Procedure for passing secondary legislation in the UK

Out-Law Guide | 19 Jul 2007 | 8:44 am | 2 min. read

Subordinate legislation is a collective term for statutory rules, regulations, ordinances, by-laws and rules created by persons or bodies to whom Parliament has delegated some of its law-making...

Subordinate legislation is a collective term for statutory rules, regulations, ordinances, by-laws and rules created by persons or bodies to whom Parliament has delegated some of its law-making powers.

Purpose

  • to ensure that provisions in Acts of Parliament are implemented effectively and efficiently, and
  • to update provisions in Acts of Parliament.

Benefits

Giving powers to persons/bodies to create subordinate legislation has an important time-saving benefit for Parliament. Parliament does not have to concern itself with amending primary legislation, and can concentrate fully on the important principles and features behind legislation.

Given the technical nature of much primary legislation, Parliament may be unable to pay adequate thought to such specialised issues.  Other bodies with the authority to create subordinate legislation can spend more time considering such issues and consulting experts if necessary.

Subordinate legislation also allows for a flexible legislative process, allowing for quick amendments and reforms to be carried out.

Stages to go through

Authority for making the subordinate legislation comes from an enabling or 'delegating' Act that will set down the requirements for making the subordinate legislation. Certain persons or bodies, such as the Scottish Executive, are given law-making powers allowing them to enact such legislation.

Generally, subordinate legislation is created when signed by the person authorised to do so by the enabling Act.

There are no specific stages in creating subordinate legislation, however there are two procedures for it coming into effect:

'Negative resolution' – the subordinate legislation has immediate effect, but is brought before Parliament and may be annulled if a resolution against it is passed within 40 days

'Affirmative Resolution' – the subordinate legislation must be affirmed by resolutions in each House of Parliament before it may come into effect.

Types

Various different types of subordinate legislation exist.

Statutory Instruments are the most common type of subordinate legislation. This term refers to most of the subordinate legislation enacted by the Government since the Statutory Instruments Act 1946. The common types of statutory instruments are Orders in Council, Regulations, Rules and Orders.

Scottish Statutory Instruments are those which have been in existence since 1999 under authority from Acts of the Scottish Parliament. Similarly the main types of Scottish Statutory Instruments are Orders, Regulations and Rules, as well as 'Acts of Sederunt' and 'Acts of Adjournal' (rules of court within Statutory Instruments.)

Statutory Rules of Northern Ireland also includes Orders, Regulations and Rules. They can be enacted under authority from the Acts of the Northern Ireland Assembly, Acts of the UK Parliament or Orders in Council.

Church Instruments also sometimes referred to as 'Archbishops Instruments,' bring Church Measures into force that are created by the Archbishops of Canterbury and York.

By-laws include legislation which has been delegated to public bodies such as local authorities, operators of transport systems or public utilities.