Delegated Legislation

What is Delegated Legislation?

Delegated legislation is when Parliament gives law-making powers to another person or body, instead of making all the detailed laws themselves. This is usually because Parliament:

• Doesn’t have the time to make every single rule

• Doesn’t always have the expertise for technical or local matters

So, Parliament creates a ‘Parent Act’ (also called an Enabling Act), which is a normal Act of Parliament. This Act sets out the framework of the law and then gives permission for someone else (like a Minister or local council) to fill in the details.

The Parent Act will clearly say:

• Who is allowed to make the extra rules

• How they should do it (what procedures they must follow)

Types of Delegated Legislation

There are three main types of delegated legislation:

1. Statutory Instruments

2. By-Laws

3. Order In Council (OIC)

1. Statutory Instruments

Statutory Instruments are rules made by Government Ministers in their area of responsibility (e.g. the Transport Minister makes road rules).

They are:

• Also called regulations or orders

• Used to make national laws

• Often used to update laws quickly or fill in technical detail

• Drafted by legal experts in the government department

Over 3,000 SIs are made each year.

Example:

• Parent Act: Dangerous Dogs Act 1991

• Delegated Law: Dangerous Dogs (Designated Types) Order 1991 – this added more breeds to the banned list.

Another example:

• Parent Act: Road Traffic Act 1988

• Delegated Law: Regulations on what kind of crash helmet motorcyclists must wear.

2. By-Laws

By-laws are made by:

• Local councils (for local issues like littering, dog fouling, or drinking alcohol in public)

• Public corporations (like Transport for London) to control what people do on their property

They:

• Only apply in specific areas

• Must usually be approved by a government minister

• Can be enforced in court if people break them

Example:

• Parent Act: Anti-Social Behaviour Act 2014

• Delegated Law: Public Spaces Protection Orders (PSPOs) to ban drinking in certain parks or deal with dog fouling

Another example:

• By-law made by a railway company to stop people smoking or cycling inside stations

3. Order in Councils

Orders in Council are made by the King and the Privy Council (a group of senior ministers, judges, and royals). They are used when urgent action is needed, or when Parliament isn’t sitting (e.g. during emergencies).

They:

• Are approved formally by the King

• Are used in emergencies, national matters, or to transfer powers between departments

• Can be used to amend existing laws without needing a new Act

Example:

• Parent Act: Misuse of Drugs Act 1971

• Delegated Law: Order in Council used to reclassify cannabis from Class B to Class C

Matching Parent Acts to Delegated Legislation

Here’s how some specific delegated laws match up to their Parent Acts:

Parent Act	Delegated Legislation
Misuse of Drugs Act 1971	Order in Council to reclassify cannabis
Police and Criminal Evidence Act 1984	PACE Codes of Practice (on arrest, stop and search, detention)
Equality Act 2010	Regulations explaining what counts as a ‘disability’
Road Traffic Act 1988	Regulations about crash helmets
The Local Government Act 1972	By-law: e.g. rules on street charity collections in Hatfield

Why Use Delegated Legislation?

1. Time-saving
   Parliament doesn’t have time to pass thousands of detailed laws. Delegated legislation saves time.

2. Access to expertise
   Ministers and specialists (like doctors or engineers) understand the detail better than MPs. They can make better rules, e.g. rules on medical safety made by the Health Minister.

3. Local knowledge
   Local councils understand the problems in their area – e.g. a town with a dog mess problem can bring in a by-law.

4. Consultation
   Sometimes the Parent Act says consultation is required before making the law. This helps the law be more accurate and fair.

5. Emergencies
   Orders in Council can be passed quickly, e.g. in a health crisis or war.

Parliamentary Controls Over Delegated Legislation

Parliament has ways to keep control over the people making delegated laws.

Controls on the Parent Act

Parliament decides:

• Who is given power

• How they must use it

• What the limits are

House of Lords Delegated Powers Scrutiny Committee

• Checks new Bills before they become law

• Makes sure Ministers are not given too much power

Affirmative Resolution Procedure

• Some SIs must be approved by Parliament before they become law

• Used for important matters (e.g. big changes to police powers)

Negative Resolution Procedure

• Most SIs go through this

• Becomes law unless Parliament objects within 40 days

Joint Select Committee on Statutory Instruments

• Examines technical details of SIs

• Reports if an SI:

  • Goes beyond powers of the Parent Act

  • Doesn’t follow correct procedures

  • Is unclear, has errors, or imposes a tax (which isn’t allowed)

Ministers Can Be Questioned

• MPs can ask questions in Parliament about how Ministers are using their powers

• Can bring public and media attention to bad regulations

Judicial Controls

Judges can also check if delegated legislation is lawful through a court process called judicial review.

If the delegated law goes beyond what the Parent Act allows, judges can declare it ultra vires, which means ‘beyond the powers’ – and the law becomes void (no longer valid).

There are 3 types of ultra vires:

1. Procedural Ultra Vires

2. Substantive Ultra Vires

3. Unreasonable Ultra Vires

1. Procedural Ultra Vires

• The correct procedure wasn’t followed

• Case: Aylesbury Mushroom Case (1972) – A law wasn’t valid because the Minister didn’t consult a key group, as the Parent Act required

2. Substantive Ultra Vires

• The content of the law goes beyond what Parliament allowed

• Case: Attorney-General v Fulham Corporation (1921) – A council ran a paid laundry service when it was only allowed to provide washing facilities

3. Unreasonable Ultra Vires

• The law is so unreasonable, no sensible authority would ever make it

• Case: R (Rogers) v Swindon NHS Trust (2006) – NHS policy on cancer drug was ruled unfair because it was given to some people but not others for no clear reason

Remedies in Judicial Review

• Injunction – stops something from happening

• Declaration – states the law is invalid

• Damages – compensation (rare in judicial review)

Advantages of Delegated Legislation (with Examples)

1. Consultation and expertise.
   Experts can help make better and more accurate laws.
   Example: Experts helped make the Dangerous Dogs Order more useful than the original Act.

2. Saves time.
   Parliament doesn’t have to deal with small or technical laws, so it can focus on big issues.
   Example: Traffic signs and rules are made by ministers, not debated in Parliament.

3. Flexible and easy to change.
   It’s quicker and simpler to update delegated laws than to pass a new Act.
   Example: The minimum wage is updated every year using a Statutory Instrument (SI).

4. Quick in emergencies.
   Delegated legislation can be made fast when something serious happens.
   Example: During Covid-19, the government made quick rules like lockdowns using Orders in Council.

5. Local rules for local areas.
   Local councils can make rules that suit their own areas.
   Example: A council can use a PSPO to ban drinking in public places where it causes problems.

Disadvantages of Delegated Legislation

1. Undemocratic.
   Some laws are made by people who are not elected, like civil servants.
   Example: A minister or government worker can create a Statutory Instrument without MPs voting.

2. Too many laws.
   Thousands of new rules are made each year, and it’s hard to keep up.
   Example: Over 3,000 SIs are made every year in the UK.

3. Not well publicised.
   People may not know when new rules are made.
   Example: A new health rule might start without warning, and businesses might not know.

4. Hard to understand.
   The language in delegated laws can be very technical or confusing.
   Example: Health and safety regulations often use difficult words that normal people can’t understand.