Report No. 60
12.8. Position in England as to publication.-
In England, before 1893 subordinate legislation was required to be published in the London Gazette; and (as Carr had observed) was buried rather than revealed,1 in the voluminous miscellaneous contents of the Gazette. The Rules Publication Act, 1893, provided for publication of statutory rules by the Queen's Printer. Under this Act, the rules and orders, with some exceptions, were to be sent to the Queen's Printer and to be numbered by him and, subject to regulations, printed and put on sale. It is true that not all rules and regulations were printed, but every instrument which was officially numbered was mentioned in a classified list at the end of the annual volume of the Statutory Instruments printed by the Queen's Printer.
The Committee on Ministers' Powers, while reviewing the working of the 1893 Act, recommended that the publication should be made a condition precedent for the coming into force of all instruments except those that have been published in draft under the pre-publication rules and subsequently issued in substantially the same form as in the draft. In such cases the Committee recommended that the public notification of the enforcement would be sufficient. Nothing came out of these recommendations till the end of the second world war in 1946, and Act was passed, called the Statutory Instruments Act, which repealed and replaced the 1893 Act. This Act repeated the provisions of section 3 of the 1893 Act as to publication, and provided2. further that "it shall be a defence to prove that the instrument had not been issued by his Majesty's Stationery Office at the date of the alleged contravention " A serious drawback of the English system is that publication is not made a condition precedent to the operation of the statutory instruments3
1. Carr Concerning English Administrative Law, (1941), p. 57.
2. Section 3, Statutory Instruments Act, 1946 (English).
3. Kersell Parliamentary Supervision of Delegated Legislation, (1960), p. 8.