UK: delegated legislation

Overview
Statutory instruments
Statutory instruments by title
Statutory instruments by subject
Statutory instruments by enabling legislation
Amendments and revocations
Command papers

1. Overview

Delegated legislation (sometimes referred to as subordinate legislation) arises from the power granted (delegated) to an authority by Parliament to create the rules and regulations that give substance to statutes. Usually a Minister of the Crown is delegated this power (although it may sometimes be a public corporation such as British Rail, or a local authority, or even the Privy Council) thereby enabling that body to pass (a) rules, (b) regulations, (c) orders (including commencement orders and orders in council) or (d) bylaws without the need for parliamentary approval. These may be of a general or local application (like statutes). Once "made," a piece of delegated legislation is usually presented to Parliament to be reviewed by a standing committee and sometimes a joint committee (of both houses). Parliament must ensure that the delegated legislation adheres to the scope of the primary legislation that enabled it and does not exceed the powers granted to that body. It is worth noting that unlike primary legislation delegated legislation may be questioned by the courts.

2. Statutory Instruments

Statutory Instrument (or S.I.) is a generic term derived from the Statutory Instrument Act 1946, that applies to the four types of delegated legislation listed above (a-d). Prior to 1948 (when the act came into force) SIs were referred to as SR&Os (Statutory Rules and Orders), and prior to 1894 orders and proclamations were cited by their title and date (note however that there were very few instruments prior to the middle of the 19th Century). Numerous S.I.s may be published by the Stationery Office on any given week day (over 2,000/year) and each one is assigned a number based on the order in which they were passed in the calendar year (e.g. S.I. 1993/1068 is the 1,068th S.I. passed in 1993). However, local SIs are often not published! A letter may appear in parenthesis after the citation indicating a particular subseries of SI (used mainly for ordering from S.O.) e.g. SI 1992/1286 (C.42). The main subseries are C (commencement orders) L (legal matters e.g. court rules) and S (Scottish only). The Northern Ireland series is very different; this constitutes primary legislation for Northern Ireland and should be considered as separate from other Statutory Instruments. Actual delegated legislation from NI is referred to as Northern Ireland Statutory Rules and Orders. Numbered paragraphs within an SI can differ depending on the type of SI; in an Order the paragraph is simply called a paragraph, in a rule or regulation it is called rule or regulation respectively.

S.I.s are first listed in the Daily List of Government Publications (available online at (http://www.tsonline.co.uk), and are then made available full-text online on the H.M.S.O.'s website (http://www.hmso.gov.uk/stat.htm). A fairly useful and easy to use search engine is provided enabling users to locate the relevant S.I.(s). This very useful web site contains S.I.s from 1997 to the present. Delegated legislation is also often listed in the major legal periodicals such as Solicitor's Journal and New Law Journal. S.I.'s will be digested in the monthly issues of Current Law and finally appear full-text in running number order in unannotated, annual bound volumes published by HMSO titled simply Statutory Instruments (this set extends back to 1946) (KD 166 S7). A monthly (and cumulated annually) publication entitled List of Statutory Instruments provides helpful tables and summaries of new SIs. S.I.s are also available full-text for select periods on Lexis and Westlaw (refer to the vendor’s literature to determine the name of the library/file).

Halsbury's Statutory Instruments: (KD 173 H3) Although this set is selective in providing the full text of delegated legislation, it does offer at a least a summary of all the S.I.s currently in force (the closest equivalent to the CFR that exists). This multi-volume work is arranged alphabetically by subject (title) and contains, in addition to the 22 grey base volumes, an index volume, and two looseleaf service binders containing a number of useful tables (list of authorizing statutes for the current year, a chronological list of SIs, commencement orders), changes to the base volumes (a monthly update indicating amendments, revocations, etc. to S.I.s in the base volumes), and in volume 2 the full text of selected new S.I.s arranged in numerical order. Halsbury's Statutory Instruments is particularly useful in trying to trace delegated legislation on a particular subject, however the set can also be used to trace S.I.s by their title and even their citation (although the annual volumes of Statutory Instruments published by HMSO may be more convenient for this). Each SI is annotated (with case citations), and an overview is provided at the beginning of each title. Each section also contains a complete list of the SIs summarized and a list of SIs no longer in force (lapsed, repealed, revoked, superseded, or spent). New reissue volumes come out periodically and may not be indexed by the annual index.

Table of Government Orders: This annual publication is a list, in date order, of all instruments passed since 1671. For each it indicates whether the instrument is still in effect or not (by the use of bold type for still in force entries and italics for revoked instruments). The best way to bring this up to date is to use it in conjunction with Current Law SI Citator.

Index to Government Orders: Published every two years by HMSO this two volume set provides a list of all the S.I.s in force at the time of publication and indexes them by subject area. The delay in publication is the major drawback of this set and for this reason it is better to consult Halsbury's.

Older SIs may be traced using a couple of sources. All Statutory Rules & Orders and SIs that were in force as of the end of 1948 were reprinted in a subject arranged set entitled Statutory Rules and Orders and Statutory Instruments Revised. The Current Law Yearbooks also contain digests of SIs and various tables to help locate SIs - check the yearbooks (back to 1947) for the years that apply.

3. Finding SIs by title

Start with the S.O.’s web site or Halsbury's SIs main index volume. Could also try Halsbury's Laws (consolidated index volume) or finally use the tables in the Current Law Legislation Citator volumes and the latest Monthly Digest (table of SIs). Obviously if a recent copy of Table of Government Orders is available this can also be used.

4. Finding SIs by subject

Start once again with the web site or Halsbury's SIs main index volume and also check the looseleaf service binders for recent SIs. Halsbury's Laws can also be useful. The index to Government Orders is Ok but it is usually about 2 years out of date. Current Law also provides SIs on a subject but the subject indexing is more broad. If looking for very recent ones Current Law Monthly Digest is a good source.

5. Finding SIs by enabling legislation

Best starting place is Halsbury's Statutes. Locate the act and look at the front of the base volume to see which SIs were promulgated under the act. Also, each main volume should contain a list of SIs at the beginning of the volume. Check the cumulative supplement and the noter-up for complete information. Current law Legislation Citator will also be useful - provides fairly comprehensive list of SIs under each act. Halsbury's SIs can be used but the table only provides cite to the topic not the SI itself.

6. Finding amendments and revocations

Halsbury's SIs will be a good starting point providing all 3 places are checked (main volume, annual supplement, and the key to monthly services). Current Law Legislation Citator is perhaps easiest to use, although if SI is older it may require checking in a number of sets. Any SI that has been affected since 1989 is covered in Current Law Legislation Citators, however the citator service (i.e. includes cases etc.) begins with 1993. SO's Daily Lists can bring either of these two services up to date, but it is clumsy.

7. Command papers This is an important class of Parliamentary Papers, that although originating outside of Parliament are presented to Parliament by the Minister involved "by command of Her Majesty." There are over 400 command papers presented to Parliament each year. Command papers may fall into one or more of the following categories:

Statements of Government policy on a topic ("White papers").

Consultation Documents (a fairly recent series known as "Green papers").

Reports of Royal Commissions

Reports of Departmental Committees

Reports of Tribunals or commissions of inquiries (e.g. disasters, major accidents)

Annual reports (e.g. criminal statistics - although these are less frequent)

State Papers including treaties (later included in UK Treaty Series)

Citation to these octavo-sized documents (their size is regulated by Treasury Circular) varies depending on when the document was published. Publication of command papers began in 1833 and there have been 5 series, each series being cited slightly differently. Since 1986 (when the 5th series began) the documents have been cited Cm. 740, 1989, however the 4th series (1956-1986) were cited Cmnd. 9910, 1986. Other cite formats are C., Cd., Cmd.. When locating Command Papers it is therefore important to note the citation format. Arrangement of these documents varies from library to library, although most commonly they are cataloged and shelved individually (check TALLONS for individual titles).

Treaties are initially issued as a command paper by the Foreign and Commonwealth Office, however they are later included in a series entitled UK Treaty Series. Cites to treaties may be by command paper number OR by UKTS number.

Locating command papers has become much easier in recent years. Most are now available full-text on the World Wide Web (www.official-documents.co.uk) or through the individual Department's web site). Command Papers are also listed on the Stationery Office’s Daily List (www.tsonline.co.uk).

Revised: 02/00