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 GovernmentMinister 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 are called Acts of Sederunt or Acts of Adjournal.

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,[6] and by-laws made by a local council may be publicised
through an announcement in local newspapers.[7]

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.[8]
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.