What are the differences, if any, between statutory rules, orders and regulations?
The nature of primary legislation has already been discussed (December 9 1995). “Secondary legislation” may be defined as any written, enacted law made by any person in the exercise of a power delegated to him by parliament. The “person” in question might not be an individual person or even a natural person. It might be a committee of law-makers, or a corporate body such as a local authority.
Secondary legislation is also known as “subordinate” or “delegated” legislation. It is convenient to subdivide this legislation into statutory instruments and byelaws. Byelaws have already been discussed (March 19 1994).
By section 1 of the Statutory Instruments Act l946, a statutory instrument is defined as: any order, rule, regulation or other subordinate legislation made, confirmed or approved by the Queen-in-council by means of a statutory order-in-council, or by a minister of the Crown using any statutory power conferred on him (if that power is expressed to be “exercisable by statutory instrument”).
Orders-in-council
An Order-in-council is a legislative enactment made by the Queen-in-council, rather than by the Queen-in-parliament. The “council” referred to is the Privy Council, members of which are denoted by the words “right honourable” in front their names and the initials “PC” after them. Orders-in-council are enacted by a small group of privy councillors, usually government ministers, summoned by the Lord President of the council (a government minister).
Although it is convenient to discuss orders-in-council as a form of delegated legislation (for most come within this category), there is a vestigial category of such orders which are “prerogative” in nature. In other words, they are a form of primary legislation, deriving their authority from the inherent powers of the Crown, not from the powers of parliament.
Prerogative orders-in-council
These are not statutory instruments. They do not need to recite any statutory authority for the rule-making powers which they exercise. The enacting words simply proclaim that Her Majesty “in the exercise of all her powers in that behalf hereby makes the following order”.
Prerogative orders-in-council are rare because of the combined effect of three fundamental principles:
- Common law defines the scope of the royal prerogative, not vice versa. Bracton, in the 13th century, wrote that “the King should not be under a man, but under God and the law”. This was affirmed by the courts in the 17th century when Sir Edward Coke (and three other judges) stated that “the King hath no prerogative but that which the law of the land allows him”: Case of Proclamations (l611) 12 Co Rep 74.
- A prerogative power is incapable of existing in the face of a statutory power which expressly, or even impliedly, deals with the same subject-matter. This was the upshot of the famous case on the alleged power of the government to take land during time of war without paying compensation for it: Attorney-General v De Keyser’s Royal Hotel Ltd [0] AC 508.
- The royal prerogative is a closed book. It cannot give rise to new governmental powers. Unlike the torts of nuisance and negligence, it is not one of those concepts where a judge could ever lawfully say: “the categories of the royal prerogative are never closed”. On the contrary, in British Broadcasting Corporation v Johns [5] Ch 32, Diplock LJ rejected the argument that the BBC was the embodiment of a prerogative power to control broadcasting (and therefore exempt from income tax).
Scope for a prerogative order-in-council is very limited. The Court of Appeal’s decision in Post Office v Estuary Radio [l967] 3 All ER 663 is a rare example of a prerogative order-in-council – the Territorial Waters Order 1964 – being interpreted by the English courts. This case related the precise metes and bounds of UK territorial waters in the Thames Estuary.
Statutory orders-in-council
Just as parliament may delegate rule-making powers to a minister of the crown, so may it also delegate such powers to the Queen-in-council. This is usually done when it is desired to give the maximum amount of dignity, publicity and moral force to the legislation in question, or when the government wishes to legislate as if it were an entity, rather than a collection of individual ministers and departments of state. An example might be the proclamation of a state of emergency under the Emergency Powers Act 1920 or the extension of British legislation to dependant territories.
Orders-in-council of this sort are known as “statutory orders-in-council”. They are classified as a species of statutory instrument and are given an “SI” number. The authority for such legislation comes from parliament via a “parent Act”, and the power of the Queen-in-council is not then limited to the powers of the royal prerogative. Like all forms of delegated legislation, statutory orders-in-council are subject to the ultra vires rule if the rule-making power given by parliament is exceeded or abused.
Even prerogative orders-in-council are subject to judicial review, because, as we have already seen, the royal prerogative itself exists only to the extent recognised by the common law and left unaffected by statute law. Even if a prerogative power to legislate on a certain matter exists, eg to regulate the terms and conditions of employment of civil servants, the manner of exercising that power may (sometimes) be open to judicial review: Council of Civil Service Unions v Minister for the Civil Service [5] AC 374.
Rules, orders and regulations
The Statutory Instruments Act 1946 refers to “orders, rules, regulations, or other subordinate legislation”. About 3,000 statutory instruments are brought into force every year. Some are called “rules”; some “orders” (although these are not usually orders-in-council); some “regulations”; and some are given other titles. Here are some examples from 1993.
Rules:
Asylum Appeals (Procedure) Rules 1993 (SI No 1661).
Employment Appeal Tribunal Rules 1993 (SI No 2854).
Orders:
A1 Trunk Road (Haringey) (Bus Lanes) Red Route Traffic Order 1993 (SI No 897).
East Kent Light Railway Order 1993 (SI No 2154).
Regulations:
Council Tax (Alteration of Lists and Appeals) Regulations 1993 (SI No 290).
Hill Livestock (Compensatory Allowances) Regulations 1993 (SI No 2631).
Other subordinate legislation:
Birmingham City Council (Grand Union Canal Bridge) Scheme 1991 Confirmation Instrument 1993 (SI No 2662).
Farm and Conservation Grant (Variation) Scheme 1993 (SI No 2901).
The terminology used in the naming of statutory instruments was investigated by the committee of ministers’ powers, originally under the chairmanship of the Earl of Donoughmore (1875-1948). This committee had been established in 1929 as a result of Lord Hewart’s book, The New Despotism, which had roundly criticised the over-wide bestowing of legislative powers on ministers of the crown. (Lord Hewart was Lord Chief Justice at the time.)
This committee’s report was published in 1932 and, on the question of terminology, it recommended that the nomenclature should broadly reflect the three powers of government:
- The legislative power of the state (or the power to control of the purse)
True subordinate legislation, ie the enactment of rules intended to regulate future conduct, should be called regulations. These might identify what forms of conduct would amount to a criminal offence, fall foul of certain standards, justify certain approvals or merit certain awards. - The executive power of the state (or the power to control of the sword)
Executive and quasi-judicial decisions of an administrative nature should be called orders. Examples are “commencement orders” (bringing an Act of parliament, or part of it, into force) and “compulsory purchase orders” (authorising the acquisition of land). Whereas true legislation is intended to be enduring, an executive act is often instantaneous in its nature, although it may be permanent, irreversible or long-lasting in its effects, eg the introduction of a traffic scheme. - The judicial power of the state (or the power to exercise judgment)
Provisions of a procedural nature should be called rules. For example, subordinate legislation is often used to set out the procedures to be followed by courts or tribunals, or by the parties to planning inquiries or compulsory purchase appeals. Such legislation is also used, on occasion, to impose time-limits or to set out rights of appeal to higher courts or tribunals. Examples of such statutory instruments are the Rules of the Supreme Court and the County Court Rules.
Difficulties with terminology
In some cases it is difficult to know whether a statutory instrument is legislative, executive or procedural. For example, a statutory instrument is the usual method chosen by parliament to publish the form and content of documents (notices and the like) which are required to convey specified statutory information or to comply with a particular pro forma.
Such documents are well known to estate managers and other general practice surveyors. The rights of a client may sometimes stand or fall according to whether the latest statutory instruments have been complied with. Such instruments could logically be entitled an “order”. They embody the executive decision of a minister of the crown to insist on the use of a particular form or the giving of particular information in a specified way.
On the other hand, such forms or documents may often have a procedural importance. They may embody the notice which a landlord has to serve upon his tenant (or a tenant upon his landlord) in order to initiate the procedures relating to the termination or regranting of a tenancy.
In civil litigation or administrative law, the statutory instrument in question may contain the pro forma which has to be used in order to exercise a right of appeal. Accordingly, a good case could be made for calling such instruments “rules” (rather than “regulations” or “orders”).
The view which seems to have been taken by the government is that these statutory instruments should be called “regulations”. This is because they can be interpreted as a form of published information intended for the future guidance of persons who need to serve the notices in question, or to use the documentation or the form of words prescribed by law, or to assess the validity of notices or documents which have been served on them. Viewed in this way, such instruments can be described as legislative in character. Obvious examples are the Notices to Quit (Prescribed Information) Regulations and the Assured Tenancies and Agricultural Occupancies (Forms) Regulations.
“Rule of law”
Lawyers have always been suspicious of subordinate legislation in all its forms because it creates the danger of executive law-making and the imposition of obligations without due process of law. This veneration of legality is reflected in Magna Carta 1215 (as reissued in 1297):
No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him but by lawful judgement of his peers, or by the law of the land.
Professor Dicey included an element of “due process” in his famous definition of the “rule of law” in his book The Law of the Constitution (1885):
. . . it [the rule of law] means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, or prerogative, or even wide discretionary authority on the part of the Government.
Such sentiments are not outdated. In Porter v Honey [l989] 1 EGLR 189 the House of Lords had to consider the proper interpretation of the Town and Country Planning (Control of Advertisement) Regulations 1984. According to the literal interpretation of these regulations, an estate agent would have been guilty of a criminal offence if (without his knowledge or consent) another person added a second “For Sale” board to the land where the estate agent’s own board was already lawfully displayed. The House of Lords refused to interpret the regulations in this way. Lord Griffiths observed:
The courts should surely be slow to impute to Parliament so harsh an intention as to impose criminal liability on a citizen acting lawfully because another citizen, over whom he has no control, acts unlawfully. We are dealing here with delegated legislation which does not receive the scrutiny of primary legislation.
Pre-legislative consultations
Although parliamentary control of subordinate legislation is almost non-existent, it would be a mistake to assume that such legislation always lacks due process of law. Modern government cannot be effectively carried out without the executive having rule-making powers. Parliament does not have time to discuss matters of precise detail and the legislative process is often very slow. One difference between primary and subordinate legislation is that parliament can make amendments to a Bill, but it cannot propose an amendment to a statutory instrument even if, which is unlikely, it gets an opportunity to vote upon the proposal.
One safeguard often employed is to couple with the rule-making power an obligation to consult interested parties before finalising the wording of a statutory instrument. This obligation has to be expressly imposed by parliament upon the minister in question. It will not be implied as a rule of common law. The rules of natural justice do not apply to the exercise of legislative powers: Bates v Lord Hailsham of St Marylebone [l972] 3 All ER 1019.
Where parliament imposes a duty to consult interested parties, a statutory instrument may be ultra vires, and therefore void, if the minister does not comply with this duty.
In the case of statutory instruments laying down procedural rules for certain tribunals, the minister concerned cannot validly exercise his rule-making power without first consulting the Council on Tribunals: see section 8 of the Tribunals and Inquiries Act 1992.
The tribunals in question are listed in Schedule 1 to the 1992 Act, and include industrial tribunals, the Lands Tribunal, rent assessment committees, social security appeal tribunals and many others.
Tertiary legislation
Many though the varieties of secondary legislation can be, students and chartered surveyors will also come across such documents as codes of practice, approved standards, circulars and planning policy guidance notes. When referred to in court, the person doing so may have to answer the question from the judge: “Is this a rule-making document?”
The strict answer is that these documents are not legislative in nature – they are not, for example, statutory instruments.
Nevertheless, they are quasi-legislative in nature. They are referred to (expressly or impliedly) in Acts of parliament and are said to constitute “material considerations” which must, as a matter of law, be taken into account before a statutory power is exercised or a relevant decision made.
Thus, such documents may be referred to as “tertiary legislation”. More usually, however, they are called “quasi-legislation”.
