Types of delegated legislation

Orders in Council

Orders in Council are drafted by government departments and approved by the King and Privy

Council. So this type of delegated legislation effectively allows the government to make laws

without going through Parliament.

Orders in Council can be made on a wide range of matters, especially:

• Transferring responsibility between government departments. For

  example, when the Ministry of Justice was created, the powers of the

  previous Department of Constitutional Affairs and some of the

  powers of the Home Office were transferred to what was then a new

  ministry;

• bringing Acts (or parts of Acts) of Parliament into force on a

  particular date;

• dealing with some aspects of foreign affairs;

• making law in times of national emergency when Parliament is not

  sitting (often under the Civil Contingencies Act 2004). An order was

  made under the Energy Act 1976 to deal with the fuel crisis in the

  early 2000s.

• Orders in Council can also be used to amend or update existing law. For

  example, in 2003, an Order in Council was used to alter the Misuse of

  Drugs Act 1971 to make cannabis a class C drug. Five years later, the

  government decided that it had been a mistake to downgrade cannabis and

  another Order in Council. There must be an enabling Act allowing the Privy Council to make Orders in Council on the particular topic. For the change of category of cannabis, the enabling Act was the Misuse of Drugs Act 1971.

  
  

  
  

Statutory instruments

Ministers and government departments are given authority (under enabling Acts) to make regulations for areas under their particular responsibility. Statutory instruments are an important way of making law, as up to 2,000 can be made each year. Statutory instruments can be very short, covering one point such as making the annual change to the minimum wage. However, other statutory instruments may be very long with detailed regulations which were too complex to include in an Act of Parliament.

Example: The National Minimum Wage Act 1998 gives the power to a government minister to make annual updates to the minimum wage as required.

By-laws

• By-laws are made by local authorities to cover matters within their own area: for example, a county council can pass laws affecting the whole county while a district or town council can only make by-laws for its district or town.

• Many local by-laws will involve traffic control, such as parking restrictions, or when dogs can be exercised on a beach. Most local by-laws are created under the Local Government Act 1982.

• Technical by-laws can also be made by public corporations and certain companies for matters within their jurisdiction, which involve the public. For example, South Western Railway can make technical by-laws affecting their network under the Transport Act 2000.

• By-laws must be “confirmed” (approved by the relevant Secretary of State)

  before they can come into force.