Affirmative Resolution Procedure: Validity and Judicial Revi...

Introduction

The affirmative resolution procedure is a formal process in UK Parliament for approving certain types of delegated legislation. It requires an affirmative vote, usually in both the House of Commons and the House of Lords, before a statutory instrument can take effect. This is different from the negative procedure, where an instrument becomes law unless annulled. The affirmative route is typically reserved for measures with significant policy impact, broad legal effect, or financial consequences. It provides a clear parliamentary check on how ministers use powers granted by Acts of Parliament.

What You'll Learn

• When the affirmative resolution procedure is used and why it matters
• The difference between draft affirmative and made affirmative instruments
• How an instrument moves through Parliament (laying, committee scrutiny, debate, vote)
• The legal effect of approval and what Hoffmann-La Roche tells us
• When and how courts can review an approved instrument, including ultra vires, patent and latent defects
• The presumption of validity and what it means for interim relief
• Practical steps for advisers, litigators, and students working with delegated legislation

Core Concepts

When is the affirmative procedure required?

• The enabling Act sets the procedure. It will specify whether an instrument must be approved affirmatively, is subject to the negative procedure, or follows another route.
• Affirmative approval is often required where:
  • The measure changes policy in a substantial way
  • Fees, charges, or taxes are affected
  • Powers allow amendment or repeal of primary legislation (often called Henry VIII powers)
  • Human rights or constitutional matters are engaged
• Some Acts require approval by both Houses; a few require only the Commons (for example, where financial matters are concerned). Always check the exact wording in the enabling Act.

Draft affirmative vs made affirmative

• Draft affirmative
  • A draft instrument is laid before Parliament.
  • It cannot be made or come into force until it has been approved.
  • Both Houses usually vote to approve. If either House refuses, the instrument goes no further.
• Made affirmative (urgent procedure)
  • The instrument is made and can come into force immediately.
  • It must then be approved within a set period (commonly 28 or 40 days, as specified by the enabling Act). If approval is not secured in time, it lapses.
  • This route is used where ministers consider delay undesirable, but parliamentary approval is still required to keep the instrument in force.

Parliamentary scrutiny: the step-by-step path

• Laying before Parliament
  • The instrument (or draft), Explanatory Memorandum, and any impact assessment are laid.
  • The laying date starts the clock for any statutory deadlines.
• Committee scrutiny
  • The Joint Committee on Statutory Instruments (JCSI) checks technical quality, including legality, drafting, and compliance with vires.
  • In the Lords, the Secondary Legislation Scrutiny Committee (SLSC) highlights policy issues and draws matters to the special attention of the House.
• Debate and approval
  • In the Commons, debates are often held in a Delegated Legislation Committee, with a formal approval vote in the Chamber.
  • In the Lords, debates may occur in Grand Committee or in the Chamber.
  • Parliament votes to approve or reject; instruments are not normally amendable by either House.
• Outcome
  • Approval in both Houses (unless the enabling Act says otherwise) is required.
  • Rejection in either House stops the instrument.

Legal effect after approval

• Once approved, an affirmative instrument is binding law. The House of Lords in Hoffmann-La Roche v Secretary of State for Trade and Industry [1975] AC 295 stressed that such instruments must be obeyed unless and until set aside.
• Approval does not convert an instrument into primary legislation. It remains subordinate to Acts of Parliament and must stay within the four corners of the enabling power.
• Parliament’s approval does not “cure” a measure that is outside the scope of the power granted by the Act. If ultra vires, it can be quashed.

Judicial review and the presumption of validity

• Grounds of review
  • Substantive ultra vires: the instrument exceeds what the Act permits or frustrates the purpose of the Act.
  • Procedural ultra vires: statutory procedures (consultation, publication, laying, or timing) were not followed.
  • Patent defects: obvious problems in the text or content of the instrument.
  • Latent defects: hidden issues, such as failure to consult or to consider relevant factors.
• Presumption and burden
  • Courts begin with a strong presumption that an approved instrument is valid.
  • The challenger bears the burden to show clear unlawfulness.
  • Interim relief is granted sparingly where Parliament has approved an instrument; applicants must show a compelling case, recognising the public interest in enforcing law on the statute book.
• Remedies
  • Quashing orders, declarations, and in appropriate cases suspended quashing orders (following the Judicial Review and Courts Act 2022).
  • Collateral challenges may be raised in criminal or civil proceedings where the validity of the instrument is central to liability.

Key Examples or Case Studies

Hoffmann-La Roche v Secretary of State for Trade and Industry [1975] AC 295

• Context: The Secretary of State made an order, subject to affirmative resolution, affecting drug prices. The company sought to restrain enforcement pending a challenge.
• Key point: The House of Lords confirmed that an instrument approved by both Houses is binding unless and until set aside. Courts are slow to grant interim injunctions against such instruments. Approval gives the measure strong legal force, without insulating it from review for ultra vires.

Public Law Project v Lord Chancellor [2016] UKSC 39

• Context: The Lord Chancellor made an order introducing a residence test for civil legal aid. The order had been approved by both Houses under the affirmative procedure.
• Key point: The Supreme Court quashed the order as outside the powers conferred by the enabling Act (LASPO 2012). Parliamentary approval did not validate an instrument that the Act did not authorise. This is the clearest modern example that affirmative approval and judicial review operate side by side.

Boddington v British Transport Police [1998] AC 143

• Context: A defendant prosecuted for breach of a byelaw argued that the byelaw was unlawful.
• Key point: The House of Lords held that individuals can mount a collateral challenge to subordinate legislation in criminal proceedings. Although not specific to affirmative instruments, it shows that validity can be tested outside standalone judicial review claims.

Practical Applications

• Working out the correct procedure
  • Read the enabling Act carefully. It will state whether the instrument is draft affirmative, made affirmative, or subject to the negative procedure.
  • Note any special timing rules or sitting-day calculations in the Act.
• Tracking an instrument through Parliament
  • Check the laying date and read the Explanatory Memorandum.
  • Review JCSI and SLSC reports for flags about legality, drafting, or policy significance.
  • Monitor scheduling of debates and the outcome of approval motions in both Houses.
• Assessing legal force and risk
  • Once approved, treat the instrument as binding law unless and until a court says otherwise.
  • For regulated entities, plan compliance while keeping legal challenges under review.
• Preparing a judicial review
  • Identify the precise source of power and the purpose of the Act.
  • Test for ultra vires: does the instrument go beyond what the Act permits or frustrate its scheme?
  • Check procedural steps: consultation, impact assessments, laying, timing, and any preconditions in the Act.
  • Gather evidence: Explanatory Memorandum, impact assessment, JCSI/SLSC reports, and where appropriate ministerial statements.
  • File promptly: claims must be brought promptly and in any event within three months from when grounds arose (subject to specific statutory limits).
  • Remedies and strategy: consider a declaration, a quashing order, or a suspended quashing order. Be realistic about interim relief given the presumption of validity.
• Collateral challenge
  • If facing enforcement or prosecution under an instrument, consider whether a collateral challenge to validity is available and appropriate.
• Exam and practice tips
  • Be clear on the differences between negative, draft affirmative, and made affirmative procedures.
  • Remember: approval does not fix ultra vires defects; Hoffmann-La Roche and Public Law Project are the headline cases.
  • Note that Parliament cannot usually amend an SI; it can only approve or reject.

Summary Checklist

• Confirm the procedure in the enabling Act (draft affirmative or made affirmative)
• Check laying, committee scrutiny, debate, and approval in both Houses
• Remember: approved instruments are binding unless and until quashed
• Identify grounds for review: substantive and procedural ultra vires
• Treat patent and latent defects differently but both are reviewable
• Apply the presumption of validity; interim relief requires a strong case
• Consider collateral challenge where appropriate
• Act promptly: JR time limits and any statute-specific deadlines
• Use Hoffmann-La Roche for legal force and interim relief; use Public Law Project for ultra vires despite approval

Quick Reference