Delegated legislation in the United Kingdom

In the United Kingdom, delegated legislation is legislation or law that is passed otherwise than in an Act of Parliament (or an Act of the Scottish Parliament, Northern Ireland Assembly or National Assembly for Wales). Instead, an enabling Act (also known as the parent Act or empowering Act) confers a power to make delegated legislation on a Government Minister or another person or body. Several thousand pieces of delegated legislation are made each year, compared with only a few dozen Acts of Parliament.^[1]

Delegated legislation can be used for a wide variety of purposes, ranging from relatively narrow, technical matters (such as fixing the date on which an Act of Parliament will come into force, or setting the level of fees payable for a public service, e.g. the issue of a passport), to filling in the detail of how an Act setting out broad principles will be implemented in practice.

Advantages and disadvantages

The use of delegated legislation has a number of advantages.

Firstly, it allows laws to be enacted without using up scarce Parliamentary time on technical matters, for example the fine detail of a public sector pension scheme^[2] or the precise design of traffic signs,^[3] thereby freeing Parliament to discuss matters of broad principle and policy.

Secondly, it allows laws relating to technical matters to be prepared by those with the relevant expert knowledge.^[4]

Thirdly, delegated legislation is flexible enough to deal speedily with changing circumstances, for example increasing costs of services, developments in scientific knowledge or minor changes in policy. This also makes it invaluable in emergencies when very swift action is required – delegated legislation made under emergency powers can be drafted, enacted and brought into force in a matter of hours rather than the days, weeks or months that would be required to pass an Act of Parliament.^[5]

Delegated legislation can also be criticised on the grounds that it is subject to less parliamentary scrutiny than primary legislation (but see the article on Statutory Instruments for a description of the parliamentary controls which are in place), and thereby may potentially be used by the Government in ways which Parliament had not intended or appreciated when it conferred the power.

This is particularly the case where an Act empowers Ministers to use delegated legislation to amend primary legislation (so-called "Henry VIII powers"). For example, the Deregulation and Contracting Out Act 1994 allowed Ministers to change certain Acts of Parliament by way of statutory instrument, without going through the normal parliamentary legislative process. This power was later extended by the Regulatory Reform Act 2001 and the Legislative and Regulatory Reform Act 2006, although more rigorous parliamentary controls were introduced.

Similarly, delegated legislation may be viewed as a way of removing controversial matters (for example, immigration rules) from the remit of Parliament and putting them under the control of the Government, because they can be regarded as matters of detail.

'Coygn' rules:

Another disadvantage is in the sheer volume of laws that are passed as delegated legislation. Because of this bulk, there is normally little publicity or knowledge about the changes that are being made.

However, there are both parliamentary and judicial controls on delegated legislation which are discussed below.

Types of delegated legislation

Delegated legislation can take a variety of forms, each of which are for different purposes. However the boundaries between the different types are not fixed, and which type of delegated legislation is used will be determined by the wording of the parent Act.

• Orders in Council are made by the Queen on the advice of the Privy Council (i.e. the Government). Orders in Council are generally used where it would be inappropriate for the order to be made by a Minister, for example where the matter is of constitutional significance (such as transferring powers and functions from one Minister to another, or bringing into force emergency powers to be exercised by Ministers).
• Orders of Council are made by the Lords of the Privy Council in their own right. These most commonly relate to the regulation of professional bodies and the higher education sector, over which the Privy Council exercises a supervisory function.
• Ministerial Order made by Ministers of the Crown
• Orders are usually made by Ministers. An Order is an exercise of executive powers, for example to create or dissolve a public body. Commencement Orders are used to set the date on which an Act, or part of an Act, comes into force.
• Regulations are also usually made by Ministers. Regulations are the means by which substantive and detailed law is made, for example setting out in detail how an Act is to be implemented. Regulations made under the European Communities Act 1972 are the means by which the Government most often implements European law within the United Kingdom.
• Rules set out procedures, for example rules governing court procedures, or the way in which the Patent Office deals with applications. Rules may be made by Ministers or, if specified in the parent Act, a senior judge.
  • In Scotland, rules of court take the form of Scottish Statutory Instruments. Those regulating civil procedure are enacted by the Court of Session and are called Acts of Sederunt;^{[6]:Section 103 to 106} those regulating criminal procedure are enacted by the High Court of Justiciary as Acts of Adjournal. Acts of Adjournal also have the ability to modify primary legislation, where that legislation regulates criminal procedure.^{[7]:Section 305}
• Schemes: for example, schemes made by the Charity Commission to amend how a charity is governed.
• Directions are a means by which Ministers give legally binding instructions to a public body about the way it exercises its functions.
• Byelaws are laws of limited application (usually restricted to certain places) made by local authorities or certain other bodies (for example, train operating companies or the National Trust for Places of Historic Interest or Natural Beauty) to control the activities of the people in public spaces, such as in public parks or on board public transport.

Making of delegated legislation

Delegated legislation is usually made by being signed by the person making it (or an authorised delegate of that person, for example a Senior Member of the Civil Service), although in the case of Orders in Council the verbal assent of the Queen is sufficient (however the fact that this has been given is recorded through the signature of the Clerk to the Privy Council).

Most delegated legislation is required (by the parent Act) to be made using a Statutory Instrument. This ensures that the legislation is catalogued and (apart from a few exceptions) published by the Queen's Printer, thereby making it available to the public as a whole.

However where delegated legislation is of only limited application (for example, most Directions and by-laws), and therefore not of general importance, the parent Act may not require that it be made using a Statutory Instrument. Instead, other provisions may be made for publishing the legislation. So, for example, an Order providing for the transfer of contracts from one National Health Service body to another may only be notified to the affected bodies,^[8] and by-laws made by a local council may be publicised through an announcement in local newspapers.^[9]

Layout of delegated legislation

Most delegated legislation will begin with a preamble which sets out who is making the legislation, the authority (precisely which sections of which Acts of Parliament) under which it is passed and, where appropriate, confirming that any pre-conditions required by the parent Act (for example, approval of a draft by each House of Parliament, or consultation with specified organisations) have been met.

What term is used to refer to the individual clauses of delegated legislation will depend on which type it is:

• in Orders, Orders in Council and Orders of Council, each clause is called an article.
• in Regulations, each clause is a regulation.
• in Rules, each clause is a rule.
• in Directions, and in the Schedules of Orders, Regulations and Rules, each clause is called a paragraph.

Clauses may be grouped under headings and in complex delegated legislation, the document may be divided into Parts. The main body of the delegated legislation may be followed by Schedules setting out even more detailed provisions.

There will also usually be an explanatory note describing, in summary form and using non-legal language, the purpose and scope of the legislation. The explanatory note is for convenience only and has no legal effect.

Controls over delegated legislation

There are both parliamentary and judicial controls over delegated legislation.

The parliamentary controls, by which delegated legislation made by Statutory Instrument may either need to be approved by a vote of each House of Parliament before it is made (the affirmative resolution procedure), or be subject to a veto by either House within a certain period of time after it is made (the negative resolution procedure), are described in detail in the article on Statutory Instruments. There is a constitutional convention that the House of Lords does not vote against delegated legislation, instead passing a motion that sets out their concerns while still allowing the legislation to pass.^[10]

Judicial control is exercised through the means of judicial review. Because delegated legislation is made by a person exercising a power conferred by an Act of Parliament (Parent or Enabling Act) for a specified purpose, rather than by Parliament exercising its sovereign law-making powers, it can be quashed by the courts if they conclude that it is ultra vires (literally, outside the powers conferred by the parent Act). There are two types of ultra vires, that being Substantive ultra vires, meaning the substance of the subordinate legislation has gone beyond the powers set out by the Parent Act and is therefore deemed void. - Commissioners of Customs and Excise V Cure and Deeley Ltd (1962). The second ultra vires is Procedural ultra vires, which means the procedure taken into making the delegated legislation has gone beyond the powers set out by the Parent Act. - Aylsebury Mushroom Case (1972). The final form of judicial control is unreasonableness. This literally means that the secondary legislation is simply so unreasonable that no reasonable person would make such a law and therefore on those grounds it is deemed void by the courts and quashed. - R(Rogers) V Swindon NHS Trust (2006).

Devolution

Acts of the Scottish Parliament, Acts of the Northern Ireland Assembly and Measures of the Welsh Assembly may also confer the power to make delegated legislation.

Whilst Scottish or Northern Irish Acts, and Welsh Measures, draw their constitutional legitimacy and legal effect from the enabling Acts of the Westminster Parliament establishing the Parliament and Assembly, they are classified as primary, not delegated, legislation.

Bibliography

• Statutory Instrument Practice, 3rd edition (June 2003), Cabinet Office and Her Majesty’s Stationery Office
• House of Commons Information Office Factsheet L7 - Statutory Instruments

Notes