Frequently Asked Questions

Secondary legislation

What is Secondary Legislation?

Secondary legislation is law created by Ministers (or other bodies) under powers given to them by an Act of Parliament. Secondary legislation is made by laying statutory instruments (SIs), which can take a number of forms (see below). Approximately 3,500 SIs are made each year, although only about 1,000 need to be considered by Parliament.

What forms do SIs take?

The most common forms of Statutory Instrument are Rules, Regulations and Orders. The format is dictated by the 'parent' Act, that is the Act under which the instrument is made. There is very little practical difference between them.

What Parliamentary procedures apply to SIs?

The level of Parliamentary scrutiny to which a Statutory Instrument (SI) is subject is determined by the parent Act.

Many routine SIs are laid before Parliament but have no further procedure.

Most other instruments are subject to either the affirmative or the negative procedure:

• Affirmative instruments must be debated and approved by both Houses of Parliament, usually before they can become law (or more rarely, for affirmatives made urgently, so that they can remain law).
• Negative instruments can come into force without a debate or approval, but either House has the option to object to (“annul”) the instrument within a given time period.

How often does Parliament reject instruments?

Negative instruments are law when they are laid and have to be ‘annulled’ and it is very rare. The House of Commons last annulled a statutory instrument in October 1979, while the House of Lords last annulled one in February 2000. More recently the Lords has declined to approve certain affirmative SIs: for example, following debate on the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (amendment of Schedule 1) Order 2013, the House required that it "be not made".

Can Parliament amend Statutory Instruments?

No, Parliament can either accept or reject a Statutory Instrument but cannot amend it.

Do both Houses have to debate Instruments?

Both Houses must independently debate and approve affirmative instruments and either House can annul a negative instrument. There is no requirement for either House to debate an SI before the other. Some SIs, dealing with tax or financial matters, are only considered by the Commons.

The Secondary Legislation Scrutiny Committee

What is the role of the Secondary Legislation Scrutiny Committee?

The Committee scrutinises the policy merits of instruments and offers additional information and recommendations related to them. The Committee serves a purely advisory role. It does not have any power to amend or stop legislation.

What does the Committee do in practice?

The Committee scrutinises every instrument that is subject to Parliamentary procedure in the House of Lords. The Committee’s findings on each instrument are published in Reports, usually issued weekly when Parliament is sitting. Where the Committee finds that the SI is particularly high profile, and/or the policy aspects of it are flawed, the Report will draw that instrument to the special attention of the House of Lords with a narrative explaining why. The Committee’s formal Terms of Reference set out the criteria which are used in deciding whether to draw the instrument to the special attention of the House. Instruments not drawn to the special attention of the House are included in the Reports either entirely without comment, when they are routine, or with an information paragraph if they are of greater interest.

The Committee occasionally publishes wider reports; for example, an overview of the current quality to the legislation it is seeing or exploring a particular aspect of secondary legislation such as impact assessment or consultation.

SLSC is also the ‘sifting’ Committee in the Lords for ‘proposed negative’ instruments under the Retained EU Law (Revocation and Reform) Act 2023 and the European Union (Withdrawal) Act 2018.

Does the Committee consider external views?

In scrutinising instruments, the Committee can consider any wider context of and commentary on the policy. It will also take account of any written submissions from those affected by or interested in the policy if they are received before the Committee considers the instrument. For more information about making submissions, see ‘Writing to us about an instrument’.

How does Parliament use the Committee’s reports? 

For secondary legislation subject to the affirmative procedure, and which therefore must be debated by both Houses, there is a convention that the debate in the Lords will not take place until the Committee has reported. 

Other SIs are subject to negative procedure. These would not usually be debated but can be if a Member of the House puts down a motion. If an SLSC Report draws an instrument to the special attention of the House of Lords, a backbencher will often follow this up by laying a motion seeking a debate. 

In debates on SIs, Members will frequently follow up points raised in SLSC reports, which may result in the Minister offering clarifications or concessions. 

The House of Commons has no equivalent to the SLSC, but the Committee’s reports are therefore also sometimes cited in Commons debates on SIs. 

What do the other scrutiny committees do?

The SLSC scrutinises the policy intention of all SIs. In parallel, the Joint Committee on Statutory Instruments (JCSI) performs a technical scrutiny of the legislation to consider whether the legal drafting is correct, clear, and within the powers given by the Act under which it is made. Under its Standing Orders, the House of Lords cannot debate an affirmative instrument until it has been considered by the JCSI.

A separate Lords-only Committee – the Delegated Powers and Regulatory Reform Committee – considers the proposals in Bills for Ministerial power to make regulations. It is this consideration that helps to decide whether the SI will follow the negative or affirmative procedure.

A separate Commons-only Committee - the European Statutory Instruments Committee - fulfils the same scrutiny process for proposed negative instruments under the Retained EU Law (Revocation and Reform) Act 2023 and the European Union (Withdrawal) Act 2018 as does the SLSC.