Special Procedure Orders in United Kingdom

Introduction

‘Special procedure order’ means an order, scheme, certificate or byelaws in relation to which the Statutory Orders (Special Procedure) Act 1945 as amended by the Statutory Orders (Special Procedure) Act 1965.

Note: The following information is intended to provide information about special procedure orders. The information does not deal with proceedings in Parliament, but with points of practice which are preliminary to, or consequent upon, such proceedings.

The number of Special Procedure Orders required to be made under the Statutory Orders (Special Procedure) Act 1945 as amended by the Statutory Orders (Special Procedure) Act 1965 are now few in number, relating only to cases where certain protected categories of land are subject to compulsory acquisition. Further information about special procedure orders will be found in Erskine May’s Parliamentary Practice (23rd edition, pages –978 – 79, cited below as ‘May’).

 

The primary sources of authority on special parliamentary procedures are the two Acts mentioned (which may be cited together as the Statutory Orders (Special Procedure) Acts of 1945 and 1965) and the Private Business Standing Orders of the House of Lords (SO 203 – 215) and Commons (SO 237 – 248A). The Statutory Orders (Special Procedure) Act 1945 as amended by the Statutory Orders (Special Procedure) Act 1965, and two Orders in Council made under it, are printed at the end of the Standing Orders.

Depending upon the provisions of the enabling Act, a Minister may make a special procedure order of his own motion, or he may make or confirm it on the application of some body (‘the applicant’) such as a local authority or statutory undertaker. The order is not to be laid before Parliament until the preliminary requirements prescribed in the enabling Act or, if none are prescribed there, in Schedule 1 to the Special Procedure Act (that is, the Statutory Orders Act 1945 as amended by the Statutory Orders Act 1965) have been complied with (s 2(1)) (references in the form ‘s2’ are to the sections of the Special Procedure Act). Some types of order are invariably subject to special parliamentary procedure, others only in particular circumstances, as for example where objections made during the preliminary proceedings have not been withdrawn.

Scotland

Where a special procedure order extends to Scotland only there are differences in the procedure; they are set in section 10 of the Special Procedure Act and described in May (21st Edition, pages 963 – 64). A few distinctively Scottish points of practice are mentioned in these notes. For the most part, however, the differences occur in the preliminary stages, or in the proceedings in Parliament, and are outside the scope of the notes.

Special procedure orders which are statutory instruments

Some special procedure orders (though probably a minority) are required by the enabling Act to be made as statutory instruments. These are, as regards form and procedure, excepted from some of the requirements which normally apply to statutory instruments. Thus:

• It is not mandatory, although it is usual, for them to have italic headings giving dates of laying and commencement (see Dates of making, laying and coming into force of Statutory Instruments). (In the case of special procedure orders which are not statutory instruments, it is not unusual for these headings to be omitted).
• They are subject to special registration procedure: see in this legal Encyclopedia.

It may not be possible to specify the date on which a statutory instrument will come into force if it is, or may become, subject to special parliamentary procedure. In such a case the preamble may include a recital to the effect that the order will not come into force until the relevant statutory provisions have been complied with. If the reason for the absence of a commencement clause was otherwise apparent from the terms of the order, a recital of that kind would be unnecessary.

Notice in the Gazette

Notice of the Minister’s intention to lay a special procedure order before Parliament is to be published in The London Gazette after the preliminary proceedings have been completed and not less than three days before it is laid (s 2(1)). This requirement does not apply to an order extending to Scotland only.

Preparation of copies

In preparing the copies of a special procedure order which are to be laid before Parliament, and deposited with each House (see paragraph 13 below), the following points require attention:

• The appropriate headnote should be inserted (whether or not the order is a statutory instrument) (see the section about Forms and Precedents).
• In an order which is a statutory instrument, the serial number should be left blank.
• Such of the italic headings as are provided should be completed so far as practicable at this stage.
• The signature, and the date of signature, should be inserted.
• The order must be endorsed with the name and address of the applicant, if any (Private Business Standing Orders of the House of Lords 205(2) HL), Private Business Standing Orders of the Commons 239(2) HC); see Endosement of Orders below).

Both Houses will accept copies produced from the SI template. If, however, the order is to be printed before laying, it is sent for that purpose direct to TSO, not through HMSO, and it may be advisable to consult TSO about the proposed date of laying.

Laying before Parliament

The Order is laid before Parliament, but it may be aid only on a sitting day (see in this legal Encyclopedia). With the order there is to be laid a certificate by the Minister (in practice usually signed by an official), giving particulars of the preliminary requirements to which the order is subject, and certifying that they have been complied with. Where a local inquiry has been dispensed with in accordance with any such requirements, the certificate is to include a statement to that effect (s 2(2)). If the order extends to Scotland only, a statement (not a certificate by the Minister is required, and must cover prescribed matters (s 10(2)). One signed certificate or statement and two copies, all having appended the note mentioned in the next paragraph, are laid before each House.

Below the certificate or statement just referred to, there should be a note setting out clearly the reason why the order is subject to special parliamentary procedure. In a case where part only of the land specified in the schedule to a compulsory order has attracted the special procedure, the note should give such particulars as will enable that part to be identified in the schedule. The description of the land should make clear why it comes within the ambit of the procedure. Examples of such notes are given in the Annex to this Appendix. The provision of them is a rule of practice (not of statute or the Standing Orders).

Provision of copies

On the day on which they are laid, copies of the order and certificate or statement (with the note) should be deposited as follows:

• Five copies in the Printed Paper Office, House of Lords; if a further 25 copies are required, the Department will be informed;
• One copy in the Private Bill Office, and 25 copies in the Vote Office, House of Commons.

The above steps are accepted as a sufficient compliance with the standing orders relating to the deposit of copies (Private Business Standing Orders of the House of Lords 205(1)(HL), Private Business Standing Orders of the Commons 239(1)(HC)).

In addition, 22 copies of the order and certificate (with the note) should be supplied to the Joint Committee on Statutory Instruments. All special procedure orders, whether or not statutory instruments, are within the terms of reference of the Committee.

Copies of the order and certificate are also to be made available to any person on application to the Minister and on payment; but the order is excepted from this provision if it is a statutory instrument required to be printed and sold (Private Business Standing Orders of the House of Lords 205(1)(HL), Private Business Standing Orders of the Commons 239(1)(HC); as to printing and sale, see paragraphs, in this legal Encyclopedia).

Endorsement of orders

The name and address of the applicant (if any) is to be endorsed on all copies of the order laid before Parliament, and on all copies provided for the purposes mentioned in the two preceding paragraphs (Private Business Standing Orders of the House of Lords 205(2)(HL), Private Business Standing Orders of the Commons 239(2)(HC)).

Maps and plans

If under a special procedure order it is proposed to authorise the compulsory acquisition of land, or of rights to use land, or if the order relates to any works or area of land or water described by reference to a map or plan, a copy of a map or plan of the land or works or area is to be laid with the order before the House of Lords (as to the preparation of maps or plans for that House, see in this legal Encyclopedia); and a copy is to be deposited in the Private Bill Office of the House of Commons on the day on which the order is laid before that House (Private Business Standing Orders of the House of Lords (HL), Private Business Standing Orders of the Commons 239A(HC)). In addition the Joint Committee on Statutory Instruments should be supplied with six copies or, if the map is large and expensive to reproduce, with as many as may be feasible.

Consequences of parliamentary proceedings

Proceedings in Parliament relating to special procedure orders are described in Erskine May (23rd edition, pages –978 – 79), and are not within the scope of these notes. The course taken by those proceedings is material in determining the date upon which the order comes into operation (see s6 and Erskine May 21st edition, page 962). It also determines the further steps to be taken by the Department, which are the subject of the following paragraphs.

Order not amended

Where there has been no joint committee and neither House has resolved during the resolution period that the order be annulled, or where the order has been reported by a joint committee without amendment, the steps to be taken are as follows:

• The headnote and endorsement of the order are expunged, and any incomplete italic heading is completed. (These steps are sometimes omitted if the order is not reprinted.)
• If the order is not a statutory instrument, the Department arranges for the production of such further copies as are required.
• If the order is a statutory instrument which is not to be printed, it is sent to HMSO for registration, and the Department arranges for the production of such further copies as are required.
• If the order is a statutory instrument which is to be printed, it is sent for registration by HMSO, and then for printing by TSO, who will put copies on sale and supply them to Parliament.
• If the order is a statutory instrument which is to be printed, but it is intended that a schedule or other document forming part of it should be exempt from printing, the procedure described in this legal Encyclopedia is followed.

Order amended and taking effect

Where a special procedure order has been reported by a joint committee with amendments, and the Minister accepts that it should take effect as amended, it is to come into operation as amended on such date as the Minister may, by notice given in the prescribed manner, determine (s 6(2)). ‘Prescribed’ means prescribed by the standing orders of each House (ss 9,11(1)), which require that the notice shall be published in The London Gazette or The Edinburgh Gazette, or both, according to the territorial extent of the order; and, in the case of an order relating to a particular area, in at least one newspaper circulating in that area (Private Business Standing Orders of the House of Lords 214(1)(HL), Private Business Standing Orders of the Commons 248 (1) (HC)).

Amendments are made to the order so that it is as reported by the joint committee, and the words ‘Printed as amended under the Statutory Orders (Special Procedure) Act 1945’ are inserted in italics. Subsequent procedure follows that for an unamended order (see Order not amended above).

Amended order withdrawn

If an order has been reported by the joint committee with amendments, and the Minister considers it inexpedient that the order should take effect as amended, he may withdraw it by giving notice in the manner prescribed in the standing orders. A copy of the notice must be laid before each House within four days of publication (Ss 6(2) proviso, 9, 11(1); Private Business Standing Orders of the House of Lords 214 (HL), Private Business Standing Orders of the Commons 248 (HC)).

Bills to confirm special procedure orders

Where an order has been reported by the joint committee with amendments, the Minister may, as an alternative to withdrawing it, present a bill to confirm it. A similar course may be taken if the committee have reported that the order be not approved. In either case the bill is treated as a public bill, but the normal procedure is modified (see s 6, and May 21st edition, pages –962 – 963).

Effect of dissolution of Parliament

The effect of a dissolution of Parliament upon special procedure orders is mentioned in that entry. There, it is explained that Special procedure orders: these are exempted from relaying by the practice of the House of Lords and by virtue of Private Business Standing Order No 247 of the House of Commons, and proceedings begun in the last Parliament may be resumed in the new Parliament. Time during which Parliament is dissolved is excluded from the petitioning period of 21 days.