Delegated legislation

• What is delegated legislation?

  • Secondary legislation is law created by ministers (or other bodies) under powers given to them by an Act of Parliament (primary legislation – otherwise known as an enabling act). ​Secondary legislation is also known as 'delegated' or ‘subordinate’ legislation and often takes the form of a statutory instrument.​
  • This enabling act or parent act creates the framework for the law, which is then passed onto others to make more detailed law in that area.  
• What is delegated legislation? (Part 2)

  • These details provide practical measures that enable the law to be enforced and operate in daily life. ​
  • Secondary legislation can be used to set the date for when provisions of an Act will come into effect as law, or to amend existing laws.​
  • For example, governments often use secondary legislation to ban new substances in response to new information about their dangers by adding them to a list under the Misuse of Drugs Act 1971.​ In 1971, cannabis was downgraded to a Class C drug and was then upgraded to a Class B drug 5 years later.  ​
• Orders in Council

  Made by the King acting on the advice of the Privy Council and are approved in person by the monarch
• Orders in Council

  1. Some are made using powers conferred by an Act of Parliament

  2. Others are made by virtue of the royal prerogative
• Although Orders in Council must be formally approved in person by the monarch, they are drafted and their substance is controlled by the government (element of democratic accountability)
• Privy Council


  Made up of senior politicians who are current or former members of either the House of Lords or Commons
• Effectively this allows the Government to make law which does not have to be debated or voted on in Parliament
• Orders in Council made in Emergency situations under the Civil Contingencies Act 2004


  1. face a serious threat

  2. regulations are necessary

  3. measures are proportionate
• Orders in Council can transfer power/responsibilities between government departments


  For example when the Ministry of Justice was created, the powers of the previous Department of Constitutional Affairs and the Home Office were transferred to this department
• Statutory Instruments (SIs)


  Documents drafted by ministers from within a government department to make changes to the law
• Statutory Instruments (SIs)

  • Published with an explanatory memorandum, which outlines the purpose of the SI and why the change is necessary
  • The most frequently used type of secondary legislation, with approximately 3,500 made each year, although only about 1,000 need to be considered by Parliament
  • Usually have either rule, order or regulation in their title
• Statutory Instruments (SIs)

  • The Minister for Transport can deal with road traffic regulations
  • The Dangerous Dogs Act 1991 allows the Home Secretary to add more breeds of dangerous dog to the Act if it is deemed necessary
  • The codes of practice which the Minister for Justice has the power to make or change rules relating to police powers
• Statutory Instruments (SIs) save parliament from having to re-write an entire Act just to make some small changes
• By-laws


  Rules made by local authorities, public corporations and certain companies to cover matters within their own area or jurisdiction
• Making by-laws

  1. County Council can pass by-laws that affect the whole county

  2. District councils or town councils can only pass by-laws that affect their district or town
• By-laws


  • Traffic control
  • Regulating behaviour such as banning the drinking of alcohol in certain areas
• By-laws made by public corporations

  • South West Trains Limited Railway By-laws (made under s129 of the Railways Act 1993) which regulates the conduct of people on their trains and premises
• Joint Committee on Statutory Instruments (JCSI)


  Checks SIs to make sure the law they contain is clear and follows the powers given by the parent Act
• JCSI process

  1. Identifies issue

  2. Publishes recommendations on the SI

  3. In the House of Lords, affirmative SIs cannot be debated before the JCSI make their recommendations
• JCSI

  • Generally only takes evidence from the government department who wrote the SI
  • Can consider submissions from the public but only on points of law
• Select Committee on Statutory Instruments


  Only considers SIs that deal with financial matters
• Members of the public cannot table a motion to object to or stop an SI. They must contact a member of either House and ask them to do it.
• Enabling legislation (primary legislation)

  1. Outlines the nature of the legislation and explains what it wants to achieve

  2. Confers powers to a government minister or ministerial body to develop the details of the legislation, at a later date
• Enabling legislation is referred to as a parent act or enabling act
• Parliament has to approve the parent act
• Parliament retains control over the legislation

  It can repeal or withdraw the powers within the enabling act
• The act will also stipulate whether consultation has to occur before new regulations are made
• • How Parliament considers SIs depends on whether they follow the negative or affirmative procedure, which is outlined in the parent Act.​
• 2) Negative Resolution Procedure ​

  ​

  • The SI will become law unless rejected by Parliament within 40 days of publication. ​
  • A successful motion to stop the SI is rare. The House of Commons last did this in 1979 and the House of Lords in 2000.​
  • About 80% of SIs are laid under the negative procedure. 
• Affirmative Resolution Procedure

  1. Draft affirmative SLs laid in Parliament

  2. Parliament approves SLs before they can be made (signed into law) and brought into effect as law
• Most SLs subject to this procedure must be debated and approved by both Houses
• Some SLs dealing with tax or financial matters only need approval from House of Commons
• Draft affirmative SLs can be stopped if either house rejects or votes against the government's motion for the SL to be approved
• An affirmative resolution is required before new or revised police codes of practice under the Police and Criminal Evidence Act 1984 can come into force
• In the House of Lords


  Members may propose an amendment to the Government's motion, formally stating that the House declines to approve the instrument
• Judicial Review is a hearing, usually in the Administrative Court, King’s Bench Division in which the judge reviews the lawfulness of a decision or action, or failure to act, by a public body exercising a public function. ​

  Sec 3 of the Human Rights Act 1998 says: ​

  “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. ​

  2) If the legislation is ultra vires – that it goes beyond the powers granted by the enabling act.  ​

  3 Types: ​

  Procedural ​

  Substantive ​

  Unreasonable ​
• Ultra vires

  The contents of a piece of delegated legislation are declared invalid because the person or body making it exceeded the power given by Parliament
• R v Secretary of State for Social Security, ex parte Joint Council for Welfare of Immigrants (1996)


  • A challenge was made to amendments of the Regulations made in 1996 which excluded the statutory right to payment of 'urgent case' benefits for asylum seekers who had not claimed asylum immediately upon arrival, or whose claims for asylum had been rejected, and who were awaiting appeal
• Regulations had been changed previously to include 'persons from abroad' who might be treated as an urgent case. Asylum seekers had been considered urgent cases.
• Unreasonable


  A decision is so irrational or unreasonable that no reasonable body or authority would ever consider imposing it