Delegated Legislation

Delegated Legislation
After completing this unit, you will be able to:
• Describe what is meant by delegated legislation.

• Describe how powers to make such legislation are delegated.
• Explain why there is a need for effective checks and controls over
the use of delegated powers.
• Describe the mechanisms used to achieve these checks and
controls.
• Evaluate how effective these mechanisms are in preventing
misuse of powers.
On a piece of paper, answer the following:
• What is a Public General Bill?
• What is a Private Bill?
• What is a Green/White Paper?
• Outline the stages of Bill to Law (starting with Bill, and ending with Royal Assent)
What is Delegated Legislation?
• Stemming from the Local Government Act (1972), Delegated

Legislation is a Law made by someone, other than Parliament,
but with the authority of Parliament.
• The authority is usually laid down in a ‘Parent’ Act, known as an

Enabling Act, which creates the framework of the law, allowing
delegated legislation to make a more detailed law in the area.
• Parent/ Enabling Acts
• An Act of Parliament will set the framework for the Delegated

Legislation
• An example of an Enabling Act could be the Disability

Discrimination Act (1995) which gave the Secretary of State
powers to make regulations, both on the provision of services
and discrimination in employment.
Basically…
• Delegated Legislation consists of rules and

regulations imposed by other bodies, other than
Parliament
• For example, Local Authorities are given the

ability to make by-laws, specific to them, without
going through Parliament.
Why do we use Delegated Legislation?
• Parliament does not have the time to debate every detail of every Act
• Parliament will not always have the necessary expertise to deal with a
particular issue
• Delegated Legislation can be changed more easily, which allows

quicker response to changing circumstances
• Parliament can not always respond quick enough in emergencies.

Types of Delegated Legislation
• Statutory instruments – rules, regulations and orders, issued by ministers, national

in effect
• Byelaws – issued by local authorities (and some public corporations), local in effect
• Orders in Council – issued by the Privy Council, generally only used in emergencies.
Statutory Instruments
SIs are introduced by either:
• Negative resolution: The most common procedure, there is no debate

on the issue. The SI will become Law unless rejected by Parliament
within 40 days.
• Affirmative resolution: Less common than the negative procedure, but

offers more stringent Parliamentary control, due to the debate that
follows, and it needs Parliaments approval before being enacted.
Orders in Council
• Introduced by the Queen, or the Privy Council in times of emergency under

the Emergency Powers Act (1920).
• Only used in times of emergency, when Parliament is not sitting.
• (The Privy Council are a board of Senior Ministers past and present, that
meet with the monarch).
By-Laws
• Introduced by local authorities or large bodies authorised

to do so (such as the Rail Authority, Railtrack).
• They only involve matters of Local concern.
• Generally passed under the Local Government Act (1972).
• An example could be the ban on smoking on the London

underground.
Reasons and Advantages of DL
• To save parliament time.
• To deal with complex and technical issues (e.g. health and safety
regulations).
• Quicker and easier to amend and update than primary legislation.
• Able to respond quickly to emergencies.
• Allows for local variation to meet local need.

Disadvantages of DL
• Undemocratic: Giving power to individuals, takes the decisions away from
the democratic process
• Risk of Sub delegation: Legislation is made by people other than those

who were given the power initially
• Lack of Publicity: Although published, they tend not to be under the same
public scrutiny
• Large volume: Keeping track can be difficult, and DLs outnumber Acts of
Parliament by five to one.
Need for Controls
• DL results from transferring law-making powers from

the legislature to the executive.
Therefore,
• Delegated powers must be subject to effective checks
and controls to ensure accountability and prevent
misuse.
Parliamentary Oversight
• May seem to conflict with need to save parliamentary time.
• However, a responsible Parliament must monitor the use of powers it

has delegated.
Two main forms of oversight:
1.Affirmation process
2.Scrutiny committee
Affirmation Process
• Most SIs must be affirmed before coming into force.
• Positive affirmation – instrument only comes into force after

approval by positive resolution in Parliament.
• Negative affirmation – instrument comes into force unless annulled

by a negative resolution in Parliament.
• Negative more common BUT reliance on this may mean draft

instruments receive inadequate policy scrutiny.
Scrutiny Committee
• Reviews technical merits of all draft SIs.
• Refers to Parliament those giving cause for concern (e.g. unusual or

unexpected use of the power).
Therefore,
• Committee acts as a filter so that Parliament need only consider the

small number of instruments referred.
Judicial Review
• Limited nature of delegated powers means that courts can annul DL where
it is ultra vires (outside or beyond the power)
• Substantive ultra vires – subject matter outside scope of power

(A-G v Fulham Corp [1921])
• Procedural ultra vires – subject matter intra vires but serious failure to
comply with a mandatory procedural requirement – e.g. failure to consult
(Agricultural Training Board v Aylesbury Mushrooms [1972])
Test Questions
You should now be able to write a short paragraph in response to each of the
following questions:
• Define what is meant by delegated legislation and how delegated powers are granted.
• Describe the main forms of delegated legislation.
• Identify the main reasons for and advantages of delegated legislation.
• Explain why checks and controls are needed over the use of delegated powers.
• Describe the existing check and control mechanisms.
• Evaluate the effectiveness of these mechanisms.
Useful Websites
www.parliament.uk/

Delegated Legislation

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Delegated Legislation

• Describe what is meant by delegated legislation.

On a piece of paper, answer the following:

• What is a Public General Bill?

• What is a Private Bill?

• What is a Green/White Paper?

• Stemming from the Local Government Act (1972), Delegated

• The authority is usually laid down in a ‘Parent’ Act, known as an

• Parent/ Enabling Acts

• An Act of Parliament will set the framework for the Delegated

• An example of an Enabling Act could be the Disability

• Delegated Legislation consists of rules and

• For example, Local Authorities are given the

• Delegated Legislation can be changed more easily, which allows

• Parliament can not always respond quick enough in emergencies.

Types of Delegated Legislation

• Statutory instruments – rules, regulations and orders, issued by ministers, national

• Negative resolution: The most common procedure, there is no debate

• Affirmative resolution: Less common than the negative procedure, but

• Introduced by the Queen, or the Privy Council in times of emergency under

• Only used in times of emergency, when Parliament is not sitting.

• Introduced by local authorities or large bodies authorised

• They only involve matters of Local concern.

• Generally passed under the Local Government Act (1972).

• An example could be the ban on smoking on the London

• To save parliament time.

• Quicker and easier to amend and update than primary legislation.

• Able to respond quickly to emergencies.

• Allows for local variation to meet local need.

• Risk of Sub delegation: Legislation is made by people other than those

• DL results from transferring law-making powers from

• However, a responsible Parliament must monitor the use of powers it

Two main forms of oversight:

• Most SIs must be affirmed before coming into force.

• Positive affirmation – instrument only comes into force after

• Negative affirmation – instrument comes into force unless annulled

• Negative more common BUT reliance on this may mean draft

• Refers to Parliament those giving cause for concern (e.g. unusual or

• Committee acts as a filter so that Parliament need only consider the

• Substantive ultra vires – subject matter outside scope of power

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