Parliamentary Scrutiny

Where legislative power is given to Ministers, the enabling legislation usually requires a statutory instrument (or a draft of it) to be laid before Parliament before or soon after it comes into effect. A Select Committee of MPs and peers scrutinises all such instruments and reports to Parliament, drawing particular attention to:

• any SI that imposes taxation;
• any SI that makes a charge on the Revenue;
• any SI that purports to be immune from challenge in the courts;
• any SI that purports to operate retrospectively;
• any SI that has been unreasonably delayed in publication;
• any SI that makes unusual or unexpected use of the powers granted;
• any SI that appears to be ultra vires the parent Act;
• any SI that appears to be badly drafted and confusing.

Members of Parliament are then able to question the responsible Minister about any statutory instrument that seems to be unsatisfactory in some way, and perhaps to take further action.

In particular, the enabling Act may provide for the SI to require an affirmative resolution of each House in order for them to take effect. This is less than the full enactment procedure for primary legislation - a short debate (perhaps) and a single vote in each House, with no Committee or Report stage - but is still quite a strong control. This "affirmative resolution" procedure is therefore used most often where the powers delegated are particularly wide-ranging, as in the Emergency Powers Act 1920 and the Human Rights Act 1998.

Alternatively, the enabling legislation may make the SI subject to annulment by either House within a fixed period (usually 40 days); it may come into force immediately, subject to cancellation, or it may not come into force until the 40 days have passed without a successful challenge. This is the procedure most commonly adopted, and applies in about three-quarters of cases. It is much weaker than the "affirmative resolution" procedure: very few "negative resolution" SIs are debated, and hardly any are ever annulled.

Finally, the enabling Act may not specify either of these procedures at all, leaving the Minister to legislate free from any formal control: this is particularly common in respect of Commencement Orders bringing primary legislation into force piece by piece. There are still political controls, of course - the Minister can be questioned about his actions and even made the subject of a critical vote - and the judicial controls discussed below apply as much to these as to any other statutory instruments.