Delegated Legislation

• Delegated Legislation


  Law made by some person or body other than Parliament, but with the authority of Parliament
• Delegated Legislation


  1. Parliament passes a PARENT / ENABLING ACT

  2. This Act creates the framework of the law and then delegates power to others to make more detailed law in that area
• Types of Delegated Legislation

  • Order In Council
  • Statutory Instrument
  • Byelaw
• Order In Council


  Made by King and Privy Council
• Orders in Council


  • Made in times of emergency (under the Emergency Powers Act 1920 and Civil Contingencies Act 2004: the 'enabling Acts')
  • Can also amend law and give effect to EU law
• Statutory Instrument


  Made by government ministers
• Statutory Instruments


  • Around 3000 are made per year
  • Around 15 departments in government handle different areas of policy
  • Can be very long and detailed so not suited to be contained in a general Act of Parliament
  • Made via the affirmative or negative resolution procedure
• Byelaw


  Made by local authority
• Byelaws


  • Concern local issues and made with awareness of the needs of the area
  • Must be advertised so that locals can view and comment
  • Sanction or penalty for nonobservance
• Control of Delegated Legislation

  • Control by Parliament
  • Control by the courts: Judicial Review
• Control by Parliament


  1. Checks on the Enabling Act

  2. Affirmative Resolutions

  3. Negative Resolutions

  4. Super-affirmative resolution

  5. Consultation

  6. Scrutiny Committee
• Effectiveness of parliamentary controls

  • JCSI cannot alter or stop regulations, they can only highlight problems to Parliament
  • Sheer amount of delegated legislation means not all of them can be scrutinised
  • Much delegated legislation is very technical, so those scrutinising it may not fully understand it
  • Legislative and Regulatory Reform Act 2006 is controversial because it allows ministers to issue statutory instruments to amend legislation, therefore removes the constitutional restriction on the executive (govt) introducing and altering laws without Parliamentary scrutiny
• Control by the courts: Judicial Review

  1. Anyone with 'standing' – who has been affected by the piece of law - can challenge delegated legislation in the King's Bench Division of the High Court

  2. If a case is successful, a judge can rule that a piece of delegated legislation is ultra vires (beyond the powers given by Parliament in the enabling Act) and therefore void

  3. Grounds for a piece of law to be held to be ultra vires: substantive ultra vires, procedural ultra vires, or ultra vires due to unreasonableness
• Substantive Ultra Vires


  • Where the subject matter of the regulation goes beyond the powers given in the enabling Act
• Substantive Ultra Vires


  • R v Home Secretary, ex p Fire Brigades Union (1995)
• Procedural Ultra Vires


  • Where the correct procedure (laid down in the enabling Act) has not been followed
• Procedural Ultra Vires


  • Aylesbury Mushroom case (1972)
• Unreasonableness


  • If a decision or effect of a piece of delegated legislation is unreasonable, it can be ultra vires and therefore invalid
• Unreasonableness


  • Strickland v Hayes (1896)
• Effectiveness of judicial control

  • Delegated legislation can only be challenged in the courts by someone with 'standing' – someone affected by it
  • This person will be challenging a government department or public body, which will have greater resources to defend itself