Making orders and regulations CA 1989 s. 104
Under CA 1989 s. 104, powers to make orders or regulations are exercisable by statutory instrument, with specified exceptions and parliamentary procedures.
Any power of the Lord Chancellor , the Treasury , the Secretary of State or the National Assembly for Wales under this Act to make an order, regulations, or rules, except an order under section 54(2) , 56(4)(a), 57(3), 84 or 97(4) or paragraph 1(1) of Schedule 4, shall be exercisable by statutory instrument. Any such statutory instrument, except one made under section 4(1B), 4ZA(3), 17(4), 107 or 108(2) or one containing regulations which fall within subsection (3AA), (3AB), (3AC), (3B) , (3BA) or (3C) , shall be subject to annulment in pursuance of a resolution of either House of Parliament. Subsection (2) does not apply to a statutory instrument made solely by the National Assembly for Wales. An order under section 4(1B) , 4ZA(3) ... shall not be made unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament. An order under section 4(1B) , 4ZA(3) or 17(4) or regulations which fall within subsection (3AA), (3AB), (3AC), (3B) , (3BA) , (3BB) or (3C) shall not be made by the Secretary of State unless a draft of the statutory instrument containing the order or regulations has been laid before, and approved by a resolution of, each House of Parliament. Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by section 17ZB(9). Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by section 17ZE(5). Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by section 22J(3)(f). Regulations fall within this subsection if they are the first regulations to be made by the Secretary of State in the exercise of the power conferred by section 23C(5B)(b). Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by section 31(3C) or 32(9). Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by paragraph 3B(4) of Schedule A1. Regulations fall within this subsection if they are the first regulations to be made by the Secretary of State in the exercise of the power conferred by paragraph 6(2) of Schedule 2. Any statutory instrument made under this Act may— make different provision for different cases; provide for exemptions from any of its provisions; and contain ... incidental, supplemental and transitional provisions ....
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
Section 104 specifies the legal procedures required when the Lord Chancellor, the Treasury, the Secretary of State, or the National Assembly for Wales make orders, regulations, or rules under the Act. As a general rule, these powers must be exercised by statutory instrument, subject to listed statutory exceptions.
The section distinguishes between statutory instruments subject to parliamentary annulment and those requiring positive parliamentary approval. Standard instruments are subject to the negative resolution procedure, whereas specified regulations and orders cannot be made unless a draft has been laid before and approved by both Houses of Parliament.
Additionally, statutory instruments created under the Act may make different provisions for different cases, grant exemptions, and include incidental, supplemental, or transitional provisions.
When it applies
- A Secretary of State issues a statutory instrument to implement secondary rules under the Act.
- Parliament evaluates whether a draft order requires affirmative resolution approval before it can be made.
- A government authority drafts secondary legislation that includes transitional provisions and exemptions.
What this section does not say
- Regulations made solely by the National Assembly for Wales that do not follow standard annulment rules.
- Decisions concerning the best interests of a child in family court proceedings, which are governed by section 1.
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This page reproduces the text of CA 1989 s. 104 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.