Secondary Legislation

Overview

Secondary Legislation may be known as ‘statutory instruments’, ‘delegated legislation’, or simply ‘secondary legislation’ and the form of which it is issued may be called ‘orders’, ‘rules’, ‘regulations’, ‘schemes’ or ‘codes’.

Secondary Legislation can be created where an Act of Parliament or ‘primary legislation’ doesn’t specify the exact details of regulation, but ‘delegates’ the authority to create and modify this legislation to a Government department, with a less onerous process of scrutiny and implementation.

This power to create Secondary Legislation is often phrased within the Act as 'The Secretary of State may by order...' or 'Her Majesty may by Order in Council' , and any Secondary Legislation will cite the section of the Act that provided this authority.

Around 3,000 items of Secondary Legislation are enacted by Parliament each year. Secondary Legislation is just as much the law as the Act of Parliament that permitted its creation.

An example of Secondary Legislation

The laws that govern aviation in the UK, are an example of Secondary Legislation, called the Air Navigation Order. The Air Navigation Order is created under the authority of Civil Aviation Act 1982. Section 60 of the Civil Aviation Act 1982 states:

Subject to section 11(7) above, Her Majesty may by Order in Council under this section (in this Act referred to as “an Air Navigation Order”) make such provision as is authorised by subsections (2) and (3) below or otherwise by this Act or any other enactment.

(2)An Air Navigation Order may contain such provision as appears to Her Majesty in Council to be requisite or expedient—
(a)for carrying out the Chicago Convention, any Annex thereto relating to international standards and recommended practices (being an Annex adopted in accordance with the Convention) and any amendment of the Convention or any such Annex made in accordance with the Convention; or
(b)generally for regulating air navigation.

In 2019, the Government proposed amending the law to prohibit drone flights above a height of 400 feet. To effect this change, it was required to amend the Air Navigation Order, which it did through another piece of Secondary Legislation called the The Air Navigation (Amendment) Order 2019.

How is Secondary Legislation Scrutinised?

The vast quantity of Secondary Legislation means that full scrutiny cannot possibly occur for all items, nor may it be necessary.

This is one of the main criticisms around the use of Secondary Legislation in Acts of Parliament. The desired level of scrutiny is usually set out in the Act, as either utilising an affirmative or negative procedure (though there are many variations on these procedures concerning the timing of when the Order will come into effect).

Returning to The Air Navigation (Amendment) Order 2019, the Civil Aviation Act states :

Subject to the affirmative resolution procedure where the Order makes provision for any such matter as is mentioned in section 60(3)(r) and subject to the negative resolution procedure in any other case.

Section 60(3)(r) states:

(r)for prohibiting aircraft from taking off or landing in the United Kingdom unless there are in force in respect of those aircraft such certificates of compliance with standards as to noise as may be specified in the Order and except upon compliance with the conditions of those certificates; and

The Civil Aviation Act 1982 specifies that the affirmative procedure is only required when changes are made to regulations governing aircraft noise, but “in any other case” the negative procedure is performed.

Therefore, The Air Navigation (Amendment) Order 2019, which did not relate to noise, was enacted under the negative procedure.

So what are these Affirmative or Negative Procedures?

Affirmative procedure requires that Parliament actually vote on whether the Order shall be enacted, and may be referred to as 'affirmative procedure' or 'approved by resolution of each House of Parliament' within the Act.

The negative procedure requires that the Order shall be enacted 'by default', unless sufficient MPs elect to lay a motion that denies it from being enacted, which only then triggers a vote.

But you said there are thousands of these items of legislation, how can Parliament debate and vote on them all?

Negative instruments do not require any explicit approval, unless a motion to annul (called a 'prayer' is tabled).

For Affirmative instruments, both Houses of Parliament form a number of Delegated Legislation Committees that vote on the instruments requiring affirmative approval.

For those affirmative resolutions that are particularly contentious, the debate and vote can be taken back to the main Chamber, where any MP can debate and vote on its enactment.

It may be thought that the affirmative procedure provides greater scrutiny, however the effect is diluted by the number of Acts that require such a procedure. The sheer mass of business means Parliament has become exceeding efficient at disposing of such matters.

Typically, A Delegated Legislation Committee is convened, a junior minister recites the reasons for making the order, the shadow minister states they can’t see any reason to object, the Chair calls a vote, everybody says Aye, and the committee is dissolved within 5 minutes.

See the Draft Legal Services Act 2007 (Approved Regulator) Order 2020 debate in which Chartered Accountants were granted permission to administer oaths, for a typical example.