Delegated Legislation

Delegated Legislation

Delegated legislation (also called secondary or subordinate legislation) is law made by bodies other than Parliament, under authority granted by an enabling Act (parent Act). Parliament delegates this power because it lacks the time and expertise to deal with every detail of modern governance.

Types of Delegated Legislation

Statutory Instruments (SIs)

Statutory instruments are rules and regulations made by government ministers under powers conferred by an enabling Act. They are the most common form of delegated legislation — approximately 3,000–3,500 are made each year.

• Example: The Road Traffic (Speed Limits) Regulations set specific speed limits under the Road Traffic Regulation Act 1984
• The Civil Procedure Rules 1998 govern procedure in civil courts
• During the COVID-19 pandemic, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 were made under the Public Health (Control of Disease) Act 1984

Orders in Council

Orders in Council are made by the Privy Council (the Monarch and senior ministers). They are used for:

• Transferring powers between government departments
• Giving effect to EU legislation (historically)
• Emergency powers under the Civil Contingencies Act 2004
• Extending Acts to other jurisdictions (e.g. the Channel Islands)

The Misuse of Drugs Act 1971 allows reclassification of drugs by Order in Council.

By-laws

By-laws are made by local authorities and certain public bodies under enabling Acts such as the Local Government Act 1972. They apply within a limited geographical area.

• Examples: parking restrictions, dog-fouling penalties, restrictions on alcohol consumption in public spaces
• By-laws must be confirmed by the relevant government minister before taking effect
• Public bodies like Transport for London also make by-laws (e.g. no smoking on the Underground)

Controls on Delegated Legislation

Because delegated legislation is not made by the elected Parliament, there must be controls to ensure accountability and prevent abuse of power.

Parliamentary Controls

Affirmative resolution procedure:

• The SI must be actively approved by one or both Houses of Parliament before it can come into force (or within a set period)
• Used for more significant SIs, such as those amending primary legislation ("Henry VIII powers")

Negative resolution procedure:

• The SI automatically becomes law unless either House passes a motion to annul it within 40 sitting days
• Most SIs use this procedure — in practice, very few are annulled

Scrutiny committees:

• The Joint Committee on Statutory Instruments (JCSI) reviews SIs on technical grounds (e.g. whether the SI goes beyond the powers granted by the enabling Act — ultra vires)
• The Secondary Legislation Scrutiny Committee (Lords) reviews policy merit
• The Delegated Powers and Regulatory Reform Committee examines Bills for inappropriate delegation of power

Judicial Controls

Courts can review delegated legislation through judicial review on the ground that it is ultra vires — beyond the powers granted by the parent Act.

• Procedural ultra vires — the correct procedure was not followed. In Aylesbury Mushrooms [1972], a minister failed to consult the Mushroom Growers' Association as required, and the resulting order was held void as against them
• Substantive ultra vires — the content of the delegated legislation goes beyond the scope of the enabling Act. In R v Secretary of State for Education, ex parte National Union of Teachers [2000], regulations were challenged for exceeding the scope of the parent Act
• Delegated legislation can also be challenged under the Human Rights Act 1998 as incompatible with Convention rights — R (on the application of UNISON) v Lord Chancellor [2017] struck down employment tribunal fees as unlawfully restricting access to justice

Unreasonableness — in Strickland v Hayes Borough Council [1896], a by-law prohibiting singing or reciting in any public place was struck down as unreasonable.

Advantages of Delegated Legislation

• Saves parliamentary time — Parliament cannot deal with every technical detail
• Speed — SIs can be made quickly, especially in emergencies (e.g. COVID-19 regulations)
• Expertise — specialists and local bodies can tailor rules to specific contexts
• Flexibility — can be amended or revoked more easily than primary legislation
• Local knowledge — by-laws reflect local needs and conditions

Disadvantages of Delegated Legislation

• Lack of democratic accountability — made by unelected ministers, civil servants, or local officials
• Volume — the sheer number of SIs makes effective parliamentary scrutiny impossible
• Limited debate — SIs subject to the negative procedure receive almost no scrutiny unless a motion to annul is tabled
• Sub-delegation — power may be further delegated, creating chains of authority far from Parliament
• Henry VIII clauses — enabling Acts may grant ministers power to amend or repeal primary legislation by SI, undermining parliamentary sovereignty (e.g. the European Union (Withdrawal) Act 2018 contained extensive Henry VIII powers)

Evaluation and Exam Focus

Factor	Assessment
Democratic legitimacy	Weak — most SIs pass without debate
Efficiency	Strong — essential for modern governance
Judicial oversight	Effective but reactive — only works if challenged
Parliamentary oversight	Limited by volume and the negative procedure
Henry VIII powers	Increasingly controversial — significant constitutional concern

Key exam skills:

• Compare the strengths and weaknesses of different types of delegated legislation
• Evaluate whether existing controls are sufficient to ensure accountability
• Discuss the balance between efficiency and democracy
• Use specific statutory instruments and cases to support your arguments
• Consider whether the growth in Henry VIII powers represents a threat to parliamentary sovereignty