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Are all statutory instruments in the United Kingdom subordinate to an Act passed by Parliament?

If so, is the intention that the thrust of law is democratically accountable, but for expediency the details can be passed with less democratic oversight?

IIUC EU directives are often implemented using statutory instruments and the “negative resolution procedure”, but these are presumably subordinate to an Act passed in 1973(?) when we acceded to the EC?

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    Basically, the answer to your question is yes. Does the Wikipedia article leave you with more specific questions? Or do you have questions about how this applies to some specific act or statutory instrument? – phoog Oct 29 '18 at 15:30
  • Thank you. In that case, I have a question about limits on statutory intruments to maintain democratic legitimacy. I will ask another question. – Ben Oct 29 '18 at 15:31
  • Do you want this question to be specific to England? Or is it the UK in general? – owjburnham Oct 29 '18 at 20:09
  • I have amended the question to say UK. Thank you. – Ben Oct 29 '18 at 20:13
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Are all statutory instruments in the United Kingdom subordinate to an Act passed by Parliament?

In a strictly technical sense, yes - but only because a statutory instrument is by definition legislation issued under a power granted by Act of Parliament.

Specifically, the Statutory Instruments Act 1946 defines an SI as follows:

Where by this Act ... power to make, confirm or approve orders, rules, regulations or other subordinate legislation is conferred on His Majesty in Council or on any Minister of the Crown then ... any document by which that power is exercised shall be known as a “statutory instrument” and the provisions of this Act shall apply thereto accordingly.

(Some text omitted.)

However, if the question is also seeking legislation of any kind which is not subordinate to an Act, then as Dale M's answer suggests, the government (acting in the name of the Monarch) is able to use powers under the Royal Prerogative. In particular:

An Order in Council made under the Royal Prerogative is primary legislation, and does not depend on any statute for its authority, although an Act of Parliament may change this. This type has become less common with the passage of time, as statutes encroach on areas which used to form part of the Royal Prerogative.

Matters which still fall within the Royal Prerogative, and hence are regulated by (Prerogative) Orders in Council, include dealing with servants of the Crown, such as the standing orders for civil servants, appointing heads of Crown corporations, governance of British Overseas Territories, making appointments in the Church of England and dealing with international relations.

Returning to the question:

If so, is the intention that the thrust of law is democratically accountable, but for expediency the details can be passed with less democratic oversight?

It could argued that it's more about convenience than expedience - though under some circumstances, SIs can come into force before Parliament has had a chance to review them.

In any case, they tend to be used to specify details (e.g. regulations) that would be too cumbersome to be included in an Act, and which might change over time. They are also commonly used to bring Acts, or parts of Acts, into force on particular dates (commencement orders).

Also, the power to issue SIs is not limited to the government. Acts of Parliament may also delegate this power, as appropriate, to the UK's devolved governments, local authorities, and other official institutions.

IIUC EU directives are often implemented using statutory instruments and the “negative resolution procedure”, but these are presumably subordinate to an Act passed in 1973(?) when we acceded to the EC?

Yes; it's the European Communities Act 1972. See also this question relating to how EU directives become law in the UK.

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Not necessarily.

Executive power of the government can be executed either under an Act that specifically grants that power to them or through the exercise of a power that they have through historical common law. However, over the last century, many (but not all) of those common law powers have been codified by an Act of Parliament which usually abolishes the common law power.

  • Are powers exercised under common law (I assume you're referring to Royal Prerogative) implemented by statutory instrument, or by some other method (e.g. letters patent, proclamation, etc)? – Steve Melnikoff Oct 30 '18 at 10:35
  • @SteveMelnikoff no, I mean traditional powers of the executive like arrest, detention, the raising of troops etc. – Dale M Oct 30 '18 at 10:41
  • The UK government doesn't have the power to detain - except where granted by law. While regulation and command of the armed forces is a prerogative power, authority to maintain an army was granted exclusively to Parliament under the Bill of Rights 1689, and is now renewed every 5 years by an Armed Forces Act. – Steve Melnikoff Oct 30 '18 at 10:48
  • @SteveMelnikoff As I said, many of these common law powers have been replaced with statute – Dale M Oct 30 '18 at 11:48

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