An Ask the team article on how to find out if a draft statutory instrument (SI) has come into force or, if it has not yet come into force, where in the legislative process it has got to.
An Ask the team (ATT) article on how to find out if a draft statutory instrument (SI) has come into force or, if it is not yet in force, where in the legislative process it has got to.
This ATT article looks at the Draft CRC Energy Efficiency Scheme (Allocation of Allowances for Payment) Regulations 2012 as an example of a draft SI that recently made its way through the legislative process.
Close speedreadHow do I find out if a draft statutory instrument that was published a few months ago is in force or, if it is not already in force, when it will come into force?
Specifically, I want to find out where in the legislative process the Draft CRC Energy Efficiency Scheme (Allocation of Allowances for Payment) Regulations [2012] (www.practicallaw.com/3-517-2669) (CRC Allowances Regulations) are.
Statutory instruments (SIs) (such as regulations and orders) are also known as delegated or secondary legislation. Acts of Parliament are known as primary legislation.
Some SIs are subject to Parliamentary scrutiny and some are not. For example, commencement orders are not subject to Parliamentary scrutiny.
SIs that are subject to Parliamentary scrutiny will be subject to one of these two procedures:
Negative resolution procedure.
Affirmative resolution procedure.
You need to look at the legislation that gives the relevant Minister the power to make the SI to check whether it is subject to Parliamentary scrutiny, and if so, whether it is subject to the negative or the affirmative resolution procedure. The top of an SI will say under which powers it was made (known as the enabling power, enabling Act or parent Act).
For example:
These Regulations are made in exercise of the powers conferred by sections 2 and 7(9) of, and Schedule 1 to, the Pollution Prevention and Control Act 1999(1).
Her Majesty, in exercise of the powers conferred by sections 44 and 46(3) of and Schedule 2 and paragraph 9 of Schedule 3 to the Climate Change Act 2008, is pleased, by and with the advice of Her Privy Council, to order as follows.
The Treasury make the following Regulations in exercise of the powers conferred by section 21(1), (2) and (3) of the Finance Act 2008(a). A draft of these Regulations has been laid before the House of Commons in accordance with section 21(7) of that Act and approved by a resolution of the House of Commons.
Before we explain how these two procedures work, we first need to explain the difference between the terms "laid before Parliament", "made" and "coming into force":
Laid before Parliament: If an SI is subject to Parliamentary scrutiny (under either the negative or the affirmative resolution procedure), it first needs to be "laid before Parliament". This involves the relevant government department simply placing a copy of the SI on a specific bench in Parliament. The date on which the SI was laid before Parliament will appear at the top of the SI. The relevant government department might (or might not) issue a press release to say when legislation has been laid before Parliament, depending on whether it thinks the legislation is sufficiently important to justify a press release. SIs that are subject to the negative resolution procedure will usually be laid before Parliament at least 21 days before they are due to come into force (known as the "21 day rule").
Made: An SI is "made" when it is signed by the Minister (or other authorised person) that is responsible for the SI. If an SI has been laid before Parliament in draft, then it will have no made date at the top. Once an SI has been made, it is given an SI number (for example, SI 2010/768), printed and published on www.legislation.gov.uk.
Coming into force: The top of an SI will specify when the SI comes into force (that is, when you have to comply with it). Different provisions in an SI may come into force on different dates.
This is how the negative and affirmative resolution procedures work:
Negative resolution procedure: These SIs need to be laid before Parliament. The Parliament then has 40 days in which it can object to the SI and call for a debate. This is done by a motion to annul an SI (also known as "praying against the SI"). As mentioned above, these type of SIs are usually laid before Parliament at least 21 days before they are due to come into force. The negative resolution procedure is more common than the affirmative resolution procedure. It is rare for these type of SIs to be "prayed against" and annulled.
Affirmative resolution procedure: These SIs are usually laid before Parliament in draft form. Both Houses need to approve the SI by a resolution before the SI can be made, unless the SI deals with taxation, in which case it only needs to be approved by the House of Commons. It is not possible to amend the SI once it has been laid. If an amendment is needed, the relevant government department would need to withdraw the SI and lay a new draft SI. Debates in the House of Commons will usually take place in a Delegated Legislation Committee. Debates in the House of Lords will usually take place on the floor of the House. The affirmative resolution procedure is less common than the negative resolution procedure and is usually reserved for secondary legislation that is likely to be more controversial.
In summary:
An SI that is subject to the negative resolution procedure (most SIs) does not need to be debated by the Parliament and will come into force on the date stated at the top of the SI, unless either House of Parliament objects to it (which is rare).
An SI that is subject to the affirmative resolution procedure (less common) needs to be debated and approved by both Houses of Parliament.
SIs are accompanied by an Explanatory Note (which appears at the bottom of the SI) and an Explanatory Memorandum (which is a standalone document). SIs that implement EU legislation also need to be accompanied by a Transposition Note.
To determine where in the process an SI has got to and when it is likely to come into force, you will need to find out:
Whether the SI is subject to Parliamentary scrutiny and, if so, whether it is subject to the negative or the affirmative resolution procedure.
If it is subject to Parliamentary scrutiny, the date on which it was laid before Parliament, and whether it was laid in draft or final form.
Whether it is listed for debate by the House of Commons or House of Lords.
The Parliament website has a list of which SIs have been laid (see Parliament: Statutory Instruments), or you can contact the House of Commons Information Office by:
Telephone on 020 7219 4272.
E-mail at hcinfo@parliament.uk.
You can also find draft SIs on www.legislation.gov.uk: UK Draft Statutory Instruments.
Alternatively, you can look on the website of the government department that is responsible for the SI or contact the Parliamentary Clerk for that department.
If an SI is going to be considered by a Delegated Legislation Committee, you can ask the House of Commons Information Office if it is listed for consideration by a committee. Alternatively, you can check on the Parliament website to see if a particular SI is listed for consideration by a committee (see Parliament: Votes and Proceedings). Details of forthcoming Delegated Legislation Committees are announced on Wednesdays and appear in the Votes and Proceedings for that day.
It can be difficult to work out where an SI has got to in the legislative process. You may need to contact the House of Commons Information Office and/or the relevant government department.
On 12 January 2012, the Department of Energy and Climate Change (DECC) announced that the Treasury had laid a draft of the CRC Energy Efficiency Scheme (Allocation of Allowances for Payment) Regulations 2012 before Parliament (see Legal update, CRC: government lays draft regulations on sale of allowances before Parliament (www.practicallaw.com/2-517-2580)).
The "enabling power" for these Regulations is set out at the top of the draft:
"The Treasury make the following Regulations in exercise of the powers conferred by section 21(1), (2) and (3) of the Finance Act 2008(a). A draft of these Regulations has been laid before the House of Commons in accordance with section 21(7) of that Act and approved by a resolution of the House of Commons."
The draft Regulations (referred to in this ATT as the CRC Allocation Regulations) are therefore subject to the affirmative resolution procedure. Note that the CRC Energy Efficiency Scheme Order 2010 (SI 2010/768) was made using powers under the Climate Change Act 2008, but that the CRC Allocation Regulations are being made using powers under the Finance Act 2008.
Nothing further was heard about the CRC Allocation Regulations until April 2012, when the Environment Agency published guidance on the first fixed price sale of allowances under the CRC, which will be held during June and July 2012 (see Legal update, CRC: Environment Agency publishes guidance on 2012 sale of allowances (www.practicallaw.com/5-518-9555)).
The House of Commons Information Office indicated that the draft CRC Allocation Regulations were laid before Parliament on 26 March 2012. It is not clear why the date on which the draft Regulations were laid changed from January to March 2012, but the DECC website says that the draft Regulations were published in January 2012 and were laid before Parliament in March 2012 (see DECC: CRC Energy Efficiency Scheme).
The draft CRC Allocation Regulations were approved by the House of Commons' Delegated Legislation Committee on 22 May 2012 (see House of Commons: Votes and Proceedings: Tuesday 22 May 2012). As the Regulations were produced by the Treasury and deal with taxation, they only need to be approved by the House of Commons. They do not need to be approved by the House of Lords as well.
The Regulations were made (signed by the relevant minister) on 23 May 2012, allocated an SI number (SI 2012/1386) and published on www.legislation.gov.uk.
The Regulations state that they come into force on the day after the day on which they are made (24 May 2012) (see Legal update, CRC: regulations on sale of allowances come into force (www.practicallaw.com/9-519-6686)).
For more information on the:
CRC in general, see the CRC Survival Kit.
Legislative process for SIs, see House of Commons: Brief Guide: Delegated legislation (August 2011).
Legislative process for Acts of Parliament, see Practice note, The legislative process in the UK and how Bills become law (www.practicallaw.com/3-503-2155).
If you have any comments on this, or any other, Ask the team, please e-mail the PLC Environment team at environmentfeedback@practicallaw.com.
