. 88
( 155 .)


The Statutory Instruments Regulations 1947, SI 1948/1, except certain instru-
ments from the requirement of publication. For example, instruments classi¬ed
as local by reason of their restricted application (and by analogy with local and
personal or private Acts), those of which it is certi¬ed that their publication
would be contrary to the public interest, temporary instruments and bulky
schedules to instruments, need not be published. Regulations that are not statu-
tory instruments as de¬ned by the 1946 Act escape the Act™s requirements for
publication. It may be too “ the matter is not free from doubt “ that sub-
delegated legislation, authorised by an instrument itself made under delegated
power (or by virtue of the prerogative), is not covered by the 1946 Act. (See
P Craig, Administrative Law (5th edn 2003), pp 373“4.)
The requirement of publication of an instrument after it has been made is
generally considered to be directory only and not mandatory, so that failure to
publish does not invalidate the instrument: see R v Sheer Metalcraft Ltd [1954]
1 QB 586. (For discussion of this question, see Lanham (1974) 37 MLR 510,
[1983] PL 395; and Campbell [1982] PL 569.) Section 3(2) of the 1946 Act
456 British Government and the Constitution

allows a quali¬ed defence to a person charged with an o¬ence against an instru-
ment that has not been published in accordance with the Act.

Parliamentary procedure
When a government bill is being prepared which confers a power of delegated
legislation, a decision has to be made on the appropriate form of parliamentary
For some instruments no parliamentary control is thought necessary and
these are not required even to be laid before Parliament: they include, for
example, commencement orders bringing Acts of Parliament into operation
and orders prescribing forms. This is unexceptionable for routine instruments
of these kinds, but in 1996 Lord Justice Scott found it to be a clear ˜violation
of . . . democratic constitutional principle™ that there was no requirement to lay
before Parliament orders made by the Secretary of State for Trade under section
1 of the Import, Export and Customs Powers (Defence) Act 1939, although the
section conferred on him an extremely wide power to control exports and
allowed for the creation of new criminal o¬ences. (Scott Report (1996), vol I,
para C.1.25-6.) The matter is now regulated by the Export Control Act 2002,
which provides for parliamentary scrutiny of control orders made under it.
Every statutory instrument laid before Parliament is accompanied by a
Regulatory Impact Assessment.
A few instruments have simply to be laid before Parliament so that members
may be informed of them, without any further parliamentary procedure being
prescribed. An example is section 2(4) of the Stock Transfer Act 1982 which
provides that the power conferred by the Act upon the Treasury to make orders
amending the Act™s schedule of ˜speci¬ed securities™:

shall be exercisable by statutory instrument which shall be laid before Parliament after
being made.

To comply with such a provision, copies of the instrument must be delivered to
the Votes and Proceedings O¬ce of the House of Commons and to the O¬ce
of the Clerk of the Parliaments in the House of Lords. (Instruments of a
¬nancial nature are laid before the Commons only.) Section 4(1) of the
Statutory Instruments Act 1946 provides that statutory instruments required to
be laid before Parliament after being made ˜shall be so laid before the instru-
ment comes into operation™. But in urgent cases an instrument may be brought
into operation before being laid, if an explanation of the reasons is sent to the
relevant parliamentary authorities. The Government gave an undertaking to
Parliament on 8 November 1971 that there would normally be an interval
of twenty-one days between the laying of an instrument and its coming into
operation (HC Deb vol 825, col 649). This undertaking, or convention, was
unintentionally broken when a ministerial order was laid before Parliament on
457 The powers of government

19 June 2001 and expressed to come into force on the next day. When the
mistake was discovered the order was immediately revoked and a new order in
similar terms was laid before Parliament to come into force twenty-one days
later. (See HC Deb vol 371, col 20 W, 2 July 2001.)
Departments have sometimes accidentally neglected to lay an instrument
before Parliament as required by the enabling Act, and have taken corrective
action when the failure has come to light. The e¬ect of such a failure upon the
validity of the instrument has not been de¬nitely determined, and may depend
on the terms in which the requirement to lay the instrument is expressed in the
enabling Act. In some cases the direction to lay may not be mandatory. Suppose,
however, that an Act provides that regulations made under its provisions:

shall not be made unless a draft of the regulations has been laid before Parliament and
approved by a resolution of each House.

What should be the consequence, in this case, of a failure to lay the regulations
before they are made? (Cf R v Secretary of State for Social Services, ex p Camden
London Borough Council [1987] 1 WLR 819; and see Campbell [1987] PL 328.)
Most general statutory instruments have not only to be laid before
Parliament but are subject to a further procedure for enabling Parliament to
exercise a degree of control. (About 1, 200 are laid for parliamentary proceed-
ings each year.) In practice the choice between the available procedures is made
by the department responsible for the enabling bill. A basic distinction can
be made between ˜a¬rmative™ and ˜negative™ control procedures, although there
are sub-varieties of each class. Under the a¬rmative procedure, the instrument
or a draft of it has to be approved by resolutions of both Houses (exceptionally
of the Commons only). Under the negative procedure, the instrument becomes
law unless it, or a draft of it, is disapproved by a resolution, usually of either
House. Examples follow of provision for each kind of procedure.
The Regulation of Investigatory Powers Act 2000. Section 28 of this Act pro-
vides for ˜directed surveillance™ of individuals and section 29 for the use of
˜covert human intelligence sources™ as methods of investigation by state agen-
cies. Schedule 1 lists the public authorities (police forces, the intelligence ser-
vices and others) able to conduct such investigations. Under section 30 the
Secretary of State has power, exercisable by statutory instrument, to make
orders amending Schedule 1. Section 30(7) provides that no such order shall
be made which adds any public authority to the list in the Schedule, ˜unless
a draft of the order has been laid before Parliament and approved by a resolu-
tion of each House™.
The Transport Act 2000. Part II (Local Transport) of this Act confers various
powers on speci¬ed ministers to make regulations and orders, chie¬‚y concern-
ing matters of detailed procedure. Section 160(1) provides that any such power
is to be exercised by statutory instrument. Then it is provided by section 160(2):
˜A statutory instrument containing regulations or an order made by a Minister
458 British Government and the Constitution

of the Crown under this Part . . . shall be subject to annulment in pursuance of
a resolution of either House of Parliament™.
To a great extent departments follow precedent in choosing between the
a¬rmative and negative procedures or in providing only for the laying of an
instrument before Parliament for its information, but there are no ¬rm rules or
criteria governing the matter. A Memorandum by the Civil Service Department
in 1972 (Report from the Joint Committee on Delegated Legislation, HC 475 of
1971“72, Appendix 8) concluded that:

This is an area of legislation where criteria have not been considered desirable. Ministers and
Parliament have instead preferred to maintain flexibility as to the choice of Parliamentary
procedure, so that the procedure adopted has been determined by reference to the circum-
stances of each particular case, rather than by the application of a set of rules.

Governments have continued to take the view that it is not practicable to lay
down precise criteria in this matter. In practice the negative procedure is most
often chosen: only about one-tenth of instruments subject to parliamentary
procedures require an a¬rmative resolution. The a¬rmative procedure obliges
the government to move for approval of the instrument and allow a debate
(which, in the House of Commons, is usually held in a standing committee, so
saving government time on the ¬‚oor of the House), and is generally reserved for
instruments that raise issues of principle or are of some special importance. For
example, the a¬rmative procedure is usually preferred for powers whose exer-
cise will substantially modify Acts of Parliament, powers to impose ¬nancial
charges and powers to create new o¬ences of a serious nature. Parliament is
provided with an explanatory memorandum for each instrument laid before it,
giving an explanation of ˜what the instrument does and how it does it™.
It is one of the functions of the House of Lords Select Committee on
Delegated Powers and Deregulation to report whether bills that provide for
delegated legislation ˜subject the exercise of legislative power to an inappropri-
ate degree of parliamentary scrutiny™.
An enabling Act may exceptionally incorporate a formula allowing the
government to apply either the a¬rmative or the negative procedure in its dis-
cretion. The European Communities Act 1972, Schedule 2, para 2(2) provides:

Any statutory instrument containing an Order in Council or regulations made in the exercise
of a power so conferred [by this Act], if made without a draft having been approved by
resolution of each House of Parliament, shall be subject to annulment in pursuance of a res-
olution of either House.

More stringent versions of the a¬rmative procedure are applicable to ˜reme-
dial orders™ to be made under section 10 of the Human Rights Act 1998 (see
459 The powers of government

Schedule 2 to the Act) and (on certain conditions) orders to be made under
sections 1 or 2 of the Legislative and Regulatory Reform Act 2006 (see sections
15, 18): ˜super-a¬rmative™ procedures. These procedures are intended to
provide the opportunity for a fuller and better-informed consideration of the
orders by both Houses.
The legislative powers assumed by the government are sometimes very great,
and the scrutiny and control applied by Parliament to their exercise is of a weak
kind. (Parliamentary control of delegated legislation is more fully considered in
chapter 9; see also consideration of ˜Henry VIII™ clauses in chapter 2, above,
pp 105“6.) The exercise of delegated legislative power is open to challenge, in
proceedings for judicial review, just as are the executive acts of government.
A court may be called upon to decide whether the delegated power has been
exceeded or used for an improper (unauthorised) purpose, or in some other
way misused (see further chapter 10).
For a thorough account of the making of delegated legislation, see E Page,
Governing by Numbers: Delegated Legislation and Everyday Policy-Making

(c) Prerogative legislation
The Case of Proclamations (1611) 12 Co Rep 74 established that the Crown has
no power, by virtue of the prerogative, to alter the general law. Only in certain
limited ¬elds does the Crown retain a prerogative power to legislate, usually by
Order in Council.
Prerogative Orders in Council can be used to regulate the civil service, so far
as it is not governed by statutes. The principal Order is the Civil Service Order
in Council 1995, which empowers the Minister for the Civil Service to make reg-
ulations prescribing the quali¬cations for appointments to the home civil
service, controlling the conduct of the service and providing for the conditions
of service of persons employed as civil servants.
Another domain of the prerogative was referred to by Diplock LJ in Post
O¬ice v Estuary Radio Ltd [1968] 2 QB 740, 753:

It still lies within the prerogative power of the Crown to extend its sovereignty and jurisdic-
tion to areas of land or sea over which it has not previously claimed or exercised sovereignty
or jurisdiction. For such extension the authority of Parliament is not required. The Queen™s
Courts, upon being informed by Order in Council or by the appropriate Minister or Law Officer
of the Crown™s claim to sovereignty or jurisdiction over any place, must give effect to it and
are bound by it.

Prerogative must yield to statute, however, and the extent of the United
Kingdom™s territorial sea is now established by the Territorial Sea Act 1987 and
Orders in Council made under the Act.
460 British Government and the Constitution

In the First World War, prerogative Orders in Council were among the instru-
ments of economic warfare. (See the Reprisals Orders in Council of 1915 and
1917: SR & O 1915, III, p 107; SR & O 1917, pp 951, 952.) When the Falklands
con¬‚ict of 1982 necessitated the requisitioning of ships, the Government was
able to invoke the prerogative of the Crown:

At the Court at Windsor Castle
T H E 4T H D AY O F A P R I L 1982
P R E S E N T,

Whereas it is expedient in view of the situation now existing in relation to the Falkland Islands
that Her Majesty should be enabled to exercise in the most effectual manner the powers at
law vested in Her for the defence of the realm including Her Majesty™s dependent territories:
Now, therefore, Her Majesty is pleased, by and with the advice of Her Privy Council, to
order, and it is hereby ordered, as follows:
1. This Order may be cited as the Requisitioning of Ships Order 1982.
2. A Secretary of State or the Minister of Transport . . . or the Lords Commissioners of the
Admiralty may requisition for Her Majesty™s service any British ship and anything on board
such ship wherever the ship may be.
3. [Power to delegate functions under Article 2.]
4. The owner of any ship or thing requisitioned under this Order shall receive such payment
for the use thereof during its employment in Her Majesty™s service and such compensa-
tion for loss or damage to the ship or thing occasioned by such employment as may be
provided by any enactment relating to payment or compensation in respect of the exer-
cise of powers conferred by this Order and, in the absence of such an enactment, such
payment or compensation as may be agreed between a Secretary of State [or the Minister
or the Lords Commissioners] and the owner or, failing such agreement, as may be deter-
mined by arbitration.
5. In this Order:
˜Secretary of State™ means any of Her Majesty™s Secretaries of State;
˜Requisition™ in relation to any ship or thing means take possession of the ship or thing or
require the ship or thing to be placed at the disposal of the requisitioning authority;
˜British ship™ means a ship registered in the United Kingdom or any of the following coun-
tries “
(a) the Isle of Man;
(b) any of the Channel Islands;
(c) any colony;
(d) any country outside Her Majesty™s dominions in which Her Majesty has jurisdiction in
right of the Government of the United Kingdom.

The government can also legislate under the prerogative to amend the con-
stitutions of a few remaining colonies (only those once conquered or ceded:
461 The powers of government

see R (Bancoult) v Secretary of State for the Foreign and Commonwealth
O¬ice [2001] QB 1067), to create new courts of common law (see Re Lord
Bishop of Natal (1864) 3 Moo PCCNS 115), and for a few other limited

(d) Executive powers
The government possesses a considerable number of executive powers “ powers
which do not extend to alteration of the law but may a¬ect the rights or oblig-


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( 155 .)