SI Template 05 (03) 13 November 2003 1. Explanatory Notes and references to Regulatory Impact Assessments 2. SI Template (Version 2.41) 01 (04) 16 March 2004 SI Template (Version 2.5) 02 (04) 30 April 2004 House of Lords Select Committee on the Merits of Statutory Instruments 03 (04) 30 April 2004 The provision to Parliament and publication of Explanatory Memoranda to Statutory Instruments 04 (04) 28 July 2004 The provision to Parliament and publication of Explanatory Memoranda to Statutory Instruments 05 (04) 13 August 2004 TSO (The Stationery Office) – Change Of Address 06 (04) 12 November 2004 S I Template (Version 3.0) 01 (05) 5 April 2005 Impact of the General Election on the Making of Statutory Instruments 02 (05) 30 June 2005 1. Explanatory Memoranda to Statutory Instruments 2. SI Template (Version 4.0) 03 (05) 30 August 2005 SI Template (Version 4.01) 04 (05) 19 September 2005 Modernising SI Drafting 05 (05) 20 September 2005 Modernising SI Drafting 01 (06) 26 May 2006 Joint Committee/Select Committee on Statutory Instruments – Changed requirements 02 (06) 10 October 2006 Explanatory Memoranda to Statutory Instruments 03 (06) 7 November 2006 1. Explanatory Memoranda to Statutory Instruments: Template 2. Merger of HMSO with The National Archives 04 (06) 20 November 2006 Statutory Instrument Practice – 4th Edition

TABLE OF CONTENTS

References to this Manual

Paragraph numbers (e.g. ‘2.3.1’, meaning Part 2, Section 3, paragraph 1) are used in referring to the texts in Parts 1 – 5, page numbers (e.g. ‘78’: no full point) in referring to other material in the manual, including the Tables in Parts 1 – 3.

Page Preface iii List of SIP Circulars issued since first publication of this edition iv Table of Contents v

PART 1 INTRODUCTION 1 1.1 Scope of this manual 1 1.2 Subordinate legislation generally 1 1.2.1 Nature of subordinate legislation 1 1.2.3 Notification to the European Commission 1 1.2.4 The making and commencement of subordinate legislation 2 1.2.5 Limits of delegated powers 2 1.2.6 Interpretation 2 1.2.9 Amendment, revocation, lapse and expiry 3 1.3 Publication and statutory control 3 1.3.1 Statutory rules and orders 3 1.3.3 Rules Publication Act 1893 4 1.3.4 The modern legislation 4 1.4 Meaning of Statutory Instrument 4 1.4.1 Preliminary 4 1.4.3 Instruments made under the Statutory Instruments Act 1946 or under Acts 5 passed after 1947 1.4.6 Instruments made after 1947 under Acts passed before 1948 5 1.4.7 Powers conferred on Government Departments 6 1.5 Varieties of Statutory Instrument 6 1.5.1 Forms in which instruments are made 6 1.5.2 Orders in Council 6 1.5.3 Orders of Council 6 1.5.4 Regulations, rules and orders 6 1.5.5 Commencement Orders 7 1.5.6 Other types of instrument 7 1.5.7 Divisions and sub-divisions of legislative instruments 7 Table A Legislative instruments; divisions and sub-divisions 8 1.5.8 Local and general instruments 8 1.5.9 Combined exercise of powers 8 1.6 Parliament and Statutory Instruments 8 1.6.1 Parliamentary control 8 Table B Varieties of parliamentary control 9 1.6.5 Special procedure orders 9 1.6.6 Parliamentary committees 9 1.7 Her Majesty’s Stationery Office (HMSO) 10

PART 2 FORM AND CONTENT OF STATUTORY INSTRUMENTS 11 2.1 Preliminary 11 2.2 Headnotes 11 2.2.1 Use of headnotes 11

2.2.2 Form of headnotes 11 2.2.3 Procedure relating to headnotes 11 2.3 Headings 12 2.3.1 General 12 2.3.3 Serial numbers 12 2.3.6 Subject headings 13 2.3.10 Inclusion of territorial suffixes in subject headings 13 Table C Use of territorial suffixes in Statutory Instrument headings 14 2.3.11 Titles of statutory instruments 14 2.3.15 Back sheet headings 16 2.3.16 Dates of making, laying and coming into force 16 2.3.19 Table of contents 17 2.4 Preamble and words of enactment 17 2.4.1 Form 17 2.4.3 Enabling powers 17 2.4.6 Transfers of functions 18 2.4.7 Fulfilment of conditions 19 2.4.7 Procedural rules 19 2.5 Citation, commencement and interpretation 19 2.5.2 Citation 19 2.5.4 Commencement 19 2.5.8 Choice of commencement date 20 2.5.11 Common Commencement Dates (CCDs) 21 2.5.14 Good Practice for choosing a commencement date 21 2.5.15 Use of commencement orders 22 2.5.16 Interpretation 22 2.6 Revocation and amendment 22 2.7 References to legislation and Command Papers 23 2.7.4 Explanatory parentheses for references 23 2.7.5 References to amended enactments 23 2.8 References to publications, documents, maps and plans 24 2.8.1 “External” publications 24 2.8.2 Documents, maps and plans 24 2.8.4 International agreements 24 2.9 Miscellaneous points of form 25 2.9.1 Clauses and parts 25 2.9.2 Dates 25 2.9.3 Distinctive type for amendments 25 2.10 Multiple signatures and date of making 25 2.11 Footnotes 25 2.11.1 Preliminary 25 2.11.2 Form of footnotes 26 Table D Footnotes relating to legislative instruments 26 2.11.3 Footnotes relating to Acts and Measures 26 2.11.6 Footnotes relating to subordinate instruments 27 2.11.12 Footnotes to collective titles 28 2.11.13 Footnotes relating to prerogative instruments 28 2.12 Schedules 28 2.13 Explanatory Notes 29 2.13.2 Scope of explanatory notes 29 2.13.6 Instruments increasing fees or charges 30 2.13.7 Explanatory notes for commencement orders 30 2.13.8 Regulatory Impact Assessments 30 2.13.10 Drafting explanatory notes 31 vi

2.14 Notes as to earlier commencement orders 32 2.15 Drafting 33 2.15.1 Scope of this section 33 2.15.2 Need for particularity 33 2.15.4 Modernising drafting 34 2.16 Orders in Council 34 2.16.1 Distinctive practice 34 2.16.3 Preparation of Orders in Council 34 2.16.5 Signature of Orders in Council 35 2.17 Statutory instruments resulting from membership of the European 35 Union 2.17.1 General 35 2.17.2 Scope of section 2 of the Act 35 2.17.3 Titles of instruments 35 2.17.4 Enabling provisions 35 2.17.5 Identification of Community obligations 36 2.17.7 Citation of Community instruments 36 2.17.8 Notification of transposition measures 36 2.18 Regulatory reform orders 37

PART 3 CLASSIFICATION, REGISTRATION, PRINTING, PUBLICATION 38 AND SALE 3.1 Preliminary 38 3.1.1 Scope of this part 38 3.1.2 The SI Template 38 3.1.4 Use of printers proofs/template prints for making 39 3.1.5 Use of authenticated copies 39 3.1.6 The Queen’s Printer of Acts of Parliament 39 3.1.7 The responsible authority 39 3.2 Classification as local or general 40 3.2.1 Distinction between local and general instruments 40 3.2.3 Procedure for classification 40 3.3 Registration 40 3.3.1 Legislative provisions 40 3.3.3 Procedure for registration where the SI has not been produced using the SI 41 template 3.3.7 Procedure for registration where the SI has been produced using the SI 42 template 3.3.10 Certifying a templated Statutory Instrument 43 3.3.12 Statutory Instruments including cross-references 44 3.3.13 Postponed registration 44 3.4 Printing, publication and sale 44 3.4.1 Legislative provisions 44 3.4.2 Notice in the Gazette 45 3.4.3 Time required for printing 45 Table E Printing of statutory instruments 45 3.4.4 Printing procedure 45 3.4.6 Copies for Parliament 46 Table F Copies of instruments and drafts for Members of Parliament 46 3.4.9 Sale of statutory instruments 47 3.4.10 Printing errors in statutory instruments 47 3.4.11 Correction of defective instruments: free copies 47 3.4.15 Issue lists 48 3.4.16 Proof of issue 48 3.4.18 The annual edition 49

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3.4.17 Publication on the internet 49 3.5 Exemption from printing and sale 50 3.5.1 Exemption and the Reference Committee 50 3.5.2 Exempt instruments printed for departmental purposes 50 3.5.3 Exemption for local instruments 50 3.5.4 Exemption for instruments otherwise regularly published 50 3.5.5 Exemption for temporary instruments 50 3.5.6 Exemption for certain schedules etc. 51 3.5.8 Exemption for confidential instruments 51 3.6 Orders in Council, affirmative instruments and draft instruments 52 3.6.1 Orders in Council 52 3.6.4 Instruments requiring approval to come into force 52 3.6.5 Instruments requiring approval to remain in force 53 3.6.6 Draft instruments 53

PART 4 PARLIAMENTARY CONTROL OF STATUTORY INSTRUMENTS 55 4.1 Preliminary 55 4.2 Laying before Parliament 55 4.2.3 What constitutes laying 56 4.2.5 Laying before the House of Lords 56 4.2.7 Laying before the House of Commons 57 4.2.8 Documents laid only on sitting days 57 4.2.9 Copies for laying 57 4.2.11 Withdrawal of instruments 58 4.2.12 Deposit of maps or plans 4.2.13 Laying procedure 58 4.2.17 Notice of laying 59 4.3 Date of laying 59 4.3.1 The relevant rules 59 4.3.5 The statutory rule: laying before commencement 60 4.3.6 Laying after commencement 60 4.3.9 Application of the rule 61 4.4 Laying and the printing programme 61 4.4.1 General 61 4.4.2 Instruments 61 4.4.7 Draft instruments 62 4.5 Affirmative procedure 62 4.5.1 Three classes of affirmative instruments 62 4.5.2 Use of affirmative procedure 62 4.5.3 Source of affirmative procedure 62 4.5.4 28 day orders 63 4.5.6 Motions to approve instruments or drafts 63 4.5.7 Proceedings in Parliament 64 4.6 Negative procedure 64 4.6.1 Two classes of negative instruments 64 4.6.2 Use of negative procedure 65 4.6.3 Standardisation of negative procedure 65 4.6.4 Negative procedure: instruments 65 4.6.7 Negative procedure: drafts 66 4.6.10 Negative procedure: the enabling Act 66 4.6.11 The 40 day period 67 4.6.12 Negative resolutions 67 4.6.15 Consequences of a negative resolution 68 4.7 Regulatory reform orders 68 4.8 Other varieties of procedure 69 viii

4.8.1 Laying without further proceedings 69 4.8.2 Instruments not subject to parliamentary control 69 4.8.3 Exceptional procedures 70 4.9 Other aspects of parliamentary control 70 4.9.1 Incompatible procedure 70 4.9.2 Scope of debate 70 4.10 Orders in Council 71 4.10.1 Orders in Council laid after being made 71 4.10.2 Orders in Council laid in draft 71 4.11 European Communities Act 1972 71 4.11.1 General 71 4.11.2 Transposition Notes 72 4.12 Explanatory Memoranda for instruments laid before Parliament 73 4.12.1 General 73 4.12.3 The Form of the Explanatory Memorandum 74 4.12.7 Delivery of Explanatory Memoranda to Parliament 74 4.12.10 Publication of Explanatory Memoranda 76 4.12.14 Explanatory Memoranda for Orders in Council 76 4.13 The ‘21day rule’ 77 4.13.1 The ’21 day rule’ 77 4.13.5 Instruments not subject to the ‘21 day rule’ 77 4.14 Compatibility with the European Convention on Human Rights 78

PART 5 PARLIAMENTARY COMMITTEES 79 5.1 Introduction 79 5.2 The Statutory Instruments Reference Committee 79 5.2.1 Constitution of the Committee 79 5.2.2 Functions of the Committee 79 5.2.4 Communications to the Committee 80 5.3 House of Commons Delegated Legislation Committees 80 5.3.1 Constitution and functions 80 5.3.2 Reference to a Delegated Legislation Committee 80 5.3.3 Proceedings of Delegated Legislation Committees 80 5.3.4 Proceedings in the House 81 5.4 The Joint and House of Commons Select Committee on Statutory 81 Instruments 5.4.1 Preliminary 81 5.4.2 The Joint Committee: functions 81 5.4.3 The Joint Committee: constitution and procedure 83 5.4.7 The Commons Committee 83 5.4.9 Communications to the Joint and Commons committees 84 5.4.10 Papers for the Joint and Commons committees 84 5.4.11 Memoranda for the Joint and Commons committees 84 5.4.15 Witnesses before the Joint and Commons committees 85 5.4.16 Scope and security of evidence 85 5.4.17 Reports from the Joint and Commons committees 85 5.4.18 Reports and the moving of resolutions 86 5.4.20 Submission of drafts of instruments 86 5.4.22 Liaison officers 87 5.5 The House of Lords Select Committee on the Merits of Statutory 87 Instruments 5.5.1 The Committee and its functions 87 5.5.4 Scope of Powers 88 5.5.5 Meetings of the Committee 88 5.5.6 Communications with the Merits Committee 88 ix

5.6 The Hybrid Instruments Committee 89 5.6.1 Constitution and functions 89 5.6.2 Meaning of Hybrid Instrument 89 5.6.3 Presentation and hearing of petitions 89 5.6.4 Report of the Committee 89 5.6.5 Extension of proceedings 90 5.6.6 Resolutions approving hybrid instruments 90 5.6.7 Expedited hybrid instruments 90 5.6.8 Procedure for expedited hybrid instruments 90 5.6.10 Termination and extension of proceedings 91 5.6.11 Resolutions approving expedited hybrid instruments 91 5.7 The House of Lords Delegated Powers and Regulatory Reform 91 Committee and the House of Commons Regulatory Reform Committee

PART 6 FORMS AND PRECEDENTS 93 FP1 Statutory instrument produced using the SI template 95 FP2 Headnotes 97 FP3 Italic headings: dates of making, laying and coming into operation 99 FP4 Commencement clauses 101 FP5 Revocation schedule 103 FP6 Headings for parts and clauses 104 FP7 Combined letter to SI Registrar/ certificate of classification for an SI which is 105 to be printed and sold FP8 Combined letter to SI Registrar/ certificate of classification for an SI which is 106 exempted from printing under Regulation 5 of the Statutory Instruments Regulations 1947 FP9 Combined letter to SI Registrar/ certificate of classification for an SI which 107 exempted from printing under Regulation 6 of the Statutory Instruments Regulations 1947 FP10 Combined letter to SI Registrar/ certificate of classification for an SI for which 109 a schedule or other document which is identified by/referred to in the instrument is exempted from printing under Regulation 7 of the Statutory Instruments Regulations 1947 FP11 Combined letter to SI Registrar/ certificate of classification for an SI which is 110 exempted from immediate printing under Regulation 8 of the Statutory Instruments Regulations 1947 FP12 Statutory Instrument Receipt sheet 111 FP13 Letter to TSO containing instructions for printing and publication 112 FP14 TSO Order form 113 FP15 Memorandum to accompany an instrument or draft laid before Parliament or 114 the House of Commons FP16 Notification to the Speaker of the House of Lords or the Speaker of the House 116 of Commons FP17 Notification to the Statutory Instruments Reference Committee 117 FP18 Motions to approve statutory instruments and drafts 118

PART 7 TABLES OF PROCEDURE 119 Introductory Notes 120 Table 1 Registration: instrument not printed 121 Table 2 Registration and printing 122 Table 3 Laying before Parliament 123 Table 4 Provision of papers for the Joint (or Common) committee 124 Table 5 An instrument not to be laid 125 Table 6 An instrument to be laid: normal procedure 126 Table 7 An instrument to be laid: urgent procedure 127 x

Table 8 An instrument to be laid for a period before coming into force 128 Table 9 An instrument to be laid in draft 129 Table 10 An Order in Council 130

PART 8 APPENDICES 133 Appendix A Statutory Instruments made under pre-1948 Acts 134 Appendix B Notes on special procedure orders 137 Appendix C Dissolution of Parliament 143 Appendix D European Community Instruments 145 Appendix E Flowchart of process for producing SIs using the SI template 147 Appendix F Flowchart of process for producing SIs not using the SI template 148 Appendix G Flowchart of process for Affirmative Resolution orders produced using the SI 149 template Appendix H Style Guide for Explanatory Memorandum to Statutory Instruments 151 Appendix I Modernising SI Drafting 160 Appendix J Charges to Departments for the production of Statutory Instruments 165

PART 9 LEGISLATION 167 The Statutory Instruments Act 1946 169 The Statutory Instruments Regulations 1947 177 The Statutory Instruments (Confirmatory Powers) Order 1947 183 The Laying of Documents before Parliament (Interpretation) Act 1948 185 The Statutory Instruments (Production and Sale) Act 1996 187 The Regulatory Reform Act 2001 189

PART 10 INDEX 203

PART 1: INTRODUCTION

1.1 Scope of this manual

1.1.1 This manual is intended primarily for the use of civil servants and others concerned with the preparation and making of statutory instruments and the parliamentary procedures relating to them. It relates to United Kingdom Statutory Instruments although for instruments made by the National Assembly for Wales a separate manual has been produced which sets out the procedures of the Assembly. It also does not apply to Scottish Statutory Instruments for which a separate Practice Manual has been prepared by the Scottish Executive. It is a guide to practice, not a textbook of the law, and incorporates the substance of the Statutory Instrument Practice (SIP) circulars put out from time to time by Her Majesty’s Stationery Office and previously by the Cabinet Office, the Office of Public Service, its predecessors and by the Treasury.

1.1.2 Revisions to the manual will be notified by the issue of SIP circulars and incorporated into the versions published on LION and the OPSI website. A list of all SIP circulars issued since the publication of the 3rd edition and which contain details of amendments which have been incorporated in this edition, is included at page iv of this manual.

1.1.3 The remaining sections of this Part of the manual are designed to provide background information for those who are new to statutory instrument practice. There are, however, references throughout the manual to Table B (page 9), which lists the varieties of parliamentary control.

1.1.4 Although this manual generally refers to all Statutory Instruments, those made by the National Assembly for Wales under powers devolved by the Government of Wales Act 1998 will be the subject of different procedures and parliamentary control.

1.2 Subordinate legislation generally

Nature of subordinate legislation

1.2.1 Subordinate legislation is made under powers conferred by or under statute on Her Majesty in Council or on a Minister, Department, the National Assembly for Wales or other body or person. It is also called delegated or secondary legislation, and the statute conferring the power is referred to as the enabling or empowering or ‘parent’ Act. Subordinate legislation is to be distinguished, not only from primary legislation in the form of statutes, but also from the primary legislation which is made by the Sovereign under the prerogative in various forms, such as Orders in Council (though most of these are secondary legislation: see paragraph 1.5.2), proclamations, royal warrants, royal instructions, regulations and letters patent.

1.2.2 If the enabling Act so provides, an instrument made under it may itself confer power to make further instruments, generally in the form of rules, regulations or licences. The exercise of such a power is known as sub-delegated legislation.

Notification to the European Commission

1.2.3 Directive 83/189/EEC (as amended by Directive 88/182/EEC) requires that technical regulations be notified to the European Commission in draft. The Cabinet Office has issued guidance on this requirement as EQO (GUIDANCE) (91) 11.

The making and commencement of subordinate legislation

1.2.4 There is no express rule of law as to the manner in which subordinate instruments are to be made. Orders in Council have been made by the oral assent of the Sovereign in Council, and it is generally accepted that other subordinate legislation is made when it is signed by, or by the delegate of, the person authorised in that behalf by the enabling Act. Sometimes, however, the Act provides that the instruments must also have the approval, consent or concurrence of some other authority, such as the Treasury, the National Assembly for Wales or the Scottish Ministers, and it will not acquire the force of law until this condition has been fulfilled. Some instruments come into force when made, but many contain express provision bringing them into force at a later date. The time when an instrument comes into force is its ‘commencement’ (Interpretation Act 1978, Schedule 1).

Limits of delegated powers

1.2.5 Provisions in subordinate legislation must be intra vires, that is they must be within the scope of the enabling power. If they are ultra vires they are invalid. The draftsman may, for example, have to consider whether there is power to impose or increase taxation, or to sub-delegate, or to give the instrument retrospective effect, or to repeal or amend provisions in statutes, or to bind the Crown. The ultra vires doctrine is more fully discussed in works on constitutional and administrative law.

Interpretation

1.2.6 The Interpretation Act 1889, which was in force until the end of 1978, contained some provisions which expressly extended to subordinate instruments or to particular classes of them. The remainder of the Act was directly applicable only to statutes, but it was a common practice to include in a statutory instrument an interpretation clause which applied the Act as a whole, or particular provisions not otherwise applicable, to the construction of the instrument.

1.2.7 The Act of 1889 was repealed and replaced by the Interpretation Act 1978, which came into force on 1 January 1979. Its application to subordinate legislation is as follows:

a. Where a statutory instrument was made before 1979 the Act applies directly only to the very limited extent specified in Schedule 2 Part II (see section 23(1)).

b. However, a reference in subordinate legislation to the Interpretation Act 1889, or to any provision of that Act, is to be construed as a reference to the new Act, or to the corresponding provision of the new Act, as it applies to Acts passed at the time of the reference (see section 25(2) and, for application to earlier Acts, Schedule 2, Part I). This substitution of the new Act for the old gives continuing effect to interpretation clauses of the kind mentioned in the last paragraph, which are to be found in a great many instruments still in force.

c. The new Act, after it had been passed in 1978, was applied by interpretation clauses to the construction of a number of instruments made in the latter part of that year.

d. Apart from a few provisions relevant only to statutes the new Act applies, so far as applicable and unless a contrary intention appears, to subordinate instruments

made after 1978, excepting certain Orders in Council (see sections 23(1) and (4)). Accordingly an interpretation clause is not needed in such an instrument for the purpose of applying the Act (though it may be needed for some other purpose, such as to construe terms used in the instrument).

1.2.8 The statute law relating to the interpretation of subordinate legislation has thus been assimilated to that applying to Acts, and in general the two pieces of legislation are subject to the same rules of construction. A comprehensive treatment of the subject is not within the scope of this manual, but some other provisions of the Interpretation Act 1978 are referred to in their proper place.

Amendment, revocation, lapse and expiry

1.2.9 Subordinate legislation may, of course, be amended or revoked by statute. It may also, in most cases, be amended or revoked by the authority who made it; the Interpretation Act 1978, section 14, provides as follows:

Where an Act confers powers to make –

a) rules, regulations or bylaws; or

b) Orders in Council, orders or other subordinate legislation to be made by statutory instrument,

it implies, unless the contrary intention appears, a power, exercisable in the same manner and subject to the same conditions or limitations, to revoke, amend or re-enact any instrument made under the power.

1.2.10 A similar implied power under the Interpretation Act 1889, section 32(3), extended only to rules, regulations and bylaws, but Acts authorising the making of other forms of subordinate legislation, such as orders, usually conferred a power to amend or revoke them.

1.2.11 If an enabling Act, or the enabling section of it, is repealed, instruments made under it will lapse unless they are saved, i.e. continued in effect. Such savings are often to be found in repealing acts, and the Interpretation Act 1978, section 17(2)(b), contains a general saving for instruments made under provisions which are repealed but re- enacted. Subordinate legislation may also become spent, either because it was expressed to have effect only for a limited period, or because it has ceased to have any effect. Many instruments become spent but are not specifically revoked.

1.3 Publication and statutory control

Statutory rules and orders

1.3.1 Until 1891 there were no general arrangements for the printing or publication of subordinate legislation, and much of it was not readily available to the public. In 1891 the public and general rules and regulations made during the year 1890 were collected into an official volume, with a classified list of local orders and an index, under the title Statutory Rules and Orders (commonly abbreviated as S.R. & O.). This was the first of a series of annual editions which has continued to the present day, since 1948 under the title Statutory Instruments (S.I.).

1.3.2 There have also been three collected editions. The first and second were each entitled Statutory Rules and Orders Revised; the first contained instruments in force at the end of 1889, in eight volumes, and the second those in force at the end of 1903, in 13 volumes. The third edition, under the title The Statutory Rules and Orders and Statutory Instruments Revised to December 31, 1948, comprises 25 volumes and is still in use.

Rules Publication Act 1893

1.3.3 The first general statutory provision for printing and publishing subordinate legislation was contained in the Rules Publication Act 1893. By this Act, and Regulations of 1894 made under it, every exercise of a statutory power by a ‘rule-making authority’ which was of a legislative character was defined as a ‘statutory rule’, and a copy of every statutory rule had to be sent to the Queen’s Printer of Acts of Parliament to be numbered and (with exceptions) printed, under a system prescribed by the Regulations. In respect of the categories of instruments to which it applied, the scope of the Act of 1893 was somewhat narrower than that of the legislation now in force.

The modern legislation

1.3.4 The Act of 1893 was repealed and replaced by the Statutory Instruments Act 1946, which came into operation generally on 1 January 1948. It was supplemented by the Statutory Instruments Regulations 1947, made under section 8(1) of the Act and brought into operation on the same date. This legislation, which remains in force without extensive amendment, defined the term ‘statutory instrument’, contained revised provisions for numbering, printing, publication, citation, classification (as local or general) and sale; established a defence to criminal proceedings for infringement of an instrument which had not been issued by Her Majesty’s Stationery Office (HMSO) or otherwise brought to notice, introduced some provisions relating to parliamentary procedure and control; established a Reference Committee to decide certain questions which might arise under the Act or Regulations; and contained various supplemental provisions. These matters are dealt with in their proper places in this manual, and the text of the Act and Regulations, and of certain other legislation is given in Part 9. Functions of the Treasury under the Act were transferred to the Minister for the Civil Service by the Minister for the Civil Service Order 1968 and under the Transfer of Functions (Statutory Instruments) Order 2006 (SI 2006/1927) the functions of the Minister for the Civil Service in relation to section 8(1) were transferred on 31 October 2006 to the Secretary of State for Constitutional Affairs.

1.3.5 The Statutory Instruments Act 1946 was amended by the Statutory Instruments (Production and Sale) Act 1996 which made provision for the printing and sale of Statutory Instruments under the authority of the Queen’s Printer and for their issue under the authority of HMSO.

1.4 Meaning of Statutory Instrument

Preliminary

1.4.1 The term ‘statutory instrument’ was brought into use by the Statutory Instruments Act 1946, and covers most subordinate legislation made by the central Government since the commencement of that Act on 1 January 1948. ‘Statutory Instruments’ is sometimes used, in a collective sense, to include earlier instruments more correctly called statutory rules and orders.

1.4.2 Section 1 of the Act of 1946 specifies two categories of documents which are to be known as statutory instruments and to which the Act is to apply:

a) those made in exercise of powers conferred by the Act or by Acts passed after the commencement of the Act (section 1(1));

b) those made after the commencement of the Act but in exercise of powers conferred by Acts passed before that commencement (section 1(2)).

Instruments made under the Statutory Instruments Act 1946 or under Acts passed after 1947

1.4.3 A document will be a statutory instrument of the first category if it is made in exercise of a power to make, confirm or approve subordinate legislation which is conferred on:

a) Her Majesty and expressed to be exercisable by Order in Council; or b) a Minister of the Crown and expressed to be exercisable by statutory instrument.

1.4.4 Some Acts authorise the making of documents not within the above definition and provide that they are to be statutory instruments. Examples are:

a) legislative documents made by bodies outside the Government, such as the Solicitors Disciplinary Tribunal (see Solicitors Act 1974, section 46) and the General Dental Council (see Dentists Act 1984, section 45);

b) sub-delegated legislation made under powers conferred by delegated legislation: see for example the Development of Tourism Act 1969, sections 17 and 18.

1.4.5 In many cases, powers to make, confirm or approve statutory instruments have been transferred from UK Ministers to the Scottish Ministers by virtue of the Scotland Act 1998. This class of statutory instruments are referred to as Scottish Statutory Instruments (see article 4(2) of SI 1999/1096). In addition, some powers conferred on other persons or bodies (e.g. Her Majesty in Council, the Registrar General of Births, Deaths and Marriages or the courts) fall within the definition of Scottish Statutory Instruments. As indicated in para 1.1.1, Scottish Statutory Instruments are the subject of a separate Practice Manual.

Instruments made after 1947 under Acts passed before 1948

1.4.6 The definition of the second category of statutory instruments, that specified in section 1(2) of the Statutory Instruments Act 1946, is more complex, and to ascertain its precise scope a number of other enactments must be considered. Broadly speaking, however, it comprises any instrument made after 1947, under an Act passed before 1948 (other

than the Act of 1946 itself), by Her Majesty in Council or by a Minister or relating to any court in the United Kingdom, provided that it is of a legislative not an executive character. Questions may still arise as to whether documents are statutory instruments within this category, and a fuller treatment of the subject will be found in Appendix A.

Powers conferred on Government Departments

1.4.7 If a power to make, confirm or approve subordinate legislation is conferred on a Government Department, it is deemed to be conferred on the Minister in charge of that Department, and if a question arises whether any body is a Government Department within the meaning of this provision, or what Minister is in charge of it, that question is to be referred to and determined by the Minister for the Civil Service (Statutory Instruments Act 1946, section 11; Minister for the Civil Service Order 1968).

1.5 Varieties of Statutory Instrument

Forms in which instruments are made

1.5.1 Statutory instruments are made in a variety of forms, of which the more common are Orders in Council, regulations, rules and orders. The form to be adopted is almost invariably prescribed in the enabling Act.

Orders in Council

1.5.2 Some Orders in Council are primary legislation made under the prerogative (see paragraph 1.4) or made under s.85 of the Northern Ireland Act 1998 or paragraph 1(1) of the Schedule to the Northern Ireland Act 2000, but most are secondary legislation, being made under statutory powers. They are used for a wide variety of purposes, and particularly where an ordinary statutory instrument made by a Minister would be inappropriate, as in the case of an Order which transfers ministerial functions, or sub- delegates power to a Minister to make subordinate legislation; or where the Order is in effect a constitutional document extending legislation to, say, the Channel Islands or the Isle of Man, or legislating for United Kingdom dependencies. They are prepared by the Department of the responsible Minister (the ‘responsible authority’ as defined in Statutory Instruments Regulations 1947, regulation 1(2)(b)). The making of the Order, when it is submitted to Her Majesty in Council is a formal step.

Orders of Council

1.5.3 Orders of Council are made by the Privy Council in exercise of powers conferred on them alone. Such powers usually relate to the regulation of professions or professional bodies: see for example the Opticians Act 1989, section 34 (2) and (4).

Regulations, rules and orders

1.5.4 In 1932 the use of the terms ‘regulation’, ‘rule’ and ‘order’ was the subject of a recommendation in the Report of the Committee on Ministers’ Powers (Cmd 4060, page 64) – ‘the Donoughmore Committee’ – as follows:

The expressions ‘regulation’ ‘rule’ and ‘order’ should not be used indiscriminately in statutes to describe the instruments by which law-making power conferred on Ministers by Parliament is exercised. The expression

‘regulation’ should be used to describe the instrument by which the power to make substantive law is exercised, and the expression ‘rule’ to describe the instrument by which the power to make law about procedure is exercised. The expression ‘order’ should be used to describe the instrument of the exercise of (A) executive power, (B) the power to take judicial and quasi-judicial decisions.

This recommendation has generally been followed in enabling Acts passed since the Report, but there is not always a clear-cut distinction between the three types of instrument. The term ‘orders’ is sometimes used in a wider sense to mean legislative instruments other than Acts, as in the official Table of Government Orders1.

Commencement orders

1.5.5 A commencement order is one which exercises a power to appoint a day upon which an Act, or part of an Act, is to come into force. Such powers should be exercised in a separate order or series of orders, not by a clause in an instrument dealing with other matters. Transitional provisions are, however, sometimes included in commencement orders if authorised by the enabling legislation.

Other types of instrument

1.5.6 Other forms of subordinate legislation made by statutory instrument include Acts of Sederunt and Acts of Adjournal (the Scottish rules of court) though these are now made by Scottish Statutory Instrument following devolution of powers under the Scotland Act 1998, and some schemes, approval instruments, directions, warrants, licences and bylaws. (But much subordinate legislation made as bylaws by local authorities and public corporations is not made by statutory instrument.) Resolutions under the House of Commons Members’ Fund Act 1948, section 3, are numbered, printed and published as statutory instruments. Where a document, not itself a statutory instrument, requires to be confirmed or approved by statutory instrument, the usual practice is to schedule the document to the instrument (see further paragraph 2.8.2).

Divisions and sub-divisions of legislative instruments

1.5.7 Table A (which for the sake of completeness includes primary as well as secondary legislation) shows the names commonly used for the divisions and sub-divisions of legislative instruments. In addition to its use in connection with bills, ‘clause’ is often used as a general term for the divisions of subordinate legislation, as in ‘commencement clause’ or ‘interpretation clause’.

1 Publication of the Table of Government Orders is currently suspended 7

Table A - Legislative instruments: divisions and sub-divisions

Instrument First division Second division Third division (numbered 1, 2, 3 (numbered (1), (2), (lettered (a), (b), (c) etc) (3) etc) etc Act section subsection Paragraph Bill clause* subsection Paragraph Order in Council, Order of Council or Order article paragraph sub-paragraph Regulations regulation paragraph sub-paragraph Rules rule paragraph sub-paragraph Schedule paragraph sub-paragraph Paragraph

*“section” within Bills of the Scottish Parliament.

Local and general instruments

1.5.8 The Rules Publication Act 1893, and the Regulations made under it, distinguished between statutory rules which were general and those which were local and personal. This distinction was carried into the modern legislation (see Statutory Instruments Act 1946, section 8(1)(a), and Statutory Instruments Regulations 1947, regulation 4), which provides that statutory instruments are to be classified, according to their subject matter, as local or general. Subject to exceptions, general instruments must, but local instruments need not, be printed and put on sale. Further treatment of the subject will be found in paragraphs 3.2.1 – 3.2.3.

Combined exercise of powers

1.5.9 Various powers contained in a number of enabling Acts may be exercised in a single statutory instrument, and two or more Ministers may make an instrument in exercise of powers given to them jointly or severally. There are, however, constraints upon the combined exercise of powers subject to different forms of parliamentary control (see paragraph 4.9.1).

1.6 Parliament and Statutory Instruments

Parliamentary control

1.6.1 The system by which Parliament exercises control over statutory instruments is considered in Part 4. It will, however, be necessary to refer in Part 2 (Form and content of statutory instruments) and Part 3 (Classification, registration, printing and sale) to the various classes of instruments, distinguished according to the parliamentary procedure which applies to them, and the system is summarised in the next two paragraphs.

1.6.2 The type of parliamentary control is prescribed in the enabling Act, and may be exercisable by both Houses or, if the instrument relates to financial matters, by the House of Commons alone. An instrument is laid before Parliament, either after making or in draft, by the delivery of copies to the proper officer of that House. According to the procedure applied to them, most statutory instruments fall into one of the classes shown in Table B.

Table B - Varieties of parliamentary control

Class Procedure Affirmative procedures (i) The instrument is laid in draft, and cannot be made unless the draft is approved by Parliament (or the House of Commons) (ii) The instrument is laid after making, but cannot come into force unless and until so approved (iii) The instrument is laid after making, but cannot remain in force after a specified period (usually 28 days, sometimes a month or 40 days, from the date on which it was made) unless approved within that period Negative procedures (iv) The instrument is laid in draft, and cannot be made if the draft is disapproved within 40 days (v) The instrument is laid after making, subject to revocation if a resolution for annulment is passed within 40 days Other procedures (vi) The instrument is required to be laid before Parliament after being made, but there is no provision for further parliamentary proceedings (vii) The instrument is not required to be laid

1.6.3 Class (vii) is included in Table B for completeness, but its distinctive feature is, of course, the absence of parliamentary control. A few enabling Acts prescribe procedures different from those shown in the Table (see paragraph 4.8.3).

1.6.4 In some cases instruments may also be subject to procedure in the Scottish Parliament, the National Assembly for Wales and/or the Northern Ireland Assembly. The procedure in those Parliaments/Assemblies is not dealt with in this manual

Special procedure orders

1.6.5 Special procedure orders are those subject to the special parliamentary procedure prescribed in the Statutory Orders (Special Procedure) Act 1945, as amended by the Statutory Orders (Special Procedure) Act 1965. They usually relate to the acquisition of land or rights over land by a Government Department or public authority, or establish or extend the powers of a water or harbour authority, and the special procedure of the Acts is intended to safeguard the interests of objectors. Some notes on the practice applying to such orders will be found in Appendix B. Some of them, but by no means all, are required by the enabling legislation to be made as statutory instruments. These are classified as local, and the directions in this manual apply to them as to other local statutory instruments.

Parliamentary committees

1.6.6 A number of parliamentary committees are specifically concerned with statutory instruments, and their functions are described in Part 5. They include the Joint Committee (of both Houses) on Statutory Instruments, who scrutinise all general instruments, and some others, in accordance with criteria prescribed in their Orders of Reference. The House of Commons Select Committee on Statutory Instruments has a

similar function in respect of instruments laid before that House only (see paragraph 1.6.2). The House of Lords Select Committee on the Merits of Statutory Instruments examines the merits of any statutory instrument which is subject to either the affirmative or negative procedure. Two other Committees, the House of Commons Regulatory Reform Committee and the House of Lords Select Committee on Delegated Powers and Regulatory Reform have a particular role in scrutinising Government proposals for regulatory reform orders

1.6.7 The Statutory Instruments Reference Committee was established by the Statutory Instruments Regulations 1947 (regulation 11), and, unlike the other committees considered in Part 5 is composed of officers as well as Members of each House. The function of the Committee is to decide doubtful questions concerning the numbering, printing or publication of statutory instruments, or the classification of them as general or local, and whether instruments made under pre-1948 Acts come within the definition of statutory instruments (see paragraph 1.4.5).

1.7 Her Majesty’s Stationery Office (HMSO)

1.7.1 HMSO is responsible for the registration of statutory instruments, and prepares various publications relating to enacted law which are published (currently by The Stationery Office Ltd (TSO)) under the authority of the Queen’s Printer. These publications include the tables in the annual volume of Public General Acts and Measures and annual editions of Statutory Instruments, the Chronological Table of the Statutes and the Chronological Tables of Local and Private Acts. Publication of the Index to Government Orders and Table of Government Orders are currently suspended.

1.7.2 Questions about statutory instrument practice and procedure may be referred to the SI Registrar at HMSO. It is usually helpful to send a copy of any instrument or draft concerned, with a note indicating the point of difficulty or the part to be scrutinised, and HMSO should be informed if any draft statutory instrument which is sent to it for checking has already been laid before Parliament or the House of Commons. The Registrar would be pleased to discuss such matters with the legal staff of Departments.

PART 2 FORM AND CONTENT OF STATUTORY INSTRUMENTS

2.1 Preliminary

2.1.1 This Part relates to the form in which statutory instruments should be made, and the content of them so far as that is within the scope of this manual. Sections 2.2 – 2.14 deal with the several portions of an instrument in the order in which they normally occur, going from the top of the first page to the end of the last, and with various related topics. The last three sections are concerned respectively with the need for instruments to be detailed and specific (section 2.15), the preparation of Orders in Council (section 2.16), and the preparation of statutory instruments resulting from Community membership (section 2.17).

2.1.2 A specimen of a normal form of statutory instrument will be found in the Forms and Precedents as FP1.

The specimen is of an instrument which is to be laid before Parliament after being made.

2.2 Headnotes

Use of headnotes

2.2.1 Until they are sent for registration certain instruments and drafts have an italic headnote. This appears at the top of the first page, above all else, and indicates the nature of the instrument and the kind of parliamentary control to which it is subject. The practice of inserting such headnotes has been adopted by agreement with Parliament, and applies to instruments in the following classes (numbered as in Table B, page 9):

i) those laid in draft for affirmative resolution; ii) and iii) those laid after making for affirmative resolution; iv) those laid in draft subject to negative resolution.

Headnotes should also appear on those local orders which must in any event be subject to special parliamentary procedure (see paragraph 1.6.5), and on free issues of a correcting instrument (see paragraph 3.4.11).

Form of headnotes

2.2.2 The headnote should state briefly the nature of the instrument, the statutory provision prescribing the procedure which it must follow, the form of that procedure, and, in the case of a draft of class (iv) above, the date of laying. Specimens of headnotes, for each class of instruments requiring them, will be found in the Forms and Precedents, FP2.

Procedure relating to headnotes

2.2.3 The headnote appears (always in italics) on the proof copies of an instrument or draft of the classes mentioned above, followed, in the case of a draft, by the heading ‘DRAFT STATUTORY INSTRUMENTS’. Headnotes, and where it occurs the word ‘DRAFT’, must be deleted before instruments are sent for registration, and do not appear in the published copies, except in the case of the free issue of an instrument correcting an earlier defective instrument (see paragraph 3.4.11). Following deletion of the headnote

on an instrument requiring approval either to come into force or to remain in force, an italic cross-heading should be inserted (see paragraphs 3.6.4 and 3.6.5).

2.3 Headings

General

2.3.1 Following any headnote of the kind mentioned in the preceding paragraphs, but before the operative part of the instrument, there are always a number of headings, which are described in this section. The specimen instrument in the Forms and Precedents, FP1, shows the correct positions for the headings and the sizes and styles of type to be used for them.

2.3.2 The first heading is ‘STATUTORY INSTRUMENTS’, which shows that the document belongs to this series and is not, for example, a prerogative instrument (some of which are made in broadly similar form). In drafts this heading is preceded by the word ‘DRAFT’, which must be deleted when the instrument is made.

Serial numbers

2.3.3 Below the heading ‘STATUTORY INSTRUMENTS’ there is the serial number of the instrument, often called the ‘SI number’. This is the in the form ‘2006 No ‘, the number being completed on registration (see paragraphs 3.3.1-3.3.12). In addition certain types of instrument have subsidiary serial numbers, which appear in parentheses with a distinguishing letter as follows:

(C ): commencement and/or Appointed Day orders which bring into force an Act or part of an Act (L ): legal series, relating to fees or procedures in Courts in England and Wales. (S ): Scottish series, instruments covering reserved matters applying to Scotland only, not to be confused with Scottish Statutory Instruments made under powers devolved under the Scotland Act 1998. (NI ): Northern Ireland series, being Orders in Council made under section 1(3) of the Northern Ireland (Temporary Provisions) Act 1972 or paragraph 1 of Schedule 1 to the Northern Ireland Act 1974. (W ) National Assembly for Wales series, being Statutory Instruments made by the National Assembly for Wales and applying to Wales only. Such instruments will generally be made in both the English and Welsh languages where the subsidiary number will be shown as (Cy ).

The SI number precedes any subsidiary number, whilst a commencement order number precedes any other subsidiary number; for example: ‘1999 No 1432 (C.39) (S.2)’. The one exception to this is where the SI is made by the National Assembly for Wales in which case the “W” number will always follow the SI number; for example ‘2005 No. 71 (W.9) (C.3)’. If the SI number is known, an instrument may be found in the official editions of subordinate legislation in the manner described in paragraph 2.11.8.

2.3.4 The numbers in each series run from the beginning of the year. They are allotted by the HMSO SI Registrar when the instrument is registered. The subsidiary numbers mentioned in this section are to be distinguished from the numbers which may be incorporated in the titles of a particular series of instruments: for these see paragraphs 2.3.12 and 2.3.13.

2.3.5 Some Departments also allot a domestic serial number, which is usually printed at the foot of the first page of an instrument. Such numbers should not be used unless there is a clear need for them. They are not included in the annual edition of Statutory Instruments.

Subject headings

2.3.6 Below the serial number a statutory instrument has a subject heading, indicating the area of law or of administration to which it belongs. This heading must be the same as the main heading under which the enabling power would have been described in the Index to Government Orders. The instrument will appear under that heading in the monthly list of statutory instruments. Since publication of the Index has been suspended HMSO has produced an updated Index of SI Headings which is available on the OPSI website at

www.opsi.gov.uk/si/si-headings-index.htm

2.3.7 In the case of instruments made under section 2 the European Communities Act 1972, the instrument should carry a heading which is relevant to the subject matter of the instrument rather than “European Communities” which should only be used when the instrument deals specifically with that subject.

2.3.8 If an enabling power appears in the Index under more than one main heading, an instrument should have such of the headings as are clearly relevant to it, each being printed in 16 point bold capitals, for example:

DEFENCE INCOME TAX

Below the subject heading there may appear, if the Department thinks it necessary, an appropriate subheading, printed in 12 point bold capitals. A subheading is however unnecessary, and should not be used, if it is incorporated in the title of the instrument. In general the proliferation of subject headings should be avoided, and only those clearly relevant to the particular instrument should appear.

2.3.9 It is essential to the system of classifying and indexing statutory instruments that they be issued under the proper subject heading. In any case of doubt, as for example where an instrument is made under an Act passed since the effective date of the current edition of the Index of SI Headings on the OPSI website, the SI Registrar should be consulted.

Inclusion of territorial suffixes in subject headings

2.3.10 Following the devolution of powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales, all Statutory Instruments which are of limited extent or application should include a territorial suffix which indicates the coverage of the instrument. Table C below provides guidance on the suffixes to be used and which should appear as in the following examples on the instrument:

HOUSING, ENGLAND INSOLVENCY, ENGLAND AND WALES LOCAL GOVERNMENT, WALES

POLICE, NORTHERN IRELAND

Table C – Use of territorial suffixes in Statutory Instrument headings

Territorial Extent or Application Suffix to be used Great Britain (England, Wales and No suffix required Scotland) United Kingdom No suffix required England England Wales Wales Scotland Scotland Northern Ireland Northern Ireland England and Wales England and Wales England and Scotland Two headings = England Scotland England and Northern Ireland Two headings = England Northern Ireland

Titles of statutory instruments

2.3.11 The title of the instrument appears below the subject heading (or subheading if any), and should always end with the calendar year in which the instrument is made. (If a draft of an instrument containing a particular year in its title has been approved by Parliament or the House of Commons, and it is not practicable for the instrument to be made in that year, the instrument should nevertheless be made with the following year in its title without the approval being thereby invalidated.) The title should give an accurate indication of the nature of the instrument, and distinguish it from all others; every care must be taken to ensure that no two instruments have the same title. . It should be noted that the title should match exactly that which has been enacted by the citation clause (see para 2.5.1 below).

Where similar instruments may be produced covering different territorial extent or application (e.g. England and Wales) then it is important that this is reflected in the title (e.g. Housing Benefit (England) Regulations and Housing Benefit (Wales) Regulations). Subject to these requirements, the title should be short. An amending instrument usually includes the word ‘amendment’ in its title, and a commencement order includes the word ‘commencement’, as in the examples in the next paragraph. A collective title is sometimes given to a series of related instruments (see paragraph 2.5.3), but would not normally appear as a heading.

2.3.12 A series of commencement orders bringing different parts of an Act into force, or of instruments amending a principal instrument, or of other instruments having a common subject matter, may be numbered in sequence, the numbers being incorporated in the titles, as for example:

The Protection of Children Act 1999 (Commencement No. 3) Order 2002. The Police Pensions (Amendment) (No 3) Regulations 2002 The Import Duties (Temporary Reductions and Exemptions) (No 24) Order 2002

These numbers are to be distinguished from the series of subsidiary numbers mentioned in paragraphs 2.3.3 and 2.3.4. 14

2.3.13 A series of commencement orders for an Act should be numbered in a single sequence, irrespective of the year in which they are made. Where a series of commencement orders is being made for an Act which extends to the United Kingdom as a whole but is being commenced in respect of a single jurisdiction then the commencement order shall be numbered in a separate sequence. An Act may therefore have a number of sequences of Commencement Orders relating to each jurisdiction (e.g. England, Wales or Scotland). In such cases the title of a commencement order which applies to one jurisdiction (e.g. Wales) should include ‘(Wales)’ added between the words ‘(Commencement No ....)’ and ‘Order’. Examples might therefore be as follows:

The X Act (Commencement No.1) Order 2006 The X Act (Commencement No.2) Order 2006 The X Act (Commencement No.1) (Wales) Order 2006 The X Act (Commencement No.2) (Wales) Order 2006

It is important that, where different Departments make commencement orders under the same Act in relation to the same jurisdiction, they jointly ensure that the numbers follow in correct sequence (see also paragraph 2.5.15 on use of commencement orders generally).

In other series the numbers usually run from the beginning of each year. In the case of amending instruments the numbering will start with the second of the series, ‘No 2’, since the Department will not know, when the first is made, whether there will be others.

2.3.14 Where a commencement order contains important substantive provisions, the title should also indicate their nature so that it does not mislead anyone into thinking that it deals only with dates of commencement. The substantive provisions would usually deal with transitional matters, or perhaps with extending the Act to territories outside the UK. The titles of such instruments should therefore include this information, as for example:

...... (Commencement No 2 and Transitional Provisions) Order 2006 ...... (Commencement No 5 and Transitional Provisions) (Wales) Order 2006 ...... (Commencement and Extent) Order 2006

The Commencement series number should always appear before the additional wording in order to preserve the integrity of numbering; it would be inappropriate to insert the number at the end since every commencement order in the series would not necessarily also contain other substantive provisions.

Back sheet headings

2.3.15 If an instrument when printed extends to more than two pages, the reverse of the last sheet should not be entirely blank. If that would otherwise be the case the headings so far described, from ‘STATUTORY INSTRUMENTS’ down to and including the title, should be inserted on that page. The headings should be in the same position, and in the same type, as on the first page.

Dates of making, laying and coming into force

2.3.16 Below the title there are italic headings which, in a typical statutory instrument laid before Parliament (such as that in the Forms and Precedents, FP1), give the following information:

a) the date on which it was made; b) the date on which it was laid before Parliament or the House of Commons; and c) the date on which it came or will come into force.

By an invariable rule of practice, heading a) is inserted in all statutory instruments. Headings b) and c) are mandatory for instruments which come within the statutory rule stated in the next paragraph, and as a matter of practice are inserted in any other instrument for which they are appropriate. If laying before two Houses is on different dates, the later date is entered in heading b). If the instrument comes into force before it is laid, b) and c) are transposed.

2.3.17 The statutory rule mentioned in the preceding paragraph is to be found in section 4(2) and (3) of the Statutory Instruments Act 1946. These subsections provide that, where a statutory instrument is required by an Act to be laid before Parliament, every copy sold by HMSO1 must bear a statement of the date on which the instrument came or will come into force,2 and a statement of the date on which copies were laid before Parliament, or a statement that copies are to be laid before Parliament. The latter alternative will apply only during a dissolution of Parliament (see Appendix C, paragraph 5). With the substitution of references to the House of Commons for references to Parliament, the provision applies to instruments required to be laid before that House only.3 It does not apply to a special procedure order or to any other instrument required to be laid before Parliament, or the House of Commons, for any period before it comes into force,4 but in practice the italic headings are provided for statutory instruments of this description.

2.3.18 Different forms or combinations of italic headings will be required for instruments which do not have to be laid, for those which are laid in draft, and for those which have no commencement provision or an unusual commencement provision. The stage at which the dates are inserted may depend on the nature of the instrument and on departmental practice. Some specimen italic headings for various circumstances will be found in the Forms and Precedents, FP3.

1 The Act refers to ‘the King’s Printer of Acts of Parliament’; for the use of ‘HMSO’ in place of that term see paragraph 3.4 2 The 1946 Act uses the word ‘operation’ for which ‘force’ is now to be used in connection with statutory instruments 3 Statutory Instruments Act 1946, s.7(s) 4 Ibid s.7(3), and see footnote 2 above 16

Table of contents

2.3.19 Following the headings a lengthy instrument may have a table of contents, showing the division into parts (if any), and listing the cross-headings of individual clauses (see paragraph 2.9.1). Where instruments are drafted using the SI template then there is a facility for the table to be generated automatically, with or without page numbers

2.4 Preamble and words of enactment

Form

2.4.1 Below the headings (or table of arrangement, if any) the instrument proper starts with the recitals of the enabling powers and of any other matters upon which its validity depends, and with the words of enactment. This part is often called the preamble, although strictly that term is not apt to include the words of enactment. The usual practice is to combine the recitals and words of enactment in one sentence, as in the following example:

The Secretary of State in exercise of powers conferred on him by section ... of the .... Act 20.. and with the consent of the Treasury makes the following regulations:

In some cases, however, this practice would produce a sentence of undue length and complexity, and it is then preferable to have separate recitals before the words of enactment; examples will be found in the annual edition of Statutory Instruments. Orders in Council have preambles and words of enactment in distinctive form, and again examples will be found in Statutory Instruments. In order to make it clear which Secretary of State is exercising the power then the wording may commence “The Secretary of State for [insert details] in exercise of powers….”.

2.4.2 Further guidance on the drafting of preambles is contained in the Modernising SI Drafting guidance published at Appendix I.

Enabling powers

2.4.3 The preamble should recite every enabling provision, whether in primary or secondary legislation, from or through which the instrument derives its validity, and specify the relevant section, subsection and paragraph, or as the case may be. (For the correct mode of referring to Acts and to other instruments see paragraphs 2.11.1 - 2.11.13). It is generally unnecessary to add to the recital of powers such words as ‘and of all other powers enabling him to do so’. These words, however, should generally only be used in limited circumstances (e.g. where reliance is placed on prerogative powers). Where the enabling power and prerogative action are clearly inter-dependent then the phrase remains appropriate to cover the prerogative action, but that is now very rare. They should not be included merely because there is an exercise of the general power to revoke, amend or re-enact conferred by section 14 of the Interpretation Act 1978 (see paragraph 1.2.9). If, however, there is an exercise of a specific power (e.g. a power to revoke orders conferred by an Act passed before 1979) that enabling provision should be cited.

2.4.4 The enabling provisions to be cited should include all those required to make clear not only what may or must be done but also by what means something is to be done and

who is empowered to do it. For example, the citation of a provision empowering ‘the Minister’ or ‘the Authority’ to ‘prescribe’ certain matters should be accompanied by a reference to:

a) the provision which defines the expression ‘the Minister’ or ‘the Authority’, or which specifies which Minister or Authority is to exercise the power; b) the provision which defines ‘prescribed’; which might define it as meaning specified in regulations; and c) the provision (if any) which defines ‘regulations’.

The reference may be made either by citing the defining provision in the preamble itself or by a footnote indicating where the definition may be found. In either case, where the defining provision sets out numerous definitions which are not identifiable by letter or number, it is good practice to indicate the relevant definition in a footnote; for example (where the provision is cited in the preamble) ‘See the definitions of “prescribed” and “regulations” ’, or (where the provision is mentioned only in a footnote) ‘See section x for the definitions of “prescribed” and “regulations” ’

It is not necessary to give an explanation of terms defined in the Interpretation Act 1978 (such as “Secretary of State”) or of other terms, defined outside the Act conferring the power to make the instrument, which are long-established or form a general part of the law. For example it is not necessary to cite the authority, contained in the Treasury Instruments (Signature) Act 1849, by which two of the Commissioners of Her Majesty’s Treasury may sign instruments.

A provision which specifies whether the power is to be exercised by the making of rules, regulations, an order or some other kind of subordinate legislation should be cited; but not provisions merely specifying the relevant Parliamentary procedure, or merely providing that the relevant powers are to be exercisable by statutory instrument.

2.4.5 Where a statutory instrument is made in exercise of enabling powers which are exceptionally numerous or complex, it may be found convenient to set them out in a schedule and to limit the citation of powers in the preamble to such words as:

The Secretary of State, in exercise of the powers conferred on him by the enactments specified in Schedule 1 to this instrument, makes .....

Examples will be found in The Training of Teachers Regulations 1967 (SI 1967/792) (now revoked) and in the following National Health Service Regulations: SI 1973/1468, 1974/160, 287, 504, 505 and 506. This is a useful drafting device in exceptional cases of the kind mentioned, but should be used only in such cases.

Transfers of functions

2.4.6 If a power is expressed in the enabling Act to be exercisable by one Minister, but has become exercisable by another Minister as a result, for example, of a transfer of functions order or a series of them, the full derivation of the Minister’s powers should be shown by using the formula in the following example:

The Minister of ...... , in exercise of powers conferred by section ..... of the .... Act 19.. (a) and now vested in him (b), makes the following Order ......

Footnote (a) will give the citation of the enabling Act, footnote (b) will refer to the transfer of functions order or orders or other instruments which have vested the enabling power in the Minister.

Fulfilment of conditions

2.4.7 In addition to the enabling powers, the preamble should recite the fulfilment of any condition which the enabling Act requires to be fulfilled before the instrument can validly be made; as for example that necessary notices have been published; that both Houses of Parliament, or the House of Commons have approved a draft of the instrument, that a draft of the instrument has been laid before Parliament, that a specified period has expired, and that neither House has resolved that the instrument be not made; that the Minister is satisfied as to certain matters; that necessary consultations have taken place; that the approval of Treasury has been given; or that the Minister has complied with a requirement to receive objections and to hold an inquiry.

Procedural rules

2.4.8 A statutory instrument which makes, approves, confirms or concurs in procedural rules for a tribunal specified in Schedule 1 to the Tribunals and Inquiries Act 1971 should include, in the preamble, a recital that the Council on Tribunals has been consulted, pursuant to section 10(1) of that Act.

2.5 Citation, commencement and interpretation

2.5.1 Every statutory instrument has a citation clause, which enacts the title, and in most there is a commencement clause to bring the instrument into effect. Before 1979 an interpretation clause was also included in most instruments, but in those made since the coming into force (on 1 January 1979) of the Interpretation Act 1978 such clauses are much less common. At one time it was usual for the formal clauses mentioned in this paragraph to be put at the end of an instrument, as in public general Acts, but it is now the practice to put them at the beginning, after the words of enactment, in accordance with views expressed by the Statute Law Committee in 1968.

Citation

2.5.2 Citation and commencement are often covered in the same clause. The choice of the title by which an instrument may be cited has already been discussed in paragraphs 2.3.11 - 2.3.14.

2.5.3 If there is a series of related instruments, it is sometimes convenient to provide that they may be cited together by a collective title. For example, article 1(2) of the Continental Shelf (Designation of Area) Order 1999 provides that ‘...... this Order and the Orders recited in the preamble to this Order may be cited together as the Continental Shelf (Designation of Area) Orders 1964 to 1999’.

Commencement

2.5.4 The ‘commencement’ of a statutory instrument is the time when it comes into force (Interpretation Act 1978, Schedule 1), and a commencement clause is one which

prescribes that time. Specimens of such clauses for various circumstances will be found in the Forms and Precedents, FP4.

2.5.5 In deciding when an instrument is to be brought into force due regard must be had to the government policy on extending common commencement dates for all regulations bearing on business and the rules stated later in this section. If, however, it is intended that the instrument shall come into force when it is made, it does not need a commencement clause. Such clauses are also inappropriate for certain types of instrument such as commencement orders, appointed day orders and declaratory orders, if they are not required to be laid before Parliament or the House of Commons (as to those required to be laid see the Forms and Precedents, FP4, paragraph 8), and are omitted from some orders which are subject to, or may become subject to, special parliamentary procedure (see Appendix B, paragraph 7). Apart from such exceptions a statutory instrument should have a commencement clause, which should either specify the calendar date or dates on which it is to come into force, or enable the date or dates to be determined by reference to some future event. Calendar dates should be given whenever practicable.

2.5.6 If the clause provides that the instrument, or some part of it, is to come into force in a particular day, it will come into force at the beginning of that day (Interpretation Act 1978, section 4(a) and 23(a)). To this extent an instrument expressed to come into force on the day on which it is made will have retrospective effect.

2.5.7 Another provision of the Interpretation Act 1978 which is relevant to the making and commencement of subordinate legislation is contained in section 13. Unless a contrary intention appears, subordinate legislation may be made and brought into force after the passing, but before the commencement, of the enabling Act, for the purpose of bringing that Act or any provision of it into force, or of giving full effect to the Act or any provision of it at or after its commencement.

Choice of commencement date

2.5.8 In considering the date to be specified for the coming into force of a statutory instrument, close attention must be paid to the following rules:

a) By the Statutory Instruments Act 1946, sections 4(1) and 7(2), an instrument required to be laid before Parliament or the House of Commons is to be laid before it comes into operation. It should, therefore, be laid not later than the day before the day specified in the commencement clause, since it will come into force at the beginning of the latter day (see paragraph 2.5.6). If, however, it is essential that the instrument be brought into force before it can be laid, that course may be adopted, but the Speaker of the House of Lords (if laying is before both Houses) and the Speaker of the House of Commons must be notified and given an explanation (proviso to section 4(1)). This rule and its procedural implications are more fully discussed in paragraphs 4.3.5 - 4.3.9.

b) Instruments within the Orders of Reference of the Joint Committee (or House of Commons Select Committee) on Statutory Instruments are subject to certain rules of practice. The Committee scrutinises with particular care the date of coming into force of all such instruments (class (v) of Table B, page 9) should wherever possible be laid, and copies provided for the Committee, at least 21

days before they are due to come into force (the ‘21 day rule’). These rules and their procedural implications are more fully discussed in section 4.13.

2.5.9 There are other factors which may affect the choice of the date of coming into force; for example, the time needed for printing and publication (see paragraphs 3.4.3 - 3.4.9), the need to ensure that the instrument is issued in good time if it creates an offence (see section 3(2) of the Statutory Instruments Act 1946), or, if the instrument is not to be printed, for communicating its purpose to those concerned; the need for members of the public, or some section of them, to study the instrument before it comes into force; or the need to prepare and print forms, notices or the like for use in conjunction with it.

2.5.10 Where an instrument requires to be approved by Parliament before it is brought into force (class (ii) of Table B, page 9), or to be laid in draft for approval or subject to negative procedure before it is made (class (i) or (iv)), a calendar date of coming into force may be included if the Department are confident that the relevant parliamentary procedure will be completed before that date. Otherwise an alternative form must be used: for examples see the Forms and Precedents, FP4, paragraphs 3 and 4. The date must not be left blank.

Common commencement dates (CCDs)

2.5.11 The Government has announced that it intends to extend CCDs to all domestic regulation bearing on business, made at Westminster, except where the legislation is of EU origin. In 2005 the system was extended to health and safety, company, consumer, employment and work and pensions law. In due course it will be extended to other areas.

2.5.12 For areas covered by the CCD initiative, and subject to some exceptions, legislation bearing on business will be commenced only on either 6 April or 1 October each year. Departments and Agencies are also required to prepare an annual statement, issued each January, indicating legislation expected to be commenced on the following April and October dates. Detailed information about Common Commencement Dates and the production of the annual statement can be found at:

http://www.sbs.gov.uk/SBS_Gov_files/regulations/ccd-guidance.pdf

2.5.13 In order for CCDs to work effectively departments must allow time for scrutiny by the Joint (or Commons) Committee and the Merits Committee. Working to a CCD timetable should not prevent departments from laying instruments throughout the year, thereby allowing time for parliamentary scrutiny and, if appropriate debate, well in advance of commencement.

Good Practice for choosing a commencement date

2.5.14 Good project management and planning are key to the successful commencement of statutory instruments. Departments should when deciding upon a commencement date:

• avoid laying just before the 21 day minimum period before commencement;

• avoid laying negative instruments in the summer recess, as that can limit Members’ opportunities to comment;

• remember that in the Lords, it is not possible for a motion to be moved for the approval of an affirmative instrument before it has been reported on by the JCSI;

• wherever possible, lay negative instruments, as well as affirmatives, well in advance of commencement.

Use of commencement orders

2.5.15 Where an Act provides for any of its provisions to be brought into force by commencement order, the number of orders made and of commencement dates specified should be kept to the minimum practicable. It is obviously undesirable for orders bringing into force different sections of the same Act to be made within short intervals of each other, and for there to be a needlessly large number of different commencement dates. To avoid this it may be necessary to arrange for collaboration between different administrative divisions or, if more than one Department is concerned, different Departments.

Interpretation

2.5.16 The application of the Interpretation Act 1978 to statutory instruments made before and after its commencement (on 1 January 1979) has been considered in paragraph 1.2.7. Most of the provisions of the Act apply directly to subordinate legislation made after 1978, so that interpretation clauses are now included in instruments much less frequently. They may however be required for such purposes as giving definitions of terms used in an instrument (as in regulation 1(2) of the Statutory Instruments Regulations 1947), or to provide that an instrument is to be ‘construed as one’ or ‘read as one’ with an earlier instrument.

2.6 Revocation and amendment

2.6.1 Powers to revoke, amend or re-enact subordinate legislation, before and after the commencement of the Interpretation Act 1978, are discussed in paragraphs 1.2.9 and 1.2.10.

2.6.2 Instruments should not be revoked under a collective title (see paragraph 2.5.3) but should be named severally in the revoking provision. Likewise, where a principal instrument is to be revoked, all extant instruments which have amended that instrument, and would be spent on its revocation, should themselves be specifically revoked. If the number of instruments to be revoked exceeds three, they should be set out in a schedule to the revoking instrument in the form shown in the Forms and Precedents FP5. Such a schedule should include all revocations effected by the instrument, whether total or partial and whether or not effected elsewhere in the instrument. The third column of the schedule, headed ‘Extent of revocation’ may be omitted if there are no partial revocations. It may be convenient to use similar forms of schedule for amendments.

As to information to be given in the explanatory note, see paragraphs 2.13.3 and 2.13.7. 2.7 References to legislation and Command Papers

2.7.1 An Act is referred to in a statutory instrument by its short title, with a footnote giving the year and chapter number. Similarly another subordinate instrument, legislation of the European Communities, or a Command Paper is referred to by its title, with a

footnote giving respectively the year and serial number, the Official Journal (OJ) reference, or the Command Paper number. References to Community instruments are more fully considered in Appendix D, footnotes relating to Acts and statutory instruments in paragraphs 2.11.1- 2.11.13.

2.7.2 Until 1962 it was usual to put a comma after the last word, and before the year, in the title of an Act or subordinate instrument. This comma should now be omitted, even though it appears in the original citation provision.

2.7.3 References to divisions and sub-divisions of Acts and other instruments should normally be in the form ‘section 1(1)(a)’, ‘article 2(2)(b). It may however be necessary to use such forms as ‘subsections (2) to (5) of section 8’ or -sub-paragraphs (b) to (e) of regulation 1(2)’. References in a statutory instrument to its own schedules should be in the form ‘Schedule 2’, ‘paragraphs 4 and 5 of Schedule 3’; those to a schedule to an Act or another instrument in the form ‘Schedule 4 to (not ‘of’) ...’. Parts of Acts are also now numbered using Arabic numerals and all references to Parts of an Act should now be made by reference to the Arabic number. These forms should be used even though the original type used, or the heading of the schedule referred to, is in some other form.

Explanatory parentheses for references

2.7.4 If a provision in an Act is referred to, it is often helpful to add in parentheses a short description of the purport of that provision; for example:

.... section 2(1) of the Conservation of Seals Act 1970 (which establishes an annual close season for grey seals) ....

On occasion it may be desirable to extend this practice to references to other forms of legislation, Command Papers and other documents.

References to amended enactments

2.7.5 After a reference in a statutory instrument to an amended enactment it was formerly the practice to add the words ‘as amended’, or words of similar effect, and also to add particulars of relevant amendments where the reference was to an Act. In an instrument made after 1978 a reference to an enactment is, unless the contrary intention appears, a reference to that enactment as amended, and includes a reference to it as extended or applied by or under any other enactment (including any other provision of that instrument); and ‘enactment’ includes, for this purpose, an enactment in subordinate legislation whenever made (Interpretation Act 1978, sections 20(2), 23(1) and (2). Accordingly it is no longer the practice to include words such as ‘as amended’, or particulars of amendments, in the preamble or text of an instrument.

2.7.6 The user of a statutory instrument should nevertheless be provided with information about relevant amendments or extensions to, or applications of, enactments mentioned in the instrument. This information, whether relating to Acts or instruments, should be provided in footnotes (see further paragraphs 2.11.5 and 2.11.10).

2.8 References to publications, documents, maps and plans

External publications

2.8.1 Statutory instruments may sometimes refer to ‘external’ publications, such as British Standards, which do not form part of the general body of the law. Unless there is specific statutory authority to the contrary (which should be cited among the enabling powers in the instrument) such a reference must be to an existing publication, and should give the publisher’s name, the place and year of publication and the edition, and any other particulars that may help to identify the publication (including the ISBN if known); otherwise, if the authors of the publication alter it, the effect of the instrument will be altered, which will constitute unauthorised sub-delegation. (Examples of specific statutory exceptions are in the Medicines Act 1968, section 103(3), which authorises references to future editions of specified publications, including the British Pharmacopoeia, and in the Health and Safety at Work etc Act 1974, section 15(4)(b), which authorises references to any specified document as revised or re-issued from time to time.) The explanatory note should give particulars of the place where the publication may be obtained or inspected. In the case of British Standards the explanatory note should say that copies can be obtained from any of the sales outlets operated by the British Standards Institute (BSI), or by post from the BSI at Milton Keynes.

Documents, maps and plans

2.8.2 A statutory instrument may be made for the purpose of confirming or approving bylaws, a scheme, or some other document. Such an instrument (which will probably be classified as local) may (a) include the document as a schedule; or (b) be so worded as to annex the document and thereby incorporate it in the instrument (in which case a copy of the annexed document must accompany the instrument when it is sent for registration); or (c) identify the document, for example by reference to its date, signature, distinguishing marks, place of deposit or the like particulars, without formally making it part of the instrument.

2.8.3 Procedure (c) of the preceding paragraph is often adopted, generally in local instruments in referring to maps and plans. The instrument should give short particulars of the situation and extent of the land in questions, but should be so worded as to make clear that the map or plan itself is not part of the instrument. Either the instrument, or the explanatory note if there is one, should state the place and times at which the map or plan may be inspected.

International agreements

2.8.4 Where an international agreement is amended and the amendment (which may or may not be in the form of an international agreement), though not subject to ratification, requires the making of a statutory instrument for its implementation, the text of the agreement or amendment should be made available to Parliament, preferably when the statutory instrument is laid but in any case before it enters into force, unless urgent or other important considerations make this impracticable.

2.9 Miscellaneous points of form

Clauses and parts

2.9.1 The terms used for the divisions and sub-divisions of statutory instruments are shown in Table A (page 8). The main divisions (articles, regulations, rules or the paragraphs of schedules) are numbered, and may have descriptive cross-headings, which, following the practice adopted for Acts, should now be printed in bold Arabic type, starting flush with the left edge of the print. If there is to be a table of contents (see paragraph 2.3.19) such cross-headings are necessary. Lengthy instruments may also be divided into parts, which are numbered with Arabic figures, and have headings in large and small capitals. Specimens of the headings mentioned in this paragraph are shown in the Forms and Precedents FP6.

Dates

2.9.2 Dates should normally be in the form ‘1st January 1987’. ‘The first day of .....’ should be used only in such phrases as ‘from the 1st to the 10th day of January’.

Distinctive type for amendments

2.9.3 If an instrument is re-enacted with amendments, it may sometimes be helpful to print the amendments in distinctive type, such as italic or bold. The significance of such type should be made clear by suitable annotation of the instrument.

2.10 Multiple signatures and date of making

2.10.1 Instruments often require to be made by more than one Minister or Department (who may be acting jointly or severally), or require the confirmation, approval or consent of some further Minister or Department. In such cases the instrument should be signed by or on behalf of all such Ministers or Departments. Where, however, an instrument requires only the agreement of the National Assembly for Wales then such approval does not need to be indicated by someone’s signature on the instrument. In such cases it should be recited at the beginning, just like the approval of Parliament on affirmative resolution orders.

2.10.2 The date of signing should be added against each signature, even though it repeats a date already inserted. Where the instrument is made jointly or requires confirmation approval or consent for its validity, it is taken to be made on the last date of signing, and this should be entered as the ‘made’ date in the italic heading below the title of the instrument (see paragraph 2.3.16).

2.11 Footnotes

Preliminary

2.11.1 As mentioned in paragraph 2.7.1, a reference in a statutory instrument to an Act, another instrument, legislation of the European Communities or a Command Paper should have a footnote giving respectively the year and chapter number, year and serial number, Official Journal reference, or Command Paper number. Footnotes relating to Community instruments are dealt with in Appendix D, those relating to Acts (also Measures) and subordinate legislation (also prerogative instruments) in the following paragraphs of this section.

Form of footnotes

2.11.2 Footnotes should be lettered (a), (b) and so on, starting at (a) on each page; a single series of letters running through the instrument should not be used. An exception to this format would be for instruments made by the National Assembly for Wales where footnotes should be numbers (1), (2) and so on, starting at (1) on each page. An Act or instrument which is referred to more than once should have a footnote for the first reference; in a long instrument this footnote should be repeated for subsequent references, but not more often than every third or fourth page. Examples of the form of footnotes relating to Acts, Measures and subordinate instruments are given in Table D.

Table D - Footnotes relating to legislative instruments

Public General Acts and Measures Example Acts of the United Kingdom Parliament 1955 c. 28 1955 c.5 (4 & 5 Eliz 2) Scots Acts 1706 c. 7 (S.) Acts of the Scottish Parliament 2001 asp 10 Acts of the Irish Parliament 1789 c. 42 (Ir.) Acts of the Northern Ireland Parliament 1961 c. 14 (N.I.) Measures of the Northern Ireland Assembly 1974 c. 4 (N.I.) Acts of the Northern Ireland Assembly 2000 c. 4 (N.I.) Church Assembly Measures 1968 No 2 General Synod Measures 1972 No 5 Local and Personal Acts Acts of the United Kingdom Parliament 1960 c. xli Acts of the Northern Ireland Parliament 1970 c. ii (N.I.) Subordinate legislation Statutory rules and orders S.R. & O. 1919/1000 Statutory instruments S.I. 2002/1080 Statutory instruments made by the National Assembly for S.I. 1999/3469 (W.55). Wales Scottish Statutory Instruments S.S.I. 2002/205 Orders in Council made under section 1(3) of the S.I. 1973/2161 (N.I.24) Northern Ireland (Temporary Provisions) Act 1972 or paragraph 1 of Schedule 1 to the Northern Ireland Act 1974 Statutory rules and orders (Northern Ireland) S.R. & O. (NI) 1952 No 77 Statutory rules (Northern Ireland) S.R. (NI) 1974 No 320

Footnotes relating to Acts and Measures

2.11.3 Before 1963 Acts were cited by regnal year and chapter number; for example ‘52 and 53 Vict c.63’ (the Interpretation Act 1889). Those passed in and after 1963 are cited by calendar year and chapter number, and this method is now to be preferred for pre- 1963 Acts as well. Where a calendar year before 1963 includes Acts of more than one session of Parliament, the citation of any Act of the second of those sessions should include the regnal year or years, as in the second example in Table D. Measures made under the Church of England Assembly (Powers) Act 1919 are numbered serially in each calendar year.

2.11.4 Where an instrument refers to a provisional order confirmed by Parliament the form of the footnote should be as follows:

a) if the order was the only one scheduled to the confirming Act: ‘See 1959 c. viii’; b) if the order was one of a number scheduled to the confirming Act: ‘Confirmed by 1920 c. ciii’.

2.11.5 If a statutory instrument refers to a provision of an Act which has been amended, extended or applied, particulars of any relevant amendments, extensions or applications of that provision are (as mentioned in paragraph 2.7.6) given in footnotes. If the footnote relates to the first mention of the amended provision the particulars are given after the citation, as in the following examples:

a) 1968 c.77; section 8(4) was amended by the Fishery Limits Act 1976 (c.86), section 9(1) and Schedule 2, paragraph 17(1). b) 1964 c.48; section 34 was extended by sections 12 and 15(5) of the Superannuation Act 1972 (c.11).

In example a) above, the reference to the amending section is omitted if the section does no more than introduce the schedule without qualification or interpretation.

Footnotes relating to subordinate instruments

2.11.6 Before 1978 a footnote relating to a subordinate instrument included, in parentheses after the year and serial number, a reference to the official edition in which the instrument might be found. A reference to a volume and page of The Statutory Rules and Orders and Statutory Instruments Revised to December 31, 1948 (see paragraph 1.3.2) was in the form ‘(Rev.XVI, p.263)’, a reference to the year, Part and page of an annual edition in the form ‘(1955 I, p.1127).

2.11.7 Under the practice adopted at the beginning of 1978 a footnote gives the year and serial number of an instrument but references to official editions are omitted (except in the rare cases mentioned in paragraph 2.11.9). If a footnote relates to more than one instrument the proper mode of citation is: S.R. & O. 1944/42; SI 1949/691, 1955/163, 1962/12, 987, 1967/999. No reference is given to the subsidiary serial numbers (see paragraph 2.3.3) except for those in the NI and W series (see Table D above).

2.11.8 Where the year and serial number are known, an instrument in the S.R. & O. or SI series may be found in the official editions as follows:

a) if it is in The Statutory Rules and Orders and Statutory Instruments Revised to December 31, 1948, by means of the numerical table in Volume XXV; b) if it is an annual edition of the period 1936-60, by means of the numerical list in that edition; c) if it was made before 1961, by means of the Table of Government Orders; d) if it is in an annual edition after 1960, by going direct to the appropriate Part and (after 1963) Section, which may be identified (after 1961) by the serial numbers printed on the spine.

The annual editions mentioned at d) have the instruments arranged in straightforward numerical sequence and the large majority of references are now to instruments in these editions.

2.11.9 A reference to the appropriate annual edition, in the form shown in paragraph 2.11.6, should still be given in the exceptional case of a footnote relating to a statutory rule made before 1936 and not included in The Statutory Rules and Orders and Statutory Instruments Revised to December 31, 1948, since annual editions before 1936 and the earlier collected editions did not have numerical tables or lists.

2.11.10 If a statutory instrument refers to another instrument which has been amended, the footnote should be in one of the following forms, example a) being appropriate where all the amendments are relevant to the instrument in which the reference occurs, example b) where there is only one relevant amending instrument, c) where not all are relevant, and example d) where none is relevant:

a) S.I. 1967/172, amended by S.I. 1967/1093, 1972/656, 1975/594 b) SI 1985/2345, amended by SI 2002/1234; there are other amending instruments but none is relevant c) S.I. 1973/428; relevant amending instruments are S.I. 1974/1673, 1976/306 d) S.I 1975/1046, to which there are amendments not relevant to these Regulations

2.11.11 In explanatory notes, parentheses are normally used in place of footnotes (but see paragraph 2.14.5).

Footnotes to collective titles

2.11.12 If a statutory instrument refers by a collective title to a series of Acts or instruments (see paragraph 2.5.3), the citations of the individual Acts or instruments should be given in a footnote if there are not more than five. If there are more than five a footnote should not be provided unless in any particular case the Department think it desirable. Where the Regency Acts 1937 to 1953 are cited collectively in Orders in Council made by Counsellors of State (see paragraph 2.16.3) a footnote is not required.

Footnotes relating to prerogative instruments

2.11.13 Some prerogative instruments are printed at the end of the annual edition of Statutory Instruments, but they do not have serial numbers. If such an instrument is referred to in a statutory instrument a footnote should give a reference to the year, Part and page of the annual edition containing it: e.g. ‘1977 III, p.6223’.

2.12 Schedules

2.12.1 Schedules to statutory instruments take many different forms and serve many different purposes. In matters of form the schedules to Acts should, so far as practicable, be treated as precedents. An example of a revocation schedule is given in the Forms and Precedents, FP5.

2.12.2 The reference note at the head of a schedule (for example the words ‘Regulation 1(2)’ in FP5) shows the clause which introduces the schedule, and should be on the right-

hand side of the schedule, whether the schedule is on a left-hand page or on a right- hand page.

2.13 Explanatory notes

2.13.1 It is standard practice to provide an explanatory note for all statutory instruments. Such a note is put at the end of the instrument, under the heading ‘EXPLANATORY NOTE’ and the following statement in italics:

(This note is not part of the [Order].)

Scope of explanatory notes

2.13.2 The explanatory note should give a concise and clear statement of the substance and purport of the instrument. It should be informative, and should say what the instrument does. It must not be argumentative, must not seek to explain or justify policy, and in particular must not purport to construe the law except so far as is necessary to explain how the instrument achieves its legal effect. It should assist the reader in deciding whether or not he needs to refer to the instrument itself, and should be intelligible to one who is not familiar with the relevant area of law or administration. It should generally be suitable for reproduction in professional and other journals.

2.13.3 Often the text of an instrument cannot be understood unless it is read in conjunction with other legislation, and in such a case the explanatory note should help the reader to understand the instrument’s effect without looking up other provisions. Thus the note to an amending instrument should make clear the point and substance of the amendment. If an earlier instrument is revoked and replaced it should be mentioned in the explanatory note to the new instrument so that the reader is aware that the present provision is not the first.

In paragraph 4 of the Special Report from the Joint Committee on Statutory Instruments, 1985-861, the Committee criticised the inadequacy of information in explanatory notes, and in particular considered that explanatory notes to instruments which revoke other instruments, wholly or in part, should indicate the content of the provisions revoked.

2.13.4 Whilst the main object of an explanatory note is to state the substance and purport of the instrument, it may sometimes be proper to include supplemental information. For example, mention should be made of any international or Community obligation to which an instrument gives effect (see further paragraph 2.17.5); authority in the enabling Act should be cited if an instrument has retrospective effect; any other point relevant to the validity of the instrument, but not covered in the preamble, should be explained; and additional particulars should be given of any ‘external’ publication referred to in the instrument (see paragraph 2.8.1), or of the place and time at which some relevant document, map or plan may be inspected (see paragraphs 2.8.1 and 2.8.2).

2.13.5 A check should be made to ensure that any Command Paper which is referred to in an instrument or its explanatory note is still in print or available for downloading from the Official Documents website (www.official-documents.gov.uk). In cases where it is out of print the publisher of the Command Paper (probably The Stationery Office Ltd(TSO)) should be invited to consider whether it would be feasible to reprint the

1 HL216, HC31-xxxvii 29

document. If it is not, the footnote or explanatory note should state from where photocopies of the out-of-print document can be obtained. It should be noted that where copies are available from TSO then their bookshops should be referred to as TSO Bookshops and not to Government Bookshops as these no longer exist. A reference ought also be made to the TSO Online Bookshop (www.tsoshop.co.uk)

Instruments increasing fees or charges

2.13.6 Where a statutory instrument increases fees or charges the Joint Committee on Statutory Instruments will wish to know the extent of the increase. Where the previous figure can be shown in the instrument itself, this should be done. Where it would be difficult or impracticable (for example where an instrument is long and complex) an indication of the amount or order of magnitude of the increase should be given either in the explanatory note to the instrument, or in an explanatory memorandum. The explanatory note is normally to be preferred since it is printed with the instrument, and will accordingly be available to Members of Parliament generally, interested bodies and the public.

Explanatory notes for commencement orders

2.13.7 If a commencement order brings part only of an Act into force the explanatory note should state which part; for example:

a) This Order brings into force on ...... 20.. all the provisions of the ...... Act 20.. excepting section 3 (which relates to ...) and section 7 (which relates to ....). b) This Order brings into force on ..... 20.. those provisions of the ...... Act 20.. which are not already in force.

For notes as to earlier commencement orders, see paragraphs 2.14.1 - 2.14.5.

Regulatory Impact Assessments

2.13.8 It is a Government requirement to prepare and publish a Regulatory Impact Assessment (RIA) alongside all legislation, including statutory instruments, laid before Parliament. A RIA sets out the risks, costs and benefits of any new regulatory proposal which has an impact on businesses, charities and voluntary bodies. A full RIA should accompany all statutory instruments submitted to Ministers and a final RIA must be provided to both Houses of Parliament, annexed to the Explanatory Memorandum prepared for the Scrutiny Committees, when a Statutory Instrument is laid before Parliament. Details of how to prepare and publish a RIA are set out in the Better Regulation Executive’s Regulatory Impact Assessment Guidance which can be found at:

http://www.cabinetoffice.gov.uk/regulation/ria/ria_guidance/index.asp

The explanatory note should contain a reference in the form:

“A full regulatory impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available [from/at]……… [and is annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website]”

Where an RIA is not required to be produced then the Explanatory Note should state that there is no impact on the private or voluntary sectors. This should be in the following form:

“A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.”

2.13.9 Three copies of the RIA should also be sent via the Departmental Parliamentary Clerk to the Deposited Papers Clerk, Oriel Room, House of Commons Library; one copy to the Deposited Papers Clerk, Derby Gate Library; and one copy to the Deposited Papers Clerk, House of Lords Library. Departments may also wish to send copies to Committees considering the instrument. Where RIAs are being sent separately from the instrument to which they relate, they should contain a clear cross-reference to that instrument.

Drafting explanatory notes

2.13.10 There is no set rule as to the length of an explanatory note ; three lines may suffice, and it should seldom be necessary to exceed a page. A short amending instrument may require a longer note (to explain the amendments) than a long free- standing instrument. Complex details should be avoided, the more helpful course being to summarise the provisions and to refer to the relevant regulation, article or other sub- division in which the details may be found. They should, however, seek to avoid replication of the text contained within the instrument itself. Technical terms should be avoided as far as practicable, and Latin words and phrases should not be used.

2.13.11 An explanatory note should generally use the same terms as are used in the instrument itself, or in the enabling Act. Subject to that it is desirable, when referring to the effect of an instrument on other legislation, to employ the standard vocabulary of the tables of effect in the annual editions of Public General Acts and Measures and of Statutory Instruments. It is usual to say that an Act repeals another Act, and either repeals or revokes an instrument; and that an instrument repeals an Act, and revokes another instrument; and so for partial repeals and revocations.

2.13.12 Vague or indefinite expressions such as ‘substantially’, ‘with certain additions’, ‘with certain modifications’ and the like should generally be avoided in explanatory notes, or at least be coupled with references to the provisions in which particulars may be found. Introductory phrases such as ‘The purpose (or object or effect) of this Order is ...... ’ are also to be avoided, and forms such as the following preferred:

This Order amends .... This Order re-enacts (or consolidates) the ..... with only drafting (or minor and drafting) amendments. This Order re-enacts (or consolidates) the ..... with amendments (or modifications). In addition to drafting (or minor and drafting) amendments, it makes the following changes of substance ....

2.13.13 It is not generally necessary to refer in an explanatory note to the power under which the instrument is made; this will appear in the preamble. It may, however, be appropriate to mention legislation not referred to in the instrument. In such a case the year and chapter number or other citation of the legislation (see Table D, page 25) may be given either in parentheses after its title, or especially when the citation is lengthy

(as in the case of Community legislation - see generally Appendix D), in a footnote. If a footnote is used, care should be taken that it is well separated from the printer’s details which usually appear at the foot of the same page.

2.14 Notes as to earlier commencement orders

2.14.1 Subject to paragraphs 2.14.4 - 2.14.6 below, where an Act is brought into force by more than one commencement order the second and subsequent orders should have a note, placed after the explanatory note, listing the provisions brought into force by earlier commencement orders, as in the following example:

NOTE AS TO EARLIER COMMENCEMENT ORDERS

(This note is not part of the Order.)

The following provisions of the Act have been brought into force by commencement order made before the date of this Order:

Date of Provision Commencement SI No ss1 to 5, Sch.1 1.10.1982 1982/700 s.10 as to England and Wales 5.12.1982 1982/950 s.11 as to Scotland 15.4.1983 1983/125 s.15, Sch.2 (partially) 10.8.1983 1983/585

The word ‘(partially)’ is used where the provision has been brought into force in part, or for a limited area, or for a limited purpose. The tabular arrangement should be used in all cases.

2.14.2 Where a series of commencement orders is being made which commence various provisions in relation to a particular jurisdiction within the United Kingdom then the note as to earlier commencement orders should only relate to that jurisdiction. In the case of a series of commencement orders relating only to England the opening words should say “The following provisions of the Act have been brought into force in England by………..”

2.14.3 Care should be taken, in preparing the note, to see whether all the dates appointed by earlier commencement orders will have been reached by the date when the order is to be made. If not, the note should be so worded as to make this clear.

2.14.4 In cases of an unusual character the procedure may be modified according to circumstances. In particular, the dates of commencement may be omitted in complex cases.

2.14.5 There may be cases in which it is impracticable to follow the above procedure: for instance, where listing large numbers of earlier commencement orders would result in unacceptable delay in preparation and printing. However, in such cases it is hoped that Departments will be able to make a list of the provisions brought into force by earlier commencement orders available to enquirers, and where this can be done the note should be replaced by a statement drawing attention to such availability

2.14.6 Where the order brings the last remaining provisions of the Act into force, this should be stated in the explanatory note itself (see paragraph 2.13.7 (b)), and the above procedure will not apply.

2.15 Drafting

Scope of the section

2.15.1 In general the drafting of the substantive provisions of statutory instruments is not within the scope of this manual. However, as a result of the First Special Report from the Joint Committee on Statutory Instruments, 1977-78 (HL 51, HC 169), certain directions were given on the need for particularity in drafting, and the substance of those directions is set out below.

Need for particularity

2.15.2 The Report referred to certain instruments which had been criticised by the Committee, and drawn by them to the special attention of Parliament (see paragraph 5.4.2), on the ground that matters had been left to be decided by ministerial discretion, or by departmental circular, which should have been the subject of specific provision in the instruments themselves. The principle behind this criticism was stated (in paragraph 12 of the Report) as follows:

“The Committee fully appreciate that the justification for the granting of delegated legislative powers is to remove subsidiary or procedural details from the Statute Book and to afford to the Executive flexibility and the ability to alter detailed provisions to fit changing circumstances, without the need to enact a new Statute. The corollary of this, however, must be that the delegated legislation itself should be detailed, specific and self-explanatory and should not depend on the exercise of ministerial or departmental discretion unless provision to that effect is expressly contained in the enabling Statute.”

‘Self-explanatory’, in the second sentence of this passage, imports that the instrument should, on the face of it, clearly express its intended objective.

2.15.3 Due consideration should be given, in the drafting of instruments, to the principle stated in this passage.

Modernising drafting

2.15.4 Following an exchange of correspondence during 2005 between the Joint Committee on Statutory Instruments and the Minister for the Cabinet Office, it was accepted that there was a need to modernise the style of drafting in Statutory Instruments. Drafters are now expected to consider the entire text critically with a view to making it as easy as possible to read. At times complexity may be unavoidable because sufficient precision to give effect to the intended policy cannot be achieved otherwise. But that does not justify excessively long or complex sentences or use of surplus material, obsolete or archaic language, or unnecessarily formal terminology purely to follow precedent.

2.15.5 Specific guidance intended to help drafters avoid particular pitfalls was issued to departments on 19 September 2005 as SIP Circular No.4 (05) and is reproduced at Appendix I.

2.16 Orders in Council

Distinctive practice

2.16.1 As mentioned in paragraph 1.5.2, most Orders in Council are made under delegated powers as statutory instruments. In some respects, however, the practice differs from that applicable to a statutory instrument made by a Minister, since the Privy Council Office arrange the making, registration, printing and (if required) laying of the Order (though not the laying of a draft - see paragraph 4.10.4). The preparation of the Order, and the provision of all necessary copies and other papers for the purposes mentioned, are the duty of the Department of the Minister who is the ‘responsible authority’ as defined in Statutory Instruments Regulations 1947, regulation 1(2)(b).

2.16.2 Some points concerning the preparation of Orders in Council are mentioned in the following paragraphs, and subsequent procedure in paragraphs 3.6.1 - 3.6.3 and 4.10.1 - 4.10.4. The procedure is summarised in Table 10 of the Tables of Procedure and the notes preceding it.

Preparation of Orders in Council

2.16.3 In general the rules set out in this Part apply to Orders in Council as to other statutory instruments. In certain respects, however, the formal parts and preambles of such Orders are distinctive, and examples may be studied in any edition of Statutory Instruments from 2006 onwards. If, by reason of the absence abroad or illness of Her Majesty, a Council is to be held by Counsellors of State (see the Regency Acts 1937 to 1953), the Privy Council Office issue special instructions concerning the formal parts of Orders to be made at that Council.

2.16.4 Before a draft Order in Council is sent to the Privy Council Office for submission to Her Majesty in Council it must be completed as far as possible by the responsible Department. The date of the Council at which it will be made and, if it is to be laid before Parliament, the date on which it will be laid should be inserted in the draft if known. The dispatch of the draft to the Privy Council Office should not, however, be delayed because these dates are not known; they should be left blank and will be completed by that Office, who should be told the latest date on which the Order should

be made and laid. A similar arrangement may be made in respect of the date on which the Order is to come into force.

Signature of Orders in Council

2.16.5 After an Order in Council has been made it is signed by the Clerk of the Privy Council. Since 1977 it has been the practice to print the words ‘Clerk of the Privy Council’ below his signature, and these words should be included in draft Orders.

2.17 Statutory instruments resulting from membership of the European Union

General

2.17.1 Some statutory instruments are made in consequence of the United Kingdom’s membership of the European Union. Official guidance concerning the preparation of such instruments has been issued to Departments and this section, which deals mainly with drafting points, is based upon the relevant part of that guidance. In this section ‘the Act’ means the European Communities Act 1972.

Scope of section 2 of the Act

2.17.2 The general purpose of section 2(2) of the Act is conventionally described as giving effect to (or implementing) EU obligations. For simplicity, the paragraphs following will adopt this convention even though on a full analysis section 2(2) makes much wider provision for implementing and supplementing obligations and for enabling rights to be enjoyed. Instruments and drafts made under section 2(2) should give effect only to existing obligations, and should not give prospective effect to obligations which have not yet arisen. Special care is needed to avoid inadvertent departures from this practice. Some relevant examples will be found in paragraphs 31 - 33 of the First Special Report from the Joint Committee on Statutory Instruments, 1977-78 (HL 51, HC 169), and merit the attention of draftsmen. Those paragraphs are concerned with ‘guidelines’: the question whether a proposed provision will be intra vires must, of course, be considered by legal advisers in each particular case.

Titles of instruments

2.17.3 A reference to the ‘European Communities’ or a particular Community should normally appear in the title only if the instrument is linked with some activity of a Community institution, or concerns the European Communities as a geographical or economic unit, or confers rights or imposes obligations on nationals of other member states in pursuance of a Community instrument, or relates generally to a class of Community provisions. In other cases the title should normally refer to the subject matter to which the instrument relates. In case of doubt Departments should seek guidance from the Statutory Instruments Registrar at HMSO.

Enabling provisions

2.17.4 In reciting the enabling provisions, the following points require attention:

a) Where powers under section 2(2) of the Act are exercised by a designated Minister, reference should be made not only to that subsection but also to the order designating the Minister, which should be cited in a footnote.

b) Where there is an exercise of a power which has been amended or extended by the Act, particulars of the amendment or extension should be given in the manner prescribed in paragraph 2.11.5. (The general words of section 2(2) immediately following paragraph (b) are in the nature of a declaratory provision of general effect and should not be mentioned in any recitals.) c) Where fees are prescribed under section 56 of the Finance Act 1973 (which relates to charges for services etc by Government Departments), that section must be cited. d) Consultations which have taken place in accordance with statutory requirements should always be recited in the preamble, in compliance with the usual practice (see paragraph 2.4.7), but such a recital is not necessary in the case of consultations with Community institutions under a Community instrument.

Identification of Community obligations

2.17.5 The explanatory note should identify relevant Community obligations as follows:

a) where either the whole or any part of a statutory instrument implements Community obligations, any relevant Community instrument should be cited; and in the latter case that part should be identified; b) where implementation is being staged (ie where part only of a Community obligation is being implemented), that part should be identified.

Where a series of Community instruments is involved, it will normally be enough to cite only those which are necessary to an understanding of the statutory instrument.

Instruments partly implementing Community obligations

2.17.6 Where an instrument cites as enabling powers both section 2(2) of the Act and other specified powers, the provisions which do not implement Community obligations should be identified.

Citation of Community instruments

2.17.7 Where a Community instrument is mentioned either in the text of, or a footnote to, a statutory instrument or in the explanatory note, its correct citation should be given in the manner prescribed in Appendix D. As to the method of citation, see paragraph 2.13.13.

Notification of transposition measures

2.17.8 The United Kingdom has a responsibility to advise the Commission of details of the implementing measures taken in national law to give effect to each Directive. All departments that have responsibility for implementing Directives will have nominated “users” of an online database notification system to which details of implementing measures are to be entered. The notification is then forwarded to the Commission by a Central Manager based in the office of the UK Permanent Representation in Brussels.

2.18 Regulatory reform orders

2.18.1 Regulatory reform orders are made under section 1 of the Regulatory Reform Act 2001, which empowers Ministers of the Crown to make provision for reforming (primary) legislation which has the effect of imposing burdens affecting persons in the carrying on of any activity. In some respects, practice differs from that applicable to normal S.I.s. Detailed guidance has been published by the Cabinet Office Better Regulation Executive. To obtain a copy, please contact BRE on 0207 276 2260.

2.18.2 Regulatory reform orders are prepared by the respective Department, and the laying of the draft order at each stage of the two-part scrutiny procedure (but not the registration, making or printing) is undertaken by the Parliamentary Office of the Cabinet Office. The formal parts, including headnotes, title and preamble, are distinctive. The title will refer to the subject matter to which the order relates: for example, The Regulatory Reform (Fire Safety) Order 2004.

2.18.3 The two-stage scrutiny procedure is described at paragraph 4.7.1.

PART 3 CLASSIFICATION, REGISTRATION, PRINTING, PUBLICATION AND SALE

3.1 Preliminary

Scope of this Part

3.1.1 The previous Part of this manual contained information required in order to produce a formally correct statutory instrument. This Part deals with the classification, registration, printing and sale of such instruments, and related matters. Procedure varies according to the nature of the instrument or draft and of any parliamentary proceedings to which it is subject. The appropriate procedure will also depend on whether the draft of the instrument has been originated using the Statutory Instrument Word template. For ease of reference the different procedures are summarised in the Tables of Procedure, to be used in conjunction with the relevant Forms and Precedents. As supplementing this Part, see in particular

Table 1 Registration: instrument not printed Table 2 Registration and printing Table 5 An instrument not to be laid Table 10 An Order in Council

The SI template

3.1.2 The SI template has been developed for authoring Statutory Instruments. The template which is compatible with Word 97 and later versions of Word, has all of the necessary features and styles built in to enable the production of a facsimile of an SI document with the exception of those:

• containing colour • in dual language • containing styles that are not pre-defined within the template • containing large images

It enables the draftsman to produce SIs in the form in which they will be printed. Where SIs have been drafted using the template there is no longer a requirement for printers proofs to be produced. The flowcharts at Appendices E and F illustrate the process for producing SIs using the template and the process for producing SIs where the template has not been used.

Departments are encouraged to use the SI template for the drafting and production of instruments as this ensures production of instruments in a consistent form, eliminates the time required for production of printers proofs and provides for speedier production and hence earlier publication and availability. In addition where the template is capable of being used and departments opt to use traditional production methods then TSO are able to levy additional charges on departments for the production of proofs etc. (see Appendix I).

3.1.3 The SI template, and information about its use for drafting, can be downloaded from the OPSI website at:

http://www.opsi.gov.uk/si/template 38

To access the site you will also need to enter the following details:

The username which is: sitemplate The password which is: carr3t

Use of printers proofs/ template prints for making

3.1.4 Where a statutory instrument is to be printed and the text has not been originated using the SI template, then proofs of it should whenever possible be obtained from The Stationery Office Ltd (TSO) before it is made, so that it may be issued promptly after making. Where the SI template has been used for drafting then prints of the template output will serve the same purpose and TSO should not be requested to provide proofs. It is particularly important to have a clean proof/print if the instrument is to be laid before Parliament: see paragraph 4.4.1. In the case of an Order in Council which is a statutory instrument the draft submitted to Her Majesty in Council should be in print, as should an instrument laid in draft before Parliament. If the Department have been supplied with proofs of an instrument, but decide not to proceed with it, TSO should be informed as soon as possible.

Use of authenticated copies

3.1.5 The original of a statutory instrument is retained by the Department, and authenticated copies, certified by an official as true copies, are used for purposes of registration, printing and laying before Parliament. Copies cannot be authenticated until the instrument has been made.

The Queen’s Printer of Acts of Parliament

3.1.6 References to ‘the King’s Printer of Acts of Parliament occur in the Statutory Instruments Act 1946 and the Regulations of 1947, particularly in the provisions considered in this Part. Such references are now to be construed as references to the Queen’s Printer of Acts of Parliament1. This office is held under letters patent by the Controller of Her Majesty’s Stationery Office (HMSO). Copies of instruments and documents purporting to be printed under the superintendence or authority of HMSO, including the versions published on the OPSI website, are admissible in evidence, under statutory rules, in the same circumstances as copies purporting to be printed by the Queen’s Printer2, and are often called ‘Queen’s printer copies’. In the text of this manual ‘HMSO’ includes, where the context so requires, the Queen’s Printer of Acts of Parliament.

The responsible authority

3.1.7 The term ‘responsible authority’ has already been referred to; it is defined in the Statutory Instruments Regulations 1947, regulation 1(2)(b), and means, in short, the Minister or Department or other person by whom an instrument is made, or who is responsible for the preparation of an Order in Council.

1 Interpretation Act 1978, s.10 2 See Documentary Evidence Act 1868, s.2, Documentary Evidence Act 1882, s.2 39

3.2 Classification as local or general

Distinction between local and general instruments

3.2.1 As mentioned in paragraph 1.5.8, statutory instruments must be classified as local or general according to their subject matter. Unless there are special reasons to the contrary in a particular case, an instrument is to be classified as local if it is in the nature of a local and personal or private Act, and as general if in the nature of a public general Act1. The distinction is of importance in determining whether an instrument must be printed and put on sale (see paragraph 3.5.3). Local instruments are not printed in the annual edition of Statutory Instruments (see paragraph 3.4.18), although they are listed there.

3.2.2 The fact that an instrument amends, in relation to a local area, an Act or instrument of general application does not make the instrument general, whilst the fact that a local instrument will be of general interest or attract wider publicity is not a reason for altering its classification; but is a good reason for it to be printed. If in doubt then departments should consult the HMSO SI Registrar.

Procedure for classification

3.2.3 When a statutory instrument is sent for registration (see section 3.3) the responsible authority is required to include within the letter to the SI Registrar a certificate classifying the instrument as local or general2. The combined letter/certificate is usually signed by an official on behalf of the responsible authority, or of the responsible authorities if there are more than one. The Regulations do not prescribe any form of certificate, but recommended forms appear in the Forms and Precedents, FP7 – FP11. In case of doubt the question whether an instrument should be local or general may be referred to the Reference Committee3 described in paragraphs 5.2.1 - 5.2.4.

3.3 Registration

Legislative provisions

3.3.1 Immediately after the making4 of a statutory instrument it is to be sent to HMSO and numbered5. It is to be allocated to the series of the calendar year in which it is made, and the instruments are to be numbered in that series consecutively, as nearly as may be in the order in which they are received6. They may (without prejudice to any other mode of citation) be cited by year and serial number7. Two exceptional categories of instruments are numbered at a later stage: see paragraph 3.3.12. Any question as to

1 Statutory Instruments Regulations 1947, reg.4. For the classification of Acts see Erskine May’s Parliamentary Practice, (23rd Edition), pages 969 - 977. The classification of the instrument does not depend on the classification of the enabling Act; many instruments made under public general Acts are classified as local, and some made under local Acts as general. 2 Statutory Instruments Regulations 1947, reg 4 (3) 3 Statutory Instruments Regulations 1947, regs 4(3) and 11 (4)(b) 4 In practice “Immediately after making” has been defined as within 24 hours for departments based in London and 48 hours for departments located elsewhere 5 Statutory Instruments Act 1946, s.2(a); for the practice, see the next paragraph 6 Statutory Instruments Regulations 1947, reg.3 7 Statutory Instruments Act 1946, s.2(2) 40

the number of any statutory instrument or class or description of such instruments may be referred to the Reference Committee1 described in paragraphs 5.2.1 - 5.2.4.

3.3.2 In practice statutory instruments are numbered by HMSO, and particulars of each instrument were entered against its number in a register, so that the process is commonly called ‘registration’. The register is now held in the form of a computerised database. The Tables of Procedure, Tables 1 and 2, deal with the normal procedure for registration, whilst variations are covered in other Tables. The following paragraphs give, by way of introduction to the practice, an example of the procedure for registering an instrument which is subsequently to be printed (see Table 2).

Procedure for registration where the SI has not been produced using the SI template

3.3.3 When the instrument has been made, the Department should, for instruments not produced using the SI template, make up a folder which includes:

a) a combined letter to the SI Registrar/ certificate of classification (see the alternatives in the Forms and Precedents, FP7 – 11)), and a copy of the instrument (the ‘Registrar’s copy’) duly authenticated (see paragraph 3.1.5);

b) a letter to The Stationery Office Ltd (see FP13), having attached to it a further authenticated copy of the instrument (the ‘press copy’), and accompanied by a TSO Order form (see FP14));

c) a receipt sheet (see FP12) and a third authenticated copy of the instrument (the ‘record copy’).

d) two copies of any instrument certified by the responsible authority as local, which the SI Registrar will number and stamp with the date of registration, and which the Department will thereafter forward to the Library (Oriel Room – Local SI Accessions), House of Commons, Westminster SW1A 0AA. (Note that this is not part of the laying process, but is to ensure that copies are available to Members of Parliament when required.)

The letters to the SI Registrar and to TSO specify the action which they are desired to take.

3.3.4 The folder is sent, generally by messenger, to HMSO, Room 1.35, Admiralty Arch (North Side), The Mall, London SW1A 2WH where the instrument is allotted its serial number and recorded in the register. The number is entered on the copies of the instrument in the folder, in the letters and in the receipt sheet. Commencement orders and certain other series of instruments are allotted subsidiary serial numbers, as described in paragraphs 2.3.3 and 2.3.4, and these are also entered in the register and on the documents mentioned. The copies of the instrument and the letters in the folder are stamped by HMSO with the date of registration, and with the classification ‘General’ or ‘Local’ as the case may be.

3.3.5 Where an Explanatory Memorandum has been produced for the instrument then this should be sent as an attachment to an email which should be sent to the SI Registrar ([email protected]). The email should include details of the title of the instrument, its SI number and the date when the instrument is to be published.

1 Statutory Regulations 1947, regs.4(3) and 11(4)(a) 41

3.3.6 HMSO retains the Registrar’s letter/certificate of classification, and Registrar’s copy of the instrument, and sign the receipt sheet. The folder is then taken by the Department’s messenger to TSO, and an example of the subsequent procedures is given in the next section (paragraph 3.4.5). The foregoing is an example of procedure for an instrument which is to be printed, but the practitioner should consult the Table of Procedure appropriate to the particular instrument with which he is dealing. For variations in the case of Orders in Council, affirmative instruments, and drafts, see also paragraphs 3.6.1 - 3.6.8.

Procedure for registration where the SI has been produced using the SI template

3.3.7 All SIs which have been produced using the SI template should be transmitted by email to HMSO to:

[email protected]

The email should comprise:

First document: the letter to the Registrar, the standard text for which now includes the certificate of classification. Departments are also asked to confirm that the SI template has been used for drafting and to the date required for publication (example at FP7). Further variations of the combined letter/certificate to cover the variations of certification are reproduced at FP8 – FP11.

Second document: the text of the Statutory Instrument;

Third document: a receipt sheet (example at FP12); and

Fourth document: the letter to TSO containing the instructions for printing (example at FP13)

Fifth document the order form for printed copies (see FP14)

Sixth document Where required, the Explanatory Memorandum to the instrument.

Only one SI should be transmitted to HMSO per email an example of which is as follows:

3.3.8. On receipt by HMSO, the Registrar’s letter/certificate of classification and the SI will be printed for examination. If the examination shows that everything is correct the Statutory Instrument will be registered, numbered and the name of the person undertaking the registration entered on the Receipt Sheet. In the event of any errors being found in the instrument or Registrar’s letter/certificate then the matter will be brought to the attention of the department. Any errors will have to be made good before the registration process can be completed.

3.3.9. Once the instrument is registered and subsidiary number(s) entered on the instrument (e.g. a commencement number (C. ) or a legal number (L. )1. HMSO will save this on its system and re-name the file using the year, instrument number and the first part of the title, e.g. S.I. 2002/5000 The Dissolution of Political Parties = 2002 5000 Dissolution of Political Parties.

3.3.10 The original email from the Department will then be forwarded to TSO, with the updated Word file as an attachment. TSO will add the copyright notice, the printer and publisher imprints, price and bar code and, where required, any additional headers where the last page of text would otherwise be blank. They will then arrange to print and publish the SI. A copy of the email will also be sent to the department so that they have a copy of the S.I. that will be printed containing details of the number etc. This will enable any laying documents to be prepared.

Certifying a templated Statutory Instrument

3.3.11 All SIs must be certified as a true copy before being sent to HMSO for registration. The certificate should be added to the text of the SI by placing the cursor at the head of the instrument, then:

1 When a subsidiary number is required, it is the responsibility of the department to indicate this, by including the distinguishing letter adjacent to the SI number (Statutory Instrument Practice 2.3.3) 43

Click on “View” in the toolbar - Select “Header and Footer” - The “Header” field will open. - Type in “Certified a True Copy”, your name and the date. - Double click outside the “Header” field.

Once checked and registered, this wording will be removed from the document by HMSO, before it is sent to TSO for printing.

Statutory Instruments including cross-references

3.3.12. When departments are producing a series of SIs where cross-references are to be inserted in each SI then departments should request advance numbers from HMSO and should insert these in the text of the SI before transmitting them for registration. The advance numbers should, however, not be requested more than 48 hours in advance of registration.

Postponed registration

3.3.13 By virtue of the Statutory Instruments Regulations 1947, regulation 3, first proviso, the following two categories of statutory instruments need not be, and in practice are not, registered immediately after they are made:

a) those which will not take effect unless they are approved by Parliament or the House of Commons (see paragraph 3.6.4);

b) those which are subject to special parliamentary procedure, or will become so in certain events (see Appendix B).

These instruments are allotted serial numbers according to the days on which they are actually received for registration.

3.4 Printing, publication and sale

Legislative provisions

3.4.1 As soon as possible after a statutory instrument has been registered, copies of it are to be printed and sold by TSO on behalf of the Queen’s Printer. HMSO will also arrange for all instruments to be published on the OPSI website (www.opsi.gov.uk/stat.htm) simultaneously with the print edition. The rule is subject to any exceptions prescribed by regulations made under the Statutory Instruments Act 1946 or by any Act passed after 19471. The exceptions, of which local instruments form the only numerous class, are considered in section 3.5. TSO are also to publish on behalf of the Queen’s Printer a Statutory Instrument Issue List (see paragraph 3.4.13), and the Secretary of State is to cause to be prepared an annual edition of Statutory Instruments, which is also printed and published by TSO under a contract let by the Queen’s Printer (see paragraph 3.4.16). Any question as to the printing or description of such instruments may be referred to the Reference Committee2 described in section 5.2.

1 Statutory Instruments Act 1946, s.2(1). The exceptions are prescribed in Statutory Instruments Regulations 1947, regs 5-8 2 Statutory Instruments Regulations 1947, reg.11(4)(a) 44

Notice in the Gazette

3.4.2 If the provisions of any enactment require a statutory instrument to be published or notified in the London, Edinburgh or Belfast Gazette, the publication in that Gazette of a notice stating that the instrument has been made, and specifying the place where copies may be purchased, is a sufficient compliance with those provisions1.

Time required for printing

3.4.3 In planning the issue of statutory instruments, Departments must take account of the minimum time normally required by TSO for printing, as shown in Table E. If printing and publication are required in less time than is shown in the Table, if the instrument contains a colour section, a map, or artwork, of if demand for it is likely to be heavy, then departments should give TSO as much advance notice as possible of their requirements so that they can ensure the necessary resources can be allocated in advance.. They should also be given ample notice of any other exceptional requirement, such as the production of several different instruments in the same period.

Table E - Printing of statutory instruments

Number of pages Number of working days required: For proofing instruments For printing all which have not been produced SIs using all using the SI template production methods

Proofs Revises Copies Up to 16 2 2 3 17 to 64 3 2 4 65 to 96 4 3 4

A working day is deemed to comprise of 24 hours. Where work exceeds 96 pages an additional day will be allowed at each stage for each additional 32 pages. As an example a 12 page SI that reaches TSO by 2.30pm on Monday will be available for publication at 2.30pm on Thursday. Any SI received by TSO after 2.30pm on the Monday will not be available for publication until Friday.

The above excludes Saturday, Sunday and Public Holidays.

Printing procedure

3.4.4 The use of printers proofs has been referred to in paragraph 3.1.4. The following paragraphs (3.4.5 - 3.4.9) give an account of the procedure relative to the printing of statutory instruments and the supply of copies for Parliament and the public. This procedure is summarised in the Tables of Procedure, Table 2, and variations are referred to in other Tables. For variations in the case of Orders in Council, affirmative instruments and drafts see also section 3.6.

1 Statutory Instruments Act 1946,s.12(2) 45

3.4.5 If a statutory instrument is to be printed, the templated instrument will be emailed to TSO by HMSO (see paragraph 3.3.9) or for other instruments the folder made up by the Department (see paragraph 3.3.3) is taken by their messenger from HMSO (who will have registered the instrument and extracted the documents that they require) to TSO. There the letter to TSO (Forms and Precedents, FP13) and the attached press copy of the instrument are extracted. The letter gives, so far as appropriate, information concerning the laying of the instrument before Parliament, publication, the provision of copies for Parliament and the Department, and particulars required for the Statutory Instrument Issue List. TSO will complete the receipt sheet (FP12) and put in hand the printing of the instrument as requested in the letter. Meanwhile the folder containing the receipt sheet and the record copy of the instrument is taken back to the Department by their messenger, or the receipt sheet for templated instruments will be returned to the department by email.

Copies for Parliament

3.4.6 The formal laying of copies of statutory instruments and drafts before Parliament is considered in Part 4 and the Tables of Procedure, Table 3, and the provision of copies for scrutiny committees in Part 5 and Table 4. The two following paragraphs relate to the supply of copies for use of Members (also referred to in Table 2).

3.4.7 In 1954 the Government gave the House of Commons an undertaking that, when a draft or instrument subject to negative resolution (class (iv) or (v) of Table B, page 9) was laid, at least 50 copies would normally be made available in the Vote Office. Where in exceptional cases of an urgent kind this would not be practicable, a supply of copies would be made available as soon as possible after laying1. The object was to give Members full opportunity to consider such instruments during the 40 days within which negative resolutions may be moved.

3.4.8 The practice is now as follows. Copies of all instruments and drafts printed and issued by TSO (whether or not subject to negative resolution) are supplied for the use of Members of both Houses. They are delivered by TSO direct to each House, on the scale shown in Table F. Where however a draft is to be printed and laid but not issued, that is, not made available to the public, it is the Department’s responsibility to supply Parliament with the number of copies shown in the Table.

Table F - Copies of instruments and drafts for Members of Parliament

Vote Office Printed Papers Office House of Commons House of Lords Instruments laid for affirmative resolution or ) for negative resolution ) 30 copies 5 copies without further proceedings ) Drafts laid for affirmative resolution or ) 100 copies 75 copies for negative resolution ) Instruments not laid 50 copies 5 copies Drafts issued but not laid 50 50

1 HC Deb (1953-54) 526, c.119-20; ibid (1973-74) 868, c.465 46

Sale of statutory instruments

3.4.9 If a statutory instrument is to be printed and requires to be laid before Parliament or the House of Commons, TSO will put copies on sale to the public as soon as it has been laid, or as soon as possible after it has been laid. If the instrument is not to be laid, but the Department have requested a particular date for publication, it will be put on sale on that date; otherwise it will be put on sale as soon as it has been printed. These remarks apply also to all draft statutory instruments which are to be laid before Parliament for affirmative resolution and which must be printed and sold. The requisite directions are obtained by TSO from the Department’s letter to TSO (Forms and Precedents, FP13).

Printing errors in statutory instruments

3.4.10 If a discrepancy is found between the signed original of the instrument and the copy as printed and put on sale, the Department, if it considers the discrepancy significant, may ask the SI Registrar to arrange for a correction slip to be published and for the OPSI website version to be corrected. The request should be in writing and should be accompanied by a printed copy of the instrument, amended to confirm with the signed original. HMSO will then prepare a correction slip and send it to TSO for printing and issue and organise for the OPSI website version to be corrected. If the discrepancy is insignificant, the Department should simply notify HMSO (in writing) so that it can be put right on the OPSI website and in the annual edition of Statutory Instruments. Use of the SI template which eliminates the need for proofing stages and hence the scope to introduce errors should reduce the need to produce correction slips.

Correction of defective instruments: free copies

3.4.11 If an instrument is found to be defective, and the defect is in the signed original (as distinct from printing errors in the copies put on sale - see paragraph 3.4.10) then the SI Registrar should be advised as soon as possible. The following procedure will apply, subject to the guidelines in paragraphs 3.4.12 – 3.4.14. If the defect requires the substitution of a new instrument, the SI Registrar will arrange with TSO to make this available free of charge to those who can show that they bought the defective instrument. Similarly, TSO will make any amending instrument available free of charge to those who have already bought or who subsequently buy the defective instrument. The responsible Department will be required to pay TSO for the costs associated with printing the correcting instrument (including the appropriate Service Charge) and 51p for each postal despatch to purchasers of the original instrument. If two or more Departments are responsible, or if one makes the correcting instrument on behalf of another, the charge may be divided between them.

The Joint Committee on Statutory Instruments have welcomed this procedure, but they and the House of Lords Merits of Statutory Instruments Committee continue to observe that large numbers of errors still occur, and that it is the responsibility of Departments to see that these inaccuracies do not arise. Use of the SI template which eliminates the need for proofing stages should reduce the need to produce correcting instruments.

3.4.12 This procedure does not apply to Orders in Council made under Schedule 1 to the Northern Ireland Act 1974, s.85 of the Northern Ireland Act 1998 or the Schedule to the Northern Ireland Act 2000. In other cases the decision rests with the responsible Department after consultation with the SI Registrar. The procedure is intended to apply

only to those instruments which correct errors made at the time when the original instrument was made; it is not appropriate in cases where an instrument fails to secure its intended effect because of changed circumstances, including subsequent case law.

3.4.13 When the Department is also introducing new amending provisions at the same time as it is correcting a defective instrument then the Department should include both the new and correcting provisions within the one instrument. In such circumstances the Department should agree with the SI Registrar whether the free issue procedure should be applied. In every case where an instrument corrects a defective instrument, the Department should state within the Explanatory Memorandum for Parliament whether or not the procedure for free issue has been applied, with the reasons for the decision.

3.4.14 Where the procedure for the free issue of a correcting instrument is applied, that instrument should bear a headnote indicating that it is being issued free to all known recipients of the defective instrument (see the Forms and Precedents, FP2, paragraph 7). This headnote will remain on all single copies published by TSO, but will not appear on the instrument when published in the annual edition of Statutory Instruments.

Issue lists

3.4.15 TSO are required by the Queen’s Printer to publish from time to time a list, to be known as the Statutory Instrument Issue List, showing the serial number and short title of each statutory instrument (including a local instrument) which has been issued for the first time by that Office, and the date on which it was so issued1. Such lists are normally published daily from Monday to Friday, as part of the TSO Daily List of Publications. In practice they give, for the assistance of users, certain information additional to that required by the legislation, and they include such draft statutory instruments as are printed and sold. The particulars to be supplied to TSO for the purpose of the Issue List are shown in the specimen letter to TSO in the Forms and Precedents, FP13.

Proof of issue

3.4.16 A copy of the Statutory Instrument Issue List, issued under the authority of HMSO, is to be received in evidence as a true copy and to be conclusive evidence of the date of the first issue of a statutory instrument by TSO2. The Numerical and Issue List included in the annual edition of statutory instruments (see paragraph 3.4.18) is admissible in evidence to the like extent and for the like purpose3. This use of the lists is most likely to occur in proceedings for contravention of an instrument issued by TSO, in which it is a defence to prove that the instrument had not been so issued at the date of the alleged contravention (unless it is proved that at that date reasonable steps had been taken to bring the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged)4.

3.4.17 The rules referred to in the preceding paragraph are not, save as they otherwise expressly provide, to affect any enactment or rule of law relating to the time at which any statutory instrument comes into operation5. The words ‘issue’ and ‘issued’, as used in these rules, are not defined in the statutory instruments legislation, but ‘issued’

1 Statutory Instruments Act 1946, s.3(1), and Statutory Instruments Regulations 1947, reg 9 2 Statutory Instruments Act 1946, s.3(1), and Statutory Instruments Regulation 1947, reg 9 3 Statutory Instruments Regulations 1947, reg 10(1)(b) and (2) 4 Statutory Instruments Act 1946, s.3(2) 5 Ibid, s.3(3) 48

presumably means put on sale or otherwise made available to the public or to persons affected1.

The annual edition2

3.4.18 As soon as possible after the end of each calendar year the Minister for the Civil Service is to cause to be prepared, from the series of statutory instruments up to the end of that year, an annual edition of statutory instruments. The edition is produced by HMSO and is to include the following matter:

1) Copies of so much of all statutory instruments as has, at the time of the completion of the annual edition, been printed in compliance with the statutory requirements and not been included in any previous annual edition. Certain instruments may be omitted, and in practice those omitted are local instruments and certain Orders in Council relating to Northern Ireland3.

2) An Annual Numerical and Issue List of Statutory Instruments showing the serial numbers of all instruments which during the year either were made or were issued for the first time by TSO, and the date of such issue. Included in the list are local instruments exempt from printing and sale (see paragraph 3.5.3), and any instrument in respect of which a certificate, exempting it from printing and sale on the ground of public interest (see paragraph 3.5.8), is in force. As to the use of the list in evidence see paragraph 3.4.16.

3) A classified list of local instruments.

4) Tables showing the effect on statutes and previous statutory rules (see paragraph 1.3.3) or statutory instruments of the statutory instruments included in the edition (the ‘tables of effect’).

5) An index.

Publication on the internet

3.4.19 All printed statutory instruments are published on the OPSI website (http://www.opsi.gov.uk/stat.htm) simultaneously with the print edition. Details of instruments exempt from printing (see section 3.5 following) are also listed on the website with information provided for users as to where they may obtain copies of these.

3.5 Exemption from printing and sale

Exemption and the Reference Committee

1 See R Sheet Metalcraft ltd [1954] 1 All ER 542 at 544 2 Subject to the next footnote, the authority for material in this paragraph is Statutory Instruments Regulations 1947, reg 10, as amended by Statutory Instruments (Amendment) Regulations 1977 and 1982 3 Orders in Council made under Northern Ireland (Temporary Provisions) Act 1972 s.1(3) were omitted by virtue of Statutory Instruments (Amendment) Regulations 1972; those made under the Northern Ireland Act 1974, Sch 1, are omitted by virtue of para 1(8) 49

3.5.1 The Statutory Instruments Regulations 19471 provide some exemptions from the requirement2 that copies of an instrument are to be printed and sold as soon as possible after registration. In each case, however, except that of a confidential instrument (see paragraph 3.5.8), the exemption is subject to the power of the Reference Committee (see paragraphs 5.2.1 – 5.2.4) to direct under the Regulations3 that copies of an instrument be printed and sold.

Exempt instruments printed for departmental purposes

3.5.2 If an instrument is exempt, but printed copies are required for departmental purposes, the printing should be arranged by the Department with TSO as an administrative matter, and will not attract the statutory requirement for copies to be sold. In such circumstances the department will be required to meet TSO’s full costs of printing.

Exemption for local instruments

3.5.3 Copies of local instruments (see paragraph 3.2.1) need not be printed and sold, unless the Reference Committee in any particular case otherwise direct under the Regulations4. Their power to give such a direction arises upon a reference to them under regulation 11(4). The responsible authority may (and often does) request TSO to print and put on sale a local instrument5, which will then be included in the daily Statutory Instrument Issue List (see paragraph 3.4.15). Local instruments are generally not printed in the annual edition of Statutory Instruments¸ although they are listed there (see paragraph 3.4.18).

Exemption for instruments otherwise regularly published

3.5.4 If a general instrument is certified by the responsible authority to be of a class of documents which is or will be regularly printed as a series and made available to persons affected by it, copies of the instrument need not be printed and sold unless the Reference Committee in any particular case otherwise direct under the Regulations6. Their power to give such a direction arises upon a reference to them under regulation 11(4). The certificate is combined with the letter to the SI Registrar/certificate of classification, as in the Forms and Precedents, FP8.

Exemption for temporary instruments

3.5.5 If the responsible authority certifies that the printing and sale of copies of a statutory instrument is unnecessary having regard to the brevity of the period during which it will remain in force, and to any other steps taken or to be taken for bringing its substance to the notice of the pubic, copies need not be printed and sold unless the Reference Committee otherwise direct under the Regulations7. If such a certificate is given the responsible authority must notify the Committee, who may direct that the instrument

1 Regs 5 - 8 2 In Statutory Instruments Act 1946, s.2(1) 3 The relevant provision is reg.11(3) or (4) 4 Statutory Instruments Regulation 1947, reg 5 5 Ibid, reg 5 proviso 6 Ibid, reg 5 7 Ibid, reg 6 50

be printed and sold1. In respect of any specified class of instrument, however, the Committee may direct that such notification need not be given2.

The certificate is combined with the letter to the SI Registrar/certificate of classification, as in the Forms and Precedents, FP9. Where an instrument has already been registered and sent for printing and it is realised that there are errors or it is to be to be revoked before it comes into force then a certificate in the form of Paragraph 2 of FP9 should be provided to the SI Registrar.

Exemption for certain schedules etc

3.5.6 A further provision for exemption from printing and the sale relates, not to a statutory instrument as a whole, but to a schedule or other document which is identified by or referred to in an instrument and would, if not exempted, have to be included in the instrument as printed and sold. If the responsible authority certifies that the printing and sale of copies of such a schedule or document is unnecessary or undesirable having regard to its nature or bulk, and to any other steps taken or to be taken for bringing its substance to the notice of the public, copies need not be printed and sold unless the Reference Committee otherwise direct under the Regulations3. If such a certificate is given the responsible authority must notify the Committee, who may direct that copies be printed and sold4. In respect of any specified class of instrument, however, the Committee may direct that such notification need not be given5. The certificate is combined with the letter to the SI Registrar/certificate of classification, as in the Forms and Precedents, FP10. A copy of the schedule or document to which it relates, should be included in the papers sent to the SI Registrar when the instrument is registered. If the procedure described in this paragraph is to be adopted, advance notice should be given to the Clerk to the Reference Committee as soon as the Department has sufficient information about the date and circumstances of publication of the instrument and the reasons why a certificate is necessary.

3.5.7 If the instrument is to be laid before Parliament, one copy of any exempt schedule or document should be provided for each House, or for the House of Commons if laying before that House only (see paragraph 4.2.9). If the instrument is within the terms of reference of a scrutiny committee, one copy of the schedule or document should be provided for the committee (see paragraph 5.4.10). The instrument, or its explanatory note, should make clear the place and time at which the schedule or document may be seen by interested persons.

Exemption for confidential instruments

3.5.8 If the responsible authority certifies that the printing and sale of copies of a statutory instrument would, if effected before the coming into force of the instrument, be contrary to the public interest, copies need not be printed and sold so long as the instrument has not come into force. If, before the instrument has come into force, it appears to the responsible authority that the printing and sale of copies would no longer be contrary to the public interest, he is to notify HMSO to that effect, and the exemption will cease

1 Ibid, reg 11(3) 2 Ibid, reg 11(3) proviso 3 Statutory Instruments Regulations 1947 reg 7 4 Ibid, reg 11(3) 5 Ibid reg 11(3) proviso 51

to apply1. The certificate is combined with the letter to the SI Registrar/certificate of classification, as in the Forms and Precedents, FP11. Notice to the Reference Committee is not required, and they have no power to direct the printing and sale of copies of such an instrument.

3.6 Orders in Council, affirmative instruments and draft instruments

Orders in Council

3.6.1 The procedure to be followed in the case of an Order in Council differs in some respects from that applicable to an instrument made by a Minister, as has been mentioned in paragraph 2.16.1. The preparation of such Orders has been considered in paragraphs 2.16.3 - 2.16.5, whilst distinctive features of registration and printing procedure are described in outline below, and those of parliamentary procedure in paragraphs 4.10.1 - 4.10.4. Details will be found in the relevant Table of Procedure, Table 10, and the notes preceding it.

3.6.2 The Privy Council Office notifies Departments of the date, time and place at which Her Majesty is to hold a Council, the date by which papers must be delivered for the purposes of the Council, and the date for the laying before Parliament of those Orders which require to be laid. The Department responsible for preparing the Order must supply the Privy Council Office with all necessary copies of it, including three for the use of that Office (if not submitted electronically). The copies should be in the form of printed proofs or prints produced from a draft produced using the SI template; they should be completed as far as possible (see paragraph 2.16.4), and every care must be taken to ensure that they are identical and correct. In addition the Department must supply all other papers required in connection with registration, printing and (if applicable) laying. The letter to the SI Registrar/certificate of classification, Forms and Precedents FP7 and the letter to TSO , Forms and Precedents, FP13 are prepared for signature by the Clerk of the Privy Council, and should be headed ‘Privy Council Office, 2 Carlton Gardens, London SW1Y 5AA’. They should be completed by the Departments except for the date and signature.

3.6.3 When the Order in Council has been made, the Privy Council Office send it for registration and printing, the procedure being substantially the same as for other instruments. The record copy of the instrument and the receipt sheet are returned to, and retained by, that Office. Any notification or submission to the Reference Committee is the responsibility of the Department.

Instruments requiring approval to come into force

3.6.4 A statutory instrument which does not come into force until approved by Parliament or the House of Commons (class (ii) of Table B, page 9) is not registered until approved2. It must, however, be printed and sold by TSO as soon as possible after it has been made3. For this purpose it is sent direct to TSO (not through HMSO) and printed, put on sale and laid before Parliament or the House of Commons bearing the italic headnote (see paragraphs 2.2.1 - 2.2.3 and the Forms and Precedents, FP2, paragraph 3). At this stage it appears for the first time in the Statutory Instrument Issue List (see paragraph

1, Ibid, reg 8 2 Statutory Instruments Regulations 1947, reg 3, first proviso 3 Pursuant to Statutory Instruments Act 1946, s.2(1). An instrument of this class is unlikely to be exempted from printing and sale 52

3.4.15), but without a serial number. When it has been approved the headnote is deleted, an italic cross-heading ‘Approved by both House of Parliament’ or ‘Approved by the House of Commons’ is inserted between the title of the instrument and the italic headings, the italic heading ‘Coming into force’ is completed if this had not previously been done (see the Forms and Precedents, FP4, paragraph 4, note (d)), and then to HMSO for registration(as per paragraph 3.3.3 or paragraph 3.3.6. The instrument is then registered, printed again in its new form and put on sale by TSO, and appears for the second time, with the serial number, in the Issue List. Table 8 is the relevant Table of Procedure.

Instruments requiring approval to remain in force

3.6.5 An instrument which requires the approval of Parliament or the House of Commons to remain in force (class (iii) of Table B, page 9) is registered, printed and put on sale as soon as possible after it has been made2. The italic headnote (see paragraph 2.2.1 - 2.2.3 and the Forms and Precedents, FP2, paragraph 4) is required on all copies. When the instrument has been approved, the headnote is deleted, and an italic cross-heading ‘Approved by both Houses of Parliament’ or Approved by the House of Commons’ is inserted between the title of the instrument and the italic headings. The instrument is then printed again in its new form and put on sale by TSO, and appears for the second time in the Issue List. Table 8 is the relevant Table of Procedure.

Draft instruments

3.6.6 If a statutory instrument has to be laid before Parliament or the House of Commons in draft (class (i) or (iv) of Table B, page 9), the practice is to lay printed drafts, which must bear the appropriate italic headnote (see paragraphs 2.2.1 - 2.2.3 and the Forms and Precedents, FP2, paragraphs 2 and 5) and the heading ‘DRAFT STATUTORY INSTRUMENTS’ (see paragraph 2.3.2). Before 1987, draft instruments bore the italic cross-heading ‘Laid before Parliament (or the House of Commons) in draft’. Since this information is contained in the headnote, the practice of inserting that cross-heading was discontinued; however Departments should ensure that a recital of the approval is included when drafting the instrument (see paragraph 2.4.7).

The responsible Department should arrange for a draft to be printed, published on the OPSI website and put on sale by TSO. It will also appear in the Statutory Instrument Issue List (see paragraph 3.4.15), and the letter to TSO (see the Forms and Precedents, FP13) should give so much of the information required for that list as is applicable to a draft. Where traditional methods have been used for originating the instrument the letter is sent to TSO, via HMSO with the appropriate Explanatory Memorandum emailed to the SI Registrar ([email protected]). Table 9 is the relevant Table of Procedure. In the case of draft instruments produced using the SI template these should be emailed with the appropriate Explanatory Memorandum to: [email protected]. As to the supply of copies of drafts for Members of Parliament, see paragraph 3.4.8; as to the steps to be taken if it transpires that printed copies of a draft will not be available on the intended date of laying, see paragraph 4.4.7.

3.6.7 If a draft instrument laid before Parliament is replaced by another draft, the first draft must be withdrawn by the responsible Department and the new draft should have printed in bold letters at the top of the front sheet: ‘Supersedes draft published on .....’. If the first draft was put on sale, the letter to TSO should show that it has been

superseded and expressly request that it be withdrawn (see FP11, paragraph 4 (viii)). Copies of the new draft must be supplied for Members (see paragraph 3.4.8).

3.6.8 If an affirmative draft (class (i) of Table B, page 9) has been approved by Parliament or the House of Commons, or a negative draft (class (iv) has lain for 40 days without being disapproved, the following steps should be taken when the instrument is made:

a) the italic headnote, and the word ‘DRAFT’ in ‘DRAFT STATUTORY INSTRUMENTS’, should be deleted and should not appear on copies sent to HMSO and TSO;

c) the italic heading ‘Made’ should be completed, also ‘Coming into force if not previously completed (see the Forms and Precedents, FP4, paragraph 5 note a)).

3.6.9 A flowchart showing the process for producing Affirmative Resolution orders using the SI template is reproduced at Appendix G.

PART 4 PARLIAMENTARY CONTROL OF STATUTORY INSTRUMENTS

4.1 Preliminary

4.1.1 This Part deals with the control of statutory instruments by Parliament or the House of Commons; that is, with the procedures listed in Table B (page 9). ‘Control’ in this sense is distinguished from ‘scrutiny’, the latter term being used in reference to the examination of instruments by the Joint (or Commons) Committee on Statutory Instruments and the House of Lords Select Committee on the Merits of Statutory Instruments considered in paragraphs 5.4.1 - 5.4.221 and paragraphs 5.5.1 – 5.5.9. The type of parliamentary control is prescribed by the enabling Act (or in rare instances by some other Act), but in the case of a negative draft or instrument (class (iv) or (v) of Table B) the Statutory Instruments Act 1946 must be consulted for details of the procedure: see paragraphs 4.6.1 - 4.6.18. Nearly all instruments fall within one of the classes listed in Table B, but a few Acts prescribe procedures different from any of those listed (for examples see paragraph 4.8.3).

4.1.2 The procedure for laying instruments subject to parliamentary control and other relevant points of practice are summarised in the Tables of Procedure, to be used in conjunction with the Forms and Precedents. As supplementing this Part see in particular:

Table 3 Laying before Parliament Table 6 In instrument to be laid: normal procedure Table 7 An instrument to be laid: urgent procedure Table 8 An instrument to be laid for a period before coming into operation Table 9 An instrument to be laid in draft Table 10 An Order in Council

Special procedure orders are dealt with in Appendix B, practice and procedure whilst Parliament is dissolved in Appendix C.

4.2 Laying before Parliament

4.2.1 The first step in parliamentary control of any variety is the laying of the statutory instrument or draft before Parliament, or the House of Commons. The effect of failing to lay an instrument, when it is required by statute to be laid, is discussed in Erskine May’s Parliamentary Practice (23rd Edition), pages 671-674.

4.2.2 The Statutory Instruments Act 1946, section 4, contains some general provisions relating to instruments which are required to be laid. An instrument required to be laid ‘before Parliament’ is to be laid before each House: see the next paragraph. It is to be so laid before it comes into operation, but provision is made for cases where commencement before laying is essential (see paragraphs 4.3.5 - 4.3.9). It must bear statements, which in practice take the form of italic headings, of the dates of commencement and laying (also, as an invariable rule of practice, a heading giving the ‘made’ date: see paragraphs 2.3.16 - 2.3.18 and the Forms and Precedents, FP3). These provisions replace, in their application to statutory instruments, any analogous

1 Further information on the subject matter of this and the following Part will be found in Erskine May’s Parliamentary Practice (23rd Edition) 55

provisions in Acts passed before 1948. With the substitution of references to the House of Commons for references to Parliament or each House, they apply to instruments laid before the Commons only1. They do not apply to a special procedure order or to any other instrument which is required to be laid before Parliament, or the House of Commons, for any period before it comes into operation2.

What constitutes laying

4.2.3 A reference in any Act or subordinate legislation to the laying of any instrument or other document before either House of Parliament is, unless the contrary intention appears, to be construed as a reference to the taking, during the existence of a Parliament, of such action as constitutes laying under the Standing or Sessional Orders or other directions of that House, or under its practice, notwithstanding that such action can be taken when the House is not sitting. A reference to the laying of any instrument or other document before Parliament is, unless the contrary intention appears, to be construed as a reference to the laying of the document before each House of Parliament. Section 4 of the Statutory Instruments Act 1946 is to be construed accordingly3.

4.2.4 This provision, and the relevant Standing Orders of each House (see paragraphs 4.2.5 - 4.2.8), use the phrase ‘during the existence of a Parliament’. A Parliament continues to exist during an adjournment or a recess (the period between prorogation and reassembly in a new session), but between the dissolution of a Parliament and the meeting of its successor there is no Parliament in existence4. Appendix C deals with practice and procedure whilst Parliament is dissolved.

Laying before the House of Lords

4.2.5 A statutory instrument may be laid before the House during the existence of a Parliament (see paragraph 4.2.4) by the deposit of a copy with the Clerk of the Parliaments. Instruments are accepted for laying during the following hours:

Mondays: 11.00 am to 5.00 pm or the rise of the House, whichever is the later Tuesdays, Wednesdays , Thursdays and Sitting Fridays: 9.30 am to 5.00 pm or the rise of the House, whichever is the later Non-Sitting days: 11.00 am to 5.00 pm

4.2.6 Any questions about the receipt of documents in the House of Lords should be addressed to the House of Lords Printed Papers Office (Tel: 020 7219 1246). If it is necessary to lay an instrument on a Saturday, the Clerk in Attendance should be warned on the preceding Friday so that arrangements may be made for the reception of the instrument.

1 Statutory Instruments Act 1946 s.7(2) 2 Ibid, s.7(3); in practice such instruments would, of course, be laid before coming into operation, and are provided with the relevant italic headings 3 Laying of Documents before Parliament (Interpretation) Act 1938, s1. The Act is printed in Part 9. 4 For a fuller treatment of these and related terms see Erskine May’s Parliamentary Practice (23rd Edition), chapter 13 56

Laying before the House of Commons

4.2.7 Under the Standing Orders of the House of Commons1 a statutory instrument may be laid before that House by delivery of a copy to the Votes and Proceedings Office on any day during the existence of a Parliament (see paragraph 4.2.4), subject to the exceptions mentioned in the next paragraph. The Journal Office will be open for the receipt of instruments during the following hours:

Mondays and Tuesdays (or other days when the House meets at 2.30 pm): 11.00 am to 8.30 pm Wednesdays and Thursdays: 9.30 am to 5.30 pm Sitting Fridays: 9.30 am to 3.00 pm Non-sitting Fridays: 11.00 am to 3.00 pm Other Non-sitting (e.g Recess) days: 11.00am to 5.00pm

Note: Draft SIs, special procedure orders and Made SIs requiring approval before coming into force are not accepted on non-sitting days (see also paragraph 4.2.8 below)

In exceptional circumstances, documents may be received after the cut-off time by prior arrangement with the Head of Night or Votewriter in the Journal Office (Tel: 020 7219 3320) as long as the House is still sitting. Departments should note that papers will not be accepted after the rise of the House in any circumstance and departments should therefore monitor progress (and if necessary consult the Journal Office) if they expect to lay an instrument towards the end of the day. As a matter of practice, instruments are not normally laid on Saturdays, Sundays, bank holidays, Good Friday or Christmas Day2.

Documents laid only on sitting days

4.2.8 The Standing Orders referred to in the preceding paragraphs do not apply to special procedure orders or to any other instrument which requires an affirmative resolution, or is required to be laid before Parliament or the House of Commons for any period, before it comes into operation3; nor do they apply to drafts. The exception of such instruments and of drafts does not affect the manner in which they are laid, but has the consequence that they can be laid only on sitting days. However, papers delivered on other days, or after the rising of the House, have been accepted and laid on the next sitting day. Instruments which are laid after making but cannot remain in force after a specified period unless approved within that period (class (iii) of Table B, page 9) are not within the exceptions mentioned in this paragraph and may be laid in accordance with the Standing Orders.

Copies for laying

4.2.9 Although the Standing Orders prescribe that a statutory instrument may be laid by delivery of ‘a copy’, the practice is to deliver two copies to each House, or to the House of Commons if laying is before that House only, together with the Explanatory

1 House of Commons Public Business Standing Order No 159 2 Erskine May’s Parliamentary Practice (23rd edition), pages 671 - 674 3 See the respective provisos to Public Business Standing Order No 71 (House of Lords) and No 159 (House of Commons). Although only the former refers expressly to instruments requiring an affirmative resolution before coming into operation, it is accepted that both have the effect stated above 57

Memorandum (see paragraphs 4.12.1 – 4.12.14 and any related maps, plans, schedules or other documents, and one copy of any exempt schedule or document (see paragraphs 3.5.6 and 3.5.7). Printed copies of the instrument in their final form will often not be available by the day fixed for laying, and it will be necessary to use final proofs, completed in manuscript as to serial numbers, dates, signature and the like or prints of a templated instrument in which the numbers etc have been completed. In urgent cases it may be necessary to use duplicated typescript copies, similarly completed in manuscript (see, however, paragraphs 4.4.1 - 4.4.7). The copies laid before the House of Lords must include at least one which is suitable for permanent preservation with the records of Parliament; that is, it must be in a durable form, printed, lithographed on good quality paper. Both copies must be complete and correct, and must comply with the formal requirements set out in Part 2 of this manual and in the relevant Forms and Precedents. Drafts for laying must conform to so much of the foregoing as is applicable to them.

4.2.10 An instrument should be registered by the SI Registrar before it is laid, and the serial number or numbers inserted in the copies to be laid, subject to the exceptions mentioned in paragraph 3.3.12 (instruments which will not take effect unless approved by Parliament or the House of Commons, and special procedure orders). Each copy to be laid must be authenticated (see paragraph 3.1.5) and attached to a memorandum (clearly showing the name and telephone number - including the GTN number where appropriate - of the signatory) in the form shown in the Forms and Precedents, FP15, which includes a declaration that the instrument is complete and not in dummy form, and states the form of parliamentary procedure to which it is subject. If, after a document has been laid, it is found to contain a mistake which is more than an obvious printer’s error, it must be withdrawn and correct copies laid (see the next paragraph). If there is a mistake or inaccuracy in the explanatory memorandum, it should be corrected at once.

Withdrawal of instruments

4.2.11 If an instrument which has been laid before the House of Commons is to be withdrawn a notification to that effect, in a letter separate from any other information relating to the relaying of such an instrument should be addressed to the Clerk in Charge, Votes and Proceedings office, House of Commons. The Table Office should also be contacted to ensure the withdrawal of any motion on the Order Paper relating to the instrument. If such a motion is on the effective Order Paper for the day on which the withdrawal is to take place, the Government Chief Whip’s Office should be informed immediately.

Deposit of maps or plans

4.2.12 Maps or plans deposited in the House of Lords should, in accordance with the directions of that House, be drawn in ink or printed by a lithographed or"true to scale" process, or produced by a combination of these methods, on stout paper of archival standard, and then backed with fine linen using wheat starch paste to archival specification or heat- set, coated with paraloid B/72 texicryl 13002. In practice the House of Lords Record Office (Tel: 020 7219 3072) will arrange for the copy of any map or plan to be treated so that it is of archival quality. Annexed to such a map or plan there should be a signed certificate that it has been prepared in accordance with these directions.

Laying procedure

4.2.13 During the existence of a Parliament the practice is to determine in advance, after any necessary consultation with HMSO/TSO, the date on which a statutory instrument will be laid. That date is then inserted in the appropriate italic heading of the copies used for registration, printing and laying. The subsequent procedure is described in the following paragraphs and summarised in the Tables of Procedure, Table 3. Some distinctive features of the practice relating to Orders in Council are considered in paragraphs 4.10.1 - 4.10.4 and in Table 10.

4.2.14 If an instrument is to be laid before both Houses, the responsible Department make up a folder containing two copies of the instrument and (where required) an Explanatory Memorandum, each attached to a copy of a memorandum (see paragraph 4.2.10 and the Forms and Precedents, FP15) addressed to the Clerk of the Parliaments for laying before the House of Lords; two further copies of the instrument and (where required) an Explanatory Memorandum, each attached to a copy of a similar memorandum addressed to the proper officer of the House of Commons, for laying before that House; and the Department’s record copy and receipt sheet (FP12). The copies should conform with the directions in paragraphs 4.2.9 and 4.2.10.

4.2.15 The folder is taken by messenger first to the Printed Paper Office, House of Lords, and then to the Votes and Proceedings Office, House of Commons. In each Office the clerk in attendance extracts the appropriate two copies of the instrument and memorandum, signs the receipt sheet and stamps the record copy with the date of laying. The folder is then taken back to the Department; it will now contain the record copy and the receipt sheet recording the registration (paragraph 3.3.6 and 3.3.8), delivery for printing (paragraph 3.4.5) and laying of the instrument. Substantially similar steps are taken to lay draft instruments, but they, like special procedure orders and certain affirmative instruments, may be laid only on sitting days (see paragraph 4.2.9).

4.2.16 If an instrument is to be laid before the House of Commons only, so much of the foregoing as relates to the House of Lords is, of course, inapplicable. If laying is before both Houses, but the messenger finds that the Printed Paper Office of the House of Lords is not open, he should obtain further instructions from his Department, since difficulties would arise if the instrument, having been laid before the House of Commons, could not be laid before the House of Lords before coming into force. The nature of the difficulties will be apparent from a consideration of paragraphs 4.3.5 - 4.3.9.

Notice of laying

4.2.17 Notice of the laying of a statutory instrument or draft, and of the form of parliamentary control to which it is subject, is given to Members in the Minutes of Proceedings of the House of Lords and in the Votes and Proceedings of the House of Commons.

4.3 Date of laying

The relevant rules

4.3.1 In general a statutory instrument which has to be laid before Parliament or the House of Commons should be laid as soon as may be after registration. More specifically, there are certain rules of practice or of law which affect the date of laying.

4.3.2 In paragraph 3.4.8 reference has been made to the practice whereby both Houses of Parliament are supplied with copies of printed statutory instruments and of those printed drafts which are issued or laid or both. Where an instrument or draft is required to be laid, the copies should whenever possible be supplied to each House on the date of laying. Accordingly the fixing of that date may be affected by the printing programme and vice versa (see further paragraphs 4.4.2 - 4.4.7).

4.3.3 Other rules which may affect the date of laying arise from the practice of the scrutiny committees and the Standing Orders relating to them. These rules are mentioned in connection with printing programmes (see paragraphs 4.4.2 - 4.4.7) and more fully considered in paragraphs 4.13.1 - 4.13.4 and 5.4.13. Their practical importance should not be overlooked.

4.3.4 Finally, there is the statutory rule relating to laying and commencement: this had already been mentioned in paragraph 2.5.8, and is more fully discussed in the remainder of this section.

The statutory rule: laying before commencement

4.3.5 A statutory instrument which is required by an Act to be laid before Parliament, or the House of Commons, must (save as stated in the next paragraph) be laid before it comes into operation1, and should have a commencement clause which enables this result to be achieved. As it will come into force at the beginning of the day specified in the commencement clause2 it must be laid not later than the previous day.

Laying after commencement

4.3.6 Notwithstanding the rule just stated, a statutory instrument may be made to come into force before it is laid if that is essential. In such a case notification must be sent to the Speaker of the House of Lords and to the Speaker of the House of Commons (or to the Speaker of the House of Commons alone if laying is before the Commons only) drawing attention to the fact that copies of the instrument have yet to be laid, and explaining why copies were not laid before it came into operation3. The notification must (save as stated in paragraph 4.3.8) be sent as soon as the instrument comes into force (see the preceding paragraph). The procedure to be followed is shown in the Tables of Procedure, Table 7, and a form of notification is given in the Forms and Precedents, FP16. The procedure is provided for in cases where commencement before laying is essential, and except when Parliament is dissolved (see Appendix C) it should not often be necessary to resort to it.

1 Statutory Instruments Act 1946, ss.4(1) and 7(2) 2 Interpretation Act 1978, ss.4(a) and 23(1) 3 Statutory Instruments Act 1946, s4(1) proviso. The notification is laid upon the Table of each House: Public Business Standing Order No 72 (House of Lords) and No 160 (House of Commons) 60

4.3.7 When this procedure is used there is no rule as to the date on which copies of the instrument must be laid, but they should be laid as soon as possible. The italic heading giving the date of laying should, in such a case, be printed below the heading giving the date of coming into force.

4.3.8 If the procedure has to be adopted when there is a vacancy for the time being in the office of Speaker of either House of Parliament, whether occurring by death, resignation, dissolution of Parliament or otherwise, the requirement to send notification is complied with if it is sent immediately after the vacancy is filled1. As to procedure when Parliament is dissolved, see Appendix C, paragraph 7.

Application of the rule

4.3.9 The provisions described in paragraphs 4.3.5 and 4.3.6 replace, in their application to statutory instruments, any analogous provisions in Acts passed before 19482. They do not apply to special procedures or to any other instrument which is required to be laid before Parliament, or the House of Commons, for any period before it comes into operation3.

4.4 Laying and the printing programme

General

4.4.1 The issues covered by the following paragraphs whilst applying to all instruments and draft instruments will generally not apply to instruments produced using the Statutory Instruments template and which when used should ensure that instruments can be printed in accordance with the requirements set out at paragraph 3.4.3 and the timetable set out at Table E, page 45.

Instruments

4.4.2 It has been pointed out in paragraph 3.1.4 that, where a statutory instrument is to be printed and has not been drafted using the SI template, proofs of it should whenever possible be obtained from TSO before it is made. This enables it to be printed and issued promptly after making, and so facilitates compliance with the rules of practice mentioned at paragraphs 4.3.2 (supply of copies for Members) and 4.3.3 (scrutiny committees).

4.4.3 Where proofs of an instrument cannot be obtained before it is made, or other difficulties arise, it may follow that, under a normal printing programme (see paragraph 3.4.3), copies of the instrument will not be available on the intended date of laying. In such a case there are usually three courses open:

a) to lay the instrument in a duplicated form, and to keep to the normal timetable for printing: or b) to postpone the laying of the instrument until printed copies are available for issue: or c) to secure expedited printing (the additional costs of which will be invoiced to the department by TSO).

1 See Laying of Documents before Parliament (Interpretation) Act 1948, s.2 The Act is printed in Part 9 2 Statutory Instruments Act 1946, s4(3) 3 Ibid, s7(3): in practice such instruments would, of course, be laid before coming into operation 61

4.4.4 The extra expense of course c) would not be justified in every instance, but Departments should consider, in the circumstances of each case, whether expedited printing ought to be arranged. If that course is not adopted, the choice between courses a) and b) will usually depend upon the date on which the instrument is to come into force.

4.4.5 Course a), laying in duplicated form, should be adopted if it is necessary in order to avoid infringement of the statutory rule that an instrument must be laid before it comes into operation unless the contrary is essential (see paragraphs 4.3.5 - 4.3.9), or in order to avoid, as far as may be, infringement of the rules of practice mentioned in paragraph 4.3.3 (scrutiny committees). Where this course is adopted, printed copies should be supplied to Parliament as soon as possible after laying: in the meantime duplicated copies should be supplied by the Department on the date of laying.

4.4.6 Course b), postponement of laying until printed copies of the instrument are available for issue, is usually expedient if the instrument has been made well in advance of the date on which it is to come into force, so that the relevant rules (see paragraphs 4.3.1 - 4.3.5) will not be infringed. If the decision to postpone the date of laying is taken after the instrument has been sent for registration and printing, the new date should be notified to SI Registrar and TSO, and the latter should be asked to ensure that it appears in the appropriate italic heading.

Draft instruments

4.4.7 If an instrument has to be laid in draft, and it transpires that printed copies of the draft will not be available on the intended date of laying, the usual course is to postpone that date. If the draft is subject to negative resolution (class (iv) of Table B, page 9) the new date must be inserted in the headnote (see the Forms and Precedents, FP2, paragraph 5). If it is not acceptable to postpone the laying of the draft it will be necessary, as in the case of an instrument, either to lay it in duplicated form or to secure expedited printing.

4.5 Affirmative procedure

Three classes of affirmative instruments

4.5.1 The standard forms of affirmative (or ‘positive’) procedure are shown in Table B (page 9), classes i), ii) and iii). Documents of class i) are commonly called ‘affirmative drafts’, those of class ii) or iii) ‘affirmative instruments’. Those of classes i) and ii) may be laid only on sitting days, but this restriction does not apply to class iii) (see paragraph 4.2.8).

Use of affirmative procedure

4.5.2 Affirmative procedure is less common than the negative procedure described in the next section, but provides the more stringent form of parliamentary control, since the statutory instrument or draft must receive positive approval. If it relates to financial matters, it will generally require the approval of the House of Commons only. The respective uses, advantages and disadvantages of the three standard forms of affirmative procedure are discussed in the Second Report from the Joint Committee on Delegated Legislations, 1972-731. Following that Report it has not been the practice

1 HL, 204, HC 468 62

to prescribe, in new Acts, the procedure applicable to instruments of class ii) of Table B.

Source of affirmative procedure

4.5.3 Whilst the procedure governing negative instruments and drafts has been standardised by the Statutory Instruments Act 1946, as described in paragraphs 4.6.3 - 4.6.10, there has not been any corresponding standardisation of affirmative procedure. In the case of an affirmative instrument or draft, therefore, the form which the procedure takes, and any time limit within which the affirmative resolution must be passed by Parliament or the House of Commons, are to be ascertained from the enabling Act.

28 day orders

4.5.4 Statutory instruments of class iii) of Table B are often called ‘28 day orders’ since that is most frequently the period within which they must be approved, although some enabling Acts prescribe a month or 40 days. For the method of computing the period the enabling Act should invariably be consulted. In the absence of any provision to the contrary, the time will run during the period which begins with the meeting of a new Parliament and precedes the State Opening (the ‘swearing-in days’)1 and on days when the House of Lords sits for judicial business (cf paragraph 4.6.11 on the 40 day period in negative procedure). Any cases of doubt concerning the running of time for the purposes of these orders should be referred to the Clerk of Printed Papers, House of Lords, or the Clerk of the Journals, House of Commons.

4.5.5 In a section on 28 day orders in their First Report, 1972-732, the Joint Committee on Delegated Legislation referred to ‘the opportunity open to a Government artificially to prolong the period within which an affirmative instrument must be approved in both Houses, by laying a fresh but identical3 order just before the expiry of the period’. The Committee accepted that there might occasionally be good reasons for taking that course (as in the case of a hybrid instrument - see paragraphs 5.6.5 and 5.6.10), but in general strongly deprecated its adoption as a means of avoiding the requirement for approval within the prescribed period.

Motions to approve instruments or drafts

4.5.6 A motion to approve an instrument or draft is prepared by the responsible Department, or occasionally by Parliamentary Counsel on their behalf. In the terms of the formal parts there are minor differences between the practice of the Lords and that of the Commons, as appears from the examples given in the Forms and Precedents, FP 18. There may be exceptional cases in which it is necessary to vary the terms of these parts, and the variation should then be brought to the notice of the Clerk of Printed Papers, House of Lords (if appropriate), and the Clerk of the Journals, House of Commons, and the reason for it explained. If no such notice is given, the motion may be amended to conform to the normal practice. The substantive parts of the motion are a matter for the Department or Counsel, and must be so worded as to comply with the requirements

1 Mr Speaker’s ruling on 12 March 1952; HC Deb (1951-52) 497, c1515 2 See the First Report from the Joint Committee on Delegated Legislation, 1972-73 (HL 188, HC 407), paras 113-5. If the order is laid before the House of Commons only, the enabling Act may provide that the time does not run during the adjournment of that House for more than four days, in which case sittings of the Lords during such an adjournment would be immaterial 3 Identical, that is, except for new dates of making and commencement 63

of the enabling Act. If the Act requires that an instrument be approved in draft before it is made, the motion should ask for approval of the draft, not of the instrument (see paragraph 3 of FP18).

Proceedings in Parliament

4.5.7 When an affirmative instrument or draft has been laid, the responsible Department must arrange for the affirmative motion to appear on the Order Paper of the House of Commons, consult with the Government Whips’ Office about the consideration of the motion by the House and, unless laying is before the Commons only, make the like arrangements in the House of Lords.

4.5.8 The Whips’ Office must be supplied with five copies of the instrument or draft, and given the name of the Minister responsible for it and particulars of relevant time limits and procedure. They should also receive five copies of a short, non-confidential note explaining the instrument or draft. This is supplied to the Leader of the House and the Government and Opposition Chief Whips, and assists them in determining whether the instrument or draft is likely to give rise to debate and whether, in the Commons, it should be referred to a Delegated Legislation Committee (see paragraphs 5.3.1- 5.3.4) or considered on the floor of the House.

4.5.9 In the House of Lords a resolution to approve a statutory instrument or draft may not be moved until a report on it has been received from the Joint Committee on Statutory Instruments (see further paragraph 5.4.18). Where an instrument or draft has been referred to a Delegated Legislation Committee of the Commons (see paragraphs 5.3.1 - 5.3.4) their report must be received before the resolution is moved in that House.

4.5.10 When proceedings on an affirmative instrument or draft are taken on the floor of the House of Commons they are ‘exempted business’, that is, they are not interrupted at the 'moment of interruption' at which much Commons business finishes. However, the Speaker puts the question not later than 1½ hours after the commencement of proceedings1. On occasions, the Government tables a Business of the House motion varying this provision for a debate on a particular instrument or group of instruments.

4.5.11 Arrangements for proceedings relating to statutory instruments or drafts on the floor of either House, or in a Delegated Legislation Committee of the Commons, are under the management of the Government Whips, but the responsible Department should assist them wherever necessary. In addition the Department should send the Librarian of each House a list of relevant papers, provide the Minister with the necessary briefing in the event of a debate, and make a note of any undertaking given by the Minister during the debate or other matter requiring further action.

4.6 Negative procedure

Two classes of negative instruments

4.6.1 The standard forms of negative procedure are shown in Table B (page 9), documents in class iv) being commonly known as ‘negative drafts’ and those in class v) as ‘negative instruments’). The former may be laid only on sitting days (see paragraph 4.2.8).

Use of negative procedure

1 Public Business Standing Order No. 16 64

4.6.2 Negative procedure provides a less stringent form of parliamentary control than affirmative: the instrument will remain in force, or may be made in the form of the draft, unless a Member introduces a negative resolution (commonly known as a ‘prayer’, on account of the statutory reference1 to an address to Her Majesty ‘praying’ that the instrument be annulled) for which parliamentary time is provided within the prescribed 30 days, and the resolution is agreed to. The procedure applicable to negative instruments (class iv)) is relatively uncommon, but that applicable to negative instruments (class v)) is much the most common form of parliamentary control The respective uses, advantages and disadvantages of these two standard forms of negative procedure are discussed in the Second Report from the Joint Committee on Delegated Legislation, 1972-732. Following that Report it has not been the practice to prescribe, in new Acts, the procedure applicable to drafts of class iv), although this might still be done for compelling reasons in a particular case.

Standardisation of negative procedure

4.6.3 Negative procedure (unlike affirmative procedure) has been standardised, and earlier forms of such procedure have been superseded, by the Statutory Instruments Act 1946. Following the sequence of the Act3, negative instruments (class v) are considered in paragraphs 4.6.4 - 4.6.6 below, negative drafts (class iv) in paragraphs 4.6.7 - 4.6.9. With the substitution of references to the House of Commons for references to Parliament or either House, the provisions described in these paragraphs apply to negative instruments or drafts laid before the Commons only4.

Negative procedure: instruments

4.6.4 The Act deals with those negative instruments (as distinct from drafts) to which only the modern law applies. Where the Act, or any Act passed after 1947, provides that any statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament, the instrument is to be laid before Parliament after being made. If either House, within the period of 40 days (see paragraph 4.6.11) beginning with the day on which the instrument is laid before it, resolves that an address be presented to Her Majesty praying that the instrument be annulled, no further proceedings may be taken under the instrument after the date of the resolution, and Her Majesty may by Order in Council revoke it. Any such resolution and revocation are, however, without prejudice to the validity of anything previously done under the instrument or to the making of a new instrument5 (see further paragraphs 4.6.15 and 4.6.16).

4.6.5 The Act deals next with instruments (as distinct from drafts) whose ‘negative’ character derives from earlier legislation: that is, where any Act passed before 1948 contains provisions requiring that any Order in Council or other document made in exercise of any power conferred by that or any other Act is to be laid before Parliament after being made, and is to cease to be in force, or may be annulled, if within a specified period either House presents an address to Her Majesty or passes a resolution to that effect. Any statutory instrument made under such a power is, by virtue of the Act of 1946, to

1 Statutory Instruments Act 1946, s5(1) 2 HL 204, HC 468 3 Statutory Instruments Act 1946, ss 5,6 4 Ibid, s7(2) 5 Statutory Instruments Act 1946, s5(1) 65

be subject to annulment in pursuance of a resolution of either House of Parliament, and the provisions set out in the preceding paragraph are to apply to the instrument in substitution for the provisions of the earlier Act1. The application of this provision may be excluded or modified by Order in Council2.

4.6.6 The provisions described in the preceding two paragraphs do not apply to special procedure orders or to any other instrument which is required to be laid before Parliament or the House of Commons for any period before it comes into force3.

Negative procedure: drafts

4.6.7 Having prescribed the procedure for negative instruments, the Statutory Instruments Act 1946 deals with negative drafts, and first with those affected only by the modern law.

4.6.8 Where the Act, or any Act passed after 1947, provides that a draft of any statutory instrument is to be laid before Parliament, but does not prohibit the making of the instrument without the approval of Parliament, then in the case of an Order in Council the draft is not to be submitted to Her Majesty in Council, and in any other case the statutory instrument is not to be made, until after the expiration of a period of 40 days (see paragraph 4.6.11) beginning with the day on which the draft was laid before each House. If laying before the two Houses takes place on different days, the period begins with the later day. If within that period either House resolves that the draft be not submitted to Her Majesty or that the statutory instrument be not made, no further proceedings may be taken on that draft, but without prejudice to the laying of a new draft4.

4.6.9 The second category of negative drafts comprises those of which the ‘negative’ character has its origin in earlier legislation; that is, where any Act passed before 1948 requires that a draft of any Order in Council or other document, to be made in exercise of any power conferred by that or any other Act, is to be laid before Parliament before being submitted to Her Majesty or before being made, and is not to be so submitted or made if within a specified period either House presents an address to Her Majesty or passes a resolution to that effect. A draft of any statutory instrument made under such a power is, by virtue of the Act of 1946, to be laid before Parliament, and the provisions set out in the preceding paragraph are to apply to it in substitution for the provisions of the earlier Act5. The application of this provision may be excluded or modified by Order in Council6.

1 Ibid, s5(2) 2 Ibid, s9(2): no such Order in Council has been made 3 Ibid, s7(3). The 1946 Act uses the word ‘operation’ for which ‘force’ is now to be used in connection with statutory instruments 4 Ibid, s6(1) 5 Statutory Instruments Act 1946, s6(2) 6 Ibid, s9(2); no such Order in Council has been made 66

Negative procedure: the enabling Act

4.6.10 Since the Statutory Instruments Act 1946 standardised negative procedure in the forms just described, such procedure may be applied to a statutory instrument or draft by a short and simple form of words in the enabling Act. So, if the latter Act provides that an instrument ‘shall be subject to annulment in pursuance of a resolution of either House of Parliament’, that instrument will be subject to the provisions, such as the requirement for laying and the procedure for annulment, in section 5(1) of the Act 1946: it will belong to class v) of the classification used in this manual (see Table B, page 9). Similarly the words ‘shall be laid before Parliament in draft’ attract the provisions of section 6(1) and bring the instrument within class iv).

The 40 day period

4.6.11 The ‘praying period’ or ‘praying time’, that is, the period of 40 days within which a negative resolution may be moved, is computed as follows:

a) In the case of a statutory instrument the period begins, as regards either House, with the day on which the instrument is laid before that House1 b) In the case of a draft (which must be laid on a sitting day - see paragraph 4.2.8) the period begins with the day on which the draft is laid before each House, or, if the laying takes place on different days, with the later day2 c) In either case, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days3 d) In either case, the time runs i) during the period which begins with the meeting of a new Parliament and precedes the State Opening (the ‘swearing-in days’)4: and ii) on days when the House of Lords sits for judicial business only5

With the obvious modifications to a) and b) the above rules apply to a negative instrument or draft laid before the House of Commons only6. Time runs when the House of Lords is sitting, even though the Commons is adjourned for more than four days. Any case of doubt concerning the application of these rules should be referred to the Clerk of Printed Papers, House of Lords, or the Journal Office, House of Commons.

Negative resolutions

4.6.12 A negative resolution, or ‘prayer’, is directed against subordinate legislation made or drafted by the Government, and will therefore be moved either by the official Opposition or by a private Member. In the House of Lords such motions are rare, and there are no Standing Orders specifically relating to them. In the event of a debate, the advice given in paragraph 4.5.7 – 4.5.9 applies to such proceedings as it does to affirmative proceedings.

1 Ibid, s5(1) 2 Ibid, s6(1) 3 Ibid, s7(1) 4 Mr Speaker’s ruling on 12 March 1952; HC Deb (1951-52) 497, c 1515 5 See the First Report from the Joint Committee on Delegated Legislation, 1972-73 (HL 188, HC 407), paras 114-5. The Report gives an account of the history and operation of the 40-day period 6 Statutory Instruments Act 1946, s8(2) 67

4.6.13 In the House of Commons proceedings on a ‘prayer’ are 'exempted business', that is, they are not interrupted at the 'moment of interruption' at which much Commons business finishes, but the Speaker puts the question 1½ hours after the start of proceedings. In addition, however, the proceedings may not continue for more than 1½ hours after the moment of interruption, and if they are still under discussion the Speaker must either put the question, or, if he considers that the time for debate has not been adequate, either because of the lateness of the hour at which the proceedings started, or because of the importance of the subject matter, he must interrupt the business and the debate stands adjourned to the next sitting (other than a Friday)1.

4.6.14 Debates on ‘prayers’ in the House of Commons take place in Government time, and in recent years the pressure of other business has made it increasingly difficult to provide for these debates within the 40-day period. Two methods of meeting this difficulty have been adopted. One is to table a motion to ‘take note’ of the instrument or draft, or a motion that it be withdrawn, notwithstanding the expiry of the 40-day period2. The other, and now more common, method is to refer the instrument or draft to a Delegated Legislation Committee on Statutory Instruments (see paragraphs 5.3.1 - 5.3.4), as may be done in the case of an affirmative instrument or draft.

Consequences of a negative resolution

4.6.15 Under the provisions described in paragraph 4.6.4, if either House within the prescribed 40 days resolves that an address be presented to Her Majesty praying that an instrument be annulled, then:

a) no further proceedings may be taken under the instrument after the date of the resolution, and b) Her Majesty may by Order in Council revoke the instrument

Both the resolution and the revocation are without prejudice to the validity of anything previously done under the instrument or to the making of a new statutory instrument3.

4.6.16 Thus the resolution does not itself revoke the instrument, but precludes further ‘proceedings’ being taken under it. The resulting state of the law, between the passing of the resolution and the revocation and replacement (if any) of the instrument, may need to be assessed with care, particularly if the instrument revoked or amended an earlier instrument. Such questions of construction are outside the scope of this manual.

4.6.17 An address praying that an instrument be annulled is presented to the Sovereign, normally by one of the Government Whips, before the revoking Order in Council is made. The Department should keep the Clerk of the Privy Council informed of the matter.

4.6.18 In the case of a draft statutory instrument the consequences of a negative resolution will be clear from the description of the relevant provisions4 in paragraph 4.6.8.

4.7 Regulatory reform orders

1 Public Business Standing Orders Nos. 16 and 17 2 As to the effect of such a motion, see Erskine May’s Parliamentary Practice (23rd Edition), pp 677-680 3 Statutory Instruments Act 1946, s5(1). As to the construction of Orders in Council made under this section, see Interpretation Act 1978, s23(4) 4 Statutory Instruments Act 1946, s6(1) 68

4.7.1 Regulatory reform orders are subject to a distinctive, two-stage scrutiny procedure sometimes referred to as the “super affirmative” procedure.

4.7.2 At first scrutiny, the draft order is laid together with an explanatory document. 60 days is required for scrutiny by Committees of both Houses (see section 5.7). The Committees may invite written or oral evidence from Departments and other interested parties. Departments must consider the Committees’ reports (and any other representations) before proceeding to the second stage. In some cases, it may be necessary to amend the draft order.

4.7.3 At second scrutiny, the draft order is again laid with an explanatory statement dealing (among other things) with any recommendations made by the Committees at the first stage. The scrutiny Committees report to their respective Houses, which will then debate (as necessary) and vote on the reports. Final Committee reports will normally be made within three weeks, after which, if the Committees have approved the draft order, the Department can proceed to make it.

4.7.4 In the House of Commons, if the Committee votes unanimously to approve the draft order, the motion to approve it is put to the House forthwith, with no debate permitted. If the Committee was not unanimous in approving the draft order, there is a debate on the Committee’s report, after which the motion to approve the draft order is put. If the Committee recommends (whether unanimously or not) that the draft order should not be approved, it is open to the Minister to table a motion to disagree with the Committee’s report. This would trigger a debate.

4.7.5 In the House of Lords, following publication of the Committee’s second report, the Minister tables a motion that the House should approve the draft order. This will trigger a short debate. A Member of the House may also table an accompanying motion in respect of a report on a draft order. This motion is taken immediately before the motion to approve the draft order (the two motions being debated together) and can be amended and voted on. There is a government undertaking that, in the event of a motion hostile to a draft order being agreed to, the motion for the draft order to be approved will not be moved.

4.7.6 For details of the papers required by the Committees at each stage, and the number of copies, reference is made to the detailed Cabinet Office guidance.

4.8 Other varieties of procedure

Laying without further proceedings

4.8.1 The procedure by which an instrument is laid before Parliament after being made, though not subject to further parliamentary proceedings (class vi) of Table B, page 9), is not very common but is found in some recent Acts as well in some modern consolidations of older Acts (for example, section 663 (5) of the Companies Act 1985). Under the National Savings Bank Act 1971, section 26(4), certain instruments are to be laid before Parliament in draft for at least 40 days before being made, but section 6 of the Statutory Instruments Act 1946 is disapplied; the Act of 1971 is a consolidation Act.

Instruments not subject to parliamentary control

4.8.2 Many statutory instruments are not required to be laid before Parliament at all (class vii) of Table B, page 9). They form the second largest class, after those subject to annulment (class v)). Section 4 of the Statutory Instruments Act 1946 (see paragraph 4.2.2) does not apply to such instruments, but those classified as general (see paragraph 3.2.1) are subject to examination by the scrutiny committees described in paragraphs 5.4.1 - 5.4.22 and 5.5.1 – 5.5.9.

Exceptional procedures

4.8.3 A few Acts prescribe unusual procedures or a choice between standard procedures. Examples are:

a) Civil Contingencies Act 2004, section 27 (1)): regulations shall lapse after 7 days beginning with the date of laying unless each House of Parliament passes a resolution approving them. b) European Communities Act 1972, Schedule 2, paragraph 2(2): instrument either to be approved in draft, or to be subject to annulment (see further paragraph 4.11.1). c) Northern Ireland Act 1973, Schedule 1, paragraph 1(5): Orders in Council either to be approved in draft or, in cases of urgency, to be approved within 30 days of being made.

Powers to amend, modify or adapt subordinate legislation have occasionally been conferred on Parliament by Acts. An example is the Civil Contingencies Act 2004, section 27(3)

4.9 Other aspects of parliamentary control

Incompatible procedure

4.9.1 A Minister may, in some area of law or administration, be given a number of different powers to make statutory instruments, and the instruments may be subject to different forms of parliamentary control according to the enabling section under which they are made: for example, those made under one section may be subject to negative procedure, those made under another to affirmative procedure1. In such a case the exercise of both powers in one instrument is likely to give rise to procedural difficulties and should be avoided unless clearly contemplated by the enabling Act2. In 1950 the Speaker ruled that a composite instrument containing two regulations which had already been approved in draft by both Houses, and two which were new and subject to annulment, could not be accepted by the House3.

1 For an example in a single subsection, see Hovercraft Act 1968, s1(4) 2 As it is, for example, in Census Act 1920, s1(2) 3 HC Deb (1950-51) 480, c 1797 - 1802 70

Scope of debate

4.9.2 In a debate on an instrument which consolidates earlier instruments, discussion of the merits of provisions which appear in the earlier instruments is not permitted, except in so far as the consolidating instrument modifies any such provision1 The rule is analogous to that applied to consolidation bills. But where an order subject to annulment consolidated orders made under legislation, which did not apply any parliamentary procedure to them, the Speaker allowed debate on all the provisions of the consolidating order2. On a motion to annul an instrument which extensively amended an earlier instrument, it was held that discussion must be confined to the amending instrument3. Some other points going to the scope of debate are mentioned in Erskine May4.

4.10 Orders in Council

Orders in Council laid after being made

4.10.1 Orders in Council may be subject to parliamentary control in substantially the same forms as apply to other statutory instruments5. As, however, they are laid before Parliament (as well as being sent for registration and printing) by the Privy Council office, the procedure to be followed by the responsible Department has distinctive features, which are described in outline below. Details will be found in the relevant Table of Procedure, Table 10, and the notes preceding it.

4.10.2 The notice sent to Departments of a forthcoming Council (see paragraph 3.6.2) includes the date for the laying before Parliament of those Orders which require to be laid. This date is normally five days after the Council, excluding Saturdays, Sundays and bank holidays. If there are compelling reasons for a particular Order to be laid sooner, the responsible Department must first check with the Privy Council Office and HMSO/TSO.

4.10.3 The Department must supply the papers required for laying (see paragraph 4.2.14) by the Privy Council Office, in addition to those required for registration and printing (see paragraph 3.3.3 and 3.3.6). If the Order has to be brought into force before it is laid, the Department also supply the requisite notification to the Speakers of both Houses of Parliament (see paragraph 4.3.6), which will be sent by the Privy Council Office. The letters accompanying the laying copies, and any notification to the Speakers of both Houses of Parliament, are prepared for signature by the Clerk of the Privy Council, and headed ‘Privy Council Office, 2 Carlton Gardens, London, SW1Y 5AA’. They should be completed except for the date and signature.

Orders in Council laid in draft

4.10.4 If an Order in Council is to be laid before Parliament in draft, the duty of laying it rests with the responsible Department. A copy of the draft should be sent to the Privy Council Office at least seven days before it is laid. When the parliamentary procedure

1 HC Deb (1928-29) 224, c1102-4; (1946) 433, c2011-2; (1951-52) 502, c 1676-7; (1960-61) t31, c 335 2 HC Deb (1946-47) 433, c 2012 3 HC Deb (1945-46) 421, c 499-500 4 Erskine May’s Parliamentary Practice (23rd Edition), page 681 5 Excepting, for reasons of constitutional propriety, the procedure whereby the instrument is laid after making, but cannot come into force unless and until approved (class ii) of Table B, page 9) 71

applicable to the draft has been completed the Department send it, with the other requisite papers, to the Privy Council Office for the Order to be made, and then registered and printed.

4.11 European Communities Act 1972

General

4.11.1 The European Communities Act 1972, Schedule 2, paragraph 2(2), provides in effect that Orders in Council and regulations made under the Act may be subject either to affirmative draft procedure or to negative procedure. The manner in which this choice had been exercised was the subject of some remarks in the First Special Report from the Joint Committee on Statutory Instruments, 1977-781, to which the Government’s reply was in the following terms2:

The Joint Committee express the view that the Government should make known the criteria governing their choices between affirmative and negative procedures in respect of instruments made under the European Communities Act 1972, and that Departments should apply these criteria ‘rather than follow the demands of Departmental convenience’.

In the Government’s view it is not practicable to lay down precise criteria for determining the choice between the various Parliamentary statutory instrument procedures. The appropriate procedure needs to be determined in the light of the wishes of Parliament and the circumstances of the particular case.

In their second Report in 1972-733 the Joint Committee on Delegated Legislation recognised the difficulty of devising precise criteria in this field, but suggested that the affirmative procedure might normally be appropriate for:

i) powers substantially affecting provisions of Acts of Parliament; ii) powers to impose or increase taxation or other financial burdens on the subject, or to raise statutory limits on the amounts which may be borrowed by, or lent, or granted to public bodies; iii) powers involving considerations of special importance not falling under the head i) or ii) above (e.g. powers to create new varieties of criminal offence of a serious nature).

In proposing what they consider to be the appropriate form of Parliamentary control Ministers will continue to take into account such general considerations as those outlined above. But in the case of instruments made under the European Communities Act 1972, it will also be noted that these instruments generally implement obligations arising from Community regulations and directives which have already, in their draft form, been examined under the Parliamentary scrutiny procedures appropriate to the consideration of draft proposals for Community legislation.

1 HL 51, HC 169, para 36 2 Second Special Report from the Joint Committee on Statutory Instruments, 1977-78 (HL 236, HC 579), paras 17-20 of Minutes of Evidence 3 HL 204, HC 468 72

Transposition Notes

4.11.2 It is a requirement that all legislation laid before the UK Parliament that transposes any European directive should be accompanied by a Transposition Note which should be annexed to the Explanatory Memorandum (see Section 4.12)

4.11.3 Every transposition note will need to illustrate how all of the main elements of the Directives(s), which the instrument transposes, have been or will be transposed into UK law. The main elements of a Directive are those that determine the Directive’s fundamental objectives(s) and major effects(s), have a significant impact on UK citizens or are politically important. The only occasion when legislation does not have to be accompanied by a transposition note is when it is can be demonstrated clearly that the resources required to produce the transposition note are significantly greater than can be justified by the resulting added benefit to the reader.

4.11.4 Transposition notes have a more specific purpose than Explanatory Memoranda (see Section 4.12)) or Explanatory Notes (see paragraphs 2.13.1 – 2.13.13). In comparison, a transposition note should be more specific about how the main elements of the Directives(s) will be transposed into UK law and should display this information in a more structured way. The Explanatory Notes should, however, include a statement that a transposition note is available and say where it can be obtained.

4.11.5 A transposition note should be laid at the same time as the instrument annexed to the Explanatory Memorandum to that instrument.

4.11.6 Detailed information and guidance on the preparation of transposition notes is prepared by the Cabinet Office Better Regulation Executive and can be accessed at:

www.cabinetoffice.gov.uk/regulation/documents/pdf/tpguide.pdf

4.12 Explanatory Memoranda for instruments laid before Parliament

General

4.12.1 Following the setting up of the House of Lords Select Committee on the Merits of Statutory Instruments (“the Merits Committee”) (see section 5.5), the Merits Committee requested that departments should provide an explanatory memorandum to accompany all statutory instruments within the Committee’s remit, setting out a brief statement of the purpose of an instrument and providing information about its policy objective and policy implications. This meant that, in addition to the Explanatory Memorandum which was then produced for affirmative resolution instruments, such memoranda would also be required for all negative instruments laid before Parliament.

4.12.2 The Government agreed to the Committee’s request but decided that such memoranda should also be produced for instruments which are only required to be laid or are only subject to procedures within the House of Commons. For this category of instrument there would be no requirement to provide copies to the Merits Committee.

The Form of the Explanatory Memorandum

4.12.3 In order to minimise the burden on departments in the production of the new Explanatory Memoranda, it was agreed with both the Merits Committee and the Joint Committee on Statutory Instruments (JCSI)/Select Committee on Statutory Instruments (SCSI) that a single Explanatory Memorandum would be produced meeting the requirements of all of the scrutiny committees. This would meet the then requirement for supply of information in relation to affirmative resolution instruments but also the new requirements of the Merits Committee. It was also agreed that the new Explanatory Memorandum may include any other supplementary information which departments might otherwise have provided to the JCSI/SCSI at the time of laying by means of a voluntary memorandum.

4.12.4 Any and all information which departments would formerly have included in a voluntary memorandum to JCSI/SCSI should now be included in a separate and self- contained section of the new explanatory memorandum. Departments are, in particular, required to include in the memorandum an explanation for any breach of the 21-day rule, any instances of instruments coming into force before being laid, instances of fee increases above the rate of inflation and instances where novel or complicated powers are being exercised. They are reminded of the considerations regarding the information to be provided to the JCSI/SCSI (paragraph 5.4.17). The JCSI/SCSI is prepared to accept information provided by means of a voluntary memorandum (see paragraphs 5.4.11 -5.4.14), if there are exceptional and compelling reasons why such information should not be supplied by means of a memorandum laid before Parliament.

4.12.5. Departments should provide the Explanatory Memorandum in a the form of an electronic “Word” document for which a template is available for downloading from the SI template pages on the OPSI website at:

www.opsi.gov.uk/si/template

On entering the site users will be prompted to enter a user name and password which are as follows:

User name: sitemplate Password: carr3t

Further information about the form and content and style for the Explanatory Memorandum is set out at Appendix H.

4.12.6 The arrangements for provision of memoranda to JCSI/SCSI in response to requests from those Committees will continue to apply (paragraph 5.4.13 refers).

Delivery of Explanatory Memoranda to Parliament

4.12.7 The Explanatory Memorandum should be laid with the instrument. The covering memorandum to the instrument should indicate that the Explanatory Memorandum is laid by Command. In addition to the laid copies, 100 copies should be supplied for all affirmative resolution orders and 50 copies for negative resolution instruments should to the House of Commons Vote Office and 75 copies for affirmative resolution instruments and 5 copies for negative resolution instruments to the Printed Paper Office in the House of Lords.

4.12.8 Copies, wherever possible printed on both sides of the paper, should also be sent as follows:

Draft Statutory Instruments for Affirmative Resolution

22 copies of the explanatory memorandum, collated with 22 copies of the instrument it describes, to the Joint Committee on Statutory Instruments, Delegated Legislation Office, House of Commons, Room 261, 7 Millbank, LONDON SW1P 3JA.

Where the instrument is to be laid before the House of Commons only, then the number of copies to be supplied should be reduced to 15 copies, and the package directed to the Select Committee on Statutory Instruments (at the same address)

15 copies of the Explanatory Memorandum, collated with 15 copies of the instrument it describes, to: Lords Committee on the Merits of Statutory Instruments, Room 25 West Front, Palace of Westminster, LONDON SW1A 0PW

Other Statutory instruments

10 copies of the explanatory memorandum, collated with 10 copies of the instrument it describes, to the Joint Committee on Statutory Instruments, Delegated Legislation Office, House of Commons, Room 261, 7 Millbank, LONDON SW1P 3JA.

Where the instrument is to be laid before the House of Commons only, the same number of copies should be supplied, and the package directed to the Select Committee on Statutory Instruments (at the same address)

15 copies of the Explanatory Memorandum, collated with 15 copies of the instrument it describes, to: The House of Lords Committee on the Merits of Statutory Instruments, Room 25 West Front, Palace of Westminster, LONDON SW1A 0PW

4.12.9 Departments should note that there is no requirement to send to the Merits Committee instruments/explanatory memoranda where the instrument is:

• to be laid before the Commons only; or

• an Order in Council or draft Order in Council made or proposed to be made under paragraph 1 of the Schedule to the Northern Ireland Act 2000; or

• an remedial order or draft remedial order under Schedule 2 to the Human Rights Act 1998;

• an draft order proposed to be made under section 1 of the Regulatory Reform Act 2001, or any subordinate provisions order made or proposed to be made under that Act; or

• Measures under the Church of England Assembly (Powers) Act 1919 and instruments made, and drafts of instruments to be made, under them.

However, the Merits Committee does consider all other instruments subject to Parliamentary procedure, which includes statutory Codes of Practice, statutory guidance, Rules, Orders in and of Council etc.

Publication of Explanatory Memoranda

4.12.10 The Government also decided that, in addition to being laid before Parliament and provided to the Committees, the Explanatory Memoranda should also be made available to the public by being published on the OPSI website (www.opsi.gov.uk). The EMs and the Draft SI/SI are linked on the website in a similar fashion to the way Bills and Explanatory Notes are linked on the Parliament website. The EMs are not printed in hard copy for sale. Once an affirmative instrument has been made the link will be made between the numbered instrument and the original EM.

4.12.11 Where the SI template has been used for originating the instrument then the Explanatory Memorandum should be included as an attachment to the email sent to HMSO at the time the instrument is sent for registration. In the case of Draft Statutory Instruments the Explanatory Memorandum should be included as an attachment to the email which should be sent to the SI Registrar ([email protected]). HMSO will then ensure that the Explanatory Memorandum is published on the website at the same time as the instrument is published.

4.12.12 Where traditional methods have been used for origination and printing then the Explanatory Memorandum should still be sent to the SI Registrar as an electronic “Word” document under cover of an email. This should include details of the title of the instrument, its SI number and the date when the instrument is to be published.

4.12.13 An Explanatory Memorandum should be provided to HMSO for every instrument for which an Explanatory Memorandum is required to be laid before Parliament. Where departments have produced one memorandum covering a number of related instruments then the memorandum must be provided to HMSO for each of the instruments to which it refers. Such consolidated memoranda should, however, only be produced for instruments being laid on the same day and must be supplied to HMSO at the same time so that the instruments can be registered and numbered in sequence.

Explanatory Memoranda for Orders in Council

4.12.14 In the case of Orders in Council it is the responsibility of the originating department to provide copies of the Explanatory Memoranda and the instruments to both the Merits Committee and the JCSI/SCSI. The Privy Council Office will, however, arrange for the Explanatory Memoranda to be laid with the instruments to which they refer. Departments should therefore provide the Privy Council Office with the electronic Word file of the Explanatory Memorandum together with the covering letter for laying. Privy Council Office will also forward the Explanatory Memorandum with the instrument to the SI Registrar at the time of registration.

4.13 The ‘21 day rule’

The ‘21 day rule’

4.13.1 If an instrument is subject to negative procedure, it should generally be laid, and copies provided to the Joint (or Commons) Committee and the Merits Committee, at least 21 days before it is due to come into force (i.e. it should lie for 21 days, including the date of laying, and only be brought into force on the twenty-second day at the earliest). ‘21 days’ means 21 calendar days, the period being reckoned without excluding days on which Parliament, or either House, is not sitting. The purpose of this rule of practice is to enable the Committees to consider the instrument before it comes into force.

4.13.2 It should be emphasised that the 21 day period is to be treated as a minimum period in advance of an instrument coming into force as it is much more helpful to the Committees to scrutinise the instrument and potential users of the instrument to allow them longer to understand its effects and what they must do to satisfy its requirements. Departments should therefore aim to lay an instrument as far in advance as is practicable. It is accepted that some instruments must take effect at shorter notice, subject to that, the rule should be strictly observed whenever possible.

4.13.3 Where it is not possible to observe the ‘21 day rule’ the reason should be explained in the explanatory memorandum (referred to in section 4.12 and Appendix H). The explanation should deal both with the reason why the instrument could not have been made and laid sooner, and with the reason why it had to come into effect on the day specified. If the reasons are matters of policy, explain why the policy requires such urgent action.

4.13.4 It should be noted that the following reasons:

“the instrument was overlooked due to pressure of work”; or “we promised the Minister to have the regulations in place during the summer of this year” or that ‘uncertainties over relevant ministerial responsibilities immediately following the recent Government re-shuffle, have delayed by one day, the signing of this Order and it will therefore be necessary to breach the 21-day rule’ when the department was already 4 months late in implementing an EU Directive;

are unlikely to be accepted by the Scrutiny Committees as sufficient reason for curtailing Parliamentary scrutiny.

Instruments not subject to the ‘21 day rule’

4.13.5 The Joint (or Commons) Committee scrutinise with particular care the commencement date of all instruments within their Orders of Reference and, provided no questions of merits or policy are concerned, draw special attention to those which, in their opinion, come into force unreasonably soon. Although the ‘21 day rule’ applies only to negative instruments, the aim should be to give Parliament, and all others concerned, a full opportunity to study other instruments before they take effect. It is open to the Joint (or Commons) Committee to seek an explanation from the responsible Department if, in any particular case, they consider that the interval between the making and commencement of an instrument is unreasonably short.

4.14 Compatibility with the European Convention on Human Rights

4.14.1 Although the requirements of section 19 of the Human Rights Act 1998 do not apply to secondary legislation, paragraph 40 of the Home Office's guidance to Departments on the Act states that, "as a matter of good practice, a Minister inviting Parliament to approve a draft statutory instrument or statutory instrument subject to affirmative resolution should volunteer his or her view regarding its compatibility with the Convention rights. Such a statement should always be made regarding secondary legislation which amends primary legislation. All such Ministerial statements (and corresponding statements from other Authorities) should be included within the explanatory memorandum (see section 4.12 above).

PART 5: PARLIAMENTARY COMMITTEES

5.1 Introduction

5.1.1 This Part gives an account of the parliamentary committees which are specially concerned with statutory instruments, namely:

a) the Statutory Instruments Reference Committee; b) House of Commons Delegated Legislation Committees; c) the Joint and House of Commons Select Committees on Statutory Instruments; d) the House of Lords Select Committee on the Merits of Statutory Instruments e) the Hybrid Instruments Committee of the House of Lords; and f) the House of Lords Delegated Powers and Regulatory Reform Committee and the House of Commons Regulatory Reform Committee

5.2 The Statutory Instruments Reference Committee

Constitution of the Committee

5.2.1 The Statutory Instruments Reference Committee is constituted under the Statutory Instruments Regulations 19471, which provide that it shall consist of such two or more persons as the Speaker of the House of Lords and the Speaker of the House of Commons may nominate2. In practice it consists of the Lord Chairman of Committees, the Chairman of Ways and Means, and six senior Officers of Parliament, two being the prescribed quorum3.

Functions of the Committee

5.2.2 If the responsible authority gives a certificate of exemption from printing and sale under regulation 6 or 7 of the Statutory Instruments Regulations 1947 (see paragraphs 3.5.5 and 3.5.6), the Committee must be notified. They may set aside the certificate and direct that the instrument or document be printed and sold. They may also waive the requirement for such notification in respect of any specified class of instrument4. A suggested form of notification is given in the Forms and Precedents, FP15; two copies should be supplied, together with two copies of the certificate, instrument and any other relevant document.

5.2.3 Without prejudice to the provision just described, the Committee may determine any question referred to them as to the numbering, printing or publication of statutory instruments, as to their classification as general or local, and whether documents are statutory rules for the purposes of section 1(2) of the Statutory Instruments Act 19465. Thus a Department may, in case of doubt, apply for a decision of the Committee on any of these matters. Two copies of the application, and of any relevant documents, should be supplied.

1 Reg 11, made pursuant to Statutory Instruments Act 1946, s.8(1)(e) 2 Statutory Instruments Regulations 1947, reg 11(1) 3 Under Ibid, reg 11(2) 4 Ibid, reg 11(3) 5 Statutory Instruments Regulations 1947, reg 11(4) 79

Communications to the Committee

5.2.4 The office of Clerk to the Reference Committee is performed by the Secretary to the Chairman of Ways and Means. Communications should be sent to: The Clerk to the Statutory Instruments Reference Committee, Ways and Means Corridor, House of Commons, London SW1 0AA.

5.3 House of Commons Delegated Legislation Committees

Constitution and functions

5.3.1 Delegated Legislation Committees are set up by the House of Commons1 to consider such statutory instruments, or drafts of statutory instruments, as are referred to them. Each Committee consists of a chairman appointed by the Speaker, and between 16 and 50 members nominated by the Committee of Selection. They consider the merits and underlying policy of instruments, and are sometimes referred to as ‘merits Committees’. The purpose of this procedure is to enable statutory instruments to be debated without occupying time on the floor of the House (see paragraphs 4.5.8 and 4.6.14).

Reference to a Delegated Legislation Committee

5.3.2 A motion to refer a statutory instrument or draft to a Delegated Legislation Committee may be made where a Member has given notice of a motion under a negative procedure or of a motion to ‘take note’ of an instrument (see paragraph 4.6.14), or a Minister has given notice of a motion under the affirmative procedure (see paragraph 4.5.7). The motion for reference to a Delegated Legislation Committee is made at the start of public business, and may be made only by a Minister2. If twenty or more Members rise in their places and object, the motion is negatived3; by this means Members may secure a debate on the floor of the House on an affirmative instrument or draft, and may endeavour to secure such a debate on a negative instrument or draft.

Proceedings of Delegated Legislation Committees

5.3.3 A Delegated Legislation Committee to which an instrument or draft has been referred may consider it only on a motion ‘That the committee has considered the instrument (or draft instrument)’4. Members who are not members of the Committee may take part in its deliberations, but may not vote or be counted in the quorum5. Proceedings on such a motion must, if not previously completed, be concluded after one and a half hours, or two and a half hours if the instrument or draft relates exclusively to Northern Ireland. The Committee may divide when the Chairman puts the question, but whether it is agreed to or not, they report the instrument or draft to the House without any further question being put6. Reports of debates in Delegated Legislation Committees are normally available on the following day.

1 Public Business Standing Order No 118 2 Ibid, 118(4) 3 Ibid, 118(4) 4 Ibid, 118 (5) 5 Ibid, 118 (2) 6 Ibid, 118 (5) 80

Proceedings in the House

5.3.4 If an instrument or draft has been reported to the House by a Delegated Legislation Committee, and the original motion relating to it, under the affirmative or negative procedure or to take note, is again made, the question is put immediately and without debate. Proceedings on such a motion may be decided at any hour, though opposed.1 (see paragraphs 4.5.10 and 4.6.13).

5.4 The Joint and House of Commons Select Committees on Statutory Instruments

Preliminary

5.4.1 The Joint Committee on Statutory Instruments and the House of Commons Select Committee on Statutory Instruments are concerned with the ‘technical scrutiny’ (see paragraphs 5.4.2 and 5.4.7) of all Statutory Instruments; the latter deals with instruments laid only before the House of Commons. The Committees do not report upon the merits of instruments or the policies behind them. In this section they are respectively referred to as ‘the Joint Committee’ and ‘the Commons Committee’ and ‘the Joint (or Commons) Committee’ means the Joint Committee or the Commons Committee as the case may be.

The Joint Committee: functions

5.4.2 To constitute the Joint Committee, each House appoints a Select Committee to join with the Committee appointed by the other House, and prescribes their Orders of Reference, which are set out in the Joint Committee’s First Report for each session. With respect to the categories of instruments to be scrutinised, and the purposes of the scrutiny, there are a few formal differences between the Lords’ and the Commons’ Orders of Reference, but they are in substance the same, the text of the Commons’ version2 being as follows:

“A select committee shall be appointed to join with a committee appointed by the Lords to consider—

(A) every instrument which is laid before each House of Parliament and upon which proceedings may be or might have been taken in either House of Parliament, in pursuance of an Act of Parliament, being—

(a) a statutory instrument, or a draft statutory instrument;

(b) a scheme, or an amendment of a scheme, or a draft thereof, requiring approval by statutory instrument;

(c) any other instrument (whether or not in draft), where the proceedings in pursuance of an Act of Parliament are proceedings by way of an affirmative resolution; or

(d) an order subject to special parliamentary procedure;

1 Public Business Standing Order No 118 (6) 2 Public Business Standing Order No 151(1) 81

but excluding any Order in Council or draft Order in Council made or proposed to be made under paragraph 1(1) of the Schedule to the Northern Ireland Act 2000, any draft order proposed to be made under section 1 of the Regulatory Reform Act 2001, or any subordinate provisions order made or proposed to be made under that Act, and any remedial order or draft remedial order under Schedule 2 to the Human Rights Act 1998;

(B) every general statutory instrument not within the foregoing classes, and not within paragraph (10) of this order, but not including any statutory instrument made by a member of the Scottish Executive or by the National Assembly for Wales unless it is required to be laid before Parliament or either House of Parliament and not including measures under the Church of England Assembly (Powers) Act 1919 and instruments made under such measures:

with a view to determining whether the special attention of the House should be drawn to it on any of the following grounds:

(i) that it imposes a charge on the public revenues or contains provisions requiring payments to be made to the Exchequer or any government department or to any local or public authority in consideration of any licence or consent or of any services to be rendered, or prescribes the amount of any such charge or payment;

(ii) that it is made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts, either at all times or after the expiration of a specific period;

(iii) that it purports to have retrospective effect where the parent statute confers no express authority so to provide;

(iv) that there appears to have been unjustifiable delay in the publication or in the laying of it before Parliament;

(v) that there appears to have been unjustifiable delay in sending a notification under the proviso to section 4(1) of the Statutory Instruments Act 1946, where an instrument has come into operation before it has been laid before Parliament;

(vi) that there appears to be a doubt whether it is intra vires or that it appears to make some unusual or unexpected use of the powers conferred by the statute under which it is made;

(vii) that for any special reason its form or purport calls for elucidation;

(viii) that its drafting appears to be defective;

or on any other ground which does not impinge on its merits or on the policy behind it; and to report its decision with the reasons thereof in any particular case.

The Joint Committee: constitution and procedure

5.4.3 In the residue of the Orders of Reference of the Joint Committee there are differences between the Lords’ and the Commons’ versions. The following three paragraphs summarise the joint effect of the Orders and of the practice of the two Houses.

5.4.4 The Joint Committee consists of seven Members of each House, two from each House being a quorum. The Committee may appoint sub-committees and refer to them any of the matters referred to the Committee. They are assisted by the Counsel to the Speaker and if required the Counsel to the Lord Chairman of Committees. The Committee may report from time to time, and they and any sub-committee appointed by them may sit notwithstanding any adjournment of either House.

5.4.5 The Joint Committee, and any sub-committee appointed by them, may require a government department to provide a memorandum or witness to explain any instrument which they have under consideration, and they may take evidence, written or oral, from HMSO relating to the printing and publication of any instrument. The Committee may report to both Houses any such memorandum or evidence.

5.4.6 Before reporting that the special attention of both Houses be drawn to any instrument, the Committee is to afford any Government Department concerned an opportunity of furnishing orally or in writing to them, or to any sub-committee appointed by them, such explanations as the Department think fit.

The Commons Committee

5.4.7 The Commons Committee is composed of the Commons members of the Joint Committee, and their Orders of Reference1 direct that:

“It shall be an instruction to the committee that it shall consider any instrument which is directed by Act of Parliament to be laid before and to be subject to proceedings in this House only, being -

a) a statutory instrument, or a draft of a statutory instrument; b) a scheme, or an amendment to a scheme, or a draft thereof, requiring approval by statutory instrument; or c) any other instrument (whether or not in draft), where the proceedings in pursuance of an Act of Parliament are proceedings by way of an affirmative resolution;

and that it shall have power to draw such instruments to the special attention of the House on any of the grounds on which the Joint Committee is empowered so to draw the special attention of the House; and that in considering any such instrument the committee do not join with the committee appointed by the Lords.”

5.4.8 In general the powers and functions of the Commons Committee are, as regards instruments within their Orders of Reference, similar to those of the Joint Committee.

1 Public Business Standing Order No 151(10) 83

Communications to the Joint and Commons committees

5.4.9 The Joint Committee has a Lords Clerk and a Commons Clerk. Communications to that Committee should be sent to The Commons Clerk to the Joint Committee on Statutory Instruments, Delegated Legislation Office, House of Commons, 7 Millbank, London SW1P 3JA. Communications to the Commons Committee should be sent to The Clerk to the Select Committee on Statutory Instruments at the same address. Email communications should be sent to: [email protected]

Papers for the Joint and Commons committees

5.4.10 The Joint (or Commons) Committee should be provided with:

a) copies of any instrument or draft within their respective Orders of Reference together with an accompanying Explanatory Memorandum (see section 4.12 and Appendix H) to which will be attached:

- a copy of any Regulatory Impact Assessment; and - a copy of any transposition note.

b) where an instrument gives effect to Community obligations, two copies of all European documents cited in the instrument; and

c) a copy of any relevant map, plan, schedule or other document not printed as part of the instrument or draft, including any ‘external’ publications (see paragraph 2.8.1), and any relevant local statutory instrument (local SIs not being printed in the annual edition of Statutory Instruments);

Memoranda for the Joint and Commons committees

5.4.11 Departments are required to provide an explanatory memorandum with each instrument which is to be considered by the Joint (or Commons) Committee (see also Section 4.12 and Appendix H). The explanatory memorandum should include information which makes explains the purpose and effect of an instrument or draft, or some other aspect of it, or the meaning of terms used in it, if this would not otherwise be clear to the Committee.

5.4.12 The Committee have particularly requested that information should be provided where:

a) new powers are being exercised; b) the instrument is making substantial changes in the previous legislation; c) the powers exercised are linked with some other legislation which is not referred to in the instrument or explanatory note, especially where the other legislation is recent; d) the enabling powers, though recited with due particularity in the preamble, are difficult to follow without an annotated text of them; e) an instrument is to be amended which itself has been subject to previous amendment, so that it is difficult to follow what is proposed without an annotated copy of the principal instrument to be amended; and f) generally where the instrument is difficult to follow without background information, other than that contained in the explanatory note.

5.4.13 In all cases it is open to the Joint (or Commons) Committee to ask a Department to provide a further memorandum to explain any instrument or draft which they have under consideration, or to provide oral evidence for that purpose (see paragraph 5.4.5 and the next two paragraphs). Before drawing the special attention of Parliament (or the House of Commons) to an instrument or draft, they must (as mentioned in paragraph 5.4.6) afford any Department concerned an opportunity to furnish oral or written explanations.

5.4.14 A Department should ensure that any memorandum states clearly by whom the memorandum is provided, e.g. in the case of an Order in Council whether the memorandum is from the Privy Council or from the responsible Department, and the date of the memorandum itself. Where more than one memorandum is, or is likely to be, provided that memorandum should state whether it is the first, or second etc, memorandum as the case may be. It should be noted though in counting the number of any memorandum that the initial Explanatory Memorandum laid with instrument will always be the first memorandum so any subsequent memorandum which is produced will be the second, third etc..

Witnesses before the Joint and Commons committees

5.4.15 If oral evidence is to be given to the Joint (or Commons) Committee, the Department concerned is usually represented by an official or officials from the division responsible for the instrument or draft, and by a member or members of the legal staff. The Committee have no power to require evidence, whether written or oral, to be given by a particular person or by the holder of a particular office. Their Orders of Reference do not authorise the taking of evidence except from a Government Department (including HMSO for certain purposes - see paragraph 5.4.5).

Scope and security of evidence

5.4.16 Departmental files and other official papers should not be produced to the Joint (or Commons) Committee. When preparing evidence, Departments should bear in mind that it may be published if the Committee decide to report the instrument or draft (see paragraph 5.4.17) and they should request the Committee to withhold from publication any parts of memoranda or oral evidence of which the disclosure would be contrary to the public interest. The content of a report is a matter for the Committee, but they may be relied upon to respect the wishes of Departments provided that requests for the withholding of publication are made only on clear grounds of public interest.

Reports from the Joint and Commons committees

5.4.17 The routine reports, dealing with particular instruments, appear in two series, those made by the Joint Committee to both Houses, and those made by the Commons Committee to the Commons. They are broadly similar in form and arrangement. Normally a report is made after each meeting, and lists the instruments or drafts which were scrutinised. If special attention is drawn to any of them, the Committee give their reasons, and may comment upon the Department’s explanations or evidence. Written evidence may be appended to a report, or it may be printed, with a transcript of any oral evidence, in separate minutes of evidence, which often appear at a later date than the report. When special attention is drawn to an instrument or draft, this does not necessarily result in further proceedings in either House.

Reports and the moving of resolutions

5.4.18 Under the Standing Orders of the House of Lords1 a resolution to approve an affirmative instrument or draft may not be moved until the relevant report of the Joint Committee has been laid before the House. In their First Special Report, 1977-782, the Joint Committee recommended that the House of Commons should adopt a similar standing order, and should consider extending it to ‘prayers’ against instruments subject to negative procedure3 (see paragraphs 4.6.12 - 4.6.14). However, the Committee were informed that:

The Government recognise the need to ensure that, whenever possible, debates on statutory instruments and prayers do not take place on the Floor until the Joint Committee has had an opportunity to consider the instrument concerned. But occasions must sometimes arise when the pressure of Parliamentary business, or the need for immediate administrative action, prevent this. Ministers will, however, do all they can to reduce these instances to the minimum4.

5.4.19 The Clerk to the Joint (or Commons) Committee must (as stated in paragraph 5.4.10) be given particulars of the period within which an instrument or draft requires an affirmative resolution, and should be specially consulted in any case in which difficulty might arise, whether on account of the Standing Order of the House of Lords referred to in the preceding paragraph or for any other reason.

Submission of drafts of instruments

5.4.20 With respect to the submission of drafts of instruments to the Joint (or Commons) Committee, the following appeared in their First Special Report, 1977-785:

The Committee have been happy on occasions to co-operate with a Department in the avoidance of difficulty or delay over a complex, novel or urgently required instrument by studying an advance of it, submitted informally by the Department. On the occasions when Departments have taken the initiative in proposing this procedure, the Committee have invariably found it most helpful. There is also the advantage to the Department concerned that it has the chance to amend the draft, before the instrument is finally made, in order to take account of criticisms advanced by the Committee. This is particularly valuable if the instrument, once made, will have to come into force quickly.

5.4.21 Where a Department elect to take advantage of the procedure mentioned in the preceding paragraph, a copy of the reference to the Committee should be sent to the SI Registrar, HMSO. He will also receive from the Clerk to the Committee a copy of their reply, and by this means a central file of such references and replies will be maintained.

Liaison officers

1 Public Business Standing Order No 73 2 HL 51, HC 169, paras 21-2 3 A similar recommendation was subsequently made in the First Report from the Select Committee on Procedure, 1977-78 (HC 588-1) pp xxxiv and cxxiii 4 See the Joint Committee’s Second Special Report, 1977-78 (HL 236, HC 579), p 11 5 HL 51, HC 169, para 19 86

5.4.22 Each Department has a liaison officer who acts as a channel of communication between the Department and the Joint (or Commons) Committee. His duties include liaison with HMSO. Any change in the name, official address or telephone number of the liaison officer should be notified to the Commons Clerk to the Joint Committee (see paragraph 5.4.9) and to the SI Registrar at HMSO.

5.5 The House of Lords Select Committee on the Merits of Statutory Instruments

The Committee and its functions

5.5.1 The Select Committee on the Merits of Statutory Instruments (“the Merits Committee”) was first appointed on 17 December 2003.

5.5.2 The work of the Committee in its first two sessions was reviewed by the Procedure Committee on 6 July 2005 (see their 1st Report Session 2005-06, HL Paper 26). As a result the Committee was made sessional and its terms of reference amended. The Committee's current terms of reference, are as follows:

“(1) The Committee shall, subject to the exceptions in paragraph (2), consider— (a) every instrument (whether or not a statutory instrument), or draft of an instrument, which is laid before each House of Parliament and upon which proceedings may be, or might have been, taken in either House of Parliament under an Act of Parliament; (b) every proposal which is in the form of a draft of such an instrument and is laid before each House of Parliament under an Act of Parliament, with a view to determining whether or not the special attention of the House should be drawn to it on any of the grounds specified in paragraph (3). (2) The exceptions are— (a) Orders in Council, and draft Orders in Council, under paragraph 1 of the Schedule to the Northern Ireland Act 2000; (b) remedial orders, and draft remedial orders, under section 10 of the Human Rights Act 1998; (c) draft orders (including draft subordinate provisions orders) under section 1 of the Regulatory Reform Act 2001, subordinate provisions orders under that Act and proposals in the form of a draft order under that Act; (d) Measures under the Church of England Assembly (Powers) Act 1919 and instruments made, and drafts of instruments to be made, under them. (3) The grounds on which an instrument, draft or proposal may be drawn to the special attention of the House are— (a) that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House; 87

(b) that it may be inappropriate in view of changed circumstances since the enactment of the parent Act; (c) that it may inappropriately implement European Union legislation; (d) that it may imperfectly achieve its policy objectives. (4) The Committee shall also consider such other general matters relating to the effective scrutiny of the merits of statutory instruments and arising from the performance of its functions under paragraphs (1) to (3) as the Committee considers appropriate, except matters within the orders of reference of the Joint Committee on Statutory Instruments.”

5.5.3. The work of the Committee complements that of the Joint Committee on Statutory Instruments (JCSI) and the House of Commons Select Committee on Statutory Instruments (SCSI). Whereas the JCSI/SCSI consider technical matters, such as the drafting, vires and procedural compliance of instruments, the Merits Committee’s task is to consider policy implications of the statutory instruments.

Scope of powers

5.5.4 The Committee is advisory and does not have power of veto. It is charged, under its orders of reference, with considering certain statutory instruments and, subject to a motion of the House, will have power to report to the House. The Committee does not have a scrutiny reserve.

Meetings of the Committee

5.5.5 The Committee generally meets every Tuesday whilst the House is sitting and its reports are usually published the following Thursday. The Committee may also meet during a recess to consider those instruments which have been laid during the recess. Furtehr information can be obtained from the Committee’s website: www.parliament.uk/parliamentary_committees/merits.cfm

Communications with the Merits Committee

5.5.6 Communications to the Committee should be sent to the Clerk to the Merits of Statutory Instruments Committee, Delegated Legislation Office, House of Lords, London SW1A 0PW. Email communications should be sent to: [email protected]. Telephone enquiries can be made to 0207 219 8821.

5.6 The Hybrid Instruments Committee

Constitution and functions

5.6.1 The Hybrid Instruments Committee of the House of Lords was instituted in 1975. It is appointed at the commencement of every session, and consists of the Chairman of Committees, and other Lords named by the House1. The procedure of this Committee enables anyone with a locus standi to petition against a hybrid instrument as defined in the next paragraph. The procedure is peculiar to the House of Lords, and there is no equivalent in the Commons.

Meaning of hybrid instrument

5.6.2 A hybrid instrument is an affirmative instrument2 in respect of which the Chairman of Committees has reported to the House that, in his opinion, it would require to be enacted by a private or hybrid bill3 were it not for the provisions of the Act authorising it to be made4. The report is also made to the Minister or other person responsible for the instrument5. The number of instruments reported in this sense is small.

Presentation and hearing of petitions6

5.6.3 A petition to the House not to affirm a hybrid instrument may be presented within 14 days following the day on which the report from the Chairman of Committees has been laid before the House. If the petitioning period expires on a Sunday, it is extended to the following Monday; if it expires during a dissolution, prorogation or any period of 10 or more consecutive days on which the House does not sit for public business, it is extended to the day on which the House resumes. If no petition is received within this period, the Chairman reports that fact to the House. A petition received within the period stands referred, together with the instrument petitioned against, to the Hybrid Instruments Committee, who consider any written representations of the parties and may, if they think fit, hear the parties in person or by Counsel or Agent. The Committee decide whether the petitioner has a locus standi, and this question is to be decided as if the instrument were a Private Bill and the Committee were a Select Committee on the Bill.

Report of the Committee

5.6.4 If the Committee decide that the petitioner has no locus standi they report that decision to the House; otherwise they report to the House whether, in the light of their findings on certain prescribed matters, there ought to be a further inquiry by a Select Committee into all or any of the matters complained of7. If they report that there should be such

1 Private Business Standing Order No 216(4) 2 For this purpose, an affirmative instrument is as defined in Public Business Standing Order No 73, but excludes orders under s. 1 of the Manoeuvres Act 1958 and certain instruments exempted from this procedure by their parent Act. 3 For definitions of public, private and hybrid bills see Erskine May’s Parliamentary Practice (23rd edition), p316 4 Private Business Standing Order No 216(1) 5 Ibid 6 Private Business Standing Order No 216(2)-(5) 7 Private Business Standing Order No 216(6) 89

further inquiry, the House may appoint for the purpose a Select Committee of five Lords, whose orders of reference are to be specified1.

Extension of proceedings

5.6.5 If the proceedings outlined above have not been completed in respect of a hybrid instrument which has expired or lapsed, a further affirmative instrument made or laid in draft to substantially the same effect may be substituted for the previous instrument for the purposes of the proceedings2. This provision enables proceedings to be completed on those hybrid instruments which cannot remain in force after a specified period unless approved within that period (that is, those belonging to class (iii) of Table B, page 9). The second or subsequent version of the instrument will have to be made, laid before each House, and in due course approved by resolution of each House.

Resolutions approving hybrid instruments

5.6.6 As has been pointed out in paragraph 5.4.18, a resolution to approve an instrument may not be moved in the House of Lords before the report of the Joint Committee on Statutory Instruments has been laid before the House. In the case of a hybrid instrument, the proceedings above must also have been terminated3. These restrictions do not apply in the Commons.

Expedited hybrid instruments

5.6.7 The preceding paragraphs describe the procedure relating to ordinary hybrid instruments in the House of Lords. There is, however, special procedure for an ‘expedited hybrid instrument’ that is, a hybrid instrument which by virtue of the Act authorising it to be made is, after the expiry of a period prescribed by that Act (‘the prescribed period’), to proceed in Parliament as if its provisions would, apart from that Act, require to be enacted by a public Bill that is not hybrid4.

Procedure for expedited hybrid instruments

5.6.8 A petition to the House not to affirm an expedited hybrid instrument may be presented within 10 days beginning with the day on which the instrument is laid before the House. This period of 10 days is not extended by dissolution or prorogation of Parliament or adjournment of the House5. If no petition is received within this period, the Chairman of Committees reports that fact to the House6. A petition received within the 10-day period stands referred to the Hybrid Instruments Committee, together with the instrument petitioned against7.

5.6.9 The Committee follow procedure similar to that for ordinary hybrid instruments, save that, if they decide that the petitioner has a locus standi and his complaint merits further inquiry, they conduct that further inquiry themselves8. In such case the parties may

1 Private Business Standing Order 216(7) 2 Private Business Standing Order 216(9) 3 Public Business Standing Order No 73. For the meaning of ‘terminate’, see Private Business Standing Order No 216(8) 4 Private Business Standing Order No 216A(1) 5 Private Business Standing Order No 216A(2) 6 Ibid, 216A(3) 7 Public Business Standing Order No 216A(4) 8 Ibid, 216A(5)(b) 90

appear in person or by Counsel or Agent, and the Committee are required to report to the House on the further inquiry before the end of the prescribed period1. Expedited hybrid instruments are not referred to Select Committees.

Termination and extension of proceedings

5.6.10 The proceedings on an expedited hybrid instrument are terminated either when the relevant procedure has been completed, or when the prescribed period has expired2. If, however, the proceedings have not been completed before that period has expired, a further instrument made or laid in draft to substantially the same effect may be substituted for the previous instrument for the purposes of the proceedings3. For the effect of this provision, see paragraph 5.6.5.

Resolutions approving expedited hybrid instruments

5.6.11 A resolution to approve an expedited hybrid instrument may not be moved in the House of Lords before the report of the Joint Committee on Statutory Instruments has been laid before the House (see paragraph 5.4.18) and the proceedings described above have also been terminated4. As mentioned in the preceding paragraph, they are terminated on the expiry of the prescribed period, if not sooner completed. The restrictions mentioned do not apply in the Commons.

5.7 The House of Lords Delegated Powers and Regulatory Reform Committee and the House of Commons Regulatory Reform Committee

5.7.1 These Committees have the responsibility for scrutinising the Regulatory Reform Orders introduced under the Regulatory Reform Act 2001. Their functions are similar with regard to regulatory reform proposals and their consideration proceeds in parallel. The two Committees operate independently but have co-operated closely.

5.7.2 The work of the Committees starts when a minister lays a proposal5 before both Houses. The two Committees then have 60 days to report on the proposal. The Committees report as to whether in its opinion the proposal should proceed; should proceed as amended; or should not proceed. 5.7.3 At the end of the 60 day period the minister must decide what to do, and in taking that decision must have regard to representations from Parliament, and in particular to the reports from the Committees. If the minister decides to proceed, the proposal is laid as a draft order, either in its original form or with amendments. The Committees then have a further opportunity to report on the proposal and once that process is complete the order proceeds as a normal affirmative order.

1 Ibid, 216A(6) 2 Ibid, 216A(7) 3 Ibid, 216A(8) 4 Public Business Standing Order No 73 5 The form of proposal is covered by s.6 of the Regulatory Reform Act 2001 91

PART 6: FORMS AND PRECEDENTS

FP1 Statutory instrument produced using the SI template FP2 Headnotes FP3 Italic headings: dates of making, laying and coming into operation FP4 Commencement clauses FP5 Revocation schedule FP6 Headings for parts and clauses FP7 Combined letter to SI Registrar/ certificate of classification for an SI which is to be printed and sold FP8 Combined letter to SI Registrar/ certificate of classification for an SI which is exempted from printing under Regulation 5 of the Statutory Instruments Regulations 1947 FP9 Combined letter to SI Registrar/ certificate of classification for an SI which exempted from printing under Regulation 6 of the Statutory Instruments Regulations 1947 FP10 Combined letter to SI Registrar/ certificate of classification for an SI for which a schedule or other document which is identified by/referred to in the instrument is exempted from printing under Regulation 7 of the Statutory Instruments Regulations 1947 FP11 Combined letter to SI Registrar/ certificate of classification for an SI which is exempted from immediate printing under Regulation 8 of the Statutory Instruments Regulations 1947 FP12 Statutory Instrument Receipt sheet FP13 Letter to TSO containing instructions for printing and publication FP14 TSO Order form FP15 Memorandum to accompany an instrument or draft laid before Parliament or the House of Commons FP16 Notification to the Speaker of the House of Lords or Speaker of the House of Commons FP17 Notification to the Statutory Instruments Reference Committee FP18 Motions to approve statutory instruments and drafts

Editor’s note:

Since November 2002 Statutory Instruments have been capable of being produced using the SI template which provides draftsmen with the ability to produce the final text of an instrument in the form in which it is to be printed. The template which is compatible with Word 97 and later versions of Word, has all the necessary features and styles built in to enable the production of a facsimile of an SI document with the exception of those containing graphics or complex tables or formulae. The SI at FP1 is an example of an instrument produced using the SI template and after it had been registered by HMSO and sent for printing.

Notes

a) as from 1 January 1987 the word “force” has been used instead of the word “operation” in the commencement provisions both in the italic headings and in the body of the instrument. b) Upper case initials are used when referring to an Order, Regulations or Rules as a complete instrument, and lower case initial letters when referring to an article, regulation or rule as a division of an instrument. Table A on page is printed showing the correct usage.

FP 1 - Statutory instrument produced using the SI template STATUTORY INSTRUMENT S

2006 No. 874

VALUE ADDED TAX

The Value Added Tax (Cars) (Amendment) Order 2006

Made - - - - 22nd March 2006 Laid before the House of Commons 22nd March 2006 Coming into force - - 13th April 2006

The Treasury make the following Order in exercise of the powers conferred by section 5(3) of the Value Added Tax Act 1994(1): 1. This Order may be cited as the Value Added Tax (Cars) (Amendment) Order 2006 and shall come into force on 13th April 2006 in relation to finance agreements entered into on or after that date. 2. The Value Added Tax (Cars) Order 1992(2) (“the principal Order”) is amended as follows. 3. After article 4(1A) insert— “(1AA) Paragraph (1)(a) above shall not apply where adjustment, whether or not made under regulation 38 of the Value Added Regulations 1995(3), has taken account, or may later take account, of VAT on the initial supply under the finance agreement as a result of repossession and the motor car delivered under that agreement was delivered on or after 1st September 2006.” 4. For the purposes of article 1 above, “finance agreement” has the meaning given in article 2(1) of the principal Order.

Tom Watson Dave Watts 22nd March 2006 Two of the Lords Commissioners of Her Majesty’s Treasury

(1) 1994 c. 23. (2) S.I. 1992/3122; relevant amending instruments are S.I. 1995/1269, 1995/1667. (3) S.I. 1995/2518 as amended by S.I. 1997/1086. 95

EXPLANATORY NOTE (This note is not part of the Order)

This Order, which comes into force on 13th April 2006, amends the Value Added Tax (Cars) Order 1992 (S.I. 1992/3122) in relation to finance agreements entered into on or after that date. Article 4(1)(a) of the Value Added Tax (Cars) Order 1992 treats as neither a supply of goods nor a supply of services, the disposal of a motor car by a person who repossessed it under the terms of a finance agreement, provided certain conditions are met. Article 3 of this Order introduces an exception to this treatment where the supplier makes an adjustment in the consideration accounted for on the original sale, whether that adjustment is required to be made under regulation 38 of the Value Added Tax Regulations 1995(S.I. 1995/2518) or is made in any other way. Article 3 of this Order also limits the application of this exception to agreements where the motor cars delivered under those agreements are delivered on or after 1st September 2006. Article 4 defines what is a finance agreement for the purposes of the commencement of this Order. A full regulatory impact assessment of the effect that this instrument will have on the costs of business is available from HM Revenue and Customs, 100 Parliament Street, London SW1A 2BQ.

FP 2 - Headnotes

1. For a general account of the use of headnotes, see paragraphs 2.2.1 - 2.2.5. They are required for instruments of classes (i) - (iv) of Table B (page ), for special procedure orders, and in cases of free issues of a correcting instrument (see paragraph 3.4.12). The following examples are arranged in that order. The headnote should (except for a correcting instrument) conform to the language of the parent Act and, in the case of drafts subject to negative resolution (see paragraph 5 below), to the language of section 6 of the Statutory Instruments Act 1946.

2. Class (i): draft instruments requiring approval (see also paragraphs 3.6.6 - 3.6.8)

1) Draft Regulations laid before Parliament under section .... of the ...... Act 20 , for approval by resolution of each House of Parliament.

2) Draft Order in Council laid before the House of Commons under section .... of the ... Act 20.. , for an address to Her Majesty from that House praying that the Order be made.

3) Draft Order in Council laid before Parliament under section ....of the .... Act 20..., for approval by resolution of each House of Parliament

Note Orders in Council: example (2) follows the form of words generally found in older Acts, or in modern consolidations of them, and example (3) that generally found in more recent Acts.

4) Draft order laid before both Houses of Parliament under section 6(1) of the Regulatory Reform Act 2001.

Note Where a draft regulatory reform order is to undergo second-stage scrutiny, the reference should be to section 8(1) of the Regulatory Reform Act 2001.

3. Class (ii): instruments requiring approval before coming into force (see also paragraph 3.6.4)

Scheme made by the the Secretary of State for .... and the Secretary of State for ...., laid before Parliament under section ... of the .... Act 20...., for approval by resolution of each House of Parliament.

4. Class (iii): instruments requiring approval to remain in force (see also paragraph 3.6.5)

Order made by the Secretary of State, laid before Parliament under section .... of the .... Act 20...., for approval by resolution of each House of Parliament within twenty-eight days beginning with the day on which the Order was made, subject to extension for periods of dissolution, prorogation or adjournment for more than four days.

5. Class (iv): draft instruments subject to negative resolution (see also paragraphs 3.6.6 - 3.6.8)

1) Draft Rules laid before Parliament under section .... of the .... Act 20....; draft to lie for forty days, pursuant to section 6(1) of the Statutory Instruments Act

1946, during which period either House of Parliament may resolve that the Rules be not made.

2. Draft Order in Council laid before Parliament under section 6(2) of the Statutory Instruments Act 1946 (superseding section .... of the .... Act 18....) on .... 20....; draft to lie for forty days pursuant to section 6(1) of the said Act of 1946, during which period either House of Parliament may resolve that the draft be not submitted to Her Majesty.

Notes a) the headnote to a draft of this class should include the date of laying.

b) Example (2) is appropriate where an instrument of this class is to be made under an Act, passed before 1948, which prescribes procedure different from, and now replaced by, that of section 6 of the Statutory Instruments Act 1946.

6. Special procedure orders

Order made (or, confirmed) by the Secretary of State for ...., subject to special parliamentary procedure, and laid before Parliament under section 1 of the Statutory Orders (Special Procedure) Act 1945 on .... 20...., together with the certificate or statement required by section 2of that Act (or, the statement required by sections 2(5) and 10(2) of that Act).

Note A headnote in this form should also appear on special procedure orders which are not statutory instruments.

7. Free issue of correcting instrument (see also paragraphs 3.4.10 - 3.4.12)

1) This Statutory Instrument has been printed to correct errors in SI 2003/000 and is being issued free of charge to all known recipients of that Statutory Instrument.

2) This Statutory Instrument has been made in consequence of a defect in SI 2003/000 and is being issued free of charge to all known recipients of that Statutory Instrument.

3) This Statutory Instrument has been printed in substitution of the SI of the same number and is being issued free of charge to all known recipients of that Statutory Instrument.

4) This Order supersedes SI 2003/000 published on 19 February 2003 and is being issued free of charge to all known recipients of that Statutory Instrument.

Note The above examples are precedents only, and may be adapted to suit different circumstances.

FP 3 - Italic headings: dates of making, laying and coming into force

1. For the use of italic headings giving dates of making, laying before Parliament or the House of Commons, and coming into force, see paragraphs 2.3.16 - 2.3.18. With the substitution of ‘the House of Commons’ for ‘Parliament’, paragraphs 4 and 5 below are applicable to instruments or drafts laid before that House only.

2. Instruments not to be laid before Parliament or the House of Commons and not requiring a specified commencement (e.g. a commencement or appointed day order)

Made ------4th March 2006

3. Instruments not to be laid before Parliament or the House of Commons, coming into force when made or ‘forthwith’

Made ------4th March 2006 Coming into force------4th March 2006

4. Instruments laid before Parliament

Made ------28th February 2006 Laid before Parliament ------5th March 2006 Coming into force ------26th March 2006

Notes a) During the existence of a Parliament the practice is to determine in advance the date on which a statutory instrument will be laid, and to insert that date in the appropriate italic heading of the copies sent for registration, printing and laying. b) If laying before the two Houses of Parliament takes place on different dates, the later date is inserted in the heading. c) If the instrument is to come into force before it is laid the heading ‘Coming into force’ appears above ‘Laid before Parliament’. d) If the instrument requires the approval of Parliament before it comes into force (class (ii) of Table B, page 9), and the calendar date of coming into force is not specified in the commencement clause, that date is initially left blank in the italic heading, and inserted when the instrument has been approved and before it is sent for registration (see paragraph 3.6.4 and FP4, paragraph 3). e) The above example shows that the ‘21 day rule’ (see paragraph 2.5.8) has been followed.

5. Instruments laid before Parliament in draft

Made ------3rd March 2006 Coming into force - - - - -12th March 2006

6. Instruments having more than one commencement date

1. Made ------3rd March 2006 Coming into force Articles 1 and 2 25th March 2006 Remainder 1st July 2006

2. Made ------3rd March 2006 Coming into force For the purposes ofArticles 7 and 9 25th March 2006 For all other purposes 1st July 2006

Note For commencement clauses corresponding to the above headings, see FP4, paragraph 5.

7. Instruments coming into force on dates to be determined

Made ------3rd March 2006 Coming into force in accordance with article 1(2)

Note This formula may be used if the commencement is to be determined later under the clause specified, but a calendar date should be used whenever possible.

100

FP 4 - Commencement clauses

1. For commencement clauses generally, see paragraphs 2.5.4 - 2.5.10. Such clauses require to be made in many different forms and the following are examples only.

2. Standard citation and commencement clause

This Order may be cited as the .... Order 20.... and shall come into force on .... 20.... .

3. Instruments requiring approval by Parliament or the House of Commons before coming into force

In these instruments (class (ii) of Table B, page 9) a calendar date of coming into force should be specified if, having regard to the Parliamentary procedure, that is practicable. If not, the following form may be used:

.... shall come into force on the day (or the [fourteenth] day) after the day on which it is approved by resolution of each House of Parliament (or, of the House of Commons).

Notes: a) If the two Houses of Parliament pass affirmative resolutions on different days, the approval of Parliament is taken to be given on the second of those days. b) Italic headings for this class of instrument are the subject of FP3, paragraph 4, note d).

4. Instruments laid before Parliament or the House of Commons in draft

In these instruments (class (i) and (iv) of Table B, page 9) a calendar date of coming into force should be specified in the draft if, having regard to the Parliamentary procedure, that is practicable. If not, one of the following forms may be used:

1) .... shall come into force on the day (or, the [tenth] day) after the day on which it is made. 2) .... shall come into force forthwith.

Note Italic headings for these classes of instrument are the subject of FP3, paragraph 5.

5. Instruments having more than one commencement date

1) Articles 1 and 2 of this Order shall come into force on 25th March 2006 and all other articles thereof shall come into force on 1st July 2006.

2) ..... shall come into force for the purposes of articles 7 and 9 on 25th March 2006 and for all other purposes on 1st July 2006.

Notes a) for italic headings corresponding to the above commencement clause, see FP3, paragraph 6

101

b) The formula in example 2) is designed to bring into force on the earlier date not only articles 7 and 9, but also any provisions ancillary to those articles, such as interpretation provisions.

6. Instruments to be commenced at a particular time of day

All instruments are\ unless otherwise stated deemed to commence at the start of the day on which they come into force. Where an instrument is to be commenced at a particular time of day then the commencement clause should read as follows:

This order may be cited as the …… Order 20.. and shall come into force at [time] on ………20….. .

where the time should be entered in the following form: e.g. 10.30 a.m., 4.00 p.m. or noon.

7. Instruments having effect before the date of making

.... shall come into force on .... 20.... but [regulation 5] shall have effect from .... 20... .

Note The date of coming into force will be the date shown in the italic heading.

8. Instruments having effect for a limited period

.... shall come into force on .... 20.... and shall cease to have effect on .... 20... .

9. Commencement orders etc

A commencement or appointed day order which is required to be laid before Parliament should normally be brought into force on the date fixed by the order for the commencement of the Act or as the appointed day, or on the first date if more than one. If no such date is appropriate (as in the case of a declaratory order required to be laid) the formula ‘immediately after being laid before Parliament’ may be used. (Orders of the kind mentioned in this paragraph, but not required to be laid, do not normally have commencement clauses: see paragraph 2.5.5).

102

FP 5 - Revocation schedule

(1) (2) (3) Regulations revoked References Extent of revocation The Immigration (European Economic S.I. 2000/2326 The whole Regulations Area) Regulations 2000 The Immigration (European Economic S.I. 2001/865 The whole Regulations Area) (Amendment) Regulations 2001 The Immigration (Swiss Free S.I. 2002/1241 The whole Regulations Movement of Persons) (No. 3) Regulations 2002 The Immigration (European Economic S.I. 2003/549 The whole Regulations Area) (Amendment) Regulations 2003 The Immigration (European Economic S.I. 2003/3188 The whole Regulations Area) (Amendment No. 2) Regulations 2003 The Accession (Immigration and S.I. 2004/1219 Regulations 3 and 6 Worker Registration) Regulations 2004 The Immigration (European Economic S.I. 2004/1236 Regulation 2 Area) and Accession (Amendment) Regulations 2004 The Immigration (European Economic S.I. 2005/47 The whole Regulations Area) (Amendment) Regulations 2005 The Immigration (European Economic S.I. 2005/671 The whole Regulations Area)(Amendment) (No. 2) Regulations 2005

103

FP 6 - Headings for parts and clauses

PART 1

CONDITIONS OF APPROVAL AND CONTINUING REQUIREMENTS

Special educational provision

1. 1) The arrangements as respects:

a) the pupils for whom provision is made categorised by reference to:

i) the number, age and sex of day and boarding school pupils, respectively; and ii) their respective special educational needs; and

b) the special educational provision made for those pupils, shall be such as have been approved by the Secretary of State.

2) An approval given for the purposes of this paragraph may be expressed to have effect for only a limited period and subject to such conditions, if any, as are specified therein being observed.

School not to be conducted for profit

2. In the case of a non-maintained school:

a) the school shall not be conducted for profit; and b) no member of the staff shall have a financial interest therein otherwise than by reason only his being employed for the purposes thereof at a salary unrelated to the financial performance of the school.

104

FP 7 - Combined letter to SI Registrar/ certificate of classification for an SI which is to be printed and sold

The Statutory Instruments Registrar Publishing Services Division Her Majesty’s Stationery Office Date ......

Dear Sir

1. The [title of responsible authority] has made a statutory instrument, or An Order in Council has been made*,

2. The [title of responsible authority] hereby certifies under regulation 4 of the Statutory Instruments Regulations 1947 that the [title of instrument] is a local/general instrument.

3. Copies of the instrument are to be printed and sold on behalf of the Queen’s Printer of Acts of Parliament. The required date for publication is [insert date]

4. The Statutory Instrument has /has not* been drafted using the SI Template.

5. You are requested to complete Part 1 of the Receipt Sheet.

Yours faithfully

for [title of responsible authority] or Clerk of the Privy Council*

 Delete word(s) not required

105

FP 8 - Combined letter to SI Registrar/ certificate of classification for an SI which is exempted from printing under Regulation 5 of the Statutory Instruments Regulations 1947

The Statutory Instruments Registrar Publishing Services Division Her Majesty’s Stationery Office Date ...... Dear Sir

1. The [title of responsible authority] has made a statutory instrument, or An Order in Council has been made, of which a copy is attached, entitled [title of instrument]. You are requested to number it in accordance with regulation 3 of the Statutory Instruments Regulations 1947, and to insert the number in the copy of the instrument.

2. The [title of responsible authority] hereby certifies under regulation 4 of the Statutory Instruments Regulations 1947 that the [title of instrument] is a local/general* instrument, under regulation 5 of the said Regulations, that the instrument is to be exempted from printing as: a local instrument. or of a class of documents which is/will be regularly printed as a series and made available to persons affected thereby.*

3. Copies of the instrument are not to be printed and sold.

4. The Statutory Instrument has /has not* been drafted using the SI Template.

5. You are requested to complete Part 1 of the Receipt Sheet.

Yours faithfully for [title of responsible authority] or

Clerk of the Privy Council

 Delete word(s) not required

106

FP 9 - Combined letter to SI Registrar/ certificate of classification for an SI which is exempted from printing under Regulation 6 of the Statutory Instruments Regulations 1947

Where the certificate under Regulation 6 is being given at the time of registration

The Statutory Instruments Registrar Publishing Services Division Her Majesty’s Stationery Office Date ...... Dear Sir

1. The [title of responsible authority] has made a statutory instrument, or An Order in Council has been made,

of which a copy is attached, entitled [title of instrument]. You are requested to number it in accordance with regulation 3 of the Statutory Instruments Regulations 1947, and to insert the number in the copy of the instrument. 2. The [title of responsible authority] hereby certifies under regulation 4 of the Statutory Instruments Regulations 1947 that the [title of instrument] is a local/general* instrument, and under regulation 6 of the said Regulations, that the printing and sale of copies of the instrument in accordance with the requirements of section 2(1) of the Statutory Instruments Act 1946 is unnecessary having regard to the brevity of the period during which the instrument will remain in force [and to other steps taken/to be taken for bringing its substance to the notice of the public].

3. Copies of the instrument are not to be printed and sold.

4. The Statutory Instrument has /has not* been drafted using the SI Template.

5. You are requested to complete Part 1 of the Receipt Sheet.

Yours faithfully for [title of responsible authority] or Clerk of the Privy Council*

 Delete word(s) not required 107

Where the certificate is being given after the instrument has been registered

The Statutory Instruments Registrar Publishing Services Division Her Majesty’s Stationery Office Date ...... Dear Sir

1. Re: [title of instrument ] registered as SI {Year/Number]

2. The [title of responsible authority] hereby certifies under regulation 6 of the Statutory Instruments Regulations 1947, that the printing and sale of copies of the instrument in accordance with the requirements of section 2(1) of the Statutory Instruments Act 1946 is unnecessary having regard to the brevity of the period during which the instrument will remain in force [and to other steps taken/to be taken for bringing its substance to the notice of the public].

Yours faithfully for [title of responsible authority] or Clerk of the Privy Council*

108

FP 10 -Combined letter to SI Registrar/ certificate of classification for an SI for which a schedule or other document which is identified by/referred to in the instrument is exempted from printing under Regulation 7 of the Statutory Instruments Regulations 1947

The Statutory Instruments Registrar Publishing Services Division Her Majesty’s Stationery Office Date ......

Dear Sir 1. The [title of responsible authority] has made a statutory instrument, or An Order in Council has been made,

2. The [title of responsible authority] hereby certifies under regulation 4 of the Statutory Instruments Regulations 1947 that the [title of instrument] is a local/general* instrument, and under regulation 7 of the said Regulations, that the printing and sale in accordance with the requirements of section 2(1) of the Statutory Instruments Act 1946 of [describe the schedule or other document] which is identified by/referred to in the instrument which is unnecessary/undesirable having regard to the nature/bulk of the document [and to other steps taken/to be taken for bringing its substance to the notice of the public].

3. Copies of the instrument are to be printed and sold.

4. The Statutory Instrument has /has not* been drafted using the SI Template.

5. You are requested to complete Part 1 of the Receipt Sheet.

Yours faithfully for [title of responsible authority] or Clerk of the Privy Council*

 Delete word(s) not required 109

FP 11 Combined letter to SI Registrar/ certificate of classification for an SI which is exempted from immediate printing under Regulation 8 of the Statutory Instruments Regulations 1947

The Statutory Instruments Registrar Her Majesty’s Stationery Office Admiralty Arch Date ......

Dear Sir 1. The [title of responsible authority] has made a statutory instrument, or An Order in Council has been made,

2. The [title of responsible authority] hereby certifies under regulation 4 of the Statutory Instruments Regulations 1947 that the [title of instrument] is a local/general* instrument, and under regulation 8 of the said Regulations, that the printing and sale of copies of the instrument in accordance with the requirements of section 2(1) of the Statutory Instruments Act 1946 would, if effected before the coming into operation of the instrument, be contrary to the public interest.

3. Copies of the instrument are not to be printed and sold until after [insert date].

4. The Statutory Instrument has /has not* been drafted using the SI Template.

5. You are requested to complete Part 1 of the Receipt Sheet.

Yours faithfully

for [title of responsible authority] or Clerk of the Privy Council*

 Delete word(s) not required 110

FP 12 - Statutory Instrument Receipt Sheet

To be adapted as necessary e.g. where the instrument is not to be laid or is to be laid in draft or before the House of Commons only.

[TITLE OF INSTRUMENT] [DATE OF MAKING]

PART 1. NUMBERING The above Statutory Instrument has been numbered [YEAR] / [NUMBER]. Receipt of the relevant letter and certificate is hereby acknowledged.

Date………… Name……………………………………………… for the Statutory Instruments Registrar

PART 2. PRINTING AND SALE The above Statutory Instrument has been received for printing and sale by The Stationery Office Limited.

Date………… Name……………………………………………… for The Stationery Office Limited acting on behalf of the Queen’s Printer of Acts of Parliament.

PART 3. LAYING BEFORE THE HOUSE OF LORDS The Statutory Instrument of which a copy is affixed has been received for laying before the House of Lords.

Date………… Signed……………………………………………… for Clerk of the Parliaments.

PART 4. LAYING BEFORE THE HOUSE OF COMMONS The Statutory Instrument of which a copy is affixed has been received for laying before the House of Commons.

Date………… Signed……………………………………………… for Clerk of the House of Commons.

111

FP 13 - Letter to TSO containing instructions for printing and publication

Parliamentary and Statutory Publishing Section The Stationery Office Limited

Date……………………..

Dear Sir / Madam

[TITLE OF INSTRUMENT/DRAFT]

1. A Press Copy of the above [instrument/draft instrument] is attached, and it is requested that copies should be printed and sold on behalf of the Queen’s Printer of Acts of Parliament. The instrument has been classified as a {General/Local] instrument.

2. Copies should be available in the Printed Paper Office and the Vote Office, and be on sale to the public on [insert date].

3. The number of copies required by [insert name of department] is [insert quantity] and [an order form/order forms] covering these requirements [is/are] attached.

4. The Statutory Instrument [has /has not] been drafted using the SI Template. [Any queries regarding the validation of the templated text should be referred to [insert name and telephone number of contact]]

5. The particulars for the Statutory Instrument issue lists are as follows:

5.1 Number: 5.2 Subject(s): 5.3 Title: 5.4 Enabling Powers: 5.5 Made On: 5.6 Laid before [Parliament/House of Commons] on: or Not to be laid 5.7 Date of commencement: 5.8 Effect on existing legislation: Amending: Revoking: 5.9 Superseding draft published on: 5.10 Applies to: [United Kingdom/Great Britain/England/Wales/Scotland/N Ireland]

Yours faithfully

for [title of responsible authority] or Clerk of the Privy Council

112

FP 14 - TSO Order form

Order for Statutory Instruments Please complete one form per delivery address and enclose with the instructions for printing

Send completed form to: Address (in full) for delivery: ______TSO ______Statutory Publishing Team ______Parliamentary Press ______Mandela Way ______London SE1 5SS

Customer Account Number Customer Order Reference Date

Please note: The above details must be completed or supply may be delayed.

In case of query: Contact Telephone Email Examined and approved Grade:

Title Number of copies

Special despatch instructions:

113

FP 15 -Memorandum to accompany an instrument or draft laid before Parliament or the House of Commons

Delete all words not required. Where affirmative or negative procedure applies, use the appropriate part of paragraph 3 in the case of an instrument, and the appropriate part of paragraph 5 in the case of a draft.

The Clerk of the Parliaments House of Lords LONDON SW1A 0PW or

The Clerk in Charge Votes and Proceedings Office House of Commons LONDON SW1A 0AA

[Short title of Act under which instrument or draft is being laid]

[Title of instrument] dated [date when made] made by [title of responsible authority or Her Majesty in Council] or

Draft [title of draft]

1. The instrument/draft instrument referred to above is presented for laying before the House of Lords/Commons under section ...... of the [short title of Act].

2. It is complete and is not in dummy form.

3. It is subject to annulment/approval by resolution before coming into force/approval by resolution within ...... days after the date on which it was made.

4. It is subject to special parliamentary procedure.

5. It is subject to negative resolution procedure/a motion for an address to Her Majesty/approval by resolution.

6. It is not by its enabling Act made subject to parliamentary proceedings.

/ 7.

114

7. An Explanatory Memorandum to the instrument/draft instrument referred to above is also presented for laying by Command of Her Majesty.

8. It is requested that the copy of the instrument/draft marked ‘Record Copy’ in the folder accompanying this memorandum may be stamped with the date on which the instrument/draft is laid before the House of Lords/Commons, and that Part III/IV of the Receipt Sheet in the folder may be completed.

Date ...... for [title of responsible authority]

Clerk of the Privy Council

115

FP 16 -Notification to the Speaker of the House of Lords and the Speaker of the House of Commons

A copy of any notification should be included among the papers sent to the appropriate scrutiny committee

The Lord Speaker House of Lords LONDON SW1A 0PW or

The Speaker House of Commons LONDON SW1A 0AA

[TITLE OF INSTRUMENT]

For instruments other than Orders in Council

In compliance with the proviso to section 4(1) of the Statutory Instruments Act 1946 the [title of responsible authority] invites attention to the fact that SI 20.... No .... [title of instrument], which was made under section .... of the [short title of Act] on [date] and came/comes1 into force on [date], has yet to be laid before Parliament/the House of Commons16. He is informed by the [title of responsible authority] that the reason is [state why the instrument was not laid before it came into force].

Date ...... for [title of responsible authority]

For Orders in Council

In compliance with the proviso to section 4(1) of the Statutory Instruments Act 1946 the Lord President of the Council invites attention to the fact that SI 20.... No .... [title of instrument], which was made under section .... of the [short title of Act] on [date] and came/comes16 into force on [date], has yet to be laid before Parliament/the House of Commons16. He is informed by the [title of responsible authority] that the reason is [state why the instrument was not laid before it came into force].

Date ...... Clerk of the Privy Council

1 Delete word)s) not required 116

FP 17 -Notification to the Statutory Instruments Reference Committee

This Committee should be supplied with two copies of the notification, certificate of exemption, instrument and any other relevant document

The Clerk to the Statutory Instruments Reference Committee

House of Commons LONDON SW1A 0AA Date ......

Dear Sir

[TITLE OF INSTRUMENT]

The Statutory Instruments Reference Committee is notified, pursuant to regulation 11(3) of the Statutory Instruments Regulations 1947, that the [title of responsible authority] has issued a certificate in respect of the above instrument under regulation 6/regulation 71 of the said regulations. A copy of the certificate2 is attached, together with a copy of the instrument [and of ...... 3.

Yours faithfully for [title of responsible authority]

1 Delete words not required 2 For forms of certificate, see FP 9 and 10 3 Give short particulars of any other attached document(s) 117

FP 18 Motions to approve statutory instruments and drafts

1. The following examples are intended to illustrate the formal parts of motions, such as the description of the instrument and the reference to the laying of it, in which there are minor differences of practice between the two Houses. The substance of the motion must in all cases be determined by the requirements of the enabling Act (see paragraph 4.41).

Motions approving instruments

2. House of Lords: That the draft .... Order 20...., laid before the House on 1 July, be approved. House of Commons: That the draft ..... Order 20...., which was laid before this House on 1 July, be approved.

Motions approving drafts

3. House of Lords: That the draft .... Order 20...., laid before the House on 1 July, be approved. House of Commons: That the draft ..... Order 20...., which was laid before this House on 1 July, be approved.

Motions for an Address

4. House of Lords: That an humble Address be presented to Her Majesty, praying that the .... Order 20... be made in the form of the draft laid before the House on 1 July. House of Commons: as above, but ‘this House’ instead of ‘the House’.

After a prorogation or dissolution

5. If the instrument or draft was laid in the preceding session, the date of laying should be followed by the words ‘in the last Session of Parliament’, or, after a dissolution, by ‘in the last Session of the last Parliament’.

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PART 7 TABLES OF PROCEDURE

Introductory Notes Table 1 Registration: instrument not printed Table 2 Registration and printing Table 3 Laying before Parliament Table 4 Provision of papers for the Joint (or Commons) Committee Table 5 An instrument not to be laid Table 6 An instrument to be laid: normal procedure Table 7 An instrument to be laid: urgent procedure Table 8 An instrument to be laid for a period before coming into operation Table 9 An instrument to be laid in draft Table 10 An Order in Council

119

Introductory notes

1. These Tables set out some basic procedures relating to statutory instruments, but do not purport to cover all the variations which arise in practice.

2. The Tables give references to the Forms and Precedents, in the form ‘(FP6)’, and the notes contain a few references to other Parts of the manual. [Further references may be traced through the Index1.]

3. Except in Tables 1 and 5A, it is assumed that the instrument or draft is to be printed. If this is not the case, the required modifications will generally be evident. It should, however, be remembered that SI Registrar must be supplied with a second copy of any instrument which is not to be printed (see Table 1, paragraph 1(a)(ii)).

4. In some instances the Reference Committee must be notified that a document has been certified as exempt from printing. The relevant procedure is described in paragraphs 5.2.1 - 5.2.4, and is not included in the Tables. In the case of an Order in Council (Table 10) any such notification is the responsibility of the Department, not of the Privy Council Office.

5. In these Tables:

a) ‘authenticated’ means certified as a true copy (see paragraph 3.1.5); b) ‘Department’ includes responsible authority (see the Statutory Instruments Regulations 1947, regulation 1(2)(b), and paragraph 3.1.7); c) ‘scrutiny committee’ means the Joint Committee on Statutory Instruments (‘the Joint Committee’) or the Commons Select Committee on Statutory Instruments (‘the Commons Committee’), as may be appropriate.

1 The Index is currently under preparation and will be added shortly 120

Table 1 Registration: instrument not printed

1. The Department make up a folder containing or send by email:

a) a letter to the SI Registrar/certificate of classification (FP8, FP9, or FP11) with the following attached:

two authenticated copies of the instrument (the Registrar’s copies);

b) attached to the folder:

i) receipt sheet (FP12), ii) authenticated copy of the instrument (the record copy).

2. The folder is sent to HMSO, who register the instrument, number all copies, stamp them with the date of registration and ‘General’ or ‘Local’, complete part 1 of the receipt sheet, and retain the papers mentioned at 1(a) above. Any subsidiary number is also entered in the register and on the copies.

3. The folder or an email, containing the receipt sheet and record copy, is returned to the Department.

121

Table 2 Registration and printing

1. The Department make up a folder containing or send by email:

a) a combined letter to the SI Registrar / certificate of classification (FP7) or, if required, certificate of classification and exemption from printing (FP10) (e.g. where a schedule or other document is not to be printed);with the following attached:

i) authenticated copy of the instrument (the Registrar ’s copy);

b) a letter to TSO (FP13) with an authenticated copy of the instrument (the press copy) attached, and a TSO Order Form (FP14)

c) receipt sheet (FP12) with a further authenticated copy of the instrument (the record copy).

d) (when required and always by email) the Explanatory Memorandum accompanying the instrument.

2. The folder or email is sent to HMSO, who register the instrument, insert the number in all copies and letters, stamp them with the date of registration and ‘General’ or ‘Local’, complete Part 1 of the receipt sheet, and retain the papers mentioned at 1(a) above. Any subsidiary number is also entered in the register and on the documents mentioned.

3. The folder (or email), containing the papers mentioned at 1(b), (c) and (d) above, is sent to TSO, who complete Part 2 of the receipt sheet, retain the papers mentioned at 1(b), and put in hand the printing.

4. The folder (or email) containing the papers mentioned at 1(c), is returned to the Department.

5. TSO put copies on sale and supply copies to the Printed Paper Office, House of Lords, and the Vote Office, House of Commons. The SI and any accompanying Explanatory Memorandum are published on the OPSI website.

122

Table 3 Laying before Parliament

If the instrument or draft is to be laid before the House of Commons only, omit stages 1(a) and 2 below

1. The Department prepare a folder containing:

a) Two authenticated copies of the instrument or two copies of the draft, each securely affixed to a memorandum addressed to the Clerk of the Parliaments, House of Lords (FP15);

b) two authenticated copies of the instrument or two copies of the draft, each securely affixed to a memorandum addressed to the Clerk in Charge, Votes and Proceedings Office, House of Commons (FP15); and two copies of the accompanying Explanatory Memorandum

c) attached to the folder:

i) receipt sheet (FP12); ii) record copy of the instrument.

2. The Department’s messenger takes the folder to the Printed Paper Office, House of Lords, where the clerk in attendance:

a) retains the papers mentioned at 1(a) above; b) completes and signs Part 3 of the receipt sheet; c) stamps the record copy with the date of laying.

3. The messenger takes the folder to the Votes and Proceedings Office, House of Commons, where the clerk in attendance:

a) retains the papers mentioned at 1(b) above; b) completes and signs Part 4 of the receipt sheet; c) stamps the record copy with the date of laying.

4. The messenger returns to the Department with the folder containing the papers mentioned at 1(c) above.

Notes i) All copies must be complete and correct, and include any related maps, plans, schedules or other documents. One copy of any exempt schedule or document (see paragraphs 3.5.6 and 3.5.7) must be supplied for each House, or for the Commons if laying is before that House only. ii) The following may be laid only on sitting days: special procedure orders, any other instrument which is required to be laid for any period before it comes into operation, and drafts (see paragraph 4.2.8).

123

Table 4 Provision of papers for the Joint (or Commons) Committee

1. The Department prepare the following papers:

a) for the Joint Committee 22 copies, or for the Commons Committee 15 copies, of a draft instrument for affirmative resolution collated with copies of the Explanatory Memorandum; or

for the Joint Committee or the Commons Committee 10 copies, of an instrument collated with copies of the Explanatory Memorandum (see Section 4.12);

b) where an instrument gives effect to Community obligations, two copies of all European documents cited in the instrument;

c) a copy of any relevant map, plan, schedule or other document not printed as part of the instrument or draft;

2. The Department send the above papers to:

a) The Commons Clerk to the Joint Committee on Statutory Instruments, House of Commons, Delegated Legislation Office, Room 261, 7 Millbank London SW1P 3JA; or

b) The Clerk to the Select Committee on Statutory Instruments, address as in a).

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Table 5 An instrument not to be laid

A Copies not to be printed

1. The instrument is drafted.

2. The instrument is made.

3. The instrument is registered (see Table 1).

Note It is assumed that the instrument is not within the Orders of Reference of a scrutiny committee (see paragraphs 5.4.2 and 5.4.7).

B. Copies to be printed

1. The instrument is drafted.

2. Where the SI template has not been used, proofs are obtained from TSO.

3. The instrument is made.

4. The instrument is registered and copies are printed, put on sale and supplied to Parliament (see Table 2). The instrument is published on the OPSI website.

5. If required, papers are supplied to the Joint or Commons Committee (see Table 4).

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Table 6 An instrument to be laid: normal procedure

1. The instrument is drafted, to come into force at a date later than the date of laying.

2. Where the SI template has not been used, proofs are obtained from TSO.

3. The instrument is made.

4. The instrument is registered and copies are printed (see Table 2, paragraphs 1 - 4).

5. The instrument is laid (see Table 3); and copies are put on sale and supplied to Parliament (see Table 2, paragraph 5) and published on the OPSI website.

6. Papers are supplied to the Joint or Commons Committee (see Table 4) and the House of Lords Merits of Statutory Instruments Committee (see Section 4.12).

Note Subject to the additional instructions in paragraph 3.6.5, this Table applies to instruments requiring approval remain in force (class (iii) of Table B, page 9). As to instruments requiring approval to come into force (class (ii)), See Table 8.

126

Table 7 An instrument to be laid: urgent procedure

In the following Table it is assumed that the instrument cannot be laid before it comes into force, and that printed proofs are not available at stage 2.

1. The instrument is drafted and, where the SI template has not been used, sent to TSO for proofs, and made.

2. The following are sent to HMSO:

a) the papers required for registration procedure (see Table 2, paragraph 1(a) and (c)); b) if laying is before both Houses, a notification to the Speaker of the House of Lords (FP16) with an authenticated copy of the instrument attached; c) a notification to the Speaker of the House of Commons (FP16) with an authenticated copy of the instrument attached.

3. HMSO:

a) register the instrument (see Table 2, paragraph 2); b) insert the number of the instrument in the papers mentioned at 2(b) and (c) above.

4. The Department’s messenger delivers the papers mentioned at 2(b) to the Speaker of the House of Lords (if required) and those mentioned at 2(c) to the Speaker.

5. The folder containing the receipt sheet (FP12) and record copy are returned to the Department.

6. The instrument is laid (see Table 3).

7. The corrected proof (or the templated SI) is sent to TSO for copies to be printed, put on sale and supplied to Parliament (see Table 2, paragraphs 1(b) and (c), 3, 4 and 5).

8. Papers are supplied to the Joint or Commons Committee (see Table 4) and the House of Lords Merits Committee.

Notes i) The above procedure is appropriate if the instrument comes into force on or before the date of registration. If it comes into force on a later day, but before it can be laid, the notification(s) should be delivered on that day (see Statutory Instruments Act 1946), section 4(1) proviso) and the procedure adapted accordingly. ii) Whenever possible, printed copies of the instrument should be supplied to Parliament on the day of laying (see paragraphs 3.4.8 and 4.3.2). iii) If there is a vacancy for the time being in the office of the Speakers of either House, whether occurring by death, resignation, dissolution of Parliament or otherwise, the notification must be sent to him immediately after the vacancy is filled (see paragraph 4.3.8).

127

Table 8 An instrument to be laid for a period before coming into force

1. The instrument is drafted.

2. Where the SI template has not been used proofs are obtained from TSO: headnote on all copies until stage 7 below is completed.

3. The instrument is made.

4. Copies of the instrument are printed (see Table 2, paragraphs 1(b) and (c), 3 and 4).

5. The instrument is laid (see Table 3); and copies are put on sale and supplied to Parliament (see Table 2, paragraph 5).

6. Papers are supplied to the Joint or Commons Committee (see Table 4) and the House of Lords Merits Committee (see Section 4.12).

7. The appropriate parliamentary procedure is completed.

8. The instrument, without the headnote but with the new italic cross-heading (see paragraph 3.6.4), is registered and copies are printed, put on sale and supplied to Parliament (see Table 2).

128

Table 9 An instrument to be laid in draft

1. The instrument is drafted.

2. Where the SI template has not been used proofs are obtained from TSO, with the appropriate headnote.

3. The draft is laid (see Table 3).

4. TSO put the draft on sale and supply copies to the Printed Paper Office, House of Lords, and the Vote Office, House of Commons; or

5. Papers are supplied to the Joint or Commons Committee (see Table 4) and the House of Lords Merits Committee (see Section 4.12).

6. The appropriate parliamentary procedure is completed.

7. The instrument is made.

8. The instrument, with the headnote and ‘DRAFT’ (in ‘DRAFT STATUTORY INSTRUMENTS’) expunged, is registered and copies are printed, put on sale and supplied to Parliament (see Table 2).

129

Table 10 An Order in Council

Preliminary notes i) In this Table ‘PCO’ stands for Privy Council Office. ii) The PCO notify Departments of the date on which Her Majesty is to hold a Council, the date by which papers must be delivered to the PCO for the purposes of the Council, and the date on which Orders made at the Council, and requiring to be laid before Parliament, will be laid. iii) Before papers are sent to the PCO (see stage 3 of the Table) they should be completed by the Department as far as possible. Lettersand notifications should be headed Privy Council Office, 2 Carlton Gardens, London, SW1Y 5AA, and completed except for date and signature. iv) If, by reason of the absence abroad or illness of Her Majesty, a Council is to be held by Counsellors of State, the PCO issue special instructions concerning the formal parts of Orders to be made at that Council. v) As to orders in Council laid in draft, see paragraph 4.10.4.

The Table

1. The Department draft the Order, to include (a) the date of the Council at which the Order will be made; (b) if required, the date of laying before Parliament; and (c) the date of coming into force or these dates may be inserted subsequently in proofs.

2. Where the SI template has not been used the Department obtain proofs from TSO.

3. The Department send by email (where the SI has been produced using the SI template) or, for other instruments, by hand to the PCO:

a) the papers required for registration and printing procedure (see Table 2, paragraph 1); b) if the Order is to be laid

i) the papers required for laying procedure (see Table 3, paragraph 1); ii) if the Order must come into force before it is laid, the papers mentioned in Table 7, paragraph 2(b) (if required) and (c);

c) three additional copies of the Order (if not submitted electronically).

4. PCO supplies the SI Registrar with an advance copy of the Order for checking.

5. The Order is made by Her Majesty in Council.

6. The PCO send the Orders to be registered and printed (see Table 2).

7. If required, the PCO notify the Speaker of the House of Lords and the Speaker of the House of Commons, of the Order coming into force before being laid (see Table 7).

130

8. If required, the PCO lay the Order and any accompanying Explanatory Memorandum(see Table 3).

9. The Department supply papers to the Joint or Commons Committee and the House of Lords Merits Committee (see Table 4).

131

132

PART 8 APPENDICES

Appendix A Statutory Instruments made under pre-1948 Acts Appendix B Notes on special procedure orders Appendix C Dissolution of Parliament Appendix D European Community Instruments Appendix E Process for producing SIs using SI template Appendix F Process for producing SIs not using SI template Appendix G Process for producing Affirmative Resolution Orders using SI template Appendix H Explanatory Memoranda to Statutory Instruments – Style Guide and notes on completion

133

APPENDIX A

STATUTORY INSTRUMENTS MADE UNDER PRE-1948 ACTS

Preliminary

1. To determine whether a document made after 1947 under an Act passed before 1948 is a statutory instrument, it is necessary to consider the effect of the following enactments:

a) Statutory Instruments Act 1946 (‘the 1946 Act’), sections 1(2), 8(1)(d) and 9(1); b) Statutory Instruments (Confirmatory Powers) Order 1947 (‘the 1947 Regulations’), regulation 2; c) Statutory Instruments (Confirmatory Powers) Order 1947 (‘the 1947 Order’); d) Rules Publication Act 1893 (‘the 1893 Act’), sections 3 and 4:

The 1946 Act, the 1947 Regulations and the 1947 Order are printed in Part IX of this manual. The 1893 Act is repealed, but the sections mentioned are still material for present purposes, and section 4 is printed at the end of this Appendix.

2. Special provision was made in the legislation of 1946-47 with respect to instruments by which documents are confirmed or approved, and these instruments are considered in a separate section below (paragraphs 8-10). Instruments made under the 1946 Act itself are not within the scope of this Appendix, being statutory instruments by virtue of section 1(1).

Documents which are statutory instruments

3. By virtue of section 1(2) of the 1946 Act and regulation 2(1)(a) of the 1947 Regulations a document is a statutory instrument if:

a) it is made after 1947 under a statutory power conferred before 1948, and b) it is made by a ‘rule-making authority’ (see paragraph 4 below), and c) it is legislative, as opposed to executive, in character (see paragraph 5 below).

4. ‘Rule-making authority’ is defined in section 4 of the 1893 Act; it means an authority who may make ‘statutory rules’ (also defined), and includes Her Majesty in Council, a Secretary of State, a Government Department (that is, a Minister in charge of a Department - see section 11 of the 1946 Act) and an authority empowered to make rules of court. It does not include a local authority or professional body. Legislative orders made by rule-making authorities have been deemed to be statutory instruments by virtue of the extended definition of ‘statutory rule’ in regulation 2(1) of the 1947 Regulations, notwithstanding that the definition in section 4 of the 1893 Act does not refer to orders.

5. The distinction between legislative and executive documents was carried into regulation 2(1)(a) from the Regulations made under the 1893 Act. The distinction is discussed in works on constitutional and administrative law, and in practice is not always easy to draw.

6. A further class of documents is brought within the statutory instruments series by regulation 2(1)(b) of the 1947 Regulations. This class comprises instruments made after 1947 which would, by virtue of an enabling Act passed before 1948, have been

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subject to the provisions of section 3 (printing, numbering and sale) of the 1893 Act if that section had not been repealed.

Documents which are excluded

7. Notwithstanding the provisions mentioned above the following are not statutory instruments, being excluded by regulation 2(3) of the 1947 Regulations:

Any document which, although of a legislative character, applies only to a named person or premises and is not required to be laid before or subject to confirmation or approval by Parliament or the House of Commons (regulation 2(3)(a); ‘person’ includes a body of persons corporate or unincorporate: Interpretation Act 1978, Schedule 1);

any document made under any of the enactments (which relate to the armed forces) set out in Part 1A of the Schedule to the 1947 Regulations (regulation 2(3)(c)).

Confirmatory documents which are statutory instruments

8. There was some uncertainty about the application of the 1893 Act to subordinate legislation which was confirmed or approved, but not made, by a rule-making authority. Where, however, the confirmation or approval is effected by an instrument made after 1947 under an Act passed before 1948, the question whether that instrument is a statutory instrument is governed by the 1947 Regulations, regulation 2(2) and 2(3)(a) and (b), and the 1947 Order.

9. Under the provisions of regulation 2(2) a confirming or approving instrument is not deemed to be a statutory instrument unless the confirmation or approval is required by the enabling Act to be given by Order in Council or by order of a rule-making authority. But regulation 2(2) is without prejudice to the 1947 Order, by virtue of which a further class of confirming or approving instruments are statutory instruments: namely, those which exercise a power conferred on a Minister of the Crown to confirm or approve subordinate legislation which, ‘being of a legislative and not an executive character’, is required to be laid before Parliament or the House of Commons.

Confirmatory documents which are excluded

10. A confirming or approving document will not be a statutory instrument if:

a) it is excluded by regulation 2(3)(a) (see paragraph 7 above); b) it is excluded by regulation 2(3)(b), being an Order in Council for which the Lord President is the responsible authority (see regulation 1(2)(b)) and which confirms or approves subordinate legislation in the nature of a local and personal or private Act (for example, the statutes of a university); c) the document confirmed or approved is executive not legislative, since both regulation 2(2) and the 1947 Order relate to the confirmation or approval of subordinate legislation.

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The Reference Committee

11. If there is doubt whether a document is a statutory rule for the purposes of section 1(2) of the 1946 Act, the Reference Committee (see paragraphs 5.2.1 - 5.2.4) may be asked to determine the question, pursuant to regulation 11(4)(c) of the 1947 Regulations.

The Rules Publication Act 1893 Section 4: Definitions

In this Act:

‘Statutory rules’ means rules, regulations, or byelaws made under any Act of Parliament which (a) relate to any court in the United Kingdom, or to the procedure, practice, costs or fees therein, or to any fees or matters applying generally throughout England, Scotland, or Ireland; or (b) are made by Her Majesty in Council, the Judicial Committee, the Treasury, the Lord Chancellor of Great Britain, or the Lord Lieutenant or the Lord Chancellor of Ireland, or a Secretary of State, the Admiralty, the Board of Trade, the Local Government Board for England or Ireland, the Chief Secretary for Ireland, or any other Government Department.

‘Rule making authority’ includes every authority authorised to make any statutory rules.

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APPENDIX B

NOTES ON SPECIAL PROCEDURE ORDERS

Preliminary

1. These notes are intended to provide information about special procedure orders. They do not deal with proceedings in Parliament, but with points of practice which are preliminary to, or consequent upon, such proceedings. The number of Special Procedure Orders required to be made under the Statutory Orders (Special Procedure) Act 1945 as amended by the Statutory Orders (Special Procedure) Act 1965 are now few in number, relating only to cases where certain protected categories of land are subject to compulsory acquisition. Further information about special procedure orders will be found in Erskine May’s Parliamentary Practice (23rd edition, pages –978 - 79, cited below as ‘May’).

2. In these notes:

‘Special Procedure Act’ means the Statutory Orders (Special Procedure) Act 1945 as amended by the Statutory Orders (Special Procedure) Act 1965;

‘special procedure order’ means an order, scheme, certificate or byelaws in relation to which the Special Procedure Act applies;

references in the form ‘s2’ are to the sections of the Special Procedure Act, and those in the form ‘SO 205(HL)’ or SO 239 (HC)’ are to the Standing Orders mentioned in the next paragraph.

3. The primary sources of authority on special parliamentary procedures are the two Acts mentioned (which may be cited together as the Statutory Orders (Special Procedure) Acts of 1945 and 1965) and the Private Business Standing Orders of the House of Lords (SO 203 - 215) and Commons (SO 237 - 248A). The Special Procedure Act, and two Orders in Council made under it, are printed at the end of the Standing Orders.

4. Depending upon the provisions of the enabling Act, a Minister may make a special procedure order of his own motion, or he may make or confirm it on the application of some body (‘the applicant’) such as a local authority or statutory undertaker. The order is not to be laid before Parliament until the preliminary requirements prescribed in the enabling Act or, if none are prescribed there, in Schedule 1 to the Special Procedure Act, have been complied with (s 2(1)). Some types of order are invariably subject to special parliamentary procedure, others only in particular circumstances, as for example where objections made during the preliminary proceedings have not been withdrawn.

Scotland

5. Where a special procedure order extends to Scotland only there are differences in the procedure; they are set in section 10 of the Special Procedure Act and described in May (21st Edition, pages 963 - 64). A few distinctively Scottish points of practice are mentioned in these notes. For the most part, however, the differences occur in the preliminary stages, or in the proceedings in Parliament, and are outside the scope of the notes.

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Special procedure orders which are statutory instruments

6. Some special procedure orders (though probably a minority) are required by the enabling Act to be made as statutory instruments. These are, as regards form and procedure, excepted from some of the requirements which normally apply to statutory instruments. Thus:

a) It is not mandatory, although it is usual, for them to have italic headings giving dates of laying and commencement (see paragraphs 2.3.16 and 2.3.17). (In the case of special procedure orders which are not statutory instruments, it is not unusual for these headings to be omitted).

b) They are subject to special registration procedure: see paragraph 3.3.12.

7. It may not be possible to specify the date on which a statutory instrument will come into force if it is, or may become, subject to special parliamentary procedure. In such a case the preamble may include a recital to the effect that the order will not come into force until the relevant statutory provisions have been complied with. If the reason for the absence of a commencement clause was otherwise apparent from the terms of the order, a recital of that kind would be unnecessary.

Notice in the Gazette

8. Notice of the Minister’s intention to lay a special procedure order before Parliament is to be published in The London Gazette after the preliminary proceedings have been completed and not less than three days before it is laid (s 2(1)). This requirement does not apply to an order extending to Scotland only.

Preparation of copies

9. In preparing the copies of a special procedure order which are to be laid before Parliament, and deposited with each House (see paragraph 13 below), the following points require attention:

a) The appropriate headnote should be inserted (whether or not the order is a statutory instrument) (see the Forms and Precedents, FP2, paragraph 6).

b) In an order which is a statutory instrument, the serial number should be left blank.

c) Such of the italic headings as are provided should be completed so far as practicable at this stage.

d) The signature, and the date of signature, should be inserted.

e) The order must be endorsed with the name and address of the applicant, if any (SO 205(2) HL), 239(2) HC); see paragraph 16 below).

10. Both Houses will accept copies produced from the SI template. If, however, the order is to be printed before laying, it is sent for that purpose direct to TSO, not through HMSO, and it may be advisable to consult TSO about the proposed date of laying.

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Laying before Parliament

11. The Order is laid before Parliament in the manner described in the Tables of Procedure, Table 3, but it may be aid only on a sitting day (see paragraph 4.2.8). With the order there is to be laid a certificate by the Minister (in practice usually signed by an official), giving particulars of the preliminary requirements to which the order is subject, and certifying that they have been complied with. Where a local inquiry has been dispensed with in accordance with any such requirements, the certificate is to include a statement to that effect (s 2(2)). If the order extends to Scotland only, a statement (not a certificate by the Minister is required, and must cover prescribed matters (s 10(2)). One signed certificate or statement and two copies, all having appended the note mentioned in the next paragraph, are laid before each House.

12. Below the certificate or statement just referred to, there should be a note setting out clearly the reason why the order is subject to special parliamentary procedure. In a case where part only of the land specified in the schedule to a compulsory order has attracted the special procedure, the note should give such particulars as will enable that part to be identified in the schedule. The description of the land should make clear why it comes within the ambit of the procedure. Examples of such notes are given in the Annex to this Appendix. The provision of them is a rule of practice (not of statute or the Standing Orders).

Provision of copies

13. On the day on which they are laid, copies of the order and certificate or statement (with the note) should be deposited as follows:

a) Five copies in the Printed Paper Office, House of Lords; if a further 25 copies are required, the Department will be informed; b) one copy in the Private Bill Office, and 25 copies in the Vote Office, House of Commons.

The above steps are accepted as a sufficient compliance with the standing orders relating to the deposit of copies (SO 205(1)(HL), 239(1)(HC)).

14. In addition, 22 copies of the order and certificate (with the note) should be supplied to the Joint Committee on Statutory Instruments (see the Tables of Procedure, Table 4). All special procedure orders, whether or not statutory instruments, are within the terms of reference of the Committee.

15. Copies of the order and certificate are also to be made available to any person on application to the Minister and on payment; but the order is excepted from this provision if it is a statutory instrument required to be printed and sold (SO 205(1)(HL), 239(1)(HC); as to printing and sale, see paragraphs, 3.4.1 and 3.5.3).

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Endorsement of orders

16. The name and address of the applicant (if any) is to be endorsed on all copies of the order laid before Parliament, and on all copies provided for the purposes mentioned in the two preceding paragraphs (SO 205(2)(HL), 239(2)(HC)).

Maps and plans

17. If under a special procedure order it is proposed to authorise the compulsory acquisition of land, or of rights to use land, or if the order relates to any works or area of land or water described by reference to a map or plan, a copy of a map or plan of the land or works or area is to be laid with the order before the House of Lords (as to the preparation of maps or plans for that House, see paragraph 4.2.12); and a copy is to be deposited in the Private Bill Office of the House of Commons on the day on which the order is laid before that House (SO 205A(HL), 239A(HC)). In addition the Joint Committee on Statutory Instruments should be supplied with six copies or, if the map is large and expensive to reproduce, with as many as may be feasible.

Consequences of parliamentary proceedings

18. Proceedings in Parliament relating to special procedure orders are described in Erskine May (23rd edition, pages –978 - 79), and are not within the scope of these notes. The course taken by those proceedings is material in determining the date upon which the order comes into operation (see s6 and Erskine May 21st edition, page 962). It also determines the further steps to be taken by the Department, which are the subject of the following paragraphs.

Order not amended

19. Where there has been no joint committee and neither House has resolved during the resolution period that the order be annulled, or where the order has been reported by a joint committee without amendment, the steps to be taken are as follows:

a) The headnote and endorsement of the order are expunged, and any incomplete italic heading is completed. (These steps are sometimes omitted if the order is not reprinted.)

b) If the order is not a statutory instrument, the Department arranges for the production of such further copies as are required.

c) If the order is a statutory instrument which is not to be printed, it is sent to HMSO for registration (see the Tables of Procedure, Table 1), and the Department arranges for the production of such further copies as are required.

d) If the order is a statutory instrument which is to be printed, it is sent for registration by HMSO, and then for printing by TSO, who will put copies on sale and supply them to Parliament (see the Tables of Procedure, Table 2).

e) If the order is a statutory instrument which is to be printed, but it is intended that a schedule or other document forming part of it should be exempt from printing, the procedure described in paragraph 3.5.6 is followed.

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Order amended and taking effect

20. Where a special procedure order has been reported by a joint committee with amendments, and the Minister accepts that it should take effect as amended, it is to come into operation as amended on such date as the Minister may, by notice given in the prescribed manner, determine (s 6(2)). ‘Prescribed’ means prescribed by the standing orders of each House (ss 9,11(1)), which require that the notice shall be published in The London Gazette or The Edinburgh Gazette, or both, according to the territorial extent of the order; and, in the case of an order relating to a particular area, in at least one newspaper circulating in that area (SO 214(1)(HL), 248 (1) (HC)).

21. Amendments are made to the order so that it is as reported by the joint committee, and the words ‘Printed as amended under the Statutory Orders (Special Procedure) Act 1945’ are inserted in italics. Subsequent procedure follows that for an unamended order (see paragraph 19 above).

Amended order withdrawn

22. If an order has been reported by the joint committee with amendments, and the Minister considers it inexpedient that the order should take effect as amended, he may withdraw it by giving notice in the manner prescribed in the standing orders. A copy of the notice must be laid before each House within four days of publication (Ss 6(2) proviso, 9, 11(1); SO 214 (HL), 248 (HC)).

Bills to confirm special procedure orders

23. Where an order has been reported by the joint committee with amendments, the Minister may, as an alternative to withdrawing it, present a bill to confirm it. A similar course may be taken if the committee have reported that the order be not approved. In either case the bill is treated as a public bill, but the normal procedure is modified (see s 6, and May 21st edition, pages –962 - 963).

Effect of dissolution of Parliament

24. The effect of a dissolution of Parliament upon special procedure orders is mentioned in Appendix C, paragraph 3(d).

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Annex to Appendix B: Notes appended to certificates

The following are examples of the notes which should, as mentioned in paragraph 12 above, be appended to certificates under section 2(2) or statements under section 10(2) of the Special Procedure Act.

Example 1

Note

This Order is subject to special parliamentary procedure by virtue of paragraph 11 of Schedule 1 to the Acquisition of Land (Authorisation Procedure) Act 1946 because the land to which the Order relates is part of an open space for which other land is not being given in exchange.

Example 2

Note

This Order is subject to special parliamentary procedure by virtue of paragraph 11 of Schedule 1 to the Acquisition of Land (Authorisation Procedure) Act 1946 because the Order provides for the acquisition of:

a) land and rights over land forming parts of commons, namely the items number 17, 18 and 71 in Column 1 of Schedule 1 to the Order, and no land has been or will be given in exchange therefore, and

b) land forming part of an open space, namely the item numbered 53 in Column 1 of Schedule 1 to the Order, for which exchange land will be given, but in respect of which the Secretary of State for the Environment has not given a certificate under the said paragraph 11.

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APPENDIX C

DISSOLUTION OF PARLIAMENT

Background

1. During a General Election period the Government retains its responsibility to govern and Ministers remain in charge of their departments. Essential business must be carried on. However, it is customary for Ministers to keep to a minimum decisions which would initiate new action of a continuing or long-term character. Decisions on matters of policy on which a new Government might be expected to want the opportunity to take a different view from the present Government should be postponed until after the Election provided such postponement would not be detrimental to the national interest or wasteful of public money.

Laying of instruments and drafts

2. After the dissolution of a Parliament, and until the meeting of its successor, there is no Parliament in existence and no document can be laid before either House.

3. Where a document has been laid before a dissolution takes place, the question whether it must be re-laid when the new Parliament meets depends upon the provisions of the relevant Act or Acts and upon the practice or Standing Orders of the two Houses.

4. The following need not be re-laid:

a) Drafts requiring approval (class (i) of Table B, page 9) and instruments requiring approval before coming into force (class (ii)); these are exempted from relaying by the practice of each House.

b) Instruments requiring approval within a specified period to remain in force (class (iii)): in all known cases time during which Parliament is dissolved is excluded from the specified period by the enabling Act and, as a corollary, relaying is not required. (If there were no such exclusion the instrument would have to be re-laid.)

c) Negative drafts (class (iv)) and negative instruments (class (v)): by section 7(1) of the Statutory Instruments Act 1946 time during which Parliament is dissolved is excluded from the 40-day period prescribed by sections 5 and 6, the corollary being (as in b) above) that relaying is not required.

d) Special procedure orders: these are exempted from relaying by the practice of the House of Lords and by virtue of Private Business Standing Order No 247 of the House of Commons, and proceedings begun in the last Parliament may be resumed in the new Parliament. Time during which Parliament is dissolved is excluded from the petitioning period of 21 days (see Private Business Standing Orders, House of Lords No 201A, House of Commons No 247) and from the resolution period of 21 days (see Statutory Orders (Special Procedure) Act 1945, section 4(1)).

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Instruments and drafts of the above categories should if possible be laid before a dissolution takes place, so as to avoid delay in the completion of the parliamentary procedure.

5. The following must be re-laid, for the full period prescribed by the enabling Act, when the new Parliament meets:

a) drafts required to be laid for a stated period without being subject to resolution (eg under National Savings Bank Act 1971, section 26(4));

b) schemes laid under the Mining Industry Act 1920, section 18(3).

Date of laying: the italic heading

6. A statutory instrument should (unless exempt) be printed as soon as possible after it has been registered (see paragraph 3.4.1). If the printing takes place when Parliament is dissolved, the normal italic heading ‘Laid before Parliament’ should be replaced by ‘To be laid before Parliament’ when it is not necessary to specify a date. If the instrument will come into force before it can be laid before the new Parliament (see paragraph 7 below) this heading should be printed below the ‘Coming into force’ heading.

Letter to TSO

7. If an instrument or draft is required to be laid and is sent for printing whilst Parliament is dissolved, the letter to TSO (Forms and Precedents, FP13) should be amended as follows:

Paragraph 5.6 should read:

“To be laid before [Parliament or the House of Commons]”.

Notification to the Speaker of the House of Lords and the Speaker of the House of Commons

8. Where an instrument cannot be laid because Parliament is dissolved, and it is essential to bring it into force before the new Parliament has met, the Speaker of the House of Lords and the Speaker of the House of Commons must be notified in accordance with the procedures which apply when any instrument is laid after it has come into force (see paragraphs 4.3.6 - 4.3.8). The Speaker of the House of Lords remains in office notwithstanding dissolution, and the notification to him should be sent on the day the instrument comes into force. The Speaker of the House of Commons, however, vacates his office upon dissolution, and such notification cannot be sent until the new House of Commons has assembled and elected a Speaker.

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APPENDIX D

EUROPEAN COMMUNITY INSTRUMENTS

A. Descriptions

1. The authoritative texts, and titles, of Community instruments appear in the Official Journal (OJ). The titles ordinarily comprise no fewer than seven elements - Community; institution; instrument; year; number; date; and subject matter. At the first mention of a Community instrument in a domestic instrument, it should be given its full title less i) the date, which will appear in a footnote reference (see B below) and ii) the subject matter if this is made clear by the context.

2. Examples of the styles to be regarded as standard in domestic practice in respect of post-1967 instruments are:

Council Regulation (EEC) No 1462/86 Commission Regulation (EEC) No 1417/86 Council Directive 86/102/EEC Council Decision 86/183/EEC, Euratom, ECSC

3. Pre-accession instruments are published in the English Special Editions of the OJ, First and Second Series, which contain the translated texts of instruments in force at the end of 1972, and provide the original references to those instruments.

B. Footnote references

1. Each citation of a Community instrument in the text of a statutory instrument should be accompanied by a footnote reference to the OJ in which the instrument was originally published - number, date and page. For instruments in force at the end of 1972 the Special Edition reference is also required. Volumes of the Special Edition should be described by the words following ‘Special Edition’ in the heading. The same practice applies to amendments to European Instruments as applies to amended domestic Statutory Instruments, see paragraph 2.5.2.

It should be noted that the legislative (‘L’) series of the OJ began only in 1968.

2. Specimen forms:

a) modern instruments: OJ No L 129, 15.5.86, p1

b) older instruments: OJ No 125, 17.11.66, P 2290/66 (OJ/se - 1965-66 P 124) OJ No L 282, 28.12.70 p 83 (OJ/SE 2nd series vol I (2) p 164) OJ No L 287, 26.12.72, p 22 (OJ/SE 1972 (9-28 Dec) p 20)

3. Sometimes a statutory instrument which refers to a Community instrument may have to be made and printed before the Community instrument has appeared in the OJ. In such a case the footnote should be in the form ‘(a) OJ No L ‘, sufficient space being left to complete the reference. The responsible Department must notify the SI Registrar of the full reference as soon as it is known, so that the footnote can be completed in the annual edition of Statutory Instruments. 145

4. There may also be exceptional cases where the Department have to act without even knowing the number of the Community instrument. In such a case, they should make any reference to it in the text as informative as possible, for example “EEC Council Regulation of [date] on [subject matter]”. The footnote in blank should be extended to accommodate, eventually, the full title of the instrument as well as the OJ reference.

5. As to the use, in an explanatory note, of footnote references rather than references in parentheses, see paragraph 2.13.13.

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APPENDIX E

PROCESS FOR PRODUCING SIs USING SI TEMPLATE

Department HMSO TSO

Draft text of SI

Submit to Minister for “making”

Department email SI (and EM) to HMSO for

registration and numbering and provide information about publishing arrangements for HMSO register and transmission to number SI TSO

HMSO email to TSO for printing and email copy to department

TSO arrange printing and supply copies to department

Department lay SI published in print copies before and on OPSI Parliament Website and EM published on OPSI website

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APPENDIX F

PROCESS FOR PRODUCING SIs NOT USING SI TEMPLATE

Department HMSO TSO

Draft text of SI

Send to TSO for proofing

TSO supply proofs to department

Submit to Minister for “making”

Department send by hand paper copies to HMSO for registration and

numbering and HMSO register email EM to HMSO and number SI and convert EM for publication on website

SI returned to department or passed to TSO for printing

Department send press TSO arranges printing proof by hand to TSO and supply copies to

for printing department

Department lay copies before Parliament

SI published in print and on OPSI website EM published on OPSI website

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APPENDIX G

PROCESS FOR AFFIRMATIVE RESOLUTION ORDERS PRODUCED USING SI TEMPLATE

Department HMSO TSO Draft text of SI

Department HMSO convert email Draft SI EM and forward TSO arrange and EM to OPSI Draft SI and EM printing and supply to TSO copies to department

Department lay copies before SI published in print Parliament and on OPSI Website

EM published on

Parliament OPSI Website approves Draft SI

Submit to Minister for “making”

Department email SI and updated EM to HMSO for registration and HMSO register and numbering and number SI provide information about

publishing arrangements for HMSO email to TSO for TSO arrange transmission to printing and email copy printing and supply TSO to department copies to department

SI published in print and on Department receive copies OPSI website and revised EM re-published on OPSI

Website 149

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APPENDIX H

STYLE GUIDE FOR EXPLANATORY MEMORANDUM TO STATUTORY INSTRUMENTS:

The attached layout should be used for all Explanatory Memoranda produced for Parliament

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153

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.

[This memorandum contains information for the [Joint Committee on Statutory Instruments or the Select Committee on Statutory Instruments]].

2. Description

2.1 [Free text]

3. Matters of special interest to the [Joint Committee on Statutory Instruments or the Select Committee on Statutory Instruments]

3.1 [Free text or None]

4. Legislative Background

4.1 [Free text]

5. Territorial Extent and Application

5.1 This instrument applies to [all of the United Kingdom or Great Britain or England and Wales or England, Wales and Northern Ireland or England or Scotland or Northern Ireland or Wales].

[5.2 Free text]

6. European Convention on Human Rights

The [Name of Minister or Name of Authority] has made the following statement regarding Human Rights:

[In [my/our] view the provisions of the [Title of instrument] are compatible with the Convention rights or Free text]

As the instrument is subject to negative resolution procedure and does not amend primary legislation, no statement is required.

7. Policy background

7.1 [Free text]

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8. Impact

8.1 [A Regulatory Impact Assessment is attached to this memorandum or A Regulatory Impact Assessment has not been prepared for this instrument as it has no impact on business, charities or voluntary bodies]

[8.2 The impact on the public sector is [free text].]

9. Contact

[Name of contact] at the [Name of department] Tel: [Telephone number] or email: [email address] can answer any queries regarding the instrument.

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NOTES ON PREPARING THE EXPLANATORY MEMORANDA TO STATUTORY INSTRUMENTS:

The attached notes should be referred to when producing an Explanatory Memorandum for Parliament

The House of Lords Merits Committee has prepared its own guidance on how to submit instruments for parliamentary scrutiny. The guidance is fully compatible with Appendix H but also includes some examples of good practice which departments might find helpful. See: http://www.parliament.uk/parliamentary_committees/merits.cfm buttons on top right of home page.

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Notes on preparing the Explanatory Memoranda to Statutory Instruments

General – Individual headings should be numbered whilst individual paragraphs following the individual headings should be numbered as sub-paragraphs. As an example the heading relating to matters of special interest to the JCSI/SCSI will always be numbered as “3” and sub-paragraphs should follow as “3.1”, “3.2” etc.

In preparing the Explanatory Memorandum (EM) departments should ensure that they do not repeat the content of the Explanatory Note. The purpose of the Explanatory Memorandum is to provide to the lay reader a plain English, stand alone, explanation of the effect of the legislation and why it is necessary. It is not aimed at lawyers, but to help people who know nothing about the law or the subject quickly to gain an understanding of its intent and purpose.

It can be helpful to produce a single EM for a group of linked statutory instruments (SIs). This prevents unnecessary duplication of common background and makes sure that the reader is aware of the linkage. It may be helpful to explain (usually in the policy section) the special features of each SI and how it contributes to the overall policy objective. A copy of the group EM should be attached to each of the individual SIs to which it relates. Where possible all the SIs should be laid on the same day and numbered sequentially. ------

Headings – The title of the instrument must be entered. The SI number must be entered for all instruments which are registered before laying but should be left blank for instruments which are being laid in draft for affirmative resolution before they are made.

1. The name of the department must be entered. The instrument will be laid before either “Parliament” or “the House of Commons” and depending on the choice made will decide the heading for Section 3.

Note: If the instrument does not contain information for either the Joint Committee on Statutory Instruments or the Select Committee on Statutory Instruments then the second paragraph should be deleted.

2. Description

Paragraph(s) 2.1 onwards will be free text which should generally be limited to no more than 3 sentences. Plain English should be used to explain to the lay reader what the instrument does and why. Acronyms and terms of art should be explained or, better, avoided. Powers are generally irrelevant here.

3. Matters of special interest to the [Joint Committee on Statutory Instruments or the Select Committee on Statutory Instruments]

The heading will be dependent on whether the instrument has been laid before Parliament (JCSI) or the House of Commons (SCSI).

Paragraph(s) 3.1 onwards will be free text and should cover any information which the department wishes to bring to the attention of the JCSI/SCSI. This should include information which would formerly have been included in a voluntary memorandum to JCSI/SCSI, in particular:

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i) fee increases: if the instrument imposes fee increases above the rate of inflation, please explain the reason for the increase, whether any further such increases are planned, and, if so, when they are projected to cease;

ii) 21-day rule: It is a convention that an instrument should not be laid before parliament less than 21 days before it comes into force (see Statutory Instrument Practice section 4.13). Both the Merits Committee and the JCSI have an interest if the instrument breaches the 21-day rule. In such cases the EM should explain why the policy requires such urgent action and what the consequences of delaying the legislation to comply with the rule would be.

Problems with Departmental administration or a project plan are unlikely to be accepted by the Scrutiny Committees as sufficient reason for curtailing Parliamentary scrutiny.

iii) if the instrument came into force before it was laid, please explain the circumstances, and indicate the date on which the notification and explanation required by the proviso to section 4(1) of the Statutory Instruments Act 1946 were sent to the Speakers of the House of Lords and House of Commons;

iv) if the instrument uses novel or especially complex powers, please explain the basis for these powers and indicate the reason for their use.

If the instrument corrects errors previously reported by the JCSI, please provide the reference of the instrument corrected and the relevant JCSI report.

Note: If there are no matters of special interest to the JCSI/SCSI then insert “None”.

4. Legislative Background

Paragraph(s) 4.1 onwards will be free text. The power under which the instrument is made will be clear from the instrument itself and reference need not be made to the power unless there is a specific reason to do so, for example, if this is the first use of a power under an Act or the power is being used in a novel way

In these paragraphs you should explain why the instrument is being made: for example, to implement a new Act or European obligation, to effect an annual uprating in line with inflation, or to amend the law following a significant court case.

Relevant background information should be given to set the instrument in context. Mention in particular: • if in the course of debate, parliamentary question or Committee appearance any specific undertakings were given to Parliament that relate to this instrument (including Hansard or report reference where relevant). • if this instrument relates to any other instruments (i.e. it is one of a group), please cross reference.

If the instrument implements EU legislation, attach a Transposition Note as an Annex; explain in broad terms the approach to transposition highlighting any difficult areas; and include a brief scrutiny history of when it was considered by the EU Scrutiny Committees. 158

5. Territorial Extent and Application

Paragraph 5.1 - one of the options must be selected to indicate the area of application of the instrument. Although the extent of an instrument may be England and Wales, but the instrument only applies to England or Wales then "England" or "Wales" should be selected.

Paragraph 5.2 - It is helpful to indicate if the SI simply replicates for one part of the United Kingdom, legislation which already exists in another part.

6. European Convention on Human Rights

Note: This section is only required to be completed in respect of instruments subject to affirmative resolution, and all instruments subject to negative resolution which amend primary legislation. In other instances enter "As the instrument is subject to negative resolution procedure and does not amend primary legislation, no statement is required.”.

Opening sentence – The name of the Minister or, where the instrument is being made by an Authority, the name of the Authority (e.g. the Commissioners for Her Majesty’s Revenue and Customs) must be inserted.

Second sentence – The first option, with the title of the instrument entered, will be selected in most cases though there may be exceptions when free text may be entered.

7. Policy Background

Paragraph(s) 7.1 onwards will be free text.

Policy

Departments should state in particular:

• the policy objectives of the parent Act/Directive and how this instrument fulfils them • the size and nature of the problem it is addressing • the level of public interest in the policy, (for example from the response to consultation if undertaken, or from media attention). • whether the change is politically or legally important

Departments should ensure that, although brief, explanation should start from the basic. The EM is aimed at the lay reader: not just at the Scrutiny Committees but also Members of both Houses of Parliament. Don’t say “this amends the XYZ scheme to open it to the under 18s” without providing a sentence about what the XYZ scheme does. Please explain any acronyms or technical terms e.g. SIPP, NOx, credit repair

The EM should also make clear why the Government needs to legislate and what other avenues of attaining the desired objective (e.g. self–regulation through a voluntary code of practice) were explored and why they were rejected.

For “Miscellaneous Amendments” SIs, the EM should briefly address each of the broad areas covered. If there is no obvious structure offered by the format of the instrument

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itself, one way of doing this is to break the Regulations down into associated groups, e.g. regulations 4(a), 5(b) and 6(c) amend the definition of “incapacity” because …

Consultation The memorandum should set out who was consulted, over what period and with what responses. There should be some analysis of the outcome and the Department’s policy response to the opinions expressed (e.g. “60% supported the proposal, of the rest, the main objections were on the proposed fee structure and the Department has responded to this by agreeing to phase in the increase over 3 years”). A brief analysis of consultation should be in the final Regulatory Impact Assessment (RIA) if one is provided, and you should cross refer to this, or refer to more detailed analysis on the Departmental website if available.

Guidance The memorandum should set out what guidance or other form of publicity, if any, the department is providing to users and stakeholders to explain the new obligation and to ensure that it is fulfilled. This is particularly important where a regulation is legally complex, for example a serial amendment or the implementation of a European obligation by multi-level cross-reference to European instruments.

Consolidation Where an instrument amends another instrument, particularly if not for the first time, the memorandum should indicate whether the department intends to consolidate the relevant legislation and if so, what the projected timescale for consolidation may be. If an informal consolidated text is available to the public for free then provide details of the website or other reference from where this can be obtained.

8. Impact

Paragraph 8.1 – One of two options must be selected.

Paragraph 8.2 – The paragraph must be completed.

Note: Where a Regulatory Impact Assessment has been prepared then this should be attached as an Annex. There is no need to duplicate the information. If you are recycling the RIA prepared for an Act which this instrument helps implement, please only include the relevant extracts and confirm in the EM that the figures are still up to date.

If no RIA has been prepared please confirm that this is because no impact on the private or voluntary sector is foreseen and simply mention any public sector impacts.

9. Contact

All details must be completed on the copies provided for Parliament. Where, however, there are good reasons for this to be withheld from the version to be published by HMSO on the OPSI website (e.g. for security or other similar concerns) then this may be deleted. In such circumstances departments should request that the HMSO SI Registrar delete this information stating the reasons why.

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APPENDIX I

MODERNISING SI DRAFTING

Introduction

1. This guidance regarding the use of modern language within the text of Statutory Instruments was originally published as SIP Circular No.4 (05). It followed from work which the LION Secondary Legislation Practice Editorial Group were asked to undertake following correspondence between the Joint Committee on Statutory Instruments and the Minister for the Cabinet Office in which the need to modernise the style of drafting in SIs was accepted. It is intended to help drafters avoid particular pitfalls when drafting an instrument.

Preambles

2. There is no need for the indication that the maker of the SI ‘hereby’ makes it. ‘The Secretary of State ...... makes the following [Order/Regulations/Rules/Scheme]’ is sufficient.

3. As indicated in paragraph 2.4.2 of SIP, the full powers exercised when an instrument is made should be quoted specifically in the preamble; consequently, the use of the phrase ‘and in exercise of all other powers enabling [her/him/them] in that behalf’ within the recital of powers ought to be unnecessary. Where the enabling power and prerogative action are clearly inter-dependent then the phrase remains appropriate to cover the prerogative action, but that is very rare and, if something is needed, “in that behalf” should be replaced by more contemporary words such as “to do so”.

4. Reducing length and complexity of sentences - encouraged by the Committee in relation to operative parts of statutory instruments - is equally applicable to preambles. The hypothetic examples below are aimed at establishing a general approach rather than a standard format.

5. In relation to a negative instrument:

The Secretary of State [for …] in exercise of the powers conferred by sections … and … of the … Act [YEAR], [and now vested in him/ her] (A), after taking into account, in accordance with section … of that Act, any views of the … Agency on the proposal to make the following Regulations, and after consultation, in accordance with section … of that Act, with representatives of those whom (s)he considers to be likely to be affected by the following Regulations, hereby makes the following Regulations: would be more accessible if opened up in the following manner:

The Secretary of State [for …] makes the following Regulations in exercise of the powers conferred by sections … and … of the …. Act [YEAR] [and now vested in him/her](A). In accordance with section … of that Act (s)he has taken into account any views of the … Agency(B) on the proposal to make the Regulations.

(A) Note that this is only needed where there has been a transfer of functions, in which case the relevant orders should be footnoted. (B) It should also be possible to use “the views of the … Agency” rather than “any views of the ... Agency” where the Agency’s views have been given and taken into account, or a suitably expressed indication that the Agency’s views have been invited but have not been given, where that is the case. 161

In accordance with section … of that Act (s)he has consulted with representatives of those whom (s)he considers to be likely to be affected by the Regulations.

6. In relation to a straightforward affirmative instrument:

The Secretary of State [for A], in exercise of the powers conferred by section [B] of the [C] Act [YEAR] and by Article [D] of the [E] (Northern Ireland) Order [YEAR], [and now vested in him/her] (A), hereby makes the following Regulations, a draft of which was, in accordance with section [F] of that Act and Article [G] of that Order, laid before Parliament and approved by a resolution of each House of Parliament: would be more accessible if opened up in the following manner:

The Secretary of State [for A] makes the following Regulations in exercise of the powers conferred by section [B] of the[C] Act [YEAR] and Article [D] of the [E] (Northern Ireland) Order [YEAR] [and now vested in him/her] (A);

In accordance with section [F] of that Act and Article [G] of that Order, a draft of this instrument was laid before Parliament and approved by a resolution of each House of Parliament.

7. This approach is also a means of avoiding the antiquated sounding “whereas … now therefore” formulation in more complex affirmative instruments, as shown in the examples below.

8. The first example covers a case where the enabling power is complicated by the need to specify a partial purpose and the need to obtain agreement of a type from a particular committee. Here:

Whereas a draft of this instrument was laid before Parliament in accordance with section [A] of the [B] Act [YEAR] and approved by a resolution of each House of Parliament.

Whereas these Regulations, so far as section [C] of the [B] Act [YEAR] applies to them, are made with a view to [SPECIFY PURPOSE].

Now, therefore, the Secretary of State for [X], in exercise of the powers conferred upon [him/her] by sections [D, E and F] of the [B] Act [YEAR], and all other powers enabling [him/her] in that behalf, and after agreement by the [G] Committee that proposals in respect of these Regulations should not be referred to it, hereby makes the following Regulations: would be more accessible if recast as follows:

These Regulations are made in exercise of the powers conferred by sections [D, E and F] of the [B] Act [YEAR].

These Regulations, so far as section [C] of that Act applies to them, are made with a view to [SPECIFY PURPOSE].

The [G] Committee has agreed that proposals in respect of these Regulations should not be referred to it.

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A draft of this instrument has been laid before Parliament in accordance with section [A] of that Act and approved by a resolution of each House of Parliament.

[Accordingly] the Secretary of State for [X] makes the following Regulations:

9. The second example covers a case where the enabling power is complicated by consultation requirement and the need to take particular factors into account. Here:

Whereas a draft of this Order has been approved by a resolution of each House of Parliament pursuant to section [A] of the [B] Act [YEAR].

Now therefore, the Secretary of State for [X], having consulted [SPECIFY STATUTORY CONSULTEE], such persons as appear to [him/her] to be representative of persons likely to be materially affected by the following Order and such other persons as (s)he thinks fit, and having regard to [SPECIFY FACTORS] in exercise of the powers conferred upon him/her by paragraph [C] of Schedule [D] to the [B] Act [YEAR], and of all other powers enabling [him/her] in that behalf, hereby makes the following Order: would be more accessible if recast as follows:

This Order is made in exercise of the powers conferred by paragraph [C] of Schedule [D] to the [B] Act [YEAR].

This Order is made having regard to [SPECIFY FACTORS].

The Secretary of State [for X] has consulted [SPECIFY STATUTORY CONSULTEE], such persons as appears to [him/her] to be representative of the persons likely to be materially affected by the Order and such other persons as (s)he thinks fit.

A draft of this instrument has been approved by a resolution of each House of Parliament pursuant to section [A] of that Act..

[Accordingly] the Secretary of State [for X] makes the following Order:

Operative provisions

10. Do not use indications in references to provisions of a statutory instrument such as ‘above’, ‘below’ or ‘of this Order’ except for specific references to avoid ambiguity; similarly avoid using general provisions such as ‘any reference in this Order to a numbered Schedule shall be taken to be a reference to the Schedule so numbered in this Order’. However if a new provision is inserted by amendment into an instrument that contains those types of expression it is desirable to follow the usage already in the instrument.

11. Expressions such as ‘the said’, ‘hereafter’, ‘herein, ‘therein’ and ‘therewith’ sound antiquated. Drafters should aim to avoid them unless there is no alternative to achieve precision. Similarly Latin expressions should be avoided unless they are the only means of describing a recognised technical term such as bona vacantia(c). For example, the use of “mutatis mutandis” to apply a rule to different circumstances is better avoided. In such a case an expression such as “with any necessary modifications” should be used or, if that gives rise to uncertainty, the application of the rule to those circumstances should be set out expressly.

12. Long sentences should be avoided where possible. So should sub-clauses beginning “provided that” or “save that”: sentences containing numerous propositions qualified by a saving or proviso are particularly to be avoided, as it will often be unclear whether the qualification covers one, some or all of them.

13. Finally, on the desirability of avoiding unnecessary complexity, it should be stressed that if too many propositions are crammed together, unintended effects may arise. As an example, attention is drawn to a sentence regarded as excessive in the Committee’s 14th Report for 2003-4; in contrast, the alternative suggested by the relevant Department in their memorandum was regarded by the Committee as acceptable.

14. The offending provision (which related to an obligation in a Community Regulation which called for designation of a controller to be present when fish landed were weighed) read as follows:

(2) If, in the circumstances to which point 20 of Annex V applies, cod is first landed from a fishing boat in a port within England designated as specified in paragraph ([X]), it is required that a representative sample, as called for by that point, shall be weighed in the presence of a British sea-fishery officer prior to being offered for first sale, unless the following conditions are met –

(a) the fishing boat is party to an arrangement made among fishing boats using the port with a person or organisation to act as their controller for the purposes of that point; and (b) details of the arrangement, and the fishing boats which are party to it, have been notified to the Secretary of State for Environment, Food and Rural Affairs; and the person in charge of a fishing boat from which cod is offered for first sale during the Annex V year in contravention of that requirement is guilty of an offence. The primary point of concern to the Committee here was that the original crammed together too many propositions in a somewhat obscure single sentence; furthermore the identification of the offence was not straightforward where a controller had been covered by an arrangement as indented but fish had not been weighed in his presence.

15. The acceptable alternative read as follows:

(2) If -

(a) cod is first landed from a fishing boat in a port within England designated as specified in paragraph ([X]), (b) the requirement to weigh a representative sample, as specified in point 20 of Annex V, applies to that landing, and (c) paragraph (3) does not apply to the landing,

the controller for the purposes of that point is a British sea fishery officer.

(3) If –

(a) cod is first landed from a fishing boat in a port within England designated as specified in paragraph ([X]),

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(b) the requirement to weigh a representative sample, as specified in point 20 of Annex V, applies to that landing, (c) the fishing boat is party to an arrangement made among fishing boats using the port with a person or organisation to act as their controller for the purposes of that point, and (d) details of the arrangement, and the fishing boats which are party to it, have been notified to the Secretary of State for Environment, Food and Rural Affairs,

the controller for the purposes of that point is that person or organisation.

(4) The person in charge of a fishing boat from which cod is offered for first sale during the Annex V year in contravention of the second sentence of point 20 of the Annex as read with paragraphs (2) and (3) is guilty of an offence.

The alternative was longer, but was acceptable because the propositions were opened out, and it also had the advantage of giving effect to the policy without ambiguity, by making it clear what the offence would be when the controller was not a British Sea-Fishery Officer.

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APPENDIX J

Details of Charges to Departments for the production of Statutory Instruments

SIs produced using the SI Template and SIs that cannot be drafted using the SI Template:

Service Charge to Sponsor: £35 per printed page Subject to a maximum per SI of: £650 Sponsor copies, ordered pre-publication: Up to first 100 copies: free of charge Other copies: 3p per printed page

SIs submitted for ‘traditional’ processing that could have used the template for drafting:

Service charge to Sponsor: £35 per printed page Subject to maximum per SI of: £650 Proofs: £12 per printed page

Sponsor Copies, ordered pre-publication: Charged at appropriate pricing scale less any appropriate discount under departmental service level agreements.

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PART 9: LEGISLATION

The Statutory Instruments Act 1946 The Statutory Instruments Regulations 1947 The Statutory Instruments (Confirmatory Powers) Order 1947 The Laying of Documents before Parliament (Interpretation) Act 1948 The Statutory Instruments (Production and Sale) Act 1996 The Regulatory Reform Act 2001

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Statutory Instruments Act 19461 1946 c.36 (9_and_10_Geo_6)

ARRANGEMENT OF SECTIONS

1. Definition of “Statutory Instrument” 2. Numbering, printing, publication and citation. 3. Supplementary provisions as to publication. 4. Statutory Instruments which are required to be laid before Parliament. 5. Statutory Instruments which are subject to annulment by resolution of either House of Parliament. 6. Statutory Instruments of which drafts are to be laid before Parliament. 7. Supplementary provisions as to ss. 4, 5 and 6. 8. Regulations. 9. Powers to extend Act to other orders, etc. and to modify application of certain provisions thereof. 10. Commencement of Act. 11. Interpretation. 12. Repeal of 56 & 57 Vict. c. 66 and re-enactment of s. 3(3) thereof. 13. Short title and extent.

An Act to repeal the Rules Publication Act 18932, and to make further provision as to the instruments by which statutory powers to make orders, rules, regulations and other subordinate legislation are exercised. [26th March 1946]

Definition of "Statutory Instrument"

1. (1) Where by this Act or any Act passed after the commencement of this Act power to make, confirm or approve orders, rules, regulations or other subordinate legislation is conferred on His Majesty in Council or on any Minister of the Crown then, if the power is expressed– (a) in the case of a power conferred on His Majesty, to be exercisable by Order in Council; (b) in the case of a power conferred on a Minister of the Crown, to be exercisable by statutory instrument, any document by which that power is exercised shall be known as a "statutory instrument" and the provisions of this Act shall apply thereto accordingly.

1 Act applied, and power to apply Act conferred, by enactments listed in Chronological Table of the Statutes; excluded by Universities (Scotland) Act 1966 (c. 13), s. 15 and Cathedrals Measure 1976 (No. 1), s. 4(3) 2 1893 c. 66 170

[(1A) The references in subsection (1) to a Minister of the Crown shall be construed as including references to the National Assembly for Wales.1]

(2) Where by any Act passed before the commencement of this Act power to make statutory rules within the meaning of the Rules Publication Act 18932, was conferred on any rule-making authority within the meaning of that Act, any document by which that power is exercised after the commencement of this Act shall, save as is otherwise provided by regulations made under this Act, be known as a "statutory instrument" and the provisions of this Act shall apply thereto accordingly.

Numbering, printing, publication and citation.

2. (1) Immediately after the making of any statutory instrument, it shall be sent to the King's printer of Acts of Parliament and numbered in accordance with regulations made under this Act, and except in such cases as may be provided by any Act passed after the commencement of this Act or prescribed by regulations made under this Act, copies thereof shall as soon as possible be printed and sold by [ or under the authority of 3] the King's printer of Acts of Parliament.

(2) Any statutory instrument may, without prejudice to any other mode of citation, be cited by the number given to it in accordance with the provisions of this section, and the calendar year.

Supplementary provisions as to publication

3. (1) Regulations made for the purposes of this Act shall make provision for the publication by His Majesty's Stationery Office of lists showing the date upon which every statutory instrument printed and sold by[ or under the authority of 4] the King's printer of Acts of Parliament was first issued by[ or under the authority of5] that office; and in any legal proceedings a copy of any list so published. . . shall be received in evidence as a true copy, and an entry therein shall be [6]conclusive evidence of the date on which any statutory instrument was first issued by[ or under the authority of 7] His Majesty's Stationery Office.

(2) In any proceedings against any person for an offence consisting of a contravention of any such statutory instrument, it shall be a defence to prove that the instrument had not been issued by[ or under the authority of 8] His Majesty's Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged. (3) Save as therein otherwise expressly provided, nothing in this section shall affect any enactment or rule of law relating to the time at which any statutory instrument comes into operation.

1 S. 1(1A) inserted (1.4.1999) by 1998 c. 38, s. 125, Sch. 12 para. 2 (with ss. 139(2), 143(2)); S.I. 1999/782, art. 2 2 1893 c. 66 3 Words in s. 2(1) inserted (retrospective to 26.3.1946) by 1996 c. 54, s. 1(1)(a) 4 Words in s. 3(1) inserted (retrospective to 26.3.1946) by 1996 c.54, s. 1(1)(a) 5 Words in s. 3(1) inserted (retrospective to 26.3.1946) by 1996 c.54, s. 1(1)(a) 6 Words in s. 3(1) omitted (retrospective to 26.3.1946) by virtue of 1996 c. 54, s. 1(1)(b) 7 Words in s. 3(1) inserted (retrospective to 26.3.1946) by 1996 c.54, s. 1(1)(a) 8 Words in s. 3(2) inserted (retrospective to 26.3.1946) by 1996 c. 54, s. 1(1)(a) (with s. 1(2)) 171

Statutory Instruments which are required to be laid before Parliament 1

4. (1) Where by this Act or any Act passed after the commencement of this Act any statutory instrument is required to be laid before Parliament after being made, a copy of the instrument shall be laid before each House of Parliament and, subject as hereinafter provided, shall be so laid before the instrument comes into operation:

Provided that if it is essential that any such instrument should come into operation before copies thereof can be so laid as aforesaid, the instrument may be made so as to come into operation before it has been so laid; and where any statutory instrument comes into operation before it is laid before Parliament, notification shall forthwith be sent to the Speaker of the House of Commons and the Speaker of the Hosue of Lords2 drawing attention to the fact that copies of the instrument have yet to be laid before Parliament and explaining why such copies were not so laid before the instrument came into operation.

(2) Every copy of any such statutory instrument sold by[or under the authority of 3] the King's printer of Acts of Parliament shall bear on the face thereof: (a) a statement showing the date on which the statutory instrument came or will come into operation; and (b) either a statement showing the date on which copies thereof were laid before Parliament or a statement that such copies are to be laid before Parliament. (3) Where any Act passed before the date of the commencement of this Act contains provisions requiring that any Order in Council or other document made in exercise of any power conferred by that or any other Act be laid before Parliament after being made, any statutory instrument made in exercise of that power shall by virtue of this Act be laid before Parliament and the foregoing provisions of this section shall apply thereto accordingly in substitution for any such provisions as aforesaid contained in the Act passed before the said date.

Statutory Instruments which are subject to annulment by resolution of either House of Parliament

5. (1) Where by this Act or any Act passed after the commencement of this Act, it is provided that any statutory instrument shall be subject to annulment in pursuance of resolution of either House of Parliament, the instrument shall be laid before Parliament after being made and the provisions of the last foregoing section shall apply thereto accordingly, and if either House within the period of forty days beginning with the day on which a copy thereof is laid before it, resolves that an Address be presented to His Majesty praying that the instrument be annulled, no further proceedings shall be taken thereunder after the date of the resolution, and His Majesty may by Order in Council revoke the instrument, so, however, that any such resolution and revocation shall be without prejudice to the validity of anything previously done under the instrument or to the making of a new statutory instrument.

(2) Where any Act passed before the date of the commencement of this Act contains provisions requiring that any Order in Council or other document made in exercise of any power conferred by that or any other Act shall be laid before Parliament after being made and

1 S. 4 explained by Laying of Documents before Parliament (Interpretation) Act 1948 (c. 59). ss. 1(2), 2 S. 4 excluded (1.7.1999) by S.I. 1999/1096 art. 3(2); S.I. 1998/3178 2 Functions of Lord Chancellor transferred (24.3.2005) by Constitutional Reform Act 2005 c.4, sch 6 para 5 3 Words in s. 4(2) inserted (retrospective to 26.3.1946) by 1996 c. 54, s. 1(1)(a) 172

shall cease to be in force or may be annulled, as the case may be, if within a specified period either House presents an address to His Majesty or passes a resolution to that effect, then, subject to the provisions of any Order in Council made under this Act, any statutory instrument made in exercise of the said power shall by virtue of this Act be subject to annulment in pursuance of a resolution of either House of Parliament and the provisions of the last foregoing subsection shall apply thereto accordingly in substitution for any such provisions as aforesaid contained in the Act passed before the said date.

Statutory Instruments of which drafts are to be laid before Parliament

6. (1) Where by this Act or any Act passed after the commencement of this Act it is provided that a draft of any statutory instrument shall be laid before Parliament, but the Act does not prohibit the making of the instrument without the approval of Parliament, then, in the case of an Order in Council the draft shall not be submitted to His Majesty in Council, and in any other case the statutory instrument shall not be made, until after the expiration of a period of forty days beginning with the day on which a copy of the draft is laid before each House of Parliament, or, if such copies are laid on different days, with the later of the two days, and if within that period either House resolves that the draft be not submitted to His Majesty or that the statutory instrument be not made, as the case may be, no further proceedings shall be taken thereon, but without prejudice to the laying before Parliament of a new draft.

(2) Where any Act passed before the date of the commencement of this Act contains provisions requiring that a draft of any Order in Council or other document to be made in exercise of any power conferred by that or any other Act shall be laid before Parliament before being submitted to His Majesty, or before being made, as the case may be, and that it shall not be so submitted or made if within a specified period either House presents an address to His Majesty or passes a resolution to that effect, then, subject to the provisions of any Order in Council made under this Act, a draft of any statutory instrument made in exercise of the said power shall by virtue of this Act be laid before Parliament and the provisions of the last foregoing subsection shall apply thereto accordingly in substitution for any such provisions as aforesaid contained in the Act passed before the said date.

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Supplementary provisions as to ss. 4, 5 and 6

7. [1](1) In reckoning for the purposes of either of the last two foregoing sections any period of forty days, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(2) In relation to any instrument required by any Act, whether passed before or after the commencement of this Act, to be laid before the House of Commons only, the provisions of the last three foregoing sections shall have effect as if references to that House were therein substituted for references to Parliament and for references to either House and each House thereof.

(3) The provisions of sections four and five of this Act shall not apply to any statutory instrument being an order which is subject to special Parliamentary procedure, or to any other instrument which is required to be laid before Parliament, or before the House of Commons, for any period before it comes into operation.

Regulations

8. [2] (1) [The Secretary of State 3] may, with the concurrence of the Speaker of the House of Commons and the Speaker of the House of Lords4, by statutory instrument make regulations for the purposes of this Act, and such regulations may, in particular: (a) provide for the different treatment of instruments which are of the nature of a public Act, and of those which are of the nature of a local and personal or private Act; (b) make provision as to the numbering, printing, and publication of statutory instruments including provision for postponing the numbering of any such instrument which does not take effect until it has been approved by Parliament, or by the House of Commons, until the instrument has been so approved; (c) provide with respect to any classes or descriptions of statutory instrument that they shall be exempt, either altogether or to such extent as may be determined by or under the regulations, from the requirement of being printed and of being sold by[ or under the authority of ] the King's printer of Acts of Parliament, or from either of those requirements; (d) determine the classes of cases in which the exercise of a statutory power by any rule-making authority constitutes or does not constitute the making of such a statutory rule as is referred to in subsection (2) of section one of this Act, and provide for the exclusion from that subsection of any such classes; (e) provide for the determination by a person or persons nominated by the the Speaker of the House of Commons and the Speaker of the House of Lords5 of any question–6

1 Words substituted by virtue of S.I. 1968/1656, art. 2(2), Sch. 2 S. 8 amended (2.12.1999) by 1998 c. 47, s. 85(11) (with s. 95); S.I. 1999/3209, art. 2, Sch. S. 8 excluded (1.7.1999) S.I. 1999/1096, art. 3(2); S.I. 1998/3178 S. 8 modified (12.2.2000) by 2000 c. 1, s. 1(8), Sch. para. 3(2); S.I. 2000/396, art. 2 3 Words substituted (31.10.2006) by virtue of S.I. 2006/1927, art. 3 (a). 4 Functions of Lord Chancellor transferred (24.3.2005) by Constitutional Reform Act 2005 c.4, sch 6 para 5 5 Functions of Lord Chancellor transferred (24.3.2005) by Constitutional Reform Act 2005 c.4, sch 6 para 5 6 Words in s. 8(1)(c) inserted (retrospective to 26.3.1946) by 1996 c. 54, s. 1(1)(a) 174

(i) as to the numbering, printing, or publication of any statutory instrument or class or description of such instruments: (ii) whether or to what extent any statutory instrument or class or description of such instruments is, under the regulations, exempt from any such requirement as is mentioned in paragraph (c) of this subsection: (iii) whether any statutory instrument or class or description of such instruments is in the nature of a public Act or of a local and personal or private Act: (iv) whether the exercise of any power conferred by an Act passed before the commencement of this Act is or is not the exercise of a power to make a statutory rule.

(2) Every statutory instrument made under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Powers to extend Act to other orders, etc. and to modify application of certain provisions thereof

9. (1) If with respect to any power to confirm or approve orders, rules, regulations or other subordinate legislation conferred on a Minister of the Crown by any Act passed before the commencement of this Act, it appears to His Majesty in Council that, notwithstanding that the exercise of that power did not constitute the making of a statutory rule within the meaning of the Rules Publication Act 18931, it is expedient that the provisions of this Act should apply to documents by which that power is exercised, His Majesty may by Order in Council direct that any document by which that power is exercised after such date as may be specified in the Order shall be known as a "statutory instrument" and the provisions of this Act shall apply thereto accordingly.

(2) ...... [2]

(3) A draft of any Order in Council proposed to be made under this section shall be laid before Parliament.

1 1893 c. 66. 2 S. 9(2) repealed by Statute Law (Repeals) Act 1986 (c. 12), s. 1(1), Sch. 1 Pt. XII 175

Commencement of Act

10. (1) This Act shall come into operation on such date as His Majesty may by Order in Council appoint1: Provided that, without prejudice to the provisions of[section 13 of the FN3 Interpretation Act 19782 [3]], the last foregoing section and, in relation to any Order in Council made thereunder, the provisions of sections six and seven of this Act shall come into operation on the passing of this Act.

(2) ...... (4)

Interpretation

11. (1) For the purposes of this Act, any power to make, confirm or approve orders, rules, regulations or other subordinate legislation conferred on the Treasury, . . . [5], the Board of Trade or any other government department shall be deemed to be conferred on the Minister of the Crown in charge of that department.

(2) If any question arises whether any board, commissioners or other body on whom any such power as aforesaid is conferred are a government department within the meaning of this section, or what Minister of the Crown is in charge of them, that question shall be referred to and determined by[ the Minister for the Civil Service 6].

Repeal of 56 & 57 Vict. c. 66 and re-enactment of s. 3(3) thereof

12. (1) The Rules Publication Act 18937, is hereby repealed.

(2) The publication in the London, Edinburgh or Belfast Gazette of a notice stating that a statutory instrument has been made, and specifying the place where copies thereof may be purchased, shall be sufficient compliance with the provisions of any enactment, whether passed before or after the commencement of this Act, requiring that instrument to be published or notified in that Gazette.

Short title and extent

13. (1) This Act may be cited as the Statutory Instruments Act 1946.

(2) This Act shall apply to any statutory instrument made by His Majesty in Council or by any Minister of the Crown (not being a rule-making authority within the meaning of the Rules Publication Act (Northern Ireland) 1925)8 in so far as it extends to Northern Ireland, but except as aforesaid this Act shall not extend to Northern Ireland.

1 1.1.1948 appointed under s. 10(1) by S.I. 1948/3 2 1978 c. 30. 3 Words substituted by virtue of Interpretation Act 1978 (c. 30), s. 25(2) 4 S. 10(2) repealed by Statute Law (Repeals) Act 1977 (c. 18), Sch. 1 Pt. XIX 5 Words repealed by S.I. 1964/488, Sch. 1 Pt. II 6 Words substituted by virtue of S.I. 1968/1656, art. 2(2), Sch. 7 1893 c. 66. 8 1925 c. 6 (N.I.) 176

STATUTORY INSTRUMENT S

1948 No.1

STATUTORY INSTRUMENTS

The Statutory Instruments Regulations 1947

Made - - - - 15 December 1947 Laid before Parliament 16 December 1947 Coming into force - - 1 January 1948

Preliminary Interpretation, Citation and Commencement 1.—(1) The Interpretation Act 1889 shall apply to the interpretation of these Regulations as it applies to the interpretation of an Act of Parliament. (2) In these Regulations- (a) “Principal Act” means the Statutory Instruments Act 1946: (b) “responsible authority” means (i) in relation to an Order in Council, the Minister responsible for the preparation of the draft of the Order submitted to His Majesty in Council, and (ii) in relation to any other instrument, the Minister by whom the instrument is made;

and in this definition references to a Minister include references to the Treasury, the Admiralty, the Board of Trade, and any other Government department, and to any other authority making a document which by virtue of Regulation 2 of these Regulations is such a statutory rule as is referred to in subsection (2) of Section 1 of the Principal Act: (c) “general instrument” and ‘local instrument’ mean, respectively, an instrument classified as such under these Regulations: and (d) “Reference Committee” means the Statutory Instruments Reference Committee provided for by these Regulations. (3) These Regulations may be cited as the Statutory Instruments Regulations 1947; and shall come into operation on the 1st day of January 1948.

Application to Statutory Rules within 56 & 57 Vict. c.66 2.—(1) Subject to the provisions of this Regulation, the following documents, namely – (a) every document being of a legislative and not an executive character made after the commencement of the Principal Act(1) by a rule-making authority as defined in the Rules Publication Act 1893(2)

(1) Statutory Instrument Act 1946 was brought into operation on 1st January 1948 by S.I. 1948/3

(2) See Rules Publication Act 1893, s.4, printed on page 125 177

in the exercise of a statutory power conferred on that authority by or under any Act of Parliament passed before the commencement of the Principal Act, and (b) every other document which, by virtue of any enactment other than the said Act of 1893, would be subject to the provisions of Section 3 of that Act if that Section had not been repealed, are hereby determined to constitute such a statutory rule as is referred to in subsection (2) of Section 1 of the Principal Act. (2) Without prejudice to any Order in Council made under subsection (1) of Section 9 of the Principal Act, the confirmation or approval by a rule-making authority of any scheme, regulations or other subordinate legislation made by a person not being a rule-making authority shall not be deemed to constitute the making of such a statutory rule as aforesaid unless it is required by the enactment under which it is made to be effected by means of an Order in Council or Order made by that authority. (3) Notwithstanding anything in this Regulation, subsection (2) of Section 1 of the Principal Act shall not apply to — (a) any document which, although of a legislative character, applies only to a named person or premises and is not required to be laid before or subject to confirmation or approval by Parliament or the House of Commons; or (b) any Order in Council which, being an Order for which the Lord President of the Council is the responsible authority, confirms or approves subordinate legislation in the nature of a local and personal or private Act; or (c) any such document as is mentioned in the Schedule to these Regulations.

Numbering, Printing and Sale Numbering 3. All statutory instruments received by the King’s printer of Acts of Parliament under subsection (1) of Section 2 of the Principal Act shall be allocated to the series of the calendar year in which they are made and shall be numbered in that series consecutively as nearly as may be in the order in which they are received: Provided that where any such instrument — (a) will not take effect unless it is confirmed or approved by Parliament or the House of Commons, or (b) is subject to special parliamentary procedure, or will become subject thereto in certain events, the instrument may be allocated and numbered as if it had been made and received on the date on which the responsible authority notifies the King’s printer that the instrument has become operative or will become operative: and Provided also that any statutory instrument made before the commencement of the Principal Act shall be allocated to the series of the calendar year in which that Act commences. Classification 4.—(1) For the purposes of these Regulations, statutory instruments shall be classified as local or general according to their subject matter. (2) Unless there are special reasons to the contrary in any particular case, a statutory instrument which is in the nature of a local and personal or private Act shall be classified as local, and a statutory instrument which is in the nature of a Public General Act shall be classified as general. (3) The responsible authority shall, on sending a statutory instrument to the King’s printer of Acts of Parliament, certify it as local or general, as the case may be; and, unless the Reference Committee otherwise direct under these Regulations, the instrument shall be classified accordingly. Exemption for local instruments and instruments otherwise regularly published 5. The following statutory instruments shall, unless the Reference Committee in any particular case otherwise direct under these Regulations, be exempt from the requirements of subsection (1) of Section 2 of the Principal Act with respect to the printing and sale of copies, that is to say: (a) any local instrument, and (b) any general instrument certified by the responsible authority to be of a class of documents which is or will be otherwise regularly printed as a series and made available to persons affected thereby:

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Provided that the responsible authority may, on sending to the King’s printer of Acts of Parliament any statutory instrument certified by that authority as local, request him to comply with the requirements aforesaid. Exemption for temporary instruments 6. If the responsible authority considers that the printing and sale of copies of a statutory instrument in accordance with the requirements of subsection (1) of Section 2 of the Principal Act is unnecessary having regard to the brevity of the period during which that instrument will remain in force and to any other steps taken or to be taken for bringing its substance to the notice of the public, he may, on sending it to the King’s printer of Acts of Parliament, certify accordingly; and any instrument so certified shall, unless the Reference Committee otherwise direct under these Regulations, be exempt from the requirements aforesaid. Exemption for certain schedules, etc 7. If the responsible authority considers that the printing and sale in accordance with the requirements of subsection (1) of Section 2 of the Principal Act of any schedule or other document which is identified by or referred to in a statutory instrument and would, but for the provisions of this Regulation, be required to be included in the instrument as so printed and sold, is unnecessary or undesirable having regard to the nature or bulk of the document and to any other steps taken or to be taken for bringing its substance to the notice of the public, he may, on sending it to the King's printer of Acts of Parliament, certify accordingly, and any instrument so certified shall, unless the Reference Committee otherwise direct under these Regulations, be exempt from the requirements aforesaid so far as concerns the document specified in the certificate. Exemption for confidential instruments 8. If the responsible authority considers that the printing and sale of copies of a statutory instrument in accordance with the requirements of subsection (1) of Section 2 of the Principal Act would, if effected before the coming into operation of that instrument, be contrary to the public interest, he may, on sending it to the King’s printer of Acts of Parliament, certify accordingly; and any instrument so certified shall, so long as it has not come into operation, be exempt from the requirements aforesaid: Provided that if at any time after the instrument has been so certified and before the instrument has come into operation it appears to the said authority that the printing and sale of copies of the instrument as aforesaid would no longer be contrary to the public interest, he shall notify the King’s printer of Acts of Parliament to that effect, and thereupon the foregoing provisions of this Regulation shall cease to apply to that instrument.

Lists of Statutory Instruments and Annual Editions Statutory Instruments Issue Lists 9. For the purposes of subsection (1) of Section 3 of the Principal Act, His Majesty’s Stationery Office shall from time to time publish a list to be known as the “Statutory Instrument Issue List”, showing the serial number and short title of each statutory instrument which has been issued for the first time by that Office during the period to which that list relates, and the date on which each such instrument was so issued. Annual Edition 10.—(1) As soon as possible after the end of each calendar year the Secretary of State(1) shall cause to be prepared from the series of statutory instruments up to the end of that year an edition of statutory instruments (in this Regulation called the “annual edition”) including (inter alia) the following matter:– (a) copies of so much of all statutory instruments as has, at the time of the completion of the annual edition, been printed in compliance with the requirements of subsection (1) of Section 2 of the Principal Act and not been included in any previous annual edition:; Provided that copies of — (i) instruments which have ceased to be in operation at the time of the completion of the annual edition, and (ii) local instruments,

(1) Functions of the Treasury transferred to the Minister for the Civil Service by S.I. 1968/1656 and transferred (31.10.2006) to the Secretary of State by SI 2006/1927 art. 3 (b) 179

may be omitted:(1)

(b) an Annual Numerical and Issue List of ….(2) Statutory Instruments showing, except for such local instruments as are exempt from the requirements of subsection (1) of Section 2 of the Principal Act with respect to the printing and sale of copies and instruments in respect of which a certificate under Regulation 8 of these Regulations is in force, the serial numbers of all statutory instruments which during that year either were made or were issued for the first time by His Majesty’s Stationery Office, and in respect of the latter the date of such issue: (c) a classified list of local instruments: (d) tables showing the effect on statutes and previous statutory rules or statutory instruments of the statutory instruments included in that edition: and (e) an index. (2) The annual edition shall be printed by the King’s printer of Acts of Parliament and shall be published by His Majesty’s Stationery Office; and so much of the Annual Numerical and Issue List of Public Statutory Instruments therein as refers to the date upon which any statutory instrument was first issued by the Stationery Office shall be deemed to be published in accordance with subsection (1) of Section 3 of the Principal Act.

The Reference Committee Constitution and powers of Reference Committee 11.—(1) There shall be a Committee to be known as the Statutory Instruments Reference Committee consisting of such two or more persons as the Lord Chancellor3 and the Speaker of the House of Commons may nominate. (2) The quorum of the Committee shall be such as the Lord Chancellor4 and the Speaker may determine; and subject to that determination the Committee shall regulate their own procedure. (3) Where, under Regulation 6 or 7 of these Regulations, the responsible authority gives any certificate in respect of a statutory instrument, that authority shall notify the Committee; and the Committee may, if they consider that the requirements of subsection (1) of Section 2 of the Principal Act with respect to the printing and sale of copies ought to be complied with, direct that the instrument shall not be exempt from those requirements or, as the case may be, shall not be exempt therefrom so far as concerns the document specified in the certificate: Provided that the Committee may direct that the notification required by this paragraph need not be given in respect of any specified class of instrument. (4) Without prejudice to the provisions of the last foregoing paragraph, it shall be the duty of the Committee to determine any question referred to them (a) As to the numbering, printing or publication of any statutory instrument or class or description of such instruments; (b) Whether any statutory instrument or any class or description of statutory instruments is in the nature of a Public General Act or of a local and personal or private Act; and (c) Whether any document whereby is exercised after the commencement of the Principal Act any power conferred by or under any Act of Parliament passed before the commencement of that Act does or does not constitute such a statutory rule as is referred to in subsection (2) of Section 1 of that Act.

THE SCHEDULE(5) Reg. 2(3)(c)

(1) Proviso substituted by S.I. 1977/641 (2) ‘Public’ deleted by S.I. 1982/1728 3 Functions of Lord Chancellor transferred to the Speaker of the House of Lords (24.3.2005) by Constitutional Reform Act 2005 c.4, sch 6 para 5 4 Functions of Lord Chancellor transferred to the Speaker of the House of Lords (24.3.2005) by Constitutional Reform Act 2005 c.4, sch 6 para 5 (5) Schedule substituted by S.I. 1982/1728 180

DOCUMENTS EXCLUDED FROM SECTION 1(2) OF THE STATUTORY INSTRUMENTS ACT 1946

A document made under any of the following enactments: 1. The Naval and Marine Pay and Pensions Act 1865 (c. 73). 2. The Pensions and Yeomanry Pay Act 1884 (c. 55) section 2(3). 3. The Air Force (Constitution) Act 1917 (c.51) section 2(3)

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STATUTORY INSTRUMENT S

1948 No. 2

STATUTORY INSTRUMENTS

The Statutory Instruments (Confirmatory Powers) Order 1947

Made - - - - 19 December 1947 Laid before Parliament 7 December 1947 Coming into force - - 1 January 1948

1.—(1) Where any Minister of the Crown exercises any power conferred on him by an Act of Parliament passed before the commencement of the Statutory Instruments Act 1946(1) to confirm or approve any orders or rules or regulations or other subordinate legislation made by an authority who is not a rule-making authority as defined in the Rules Publication Act 1893(2), and the subordinate legislation so confirmed or approved, being of a legislative and not an executive character, is required to be laid before Parliament or the House of Commons, then, subject to the provisions of paragraph (2) of this Article, any document by which that power is exercised after the coming into operation of this Order shall be known as a statutory instrument, and the provisions of the Statutory Instrument Act 1946 shall apply to that document accordingly.

(2) This Article shall not apply to any document which by virtue of subsection (2) of Section 1 of the Statutory Instruments Act 1946 is a statutory instrument within the meaning of that Act otherwise than by a virtue of this Order or would be such an instrument but for regulations made under paragraph (d) of subsection (1) of Section 8 of that Act(3).

2. …………………………………………………………………………………………….(4)

3. In this Order references to a Minister of the Crown include references to the Treasury, the Admiralty, the Board of Trade, and any other Government department.

4.—(1) This Order shall come into operation on the 1st day of January 1948; and may be cited as the Statutory Instruments (Confirmatory Powers) Order 1947.

(2) The Interpretation Act 1889 shall apply to the interpretation of this Order as it applies to the interpretation of an Act of Parliament.

Schedule

(1) Statutory Instruments Act 1946 was brought into operation on 1st January 1948 by S.I. 1948/3 (2) See Rules Publication Act 1893, s.4, printed on page 128 (3) See Statutory Instruments Regulations 1947, reg. 2, above (4) Art.2 and Schedule are spent, the enactments referred to there having been replaced. 182

…………………………………………………………………………………………………..(1)

(1) Art.2 and Schedule are spent, the enactments referred to there having been replaced 183

Laying of Documents Before Parliament (Interpretation) Act 1948 1948 c.59 (11_and_12_Geo_6)

ARRANGEMENT OF SECTIONS

1. Meaning of references to laying before Parliament. 2. Statutory Instruments Act 1946, s.4: notification during vacancy of office of Speaker of either House 3. Short title.

An Act to declare the meaning of references in Acts of Parliament and subordinate legislation to the laying of instruments or other documents before Parliament or before either House of Parliament, and the effect during a vacancy in the office of the Lord Chancellor or of the Speaker of the House of Commons of the requirement in section four of the Statutory Instruments Act 19461, to send notification forthwith to each of them of an instrument's being made so as to operate before it has been laid before Parliament. [30th July 1948]

Meaning of references to laying before Parliament.

1. – (1) For the removal of doubt it is hereby declared that a reference in any Act of Parliament or subordinate legislation, whether passed or made before or after the passing of this Act, to the laying of any instrument, report, account or other document before either House of Parliament is, unless the contrary intention appears, to be construed as a reference to the taking, during the existence of a Parliament, of such action as is directed by virtue of any Standing Order, Sessional Order or other direction of that House for the time being in force to constitute the laying of that document before that House, or as is accepted by virtue of the practice of that House for the time being as constituting such laying, notwithstanding that the action so directed or accepted consists in part or wholly in action capable of being taken otherwise than at or during the time of a sitting of that House; and that a reference in any such Act or subordinate legislation to the laying of any instrument, report, account or other document before Parliament is, unless the contrary intention appears, to be construed accordingly as a reference (construed in accordance with the preceding declaration) to the laying of the document before each House of Parliament.

(2) It is hereby further declared that nothing in section four of the Statutory Instruments Act 1946, is to be taken as indicating an intention that any reference in that section to the laying of copies of certain statutory instruments as therein mentioned is to be construed otherwise than in accordance with the preceding declaration. Statutory Instruments Act 1946, s.4: notification during vacancy of office of Speaker of either House2

2. It is hereby declared that the requirement imposed by subsection (1) of section four of the Statutory Instruments Act 1946, to send notification forthwith to the Speaker of the House

1 1946 c. 36. 2 Title amended by Constitutional Reform Act 2005 c.4, sch 6 para 5 184

of Commons and the Speaker of the House of Lords1 where a statutory instrument required to be laid before Parliament has been made so as to come into operation before it has been so laid, is to be treated as having been complied with, in a case in which notification forthwith is impossible by reason of a vacancy for the time being in the office of the Speaker of the House of Commons or the Speaker of the House of Lords2, whether occurring by death, resignation, dissolution of Parliament or otherwise, if the notification is sent to him immediately after the vacancy is filled.

Short title.

3. This Act may be cited as the Laying of Documents before Parliament (Interpretation) Act 1948.

1 Functions of Lord Chancellor transferred by Constitutional Reform Act 2005 c.4, sch 6 para 5 2 Functions of Lord Chancellor transferred by Constitutional Reform Act 2005 c.4, sch 6 para 5 185

Statutory Instruments (Production and Sale) Act 1996 1996 Chapter 54

An Act to make provision (with retrospective effect) for the printing and sale of statutory instruments under the authority of the Queen's printer, for their issue under the authority of Her Majesty's Stationery Office and for the reception in evidence of lists of such instruments which do not bear the imprint of the Queen's printer. [24th July 1996] BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:- Instruments etc. produced and sold under authority.

1. - (1) The Statutory Instruments Act 1946 shall have effect and be taken always to have had effect-

(a) with the insertion of "or under the authority of" after "sold by" and "issued by" in each place, and (b) with the omission of "purporting to bear the imprint of the King's printer" in section 3(1).

(2) Subsection (1) does not affect the operation of section 3(2) of that Act in relation to proceedings commenced before 21st June 1996.

Short title and extent.

2. - (1) This Act may be cited as the Statutory Instruments (Production and Sale) Act 1996.

(2) This Act has the same extent as the Statutory Instruments Act 1946.

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Regulatory Reform Act 2001 2001 Chapter 6

CONTENTS

Section

Power to make provision reforming law which imposes burdens 1 Power by order to make provision reforming law which imposes burdens 2 Meaning of "burden" and related expressions 3 Limitations on order-making power 4 Statutory instrument procedure 5 Preliminary consultation 6 Document to be laid before Parliament 7 Representations made in confidence or containing damaging information 8 Parliamentary consideration of proposals

Enforcement practice 9 Codes of practice relating to enforcement of regulatory requirements 10 Making of codes of practice by Ministers of the Crown 11 Making of codes of practice by National Assembly for Wales

Supplementary 12 Repeals and savings 13 Consequential amendments 14 Interpretation 15 Short title and extent

An Act to enable provision to be made for the purpose of reforming legislation which has the effect of imposing burdens affecting persons in the carrying on of any activity and to enable codes of practice to be made with respect to the enforcement of restrictions, requirements or conditions. [10th April 2001] BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-

Power to make provision reforming law which imposes burdens

1 Power by order to make provision reforming law which imposes burdens

(1) Subject to subsections (3) to (5) and to sections 3 to 8, a Minister of the Crown may by order make provision for the purpose of reforming legislation which has the effect of imposing burdens affecting persons in the carrying on of any activity, with a view to one or more of the following objects-

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(a) the removal or reduction of any of those burdens,

(b) the re-enacting of provision having the effect of imposing any of those burdens, in cases where the burden is proportionate to the benefit which is expected to result from the re-enactment,

(i) affects any person in the carrying on of the activity, but

(ii) is proportionate to the benefit which is expected to result from its creation, and

(d) the removal of inconsistencies and anomalies.

(2) In subsection (1) "legislation" means the law contained in any provision of-

(a) any Act (whether or not in force) which was passed at least two years before the day on which the order is made, or

(b) an order under this section or under section 1 of the Deregulation and Contracting Out Act 1994 (c. 40) (in this Act referred to as "the 1994 Act"), but does not include the law contained in any such provision in its application to Scotland where that provision would, if contained in an Act of the Scottish Parliament, be within the legislative competence of that Parliament.

(3) An order under this section must include provision made by virtue of subsection (1)(a).

(4) No order under this section may be made for the purpose of reforming the law contained in any provision of an Act if that provision has been amended, otherwise than merely for consequential or incidental purposes-

(a) by an Act passed not more than two years before the day on which the order is made, or

(b) by any subordinate legislation made not more than two years before that day, but this subsection does not prevent an order under this section from re-enacting without substantive amendment any provision which has been so amended.

(5) An order under this section which removes or modifies any function of the National Assembly for Wales may be made only with the agreement of the Assembly.

(6) The provision that may be made by order under this section includes-

(a) provision amending or repealing any enactment,

(b) provision creating or imposing, or authorising or requiring the creation or imposition of, anything which would be a burden but for the fact that it affects only a Minister of the Crown or government department, and

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(7) An order under this section may make different provision for different areas.

2 Meaning of "burden" and related expressions

(1) In this Act "burden" includes-

(a) a restriction, requirement or condition (including one requiring the payment of fees or preventing the incurring of expenditure) or any sanction (whether criminal or otherwise) for failure to observe a restriction or to comply with a requirement or condition, and

(b) any limit on the statutory powers of any person (including a limit preventing the charging of fees or the incurring of expenditure), but does not include any burden which affects only a Minister of the Crown or government department.

(2) In this Act-

(a) any reference to creating or imposing a burden includes a reference to authorising or requiring a burden to be created or imposed,

(b) any reference to removing a burden includes a reference to removing the authorisation or requirement by virtue of which a burden may be imposed, and

(c) any reference to reducing a burden includes a reference to reducing the authorisation or requirement by virtue of which a burden may be imposed (for example, by restricting the circumstances in which it is authorised or required to be imposed).

3 Limitations on order-making power

(1) An order under section 1 may be made only if the Minister making the order is of the opinion that the order does not-

(a) remove any necessary protection, or

(b) prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise.

(2) An order under section 1 may create a burden affecting any person in the carrying on of an activity only if the Minister is of the opinion-

(a) that the provisions of the order, taken as a whole, strike a fair balance between the public interest and the interests of the persons affected by the burden being created, and

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(b) that the extent to which the order removes or reduces one or more burdens, or has other beneficial effects for persons affected by the burdens imposed by the existing law, makes it desirable for the order to be made.

(3) If an order under section 1 creates a new criminal offence, then, subject to subsection (4), that offence shall not be punishable-

(a) on indictment with imprisonment for a term exceeding two years, or

(b) on summary conviction with imprisonment for a term exceeding six months or a fine exceeding level 5 on the standard scale.

(4) In the case of an offence which, if committed by an adult, is triable either on indictment or summarily and is not an offence triable on indictment only by virtue of-

(a) Part V of the Criminal Justice Act 1988 (c. 33), or (b) section 292(6) and (7) of the Criminal Procedure (Scotland) Act 1995 (c. 46), the reference in subsection (3)(b) to level 5 on the standard scale is to be construed as a reference to the statutory maximum.

(5) An order under section 1 shall not contain any provision-

(a) providing for any forcible entry, search or seizure, or

(b) compelling the giving of evidence, unless a provision to that effect is contained in an enactment repealed by the order and the powers conferred by the provision to that effect contained in the order are exercisable for the same purposes as the powers conferred by the repealed enactment or for purposes of a like nature.

4 Statutory instrument procedure

(1) An order under section 1 shall be made by statutory instrument.

(2) Subject to subsection (7), no such order shall be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.

(3) An order under section 1 may designate specified provisions of the order as subordinate provisions for the purposes of this section; and in the following provisions of this section references to the subordinate provisions of an order are references to the provisions so designated.

(4) In the following provisions of this section "a subordinate provisions order" means an order under section 1 which contains a statement that it makes only provision which either-

(a) modifies the subordinate provisions of an order previously made under that section, or

(b) is incidental, consequential, transitional or supplemental provision relating to the provision falling within paragraph (a).

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(5) Sections 1(3) and 3(2)(b) do not apply to a subordinate provisions order.

(6) An order under section 1 which designates subordinate provisions may provide that the power to make a subordinate provisions order relating to those provisions is to be exercisable in relation to Wales-

(a) by the National Assembly for Wales,

(b) by the Assembly concurrently with a Minister of the Crown, or

(c) by a Minister of the Crown with the agreement of, or after consultation with, the Assembly; and, in relation to the making of a subordinate provisions order, references in sections 1 to 3 to a Minister of the Crown shall so far as necessary be construed as being or including a reference to the Assembly.

(7) Subsection (2) does not apply to a subordinate provisions order, if-

(a) it is not made by a Minister of the Crown,

(b) the order designating the subordinate provisions concerned ("the main order") provides that the subordinate provisions order shall be subject to annulment in pursuance of a resolution of either House of Parliament, or

(i) is to be laid before Parliament after being made; and

(ii) is to cease to have effect at the end of the relevant period unless before the end of that period it is approved by a resolution of each House of Parliament (but without that affecting anything done under it or the power to make a new order).

(8) In subsection (7)(c) "relevant period" means a period of twenty-eight days beginning with the day on which the subordinate provisions order is made.

(9) In reckoning the period of twenty-eight days referred to in subsection (8), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(10) For the purposes of section 5(1) of the Statutory Instruments Act 1946 (c. 36), provision falling within subsection (7)(b) is to be treated as provision made by an Act.

(11) Nothing in sections 5 to 8 applies in relation to a subordinate provisions order.

5 Preliminary consultation

(1) Before a Minister makes an order under section 1, he shall-

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(a) consult such organisations as appear to him to be representative of interests substantially affected by his proposals,

(b) where his proposals relate to the functions of one or more statutory bodies, consult those bodies, or organisations which appear to him to be representative of those bodies,

(d) where the provision made by the order would extend to Wales, consult the National Assembly for Wales, and

(e) consult such other persons as he considers appropriate.

(2) In subsection (1) "statutory body" means-

(a) a body established by an enactment or by any instrument made under an enactment, or

(b) the holder of any office so established.

(3) If it appears to the Minister, as a result of the consultation required by subsection (1), that it is appropriate to vary the whole or any part of his proposals, he shall undertake such further consultation with respect to the variations as appears to him to be appropriate.

(4) If, before the day on which this Act is passed, any consultation was undertaken which, had it been undertaken after that day, would to any extent have satisfied the requirements of subsection (1), those requirements shall to that extent be taken to have been satisfied.

6 Document to be laid before Parliament

(1) If, after the conclusion of-

(a) the consultation required by section 5(1), and

(b) any further consultation undertaken as mentioned in subsection 5(3), the Minister considers it appropriate to proceed with the making of an order under section 1, he shall lay before Parliament a document containing his proposals in the form of a draft of the order, together with details of the matters specified in subsection (2).

(2) The matters referred to in subsection (1) are-

(a) the burdens which the existing law affected by the proposals has the effect of imposing,

(b) how the proposals further the object mentioned in section 1(1)(a),

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(d) whether the existing law affected by the proposals affords any necessary protection and, if so, how that protection is to be continued,

(e) whether any of the proposals could prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise and, if so, how he is to be enabled to continue to exercise that right or freedom,

(f) whether the proposals would have the effect of creating a burden affecting any person in the carrying on of an activity and, if so, how the conditions in section 1(1)(c) and 3(2) are satisfied,

(g) whether any provisions of the proposed order are being designated as subordinate provisions for the purposes of section 4 and, if so, why they are being so designated,

(h) whether any savings or increases in cost are estimated to result from the proposals and, if so,-

(i) the reasons why savings or increases in cost should be expected, and

(ii) if it is practicable to make an estimate of the amount, that amount and how it is calculated,

(i) any benefits (other than savings in cost) which are expected to flow from the implementation of the proposals,

(j) any consultation undertaken as required by section 5(1) or (3),

(k) any representations received as a result of that consultation, and

(l) the changes (if any) which the Minister has made to his original proposals in the light of those representations.

7 Representations made in confidence or containing damaging information

(1) Subsection (2) applies where a person ("the respondent"), in making any representations as a result of any consultation undertaken as required by section 5(1) or (3), requests that the Minister should not disclose the representations made by the respondent.

(2) Where this subsection applies, the Minister, in giving details of the representations referred to in section 6(2)(k), shall disclose the fact that the respondent has made representations, but shall not disclose the respondent's representations except-

(a) with the consent of the respondent and, where the information contained in the representations relates to any other person or business, of the person to whom the information relates or of the person for the time being carrying on the business, or

(b) in such a manner as not to identify them with that respondent or with that other person or business.

(3) Where a person, in making any representations as a result of any consultation undertaken as required by section 5(1) or (3), discloses information which relates to a third person, the Minister is not obliged to disclose that information in giving details of the

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representations referred to in section 6(2)(k) if, or to the extent that-

(a) it appears to the Minister that the disclosure of that information could adversely affect the interests of the third person, and

(b) the Minister has been unable either to verify the information or to obtain the consent of the third party to the disclosure.

(4) Subsections (2) and (3) do not affect any disclosure which-

(a) is requested during the period for Parliamentary consideration, as defined by section 8(2), by any committee of either House of Parliament charged with reporting on the proposals in question, and

(b) is made to that committee.

8 Parliamentary consideration of proposals

(1) Where a document has been laid before Parliament under section 6(1), no draft of an order under section 1 to give effect (with or without variations) to proposals in that document shall be laid before Parliament until after the expiry of the period for Parliamentary consideration, as defined by subsection (2).

(2) In this section "the period for Parliamentary consideration", in relation to a document, means the period of sixty days beginning on the day on which it was laid before Parliament.

(3) In reckoning the period of sixty days referred to in subsection (2), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.

(4) In preparing a draft of an order under section 1 to give effect, with or without variations, to proposals in a document laid before Parliament under section 6(1), the Minister concerned shall have regard to any representations made during the period for Parliamentary consideration and, in particular, to any resolution or report of, or of any committee of, either House of Parliament with regard to the document.

(5) Together with a draft of an order laid before Parliament under section 4(2), the Minister concerned shall lay a statement giving details of-

(a) any representations, resolution or report falling within subsection (4); and

(b) the changes (if any) which, in the light of any such representations, resolution or report, the Minister has made to his proposals as contained in the document previously laid before Parliament under section 6(1).

(6) Section 7 shall apply in relation to the representations referred to in subsection (5)(a) as it applies in relation to the representations referred to in section 6(2)(k), but with the omission of subsection (4).

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Enforcement practice

9 Codes of practice relating to enforcement of regulatory requirements

(1) If it appears to the appropriate authority-

(a) that the effect of the provision made by any enactment is such as to impose, or to authorise or require the imposition of, a restriction, requirement or condition affecting any person, and

(b) that the practice followed by enforcement officers in relation to the enforcement of the restriction, requirement or condition ought to be improved so far as fairness, transparency and consistency are concerned, the appropriate authority may issue a code of practice setting out recommended practice in relation to the enforcement of the restriction, requirement or condition.

(2) A code of practice under this section may, in particular, relate to-

(a) the practice to be adopted by all enforcement officers in enforcing all restrictions, requirements or conditions imposed by specified enactments, or

(b) the practice to be adopted by enforcement officers of a specified description, or by enforcement officers in specified areas.

(3) Where-

(a) a court or tribunal finds that a person has failed to comply with a restriction, requirement or condition,

(b) a code of practice under this section applies in relation to the enforcement of that restriction, requirement or condition, and

(c) it appears to the court or tribunal that there has been a failure to comply with the code, the court or tribunal may take the failure to comply with the code into account in deciding how to deal with the failure to comply with the restriction, requirement or condition.

(4) A code of practice under this section may not include any provision which, if contained in an Act of the Scottish Parliament, would be within the legislative competence of that Parliament.

(5) In this section and section 10-

""the appropriate authority" means-

(a) in the case of a code of practice which relates to enforcement action which is a function of the National Assembly for Wales, the Assembly or a Minister of the Crown acting with the agreement of the Assembly, or

(b) in any other case, a Minister of the Crown;

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"enactment" includes an enactment comprised in subordinate legislation but not an enactment comprised in Northern Ireland legislation, as defined by section 24(5) of the Interpretation Act 1978 (c. 30);

"enforcement action"-

(a) in relation to any restriction, requirement or condition, means any action taken with a view to or in connection with imposing any sanction (whether criminal or otherwise) for failure to observe or comply with it, and

(b) in relation to a restriction, requirement or condition relating to the grant or renewal of licences, includes any refusal to grant, renew or vary a licence, the imposition of any condition on the grant or renewal of a licence and any variation or revocation of a licence;

"enforcement officer" does not include-

(a) the Director of Public Prosecutions,

(b) the Lord Advocate or a procurator fiscal, or

but, subject to that, means any person who is authorised, whether by or under an enactment or otherwise, to take enforcement action;

"licence" includes any authorisation (by whatever name called) to do anything which would otherwise be unlawful."

10 Making of codes of practice by Ministers of the Crown

(1) Where a Minister of the Crown proposes to issue or revise a code of practice under section 9, he shall prepare a draft of the code (or revised code).

(2) The Minister shall consult about the draft-

(a) persons appearing to him to be representative of enforcement officers who are authorised to enforce any of the restrictions, requirements or conditions to which the code of practice relates,

(b) if the draft relates to Wales, the National Assembly for Wales, and

(3) If the Minister determines to proceed with the draft (either in its original form or with such modifications as he thinks fit) he shall lay a copy of the draft before each House of Parliament.

(4) If, within the 40-day period, either House resolves not to approve the draft, the Minister shall take no further steps in relation to the proposed code.

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(5) If no such resolution is made within the 40-day period, the Minister shall issue the code (or revised code) in the form of the draft, and it shall come into force on such date as the Minister may by order made by statutory instrument appoint.

(6) Subsection (4) does not prevent a new draft of a proposed code from being laid before Parliament.

(7) In this section "40-day period", in relation to the draft of a proposed code, means-

(a) if the draft is laid before one House on a day later than the day on which it is laid before the other House, the period of 40 days beginning with the later of the two days, and

(b) in any other case, the period of 40 days beginning with the day on which the draft is laid before each House, no account being taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(8) In this section references to a proposed code include references to a proposed revised code.

11 Making of codes of practice by National Assembly for Wales

(1) Where the National Assembly for Wales proposes to issue or revise a code of practice under section 9, the Assembly shall prepare a draft of the code (or revised code).

(2) The Assembly shall consult about the draft-

(a) persons appearing to the Assembly to be representative of enforcement officers who are authorised to enforce any of the restrictions, requirements or conditions to which the code of practice relates, and

(b) such other persons as the Assembly considers appropriate.

(3) Any code issued by the Assembly shall come into force on such day as the Assembly may by order made by statutory instrument appoint.

Supplementary

12 Repeals and savings

(1) Sections 1 to 5 of, and Schedule 1 to, the 1994 Act (which are superseded by the provisions of this Act)-

(a) are hereby repealed as respects England and Wales and Northern Ireland, and

(b) shall cease to have effect as respects Scotland except in so far as they relate to the making of orders by the Scottish Ministers.

(2) Where a document has been laid before Parliament under section 3(3) of the 1994 Act before the day on which this Act is passed, but no draft of an implementing order has been

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laid before Parliament before that day, subsection (1) does not affect the application of sections 1 to 4 of that Act in relation to the making of an implementing order.

(3) In subsection (2) "an implementing order", in relation to any document laid before Parliament under section 3(3) of the 1994 Act, means an order to give effect (with or without variations) to proposals in that document.

(4) Subsection (1) does not affect the continuation in force of any order under section 1 of the 1994 Act which-

(a) was made before the day on which this Act is passed, or

(b) is made on or after that day by virtue of subsection (2).

13 Consequential amendments

(1) In section 6 of the 1994 Act (model provisions with respect to appeals), in subsection (7)-

(a) in the definition of "enforcement action", for "section 5 above" there is substituted "section 9 of the Regulatory Reform Act 2001", and

(b) for the definition of "interested person" there is substituted-

""interested person" means-

(a) the person against whom enforcement action may be or has been taken;

(b) any other person who will or may be required to meet, or to make a significant contribution towards, the cost of observing the restriction or complying with the requirement or condition; or

(c) where the enforcement action which may be or has been taken relates specifically to goods or services which are to be or have been supplied by a person other than the one against whom enforcement action may be or has been taken, that person;".

(2) This section does not extend to Scotland.

14 Interpretation

In this Act-

"the 1994 Act" means the Deregulation and Contracting Out Act 1994 (c. 40);

"burden" and related expressions have the meaning given by section 2;

"Minister of the Crown" has the same meaning as in the Ministers of the Crown Act 1975 (c. 26);

"subordinate legislation" has the meaning given by section 21(1) of the Interpretation Act 1978 (c. 30);

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"Wales" has the same meaning as in the Government of Wales Act 1998 (c. 38).

15 Short title and extent

(1) This Act may be cited as the Regulatory Reform Act 2001.

(2) This Act extends to Northern Ireland.

(3) An order under section 1 which amends or repeals any enactment extending outside the United Kingdom may have the same extent as the enactment amended or repealed.

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PART 10: INDEX

An Index is currently being finalised and will be available shortly

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