What is Delegated Legislation?

• What is Delegated Legislation?

• How does the Assembly scrutinise Delegated Legislation?

• What does “Laying before the Assembly” mean?

• What is the role of the Assembly Committees?

• What is the SL1 Letter?

• What is the relevant Committee?

• Who is the Examiner of Statutory Rules (ESR) and what role do they play in scrutinising Delegated Legislation?

• What are the different Assembly Procedures for Delegated Legislation?

• What is a Commencement Order?

• What is the 21-Day Rule?

• Can Delegated Legislation be changed or opposed?

• What is a Prayer of Annulment?

• What is the Explanatory Memorandum?

What is Delegated Legislation?

Statutory Rules are a type of delegated legislation.  

They are made by rule making bodies, usually Northern Ireland Departments, in exercise of powers granted in primary legislation (e.g. Acts of the Northern Ireland Assembly, Acts of Parliament). Delegated Legislation may only be made in accordance with the powers granted in the parent legislation.

The primary legislation which grants the power is sometimes called the ‘parent’ or ‘enabling’ legislation.

Delegated Legislation is sometimes referred to as secondary or subordinate legislation.  It can be entitled Rules, Orders, Regulations, or Schemes.

Delegated Legislation is published online and is collected and published by the Statutory Publications Office in an official annual volume.

You can find information on individual Statutory Rules that have been scrutinised by the Northern Ireland Assembly on our website.

How does the Assembly scrutinise Delegated Legislation?

1. Assembly Committee considers a Department's proposal for Delegated Legislation (SL1), and records its position in the minutes of its meeting.
2. Department lays the Delegated Legislation before the Assembly; the Legislation is referred to an Assembly Committee and the Examiner of Statutory Rules for scrutiny.
3. Examiner of Statutory Rules carries out technical scrutiny of the Delegated Legislation and reports to the Committee and the Assembly.
4. Assembly Committee considers the Delegated Legislation and records the outcome of its scrutiny.
5. The Delegated Legislation may be debated in the Assembly Chamber.

Read a more detailed explanation of what happens at each stage:

What does “Laying before the Assembly” mean?

Delegated Legislation is laid before the Assembly, either after being made, or in draft, by the delivery of a copy to the Business Office of the Assembly.

Once received in the Assembly Business Office, the Legislation is listed in the Plenary Minutes of Proceedings, and sent to the relevant Assembly Committee and the Examiner of Statutory Rules; and a copy is sent to the Assembly Library.

What is the role of the Assembly Committees?

Committees have a scrutiny, policy development, and consultation role with respect to the Department with which it is associated. 

This includes the development and scrutiny of Delegated Legislation at two key stages: before the Delegated Legislation is laid when the Committee considers the proposals for Delegated Legislation as set out in the SL1 letter, and after the Delegated Legislation is laid when the Delegated Legislation is sent to the Committee and the Examiner of Statutory Rules for scrutiny.

Committee Scrutiny before the Delegated Legislation is laid: the SL1 letter

The proposal for Delegated Legislation is conveyed to the Committee in a letter called a SL1 letter and should include a draft of the proposed rule.  The SL1 letter should provide sufficient information for the Committee to carry out an informed policy scrutiny including matters such as the powers under which the Delegated Legislation is to be made; the purpose; any risks or unintended consequences of the rule; the Assembly procedure it will be subject to; and any human rights implications.

The Committee will publish both the SL1 and a draft of the proposed rule to seek views through a Citizen Space survey. It may call upon departmental officials or the Minister for an explanation of the proposals, either in writing or in oral evidence sessions held during meetings of the Committee.  The Committee may seek evidence from stakeholders, and other parties with an interest in the Delegated Legislation.

The key issue for the Committee at this stage of the process is whether it is content with the general policy thrust of what is proposed.

Committee Scrutiny after the Delegated Legislation is laid

Once Delegated Legislation has been laid, it is sent to the relevant Assembly Committee for scrutiny.

A Committee’s approach to scrutiny of Delegated Legislation once it has been laid is a matter for the individual Committee to determine. The Committee may request information from the Department, from officials or the Minister either in writing or in oral evidence sessions held during meetings of the Committee.  The Committee may also call for, or invite evidence from, stakeholders and parties with an interest in the Delegated Legislation.

The key issue for the Committee at this stage of the process is whether it is content with the Delegated Legislation and, depending on the type of Assembly control to which the Legislation is subject, whether it recommends to the Assembly that the Legislation be annulled, approved, or affirmed in the Assembly.

During this time, the Examiner of Statutory Rules carries out technical scrutiny of the Delegated Legislation, reporting to the Committee and the Assembly.

The Delegated Legislation considered by a Committee are listed as items of business in the Committee Agenda, available on the Business Diary.  The outcome of the Committee’s consideration of Delegated Legislation, or a proposal for Delegated Legislation (SL1 letter) recorded in the Committee’s Minutes of Proceedings, available on the Committees web page.

Who is the Examiner of Statutory Rules (ESR) and what role does the ESR play in scrutinising Delegated Legislation?

The Examiner of Statutory Rules assists the Assembly, and the Assembly’s Statutory Committees, in the technical scrutiny of Delegated Legislation and draft Delegated Legislation which are subject to procedures before the Assembly. 

This is under a formal delegation from the Committees of the Assembly. The remit of the Examiner of Statutory Rules is set out in Standing Order 43 of the Standing Orders of the Assembly.

Standing Order 43 says:

“In scrutinising an instrument the appropriate committee shall among other things consider the instrument with a view to determining and reporting on whether it requires to be drawn to the special attention of the Assembly on any of the following grounds, namely, that –

1. it imposes a charge on the public revenues or prescribes the amount of any such charge;
   
   
2. it contains provisions requiring any payment to be made to any Northern Ireland department or public body in respect of any approval, authorisation, licence or consent or of any service provided or to be provided by that department or body or prescribes the amount of any such payment;
   
   
3. the parent legislation excludes it from challenge in the courts;
   
   
4. it purports to have retrospective effect where the parent legislation confers no express authority so to provide;
   
   
5. there appears to have been unjustifiable delay in the publication of it or in the laying of it before the Assembly;
   
   
6. there appears to be a doubt whether it is intra vires or it appears to make some unusual or unexpected use of the powers conferred by the parent legislation;
   
   
7. it calls for elucidation;
   
   
8. it appears to have defects in its drafting;

or on any other ground which does not impinge on its merits or the policy behind it.”

These reports are published on the Assembly website.

Why is some Delegated Legislation considered in the Assembly Chamber while others are not?

Delegated Legislation is considered in the Assembly Chamber if they must be voted on by the Assembly in order to come into force, or continue to be in force; or if a Committee or a Member wishes to debate and vote on a motion to strike down (annul) Legislation which is subject to the negative resolution procedure.

Delegated Legislation subject to Negative Resolution Procedure are only considered in the Assembly Chamber if a Member is seeking to strike down the Delegated Legislation. Other Delegated Legislation (i.e., those subject to Affirmative, Draft Affirmative, or Confirmatory procedure) must be debated and voted on in the Assembly Chamber as part of the process of making the Legislation, its coming into force, or remaining in force.

What are the different Assembly Procedures for Delegated Legislation?

Delegated Legislation which is laid before the Assembly may be subject to one of the following Assembly procedures. The procedure to which any Delegated Legislation is subject will be set out in the parent legislation.

The parent legislation is the legislation which, in any particular case, gives the Department or rule-making body the power to make the Delegated Legislation. It will set out the circumstances in which Delegated Legislation may be made.

The different types of Assembly procedure are:

Negative Resolution Procedure

Affirmative Resolution Procedure

Draft Affirmative Resolution Procedure

Confirmatory Resolution Procedure

What does it mean if Delegated Legislation is subject to Negative Resolution Procedure?

The procedure to which any Delegated Legislation is subject will be set out in the parent legislation. The Negative Resolution Procedure is the most frequently used procedure.

Delegated Legislation that is subject to the Negative Resolution Procedure is made by the rule making body, often a Department, and then laid before the Assembly. It is law when its ‘comes into force’ date is reached. This is set out in the Delegated Legislation.

During the ‘statutory period’, a Member of the Assembly may bring a motion to the Assembly for debate, seeking to strike down the Delegated Legislation.  This type of motion is called a Prayer of Annulment.

If a Member of the Assembly brings forward a motion to annul, that is, to strike down the Delegated Legislation, the Assembly will vote after a debate on the motion.

If the Assembly votes in favour of the motion to annul the Delegated Legislation, the Legislation is struck down or annulled. It is no longer part of the law from that date.

If the Assembly votes against the motion to annul the Delegated Legislation, the Delegated Legislation remains part of the law.

The statutory period is set out in section 41 of the Interpretation Act (Northern Ireland) 1954. It is 30 calendar days, or ten days on which the Assembly has sat, after the date on which the Delegated Legislation was laid before the Assembly, whichever is longest.

What does it mean if Delegated Legislation is subject to Affirmative Procedure?

The procedure to which any Delegated Legislation is subject will be set out in the parent legislation.

Delegated Legislation which is subject to the Affirmative Resolution Procedure is made by the rule making body, often a Department, and then laid before the Assembly.

Delegated Legislation subject to Affirmative Resolution Procedure are made by the Department or rule making body before they are laid before the Assembly, but cannot come into force until they have been affirmed by a vote of the Assembly.

The Minister of the relevant Department will bring a motion to the Assembly for debate in the Assembly Chamber in order for the Assembly to vote to affirm the Delegated Legislation or to reject it.

If the Assembly votes in favour of the motion, the Delegated Legislation becomes part of the law and comes into force on the day specified in the text of the rule.

If the Assembly votes against the motion, the Delegated Legislation does not come into force.

The Legislation is laid with the following italicised heading at the top of the first page of the Legislation –

“Regulations / Order laid before the Assembly under [statutory provision] and subject to affirmative resolution procedure of the Assembly”.

When the Legislation has been affirmed by the Assembly it is printed again with the italicised heading removed and the date of Assembly approval inserted between the making and coming into force dates –

“Affirmed by resolution of the Assembly on ….”

What does it mean if Delegated Legislation is subject to Draft Affirmative Procedure?

The procedure to which any Delegated Legislation is subject will be set out in the parent legislation.

Delegated Legislation subject to Draft Affirmative Procedure cannot be made by the Department or rule making body, and cannot come into force, until they are approved by a vote of the Assembly. They are laid before the Assembly in draft form.

The relevant Minister will bring a motion to the Assembly for debate in the Assembly Chamber in order for the Assembly to vote to either affirm that the Delegated Legislation can be made or to reject it.

If the Minister of the relevant Department brings forward a motion to affirm the Delegated Legislation, the Assembly will vote after a debate on the motion.

If the Assembly votes against the motion, the Delegated Legislation cannot be made.

If the Assembly votes in favour of the motion, the Draft Delegated Legislation can be made. It becomes part of the law when made by the Department or rule making body and comes into force on the day specified in the text of the rule.

Draft Legislation will not have a number when it is laid before the Assembly, and at the top of the first page, there should be printed a note in italics –

“Draft [Order][Regulations][Rules] laid before the Assembly under (statutory provision) for approval”.

When Assembly approval has been given, and before the Legislation is made, the Legislation is numbered and on the first page, above the made date the following text appears –

“Laid before the Assembly in draft”.

What does it mean if Delegated Legislation is subject to Confirmatory Procedure?

The procedure to which any Delegated Legislation is subject will be set out in the parent legislation.

Delegated Legislation which is subject to Confirmatory Resolution Procedure is made by the rule making body, usually a Department, and then laid before the Assembly.

It ceases to have effect within a specified period provided for in the parent legislation unless it has been approved by a resolution of the Assembly within that time.

If the Assembly votes in favour of a motion to confirm the Delegated Legislation, it will remain law.

If the Assembly votes against a motion to confirm the Delegated Legislation, the Delegated Legislation ceases to have effect from that day.

When it is made, the Legislation will have an italicised heading at the top of the first page –

“Regulations / Order made by the Department of [ ] and laid before the Assembly under [ ] for approval of the Assembly before the expiration of [6] months from the date of their / its coming into operation”.

If the rule is approved by the Assembly, it is printed again by the Department with the heading omitted and an entry inserted below the operative date –

“Approved by resolution of the Assembly on ..”.

What does it mean if Delegated Legislation is Not Subject to Assembly Procedure?

There are some Delegated Legislation which are required to be laid before the Assembly but no provision is made for any Assembly procedure and others which may not be required to be laid.

With such Legislation there are no further Assembly proceedings, but they may be provided to the Assembly for information purposes and a Committee, if it wishes, may consider any provisions it contains within the Committee’s remit.

What is a Commencement Order?

A commencement order is a type of Delegated Legislation that appoints the day to commence, that brings into force, provisions in other legislation which has already been made. Transitional provisions (setting out the arrangements in place to regulate matters when moving from one set of legislative arrangements to another) are sometimes included in commencement orders if this is authorised by the enabling legislation. Commencement Orders may be laid in the Assembly and provided for information purposes.

What is the Statutory Period?

The statutory period is the period of time during which the Assembly can annul (strike down) Delegated Legislation which is subject to the Negative Resolution Procedure.

The statutory period is set out in section 41(2) of the Interpretation Act (Northern Ireland) 1954.

It is 30 calendar days, or ten days on which the Assembly has sat, after the date on which the Delegated Legislation was laid before the Assembly, whichever is longest.

What is the 21-Day Rule?

The 21-day rule applies only to Delegated Legislation that are subject to Negative Resolution Procedure. It is the well-established parliamentary practice that a minimum of 21 calendar days should ordinarily elapse between the date on which Delegated Legislation is laid before the Assembly, and the coming into force of the Delegated Legislation.

The purpose of the 21-day rule is to allow the Assembly, including the relevant Committee and the Examiner of Statutory Rules carrying out technical scrutiny on the Committees’ behalf, an opportunity to consider the Delegated Legislation before it comes into operation. 

The 21-day rule also acts to protect those who may be affected by changes in the law from being subject to those changes before they have had a reasonable opportunity to understand the effect of the changes and what they must do to satisfy any requirements of the new law.

The 21-day rule is distinct from the statutory period. 

Can Delegated Legislation be changed or opposed?

The opportunity for a Committee to influence the content of Delegated Legislation is when it is being developed by the relevant rule making body or Government Department. Government Departments are responsible for developing and consulting on the policies and the parent legislation that is given effect through the Delegated Legislation. 

A Committee cannot amend or adapt Delegated Legislation after it has been laid – it can only recommend that the Assembly support or reject the Delegated Legislation as a whole.

What is a Prayer of Annulment?

A Prayer of Annulment is a motion tabled by a Member of the Assembly, or the Chairperson of an Assembly Committee calling for a particular Delegated Legislation which is subject to the Negative Resolution Procedure, to be struck down (annulled).

The Member who tabled the motion will make a speech and other Members may also, in turn, add their views. The Minister of the Department that made the Delegated Legislation will have the opportunity to put his or her case either opposing, or not as the case may be, the motion and addressing any issues raised by Members.

At the end of the debate, the Assembly will be asked to vote on the motion “That the [Name of the Delegated Legislation] be annulled”.  If the motion is approved, then the Delegated Legislation ceases to be part of the laws of Northern Ireland.  If the motion is defeated, then the Delegated Legislation continues in force as part of the laws of Northern Ireland.

What is the Explanatory Memorandum?

Delegated Legislation laid before the Assembly are accompanied by an Explanatory Memorandum.  The Explanatory Memorandum along with the Delegated Legislation's Explanatory Notes (at the back of the Delegated Legislation) should provide sufficient information to gain a full understanding of the purpose and background to the Delegated Legislation and what the main provisions will do.

Explanatory Memoranda are published on www.legislation.gov.uk along with the Delegated Legislation, along with any additional documents (for example, an impact assessment or transposition notes) that have been prepared for Delegated Legislation.

What is the relevant Committee?

The ‘relevant Committee’ is the Assembly Committee established to scrutinise the work of the Department responsible for the making of the Delegated Legislation.

Occasionally, Legislation will be made jointly by two or more Departments, and in this case, the relevant committees would each scrutinise the Delegated Legislation.