Direction (delegated legislation)
Directions are a form of delegated legislation used in the United Kingdom and Australia.
United Kingdom
[edit]An Act of Parliament or other delegated legislation may confer a power on a Minister to give Directions so as to enable that Minister to give instructions to a public body or group of public bodies which are not under the Minister's direct control. The directions thereby effectively convert instructions which would otherwise only have strong political weight to legally binding orders with which the recipient must comply.
Because they are generally of interest to a relatively limited group of public bodies, Directions are not generally made in the form of Statutory Instruments, but are instead published or notified to the affected bodies as the Minister sees fit. One exception to this is The Exception from the Duty to Publish (Department for Business and Trade) (No. 1) Direction 2023.[1]
Examples of such Directions include:
- Directions given by the Secretary of State for Health to the National Health Service,[2]
- Directions given the Secretrary of State for Transport to the Strategic Rail Authority,[3]
- Directions given by the Treasury to public bodies on their financial and accounting procedures.[4]
However some Directions are published by Statutory Instrument because they have a wider application or constitutional relevance. Examples include:
- The Wafer Scottish Seal Directions 1999 under which the First Minister of Scotland gives instructions concerning the Great Seal of Scotland,
- The Traffic Signs General Directions 2002 which give instructions to highways authorities about road signs.
Civil servants are required to seek a ministerial if they think a spending proposal breaches any of the following criteria set out by HM Treasury:[5]
- Regularity
- Propriety
- Value for money
- Feasibility
This process means that even though the permanent secretary would normally be able to appear before the Public accounts committee to be held accountable for an action, as the accounting officer, the use of a ministerial direction transfers responsibility to the minister.[5]
The threat of seeking a direction has sometimes had a "galvanising effect" on the behaviour of a minister.[6]
In terms of the devolved administrations, ministerial directions have been much more widely used in the Northern Ireland Executive than the Welsh Government and the Scottish Government.[7]
The increased usage of ministerial directions has been described as a breakdown in relations between the civil servants and ministers.[8]
There is only one direction published on legislation.gov.uk: the Exception from the Duty to Publish (Department for Business and Trade) (No. 1) Direction 2023, which exempts the Queen's Printer from publishing certain EU legislation. This is because ministerial directions are not normally published on legislation.gov.uk: they are usually published on gov.uk, but this specific measure relates to what is published on legislation.gov.uk.[9][10] The authority for this comes from clause 1 of part 1, schedule 5 of the European Union (Withdrawal) Act 2018.[11]
References
[edit]- ^ "The Exception from the Duty to Publish (Department for Business and Trade) (No. 1) Direction 2023" (PDF). legislation.gov.uk. The National Archives. 22 May 2023. Retrieved 11 September 2024.
- ^ Department of Health website: Directions from the Secretary of State retrieved 26 April 2008
- ^ Department for Transport: Statutory guidance and directions Archived 2008-10-13 at the Wayback Machine retrieved 26 April 2008
- ^ HM Treasury Accounts Directions 2007/2008 Archived 2008-03-05 at the UK Government Web Archive retrieved 26 April 2008
- ^ a b Bowers, John (20 January 2021). "No Minister: What "ministerial directions" tell us about how government works". Prospect. London: Prospect Publishing Limited.
- ^ Freeguard, Gavin; Davies, Oliver; Tingay, Paeony; Sachin, Savur (12 April 2024) [2017-08-24]. "Ministerial directions". Institute for Government. Retrieved 11 September 2024.
One former permanent secretary put it to us, "I did say on not a completely trivial number of occasions, 'If you were to persist in going down this route, Secretary of State, I could get to a point where I might have to seek a direction from you.'" This had, in their view, a 'galvanising effect' on discussions to avoid a direction being sought.
- ^ "Covid-19 pandemic prompted 51 ministerial directions in NI". BBC News. London: British Broadcasting Corporation. 27 April 2023. Retrieved 11 September 2024.
- ^ Mitchell, James (26 April 2022). "Comment: Ministerial directions come into sharper focus thanks to the Scottish ferry fiasco". Holyrood Magazine. Political Holdings Limited. Retrieved 11 September 2024.
- ^ HM Treasury (11 April 2024) [1 October 2020]. "Ministerial Directions". GOV.UK. HM Government. Retrieved 16 September 2024.
This series brings together all published Ministerial Directions.
- ^ Hollinrake, Kevin (22 May 2023). "The Exception from the Duty to Publish (Department for Business and Trade) (No. 1) Direction 2023" (PDF). legislation.gov.uk. National Archives. Retrieved 16 September 2024.
- ^ "European Union (Withdrawal) Act 2018: Schedule 5", legislation.gov.uk, The National Archives, 26 June 2018, 2018 c. 16 (sch. 5)
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