delegated legislation

• Delegated legislation

  Laws made by some person or body (like government ministers and councils) other than parliament, but with the authority of parliament
• Parliament is the supreme law making body
• Parliament has created a system known as delegated legislation
• What kind of body can make law under delegated legislation

  • Council e.g. bristol council making the clear air zone
  • Private rail companies e.g. london transport
  • Ministers from Government departments e.g. mat hancock making covid laws
  • Local authorities e.g. age raised to stay in education until 18
• Enabling act

  The 'parent' act of parliament which creates the framework of the law and then delegates power to others to make more detailed law in that area
• 3 types of delegated legislation

  • Order in council - made by the King and Privy council
  • Statutory Instrument - made by Government Ministers
  • By Laws - made by local authorities
  • Devolution (a type of by law) - made by Welsh and Scottish Parliaments
• Orders in council

  The king and privy council have the authority to make
• Privy council

  • Made up of the Prime Minister and other leading members of the Government
  • Effectively allows Government to make legislation without going through parliament
• Civil contingencies act 2004


  Grants the current power to make emergency orders in council
• Orders in council

  • Make laws faster in emergencies e.g. coronavirus pandemic to wear masks, social distancing, groups of 6 etc
• Statutory instruments

  Rules and regulations made by Government Ministers who are given authority to make regulations for areas under their particular responsibility
• Statutory instruments

  • Major law making method as about 3,000 statutory instruments are brought into force every year
  • Most popular type of delegated legislation
• Statutory instruments

  Each minister deals with a different area of policy and can make rules and regulations in respect of matters in which it deals
• Statutory instruments

  Government Ministers are able to develop complex areas of law in a more detailed way than an Act of Parliament as they have the expertise in that area
• By laws

  Laws made by Local authorities, county councils, district/town councils, public corporations or public bodies e.g. railways about public behaviour on their premises
• By laws

  • Made because of local knowledge of the area
  • Only affect the area they are made for
• Devolution

  A type of By Law that affects a whole region
• The Welsh government can make Laws without reference to the UK government, the same as Scotland and Ireland
• Government of Wales Act granted devolution

  1998
• Full law making power took effect under Government of Wales Act

  2006
• Devolution

  • No tuition fees in Scotland
  • No SATS in primary school in Wales
• Control of delegated legislation

  • Delegated legislation is made by non-elected bodies
  • There are many people with the power to make delegated legislation
• Control of delegated legislation

  It is important that there should be some control over this
• Ways control is exercised over delegated legislation

  • Parliament
  • Committees
  • Courts
• Control by Parliament

  • Controlling the enabling act
  • The enabling act sets boundaries within which delegated legislation is to be made
  • State which Government Minister can make the regulations
  • The types of laws to be made
  • Whether they can be made for the whole country or certain areas
  • Parliament can repeal the powers of the enabling act at any time
• Delegated powers of scrutiny committee

  1. Established in 1993 in the House of Lords

  2. Consider whether any Enabling Act being passed has given away too much power, or given inappropriately

  3. Reports its findings to the Lords before the committee stage of the bill

  4. Has no power to amend an Act themselves
• Statutory instruments

  Instruments that must be approved by parliament
• By-laws

  Instruments that must be approved by parliament
• Approval of statutory instruments and by-laws

  1. Affirmative/positive resolution

  2. Negative resolution
• Affirmative/positive resolution

  • Statutory instrument will not become law unless specifically approved by parliament (both houses of parliament must agree with the instrument)
  • Parliament can only annul, withdraw the statutory instrument - not amend it
• Negative resolution

  • The Statutory instrument will be 'laid before parliament'
  • The relevant statutory instrument will be law unless rejected by parliament within 40 days
• Orders in council

  Do not go through the approval processes as they've already been approved by EU process, or it's an emergency therefore there is no time to approve them
• Questions in parliament

  Individual ministers may be questioned by MPs in Parliament on the work of their parliaments, and this can include questions about proposed regulations
• Joint select committee on statutory instruments

  1. Draws attention of both houses of Parliament to points that will be needed

  2. Checks statutory instruments and by-laws

  3. Has no power to amend an Act themselves
• Main grounds for Joint Select Committee to refer a statutory instrument back to the House of Parliament

  • It imposes a tax or charge
  • It has a retrospective effect
  • Has gone beyond the power under the enabling act
  • It is an unusual or unexpected use of powers
  • It is unclear or defective
• Judicial review

  A particular type of process that a case will follow to challenge secondary legislation
• Locus standi

  The right to bring an action or appear in court
• Proving locus standi

  You must prove the delegated legislation has affected you
• Judicial review

  A particular type of process that a case will follow to challenge secondary legislation
• Ultra vires

  Going beyond what parliament had intended