Statutory Instruments made under pre-1948 Acts in United Kingdom

Introduction

To determine whether a document made after 1947 under an Act passed before 1948 is a statutory instrument, it is necessary to consider the effect of the following enactments:

• Statutory Instruments Act 1946 (‘the 1946 Act’), sections 1(2), 8(1)(d) and 9(1);
• Statutory Instruments (Confirmatory Powers) Order 1947 (‘the 1947 Regulations’), regulation 2;
• Statutory Instruments (Confirmatory Powers) Order 1947 (‘the 1947 Order’);
• Rules Publication Act 1893 (‘the 1893 Act’), sections 3 and 4:

The 1946 Act, the 1947 Regulations and the 1947 Order are printed in Part IX of this manual. The 1893 Act is repealed, but the sections mentioned are still material for present purposes, and section 4 is printed at the end of this Appendix.

Special provision was made in the legislation of 1946-47 with respect to instruments by which documents are confirmed or approved, and these instruments are considered in a separate section below (paragraphs 8-10). Instruments made under the 1946 Act itself are not within the scope of this Appendix, being statutory instruments by section 1(1).

The Documents

Documents which are statutory instruments

By section 1(2) of the 1946 Act and regulation 2(1)(a) of the 1947 Regulations a document is a statutory instrument if:

• it is made after 1947 under a statutory power conferred before 1948, and
• it is made by a ‘rule-making authority’ (see paragraph 4 below), and
• it is legislative, as opposed to executive, in character (see paragraph 5 below).

‘Rule-making authority’ is defined in section 4 of the 1893 Act; it means an authority who may make ‘statutory rules’ (also defined), and includes Her Majesty in Council, a Secretary of State, a Government Department (that is, a Minister in charge of a Department – see section 11 of the 1946 Act) and an authority empowered to make rules of court. It does not include a local authority or professional body. Legislative orders made by rule-making authorities have been deemed to be statutory instruments by the extended definition of ‘statutory rule’ in regulation 2(1) of the 1947 Regulations, notwithstanding that the definition in section 4 of the 1893 Act does not refer to orders.

The distinction between legislative and executive documents was carried into regulation 2(1)(a) from the Regulations made under the 1893 Act. The distinction is discussed in works on constitutional and administrative law, and in practice is not always easy to draw.

A further class of documents is brought within the statutory instruments series by regulation 2(1)(b) of the 1947 Regulations. This class comprises instruments made after 1947 which would, by virtue of an enabling Act passed before 1948, have been subject to the provisions of section 3 (printing, numbering and sale) of the 1893 Act if that section had not been repealed.

Documents which are excluded

Notwithstanding the provisions mentioned above the following are not statutory instruments, being excluded by regulation 2(3) of the 1947 Regulations:

Any document which, although of a legislative character, applies only to a named person or premises and is not required to be laid before or subject to confirmation or approval by Parliament or the House of Commons (regulation 2(3)(a); ‘person’ includes a body of persons corporate or unincorporate: Interpretation Act 1978, Schedule 1);

any document made under any of the enactments (which relate to the armed forces) set out in Part 1A of the Schedule to the 1947 Regulations (regulation 2(3)(c)).

Confirmatory documents which are statutory instruments

There was some uncertainty about the application of the 1893 Act to subordinate legislation which was confirmed or approved, but not made, by a rule-making authority. Where, however, the confirmation or approval is effected by an instrument made after 1947 under an Act passed before 1948, the question whether that instrument is a statutory instrument is governed by the 1947 Regulations, regulation 2(2) and 2(3)(a) and (b), and the 1947 Order.

Under the provisions of regulation 2(2) a confirming or approving instrument is not deemed to be a statutory instrument unless the confirmation or approval is required by the enabling Act to be given by Order in Council or by order of a rule-making authority. But regulation 2(2) is without prejudice to the 1947 Order, by virtue of which a further class of confirming or approving instruments are statutory instruments: namely, those which exercise a power conferred on a Minister of the Crown to confirm or approve subordinate legislation which, ‘being of a legislative and not an executive character’, is required to be laid before Parliament or the House of Commons.

Confirmatory documents which are excluded

A confirming or approving document will not be a statutory instrument if:

• it is excluded by regulation 2(3)(a) (see paragraph 7 above);
• it is excluded by regulation 2(3)(b), being an Order in Council for which the Lord President is the responsible authority (see regulation 1(2)(b)) and which confirms or approves subordinate legislation in the nature of a local and personal or private Act (for example, the statutes of a university);
• the document confirmed or approved is executive not legislative, since both regulation 2(2) and the 1947 Order relate to the confirmation or approval of subordinate legislation.

The Reference Committee

11. If there is doubt whether a document is a statutory rule for the purposes of section 1(2) of the 1946 Act, the Reference Committee (see paragraphs 5.2.1 – 5.2.4) may be asked to determine the question, pursuant to regulation 11(4)(c) of the 1947 Regulations.

The Rules Publication Act 1893 Section 4: Definitions

In this Act:

‘Statutory rules’ means rules, regulations, or byelaws made under any Act of Parliament which (a) relate to any court in the United Kingdom, or to the procedure, practice, costs or fees therein, or to any fees or matters applying generally throughout England, Scotland, or Ireland; or (b) are made by Her Majesty in Council, the Judicial Committee, the Treasury, the Lord Chancellor of Great Britain, or the Lord Lieutenant or the Lord Chancellor of Ireland, or a Secretary of State, the Admiralty, the Board of Trade, the Local Government Board for England or Ireland, the Chief Secretary for Ireland, or any other Government Department.

‘Rule making authority’ includes every authority authorised to make any statutory rules.