Some Statutory Instruments, mostly those under the affirmative procedure, differ slightly from the main procedure. Differences are usually set out in the enabling legislation that the instrument is laid under. We’ve tried to distinguish these types of instruments where possible.
Paragraph 14 of Schedule 8 of the EU Withdrawal Act 2018 sets out an enhanced procedure whereby a published draft of an instrument must be published 28 days on Gov.uk before the instrument is laid before Parliament. Under 14(6) there is an allowance for Government to bypass this procedure fby reason of urgency and lay an instrument. They have agreed to provide a written statement to Parliament setting out why they have bypassed the procedure. We are in the process of adding Published drafts to Parliament’s Statutory Instrument Service. In the meantime, you can find statutory instruments that have bypassed that procedure under Paragragh 14(6) below:
Made affirmative instruments made under paragraph 5(3) of Schedule 7 to the Local Government Finance Act 1988 are laid before the House of Commons only and do not follow the usual approval period of the made affirmative procedure. Instead the approval period end date is determined by the Local Government Finance (England) report being approved by the House of Commons or before 1st March (the deadline for local authority budgets), whichever is earlier. The made affirmative instrument sets out the non-domestic rates for the next financial year. It is made and approved before the report is published and remains law if the report is approved. If the House of Commons does not approve the report the instrument stops being law, likewise if the report is not published/approved by 1st March then the instrument lapses and, again, stops being law.
The following query looks for any such instrument:
Made affirmative instruments made under Section 55(3) in conjunction with Section 56(5) of the Sanctions and Anti-money Laundering Act 2018 do not follow the usual approval period of the made affirmative procedure. Instead these instruments are subject to an approval period of 60 days beginning with the first day on which any provision of the regulations come into force. The provisions of the instruments come into force when the Foreign and Commonwealth Office make commencement orders. These made affirmative instruments cannot be debated and approved until a commencement order is made. There has already been one commencement order made in March 2019 which applied to seven made affirmative instruments. A second commencement order is due to be made in December 2020 which should apply to any outstanding made affirmative instruments.
The European Union (Withdrawal) Act 2018 requires statements of the “good reasons” for the creation of and penalties for any criminal offences under the key powers in the Act. In April 2018 Baroness Goldie made the committment that these statements would be made available to Parliament before the SI which creates a criminal offence is laid.
Affirmative instruments laid under various sections of the United Kingdom Internal Market Act 2020 are subject to the Minister seeking legislative consent from the devolved authorities. While the process of seeking legislative consent is off stage of Parliament it is possible to identify such instruments to mark them out as different.
If the Minister does not seek consent from one or more of the devolved authorities they must make a statement to Parliament explaining why consent was not sought.
Affirmative instruments laid the United Kingdom Internal Market Act 2020
Written statements explaining why a Minister has not sought legislative consent
Made affirmative instruments laid under section 25 of the Criminal Procedure and Investigations Act 1996 allow a Minister to make and lay an instrument, but under section 77 of the same Act, the instrument will have effect only after a resolution has been passed by both Houses approving it. The instrument is laid without a number but once approved by both Houses it is reregistered with a number. This results in there being two records for the same instrument on legislation.gov.uk - one with a number, one without.