Delegated Legislation

• Different types of Delegated Legislation

  1. Orders in council
  2. Bylaws
  3. Statutory Instruments
• Orders in Council

  • Made by The King and his privy council
  • Used to make small changes to acts
  • Used during national emergencies
  • E.g. The Misuse of Drugs Act 1971 (Amendment) Order 2008 which changed weed from class C drug to class B
• By-laws

  • Made by local authorities
  • Apply to the area under their control
  • Quick to make
  • Deal with antisocial behaviour, traffic laws, etc.
  • E.g. Smoking ban on London underground [1987] before smoking ban [2007].
• Statutory Instruments

  • Made by a government minister...
  • ... about their government department.
  • Over 3000 made every year
  • Made as technical, more complex additions to broad acts.
• Reasons for Delegated Legislation:

  1. Time
  2. Expertise
  3. Local Knowledge (By-laws only)
  4. Adaptability
• Time

  • Others making law saves parliament time to focus on important laws
  • Parliament doesn't have time to debate finer details
  • Technical and detailed laws made quickly by others
• Expertise

  • Rules need subject knowledge that parliament doesn't have
  • parliament debate principles but leave details for experts:
  • civil servants that write SIs have better knowledge
• Local Knowledge (By-laws only)

  • Parliament wont know every area of the country thoroughly
  • Local authorities know area-specific issues (e.g. littering)
• Adaptability

  • SIs and OiC can be made and changed quickly
  • Responds to changing circumstances (E.g. social distancing rules)
• Controls on Delegated Legislation

  • Parliamentary controls
  • Judicial controls
• Parliamentary controls

  • Enabling Act
  • Negative Resolutions
  • Affirmative Resolutions
  • Questioning of Gov Ministers
  • Scrutiny Committee
• Enabling Act

  • Controls the boundaries and limits of the power a person has.
  • Decides which ministers have power
  • Specifies where the law applies
  • Power to repeal the EA
• Negative Resolutions

  • Most common procedure
  • When an SI is introduced, ministers have 40 days to reject it
  • If they don't formally reject it, it's automatically passed.
  • No debate
• Affirmative Resolutions

  • Less common: Applied to SIs on important areas.
  • SI proposed, then debated on in both houses.
  • Must be approved by both.
  • SI not amended, just reviewed.
• Questioning of Government Ministers

  • Other ministers or lords question minister introducing the SI
  • Asked anything e.g. cost, who it applies to, etc.
  • Asked about SIs currently in force - even ones they didn't make.
• Scrutiny Committee - The Joint Select Committee on Statutory Instruments

  • Review all SIs
  • Can call on both houses for "special attention" if:
  • Imposes a charge / tax
  • Applies retrospectively
  • Exceeds power given by EA
  • Unusual use of power
  • Unclear how / to whom it applies
  • The JSCSI cannot make changes.
• Judicial Review

  • Validity of EA cannot be challenged = Parliamentary supremacy
  • DL can be challenged by someone with "standing"
  • Court can declare DL as "ultra vires" = void if:
  • DL goes beyond powers granted by the parent act
  • DL didn't follow correct procedure
  • A decision made under DL was unreasonable
• DL goes beyond powers of the parent act

  R v Home Secretary ex parte Fire Brigades Union [1995]

  • Home Secretary reduced amount of compensation allowed, Court declared his changes ultra vires = void.
• DL didn't follow correct procedure

  Agricultural Training Board v Aylesbury Mushrooms [1972]

  • Minister sent 1 letter which wasn't received = not consultation, Court declared regulation ultra vires = void.
• A decision made under DL was unreasonable

  R (Rodgers) v Swindon NHS Trust [2006]

  • Illogical to make distinctions between people that require the same medicine, declared ultra vires = void.
• Delegated Legislation

  Laws made by someone or something other than Parliament
• Enabling Act

  Any act that passes down power to someone else
• Orders in Council

  Made by the privy council and approved by the King.

  It doesn’t follow the parliamentary process.
• Misuse of Drugs Act (1971) Amendment Order [2008]


  Reclassified cannabis from a Class C drug to Class B

  Both Houses of Parliament agreed through a Parliamentary resolution
• An Order in Council was used to quickly create rules grounding all flights in and out of the UK in the aftermath of the September 11th attack on the World Trade Center
• There ought to be an Enabling Act for any piece of secondary legislation. However, because there has been a Privy Council since we first had a monarch, they have amassed Prerogative Power.
• Prerogative Power

  The Privy Council power to create laws without the consent of the Commons.
• Smoking ban on London Underground [1987]

  • Bylaw
  • Made before Smoking Ban [2007]
• The Police and Criminal Evidence Act [1984]


  An Act of Parliament which governs the powers of the police service.

  Enabling Act which gives Home Secretary power to change the Police Codes of Practice.