Delegated legislation
Encyclopedia
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.
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.
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 or the precise design of traffic sign
s, 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.
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.
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.
), 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, and by-laws made by a local council may be publicised through an announcement in local newspapers.
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:
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.
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, or be subject to a veto by either House within a certain period of time after it is made, are described in detail in the article on Statutory Instruments.
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 for a specified purpose, rather than by Parliament exercising its sovereign
law-making powers, it can be struck down by the courts if they conclude that it is ultra vires
(literally, outside the powers conferred by the parent Act). This would be the case if the Government attempts to use delegated legislation for a purpose not envisioned by the parent Act, or if the legislation is an unreasonable use of the power conferred by the Act, or if pre-conditions imposed by the Act (for example, consultation with certain organisations) have not been satisfied.
There is a constitutional convention
that the House of Lords
does not vote against 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.
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, delegated legislation is legislation or law that is passed otherwise than in an Act of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
(or an Act of the Scottish Parliament, Northern Ireland Assembly
Northern Ireland Assembly
The Northern Ireland Assembly is the devolved legislature of Northern Ireland. It has power to legislate in a wide range of areas that are not explicitly reserved to the Parliament of the United Kingdom, and to appoint the Northern Ireland Executive...
or National Assembly for Wales
National Assembly for Wales
The National Assembly for Wales is a devolved assembly with power to make legislation in Wales. The Assembly comprises 60 members, who are known as Assembly Members, or AMs...
). Instead, an enabling Act (also known as the parent Act or empowering Act) confers a power to make delegated legislation on a Government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
Minister
Minister (government)
A minister is a politician who holds significant public office in a national or regional government. Senior ministers are members of the cabinet....
or another person or body. Several thousand pieces of delegated legislation are made each year, compared with only a few dozen Acts of Parliament.
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
Passport
A passport is a document, issued by a national government, which certifies, for the purpose of international travel, the identity and nationality of its holder. The elements of identity are name, date of birth, sex, and place of birth....
), 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 or the precise design of traffic sign
Traffic sign
Traffic signs or road signs are signs erected at the side of roads to provide information to road users. With traffic volumes increasing over the last eight decades, many countries have adopted pictorial signs or otherwise simplified and standardized their signs to facilitate international travel...
s, 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.
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.
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
Deregulation and Contracting Out Act 1994
The Deregulation and Contracting Out Act 1994 is an Act of the Parliament of the United Kingdom. It introduced wide ranging measures aiming to cut government expenditure and bureaucracy...
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
Regulatory Reform Act 2001
The Regulatory Reform Act 2001 is an Act of the Parliament of the United Kingdom. It replaced the Deregulation and Contracting Out Act 1994...
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 CouncilPrivy Council of the United KingdomHer Majesty's Most Honourable Privy Council, usually known simply as the Privy Council, is a formal body of advisers to the Sovereign in the United Kingdom...
(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 CouncilOrder of CouncilAn Order of Council is a form of legislation in the United Kingdom. It is made by the Lords of the Privy 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. - Orders are usually made by MinistersMinister (government)A minister is a politician who holds significant public office in a national or regional government. Senior ministers are members of the cabinet....
. 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 1972European Communities Act 1972European Communities Act 1972 can refer to:*European Communities Act 1972 * European Communities Act 1972...
are the means by which the Government most often implements European law within the United Kingdom. - RulesProcedural lawProcedural law or adjective law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice to all cases that come before...
set out procedures, for example rules governing courtCourtA court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
procedures, or the way in which the Patent OfficePatent officeA patent office is a governmental or intergovernmental organization which controls the issue of patents. In other words, "patent offices are government bodies that may grant a patent or reject the patent application based on whether or not the application fulfils the requirements for...
deals with applications. Rules may be made by Ministers or, if specified in the parent Act, a senior judgeJudgeA judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
. In ScotlandScotlandScotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, rules of court are called Acts of SederuntAct of SederuntAct of Sederunt in Scots law, is an ordinance for regulating the forms of judicial procedure before the Court of Session , Sheriff Courts in civil session, and for setting fees for Messengers-at-arms and Sheriff officers...
or Acts of Adjournal. - Schemes: for example, schemes made by the Charity CommissionCharity CommissionThe Charity Commission for England and Wales is the non-ministerial government department that regulates registered charities in England and Wales....
to amended how a charityCharitable organizationA charitable organization is a type of non-profit organization . It differs from other types of NPOs in that it centers on philanthropic goals A charitable organization is a type of non-profit organization (NPO). It differs from other types of NPOs in that it centers on philanthropic goals A...
is governed. - DirectionsDirections (delegated legislation)Directions are a form of delegated legislation used in the United Kingdom.An Act of Parliament or other delegated legislation may confer a power on a Minister to give Directions so as to enable that Minister to give instructions to a public body or group of public bodies which are not under the...
are a means by which Ministers give legally binding instructions to a public body about the way it exercises its functions. - ByelawsByelaws in the United KingdomIn the United Kingdom, byelaws are laws of local or limited application made by local councils or other bodies, using powers granted by an Act of Parliament, and so are a form of delegated legislation...
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 BeautyNational Trust for Places of Historic Interest or Natural BeautyThe National Trust for Places of Historic Interest or Natural Beauty, usually known as the National Trust, is a conservation organisation in England, Wales and Northern Ireland...
) to control the activities of the people in public spaces, such as in public parks or on board public transportPublic transportPublic transport is a shared passenger transportation service which is available for use by the general public, as distinct from modes such as taxicab, car pooling or hired buses which are not shared by strangers without private arrangement.Public transport modes include buses, trolleybuses, trams...
.
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 ServiceBritish Civil Service
Her Majesty's Home Civil Service, also known as the Home Civil Service, is the permanent bureaucracy of Crown employees that supports Her Majesty's Government - the government of the United Kingdom, composed of a Cabinet of ministers chosen by the prime minister, as well as the devolved...
), 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
Queen's Printer
The Queen's Printer is a position defined by letters patent under the royal prerogative in various Commonwealth realms...
, 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
National Health Service
The National Health Service is the shared name of three of the four publicly funded healthcare systems in the United Kingdom. They provide a comprehensive range of health services, the vast majority of which are free at the point of use to residents of the United Kingdom...
body to another may only be notified to the affected bodies, and by-laws made by a local council may be publicised through an announcement in local newspapers.
Layout of delegated legislation
Most delegated legislation will begin with a preamblePreamble
A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute...
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, or be subject to a veto by either House within a certain period of time after it is made, are described in detail in the article on Statutory Instruments.
Judicial control is exercised through the means of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
. Because delegated legislation is made by a person exercising a power conferred by an Act of Parliament for a specified purpose, rather than by Parliament exercising its sovereign
Sovereign
A sovereign is the supreme lawmaking authority within its jurisdiction.Sovereign may also refer to:*Monarch, the sovereign of a monarchy*Sovereign Bank, banking institution in the United States*Sovereign...
law-making powers, it can be struck down by the courts if they conclude that it is ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
(literally, outside the powers conferred by the parent Act). This would be the case if the Government attempts to use delegated legislation for a purpose not envisioned by the parent Act, or if the legislation is an unreasonable use of the power conferred by the Act, or if pre-conditions imposed by the Act (for example, consultation with certain organisations) have not been satisfied.
There is a constitutional convention
Constitutional convention (political custom)
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...
that the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
does not vote against delegated legislation.
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.