Delegated Legislation

• What are the three main types of delegated legislation?

  1. Orders in Council
  2. By laws
  3. Statory Instruments
• Who is delegated legislation made by?

  Certain persons or bodies other than Parliament, but with Parliament's authority
• Where is the authority contained?

  In a Parent or Enabling Act
• What does the Enabling Act do?


  Create the general principles of the law which grants power to others to fill in the details
• What are the two main types of legislation?

  1. Primary Legislation
  2. Secondary Legislation
• What are the two important distinctions between primary and secondary legislation?

  1. Parliament's authority is unlimited, whereas bodies with delegated legislation powers have limitations
  2. Primary legislation cannot be declared invalid, but delegated legislation can be and is subject to Judicial Review
• What actually is an Enabling Act?

  An ordinary statute which contains the law for a particular topic but also contains the authority to pass on the powers to others
• What is an example of an Enabling Act?

  Local Government Act 1972 - local authorities can make by laws
• What are Orders in Council?

  They allow the government to make law without going through the full Parliamentary process
• Who are Orders in Council made by?

  The King and the Privy Council
• What is an example of an Order in Council?

  A 2003 order which altered the Misuse of Drugs Act 1971 to change the class of Cannabis
• What other power does the Privy Council have?

  To make laws in emergency situations
• What are the two categories of Orders in Council?

  1. Prerogative Orders
  2. Statutory Orders
• What are Prerogative Orders?

  They are made under the power of the Crown to act on matters which Parliament has not legislated
• What are Statutory Orders?

  They are made under any of the powers contained in Acts of Parliament which gives the monarch a power to make orders. These are also called Statutory Instruments.
• What are By Laws?

  Rules made by a body subordinate to Parliament E.g - Local Authorities
• How are By Laws set?

  Local authorities are given power by Parliament to make laws that have legal force only within a specific area. These powers are also only on specific topics
• Who else can made By Laws?

  Public bodies and companies
• Why do public bodies and companies make By Laws?

  To help enforce rules concerning public behaviour
• What is an example of a By Law?

  British Railways Board Bylaws 1965 banned smoking in railway carriages. The enabling act was the Transport Act 1962
• What are Statutory Instruments?

  Rules and regulations made by Government Ministers or Departments for their own areas of responsibility
• What are Statutory Instruments also known as?

  Ministerial Regulations
• About how many Statutory Instruments are made each year?

  About 3,000
• What is an example of a statutory Instrument?

  Road Vehicle Regulations make it a offence to use a phone whilst driving
• What are Legislative Reform Orders?

  A specific type of delegated legislation that Government Ministers can use to remove or reduce burdens of legislation
• What Act sets out the terms for LROs?

  Legislative and Regulatory Reform Act 2006
• Why must delegated legislation be controlled?

  As it is often made by people and bodies who are not elected
• What are the two main methods of controlling delegated legislation?

  1. Parliament (Parliamentary Control)
  2. Courts (Judicial Control)
• How is the Enabling Act controlled?

  It must be worded clearly and unambiguously to define the precise powers
• What information must the Enabling Act include?

  • Only the person/body specified has law-making powers
  • The extent of the power
  • The method of making the delegated legislation
  • The procedures which must be followed
• How do MPs control delegated legislation?

  They can question the Minister responsible for the delegated legislation during debates
• What are Joint Select Committees?

  Groups of MPs and Peers who review Statutory Instruments and refer any provisions which require more consideration to the Houses
• Why might a Statutory Instrument be referred to the Houses?

  If a Statutory Instrument has gone beyond its powers set out in the Enabling Act
• What does the House of Lords Scrutiny Committee do?

  Checks all Bills for any inappropriate enabling provisions and brings them to the attention of the House of Lords
• What are the two methods for laying delegated legislation before Parliament?

  1. Positive (Affirmative) Resolution
  2. Negative Resolution
• What is Positive (Affirmative) Resolution?

  Where the Statutory Instrument needs Parliament's approval before becoming law
• What is Negative Resolution?

  Where the Statutory Instrument becomes a law if it is not rejected by Parliament
• What is the Super Affirmative procedure used for?

  To check Legislative Reform Orders
• What is the Super Affirmative Procedure?

  Where a Minister lays a draft LRO before Parliament which is then reviewed by two committees, amended and laid before Parliament as a draft order
• How can delegated legislation be challenged in the High Court?

  Through the procedure ofJudicial Review