Explanatory Memoranda to Statutory Instruments in United Kingdom

The purpose of the Explanatory Memorandum is to provide to the lay reader a plain English, stand alone, explanation of the effect of the legislation and why it is necessary. It is not aimed at lawyers, but to help people who know nothing about the law or the subject quickly to gain an understanding of its intent and purpose.

In General

Individual headings are numbered whilst individual paragraphs following the individual headings are numbered as sub-paragraphs.

In preparing the Explanatory Memorandum, the departments usually ensure that they do not repeat the content of the Explanatory Note.

It is helpful to produce a single Explanatory Memorandum for a group of linked statutory instruments. This prevents unnecessary duplication of common background and makes sure that the reader is aware of the linkage. It may be helpful to explain (usually in the policy section) the special features of each statutory instrument and how it contributes to the overall policy objective. A copy of the group Explanatory Memorandum, in this case, should be attached to each of the individual statutory instruments to which it relates. Where possible all the statutory instruments usually are laid on the same day and numbered sequentially.

21-day Rule

It is a convention that an instrument should not be laid before parliament less than 21 days before it comes into force (see Statutory Instrument Practice section 4.13). Both the Merits Committee and the JCSI have an interest if the instrument breaches the 21-day rule. In such cases the EM should explain why the policy requires such urgent action and what the consequences of delaying the legislation to comply with the rule would be.

Problems with Departmental administration or a project plan are unlikely to be accepted by the Scrutiny Committees as sufficient reason for curtailing Parliamentary scrutiny.

About Headings

The title of the instrument are entered. The statutory instrument number are entered for all instruments which are registered before laying but should be left blank for instruments which are being laid in draft for affirmative resolution before they are made.

The name of the department are also entered. The instrument are laid before either “Parliament” or “the House of Commons” and depending on the choice made will decide the heading for Section 3.

Note: If the instrument does not contain information for either the Joint Committee on Statutory Instruments or the Select Committee on Statutory Instruments then the second paragraph should be deleted.

The heading are dependent on whether the instrument has been laid before Parliament (JCSI) or the House of Commons (SCSI).

Description of the Explanatory Memoranda

Paragraph(s) 2.1 onwards is a free text which should generally be limited to no more than 3 sentences. Plain English should be used to explain to the lay reader what the instrument does and why. Acronyms and terms of art should be explained or, better, avoided. Powers are generally irrelevant here.

Legislative Background

Paragraph(s) 4.1 onwards are free text.
The power under which the instrument is made is clear from the instrument itself and reference usually is not made to the power unless there is a specific reason to do so. For example, if this is the first use of a power under an Act or the power is being used in a novel way

In these paragraphs there is an explanation why the instrument is being made: for example, to implement a new Act or international obligation, to effect an annual uprating in line with inflation, or to amend the law following a significant court case.

Relevant background information usually are given to set the instrument in context. It is mentioned in particular:

• if in the course of debate, parliamentary question or Committee appearance any specific undertakings were given to Parliament that relate to this instrument (including Hansard or report reference where relevant).
• if this instrument relates to any other instruments (i.e. it is one of a group), please cross reference.

Territorial Extent and Application

Paragraph 5.1 – one of the options aree selected to indicate the area of application of the instrument. Although the extent of an instrument may be England and Wales, but the instrument only applies to England or Wales then “England” or “Wales” are selected.

Paragraph 5.2 – Sometimes is indicated here if the SI simply replicates for one part of the United Kingdom, legislation which already exists in another part.

Policy Background

Paragraph(s) 7.1 onwards will be free text.

Policy

Statutory Instruments drafting Departments generally state in particular:

• the policy objectives of the parent Act/Directive and how this instrument fulfils them
• the size and nature of the problem it is addressing
• the level of public interest in the policy, (for example from the response to consultation if undertaken, or from media attention), and
• whether the change is politically or legally important

Statutory Instruments drafting Departments usually ensure that, although brief, explanation should start from the basic. The Expanatory Memorandum is aimed at the lay reader: not just at the Scrutiny Committees but also Members of both Houses of Parliament. The documents usually explained any acronyms or technical terms e.g. SIPP, NOx, credit repair

The Explanatory Memoranda also usually make clear why the Government needs to legislate and what other avenues of attaining the desired objective (e.g. self–regulation through a voluntary code of practice) were explored and why they were rejected.

For “Miscellaneous Amendments” statutory instruments, the Explanatory Memoranda generally and briefly address each of the broad areas covered. If there is no obvious structure offered by the format of the instrument itself, one way of doing this is, by the drafter, to break the Regulations down into associated groups, e.g. regulations 4(a), 5(b) and 6(c) amend the definition of “incapacity” because …

Consultation

The memorandum usually set out who was consulted, over what period and with what responses. There are some analysis of the outcome and the Department’s policy response to the opinions expressed (e.g. “60% supported the proposal, of the rest, the main objections were on the proposed fee structure and the Department has responded to this by agreeing to phase in the increase over 3 years”). A brief analysis of consultation are, in general, in the final Regulatory Impact Assessment if one is provided, and the drafter cross refer to this, or refer to more detailed analysis on the Statutory Instruments drafting Departmental website if available.

Guidance

The memorandum usually set out what guidance or other form of publicity, if any, the Statutory Instruments drafting department is providing to users and stakeholders to explain the new obligation and to ensure that it is fulfilled. This is particularly important where a regulation is legally complex, for example a serial amendment or the implementation of a European obligation by multi-level cross-reference to European instruments.

Consolidation

Where an instrument amends another instrument, particularly if not for the first time, the memorandum, in general, indicates whether the department intends to consolidate the relevant legislation and if so, what the projected timescale for consolidation may be. If an informal consolidated text is available to the public for free, then the drafter provides details of the website or other reference from where this can be obtained.

Impact

Note: Where a Regulatory Impact Assessment has been prepared then this is attached as an Annex. There is no need to duplicate the information. If the drafter is recycling the Regulatory Impact Assessment prepared for an Act which this instrument helps implement, in geneal is only included the relevant extracts and confirm in the Explanatory Memoranda that the figures are still up to date.

If no Regulatory Impact Assessment has been prepared, usually this is because no impact on the private or voluntary sector is foreseen and there is a simply mention any public sector impacts.