Delegated Legislation- AS Law Notes

Delegated legislation (sometimes called secondary legislation or subordinate legislation) stems from an
enabling Act of Parliament which authorises someone else (i.e. other than Parliament) to make laws on
certain matters. Legislative powers are most often delegated to Government ministers, but may also be
delegated to local authorities, professional and other public bodies, public utility companies (even after
privatisation) and a variety of other organisations and individuals.

Explain the ways delegated legislation is controlled.

AO1 Knowledge and understanding

Parliamentary Controls
• • Pre drafting consultation, Aylesbury Mushroom (1972)
• • Repeal of enabling act
• • Delegated powers scrutiny committee
• • Affirmative Resolution
• • Negative resolution
• • Scrutiny Committee
• • Publicity

Judicial review
• • Substantive ultra vires R v Home Secretary ex parte Fire Brigades Union (1995),
Secretary of State for Education ex parte NUT (2000)
• • Procedural ultra vires Aylesbury Mushroom (1972)
• • Unreasonableness Strickland v Hayes Borough Council (1896)

Assess whether these controls are adequate.

Parliamentary Controls
• • Pre drafting consultation - not always carried out
• • Repeal of enabling act – impractical as laws still need to be made
• • Delegated powers scrutiny committee - no power to amend, not all regulations need to be laid
before them
• • Affirmative Resolution – unusual and takes up Parliamentary time, Parliament cannot amend,
only approve, annul or withdraw.
• • Negative resolution – common but depends on someone seeing the proposal
• • Scrutiny Committee – more effective, sees all Statutory Instruments but a technical review, can
only report back, no power to alter SI.
• • Publicity – public may not know of existence of DL

Judicial review
• • Can only challenge if locus standi
• • Expensive and technical
• • Needs legal advice
• • No legal aid available
• • Public may not know DL can be challenged this way

Most English law is made through delegated legislation in the form of

statutory instruments.
Describe how statutory instruments are made and controlled.

 made by ministers/ministerial departments

 using powers given by Parent/Enabling Act
 Legislative & Regulatory Reform Act 2006
 pre-drafting consultation
 repeal of Enabling Act
 Delegated Powers Scrutiny Committee
 affirmative Resolution
 negative resolution judicial review: procedural and substantive ultra vires,
unreasonableness.

6(b) Discuss the advantages of delegated legislation.

 time saving
 speed
 expertise
 flexibility
 controls
 Parliament can spend time making policy rather than including detail.

Explain the different types of delegated legislation and a reason each

type is necessary. Assess the disadvantages of delegated legislation

Responses may include – Types of DL - Orders in council; created by

Queen & Privy Council, emergency situations Civil Contingencies Act 2004,
gives legal effect to European Directives, brings acts into force, transfers
responsibilities between government departments. Statutory instruments;
made by government ministers, over 3000 each year, LARRA 2006. Bylaws;
local authorities concerning specific areas, also public corporations. Reasons
for having it – speed of creation and amendment, detail, locally made laws,
expertise, removes burden from parliament.
Evaluation: Takes law-making away from democratically elected MPs, sub
delegation, large volume makes it hard to discover what present law is, can
contain obscure technical wording requiring judges to interpret it, lack of
Parliamentary control, Henry VIII clauses, judicial review complex and
expensive to challenge.

Describe the controls exercised over delegated legislation by Parliament.

Answers may include the following:

The Enabling Act:

 Enabling Acts lay down the nature and scope of the delegated powers and may be repealed, revoked
or amended at any time
 Publication of all SIs is required under the Statutory Instruments Act 1946
 Consultation with those with relevant expertise can be required

Resolution Procedures:
 Describe the 'negative resolution' procedure that allows any MP to put down a motion to annul the
delegated legislation within a specific time period (usually 40 days)
 Describe the ‘affirmative resolution’ procedure where Parliament is required to vote its approval of
the delegated legislation by a motion approving it within a specified time (usually 28 or 40 days)
 Describe the ‘super-affirmative resolution’ procedure under the Legislative and Regulatory
Reform Act 2006 which gives Ministers power to make any provision by order if it will remove or reduce
a legislative burden. Such burdens might include a financial cost, an administrative inconvenience, an
obstacle to efficiency, productivity or profitability or a sanction which affects the carrying on of any lawful
activity. Ministers can even change Acts of Parliament

Scrutiny Committees
 Parliament has a number of committees that scrutinise delegated legislation such as:
o The Joint Committee on Statutory Instruments

o The House of Lords Delegated Powers Scrutiny Committee

o The House of Lords Merits of Statutory Instruments Committee
o Other specialist committees include the Regulatory Reform Committee.

Questioning of Ministers:
 Individual ministers can be questioned by MPs about their current work in their departments, including
proposed or current delegated legislation.

Credit any other relevant point(s).

Read the scenario below and answer the question that follows.

Nottingham Council has recently become concerned about an increase in anti-social

behaviour on local streets, particularly on ‘student night’ which falls on a Wednesday.
The Council has therefore decided to pass a by-law banning alcohol from being
consumed outside of pubs and clubs in the town centre on all days of the week. The
ban includes outside seating areas and beer gardens. The local Pub Owners
Association feels the ban is unreasonable and excessive and they feel it may lead to
some establishments closing down. They also note that they were not consulted
before the ban was imposed.

Using your knowledge of delegated legislation, advise the local pub owners on the ways in which
the ban may be challenged.

In advising the pub owners, candidates are expected to demonstrate knowledge and
understanding of delegated legislation. Candidates are expected to apply the full range of legal rules and
principles that affect the application of the controls on delegated legislation to the pub owners’ situation.
In this case candidates may consider the application of control by the courts to the given scenario in
order to present a legal argument, using appropriate legal terminology.

The response might consider issues such as:

• By-laws as a source of delegated legislation.

• Challenge via judicial review on the basis the law is ultra vires and beyond the powers
given in the enabling Act.
• Challenges that the pub owners could pursue:
o Unreasonable ultra vires – application to the scenario on the basis that the ban is
excessive and unreasonable as it not only bans the consumption of alcohol outside
of pubs and clubs but also their outside seating areas on all days of the week.
Associated Picture Houses v Wednesbury Corporation.
o Substantive ultra vires – application to the scenario on the basis that the by-law
exceeds the powers of the council in banning the consumption of alcohol effectively
on the ‘private property’ of drinking establishments (e.g. beer gardens). R v Home
Secretary, ex parte Fire Brigades Union.
o Procedural ultra vires – application to the scenario on the basis the correct procedure
has not been followed (e.g. not consulting the pub owners association). Aylesbury
Mushrooms.
Explain Judicial Controls on DL

• Nature of delegated legislation and the need for control.

meaning of judicial review – who can take action, where,
• Challenges: judicial review on grounds of procedural ultra vires, e.g. Agricultural Training Board v
Aylesbury Mushrooms Ltd (1972),
• judicial review on grounds of substantive ultra vires, e.g. Comissioners of Customs & Excise v Cure
& Deely Ltd 1962,
• unreasonableness, e.g. R (on the application of Rogers) v Swindon NHS Primary Care Trust 2006,
• conflict with EU law/ECHR, e.g. Vinter and others v UK 2012.
Locus standi issues to be discussed
• Main challenges are:
• Unreasonable ultra vires – Associated Picture houses v Wednesbury
Corporation
• Substantive ultra vires – R v Home Secretary, ex parte Fire Brigades Union
• Procedural ultra vires – Aylesbury Mushroom case.
Statutory instruments are one form of delegated legislation. Describe how statutory instruments
are made and used.

Description of making and use of statutory instruments

• the existence of law made by government ministers with delegated powers under authority of primary
legislation,
• the role of ministers when consulting,
• drafting and laying before Parliament,
• completing detail of framework of parent Act,
• use for updating laws,
• other uses e.g. commencement orders, implementation of EU directives,
• allowing experts to be involved,
• examples of use.

Advantages of DL

that it saves parliamentary time allowing parliament to focus on major issues; Parliament simply does not
have time to waste in considering small points of detail
neither does it have the necessary local knowledge.
Parliament doesn’t have specialised knowledge either which is why so much health and safety legislation
is delegated
• delegated legislation can be made quickly because it does not have to go through – it can be amended
and revoked just as quickly and easily

either/both houses and can be used in the case of emergency;

• often it is made for technical reasons to fill in the gaps in primary legislation; experts can be consulted
for specific detail;
• flexibility – different rules can be introduced in different areas (by-laws) as required by local need, or to
deal with specific issues;
• statutory instruments can complete the detail of a framework Act, or deal with regular

amendments, e.g. changes in the annual amounts of the minimum wage;

• there is some form of control by either Parliament or the judiciary;
• some form of democracy is involved, as by-laws are made by local politicians and statutory instruments
are made by, or in the name of, elected ministers.

Assess the Control on DL

Why control of delegated legislation is necessary – to maintain Parliamentary Sovereignty and so that
devolved bodies do not exceed their powers

 Control by Parliament:
- Scrutiny committee
 Enabling Act
 Negative resolution
 Affirmative resolution
 Super Affirmative Resolution


 Control by courts:
 Judicial review
 Ultra vires – substantive - Strickland
 Ultra vires - procedural - Aylesbury Mushroom
 Unreasonableness – Wednesbury, R (on the application of Rogers) v Swindon NHS Primary Care
Trust 2006

Evaluation of Parliamentary control of delegated legislation

Study tips It is useful to know how to explain and evaluate the controls over delegated legislation.
Remember to comment on the strengths and weaknesses of each form of control.

The initial control Parliament exercises over delegated legislation is through the limits it sets in the
parent/enabling Act. Only the people or bodies specified in the parent Act have power to make law, and
the extent of that power is also specified. In addition, the parent Act will set out how the delegated
legislation must be made and may establish certain procedures, such as consultation, that must be
followed. Parliamentary supremacy is not compromised because Parliament ultimately remains in control
of what law is made and how it is made.
Although law-making is removed from the elected House of Commons through the parent Act, it
specifies the limits of that power.

Parliament may repeal or amend the piece of delegated legislation. This control also upholds
parliamentary supremacy, as Parliament can make or unmake any law.

However, the effectiveness of this control is limited because, due to the volume of delegated legislation
made each year, Parliament is not able to check it all. All by-laws are confirmed or approved by the
relevant government minister. For example, by-laws made by Hampshire County Council under the
Children and Young Persons Act 1933, regulating the local employment of children, were approved by
the Secretary for Health. This should ensure that all locally made law is overseen by those with
knowledge of the technical issues involved. While local authorities are perhaps more aware than
Parliament of local issues, the civil service department working for the minister possesses considerable
technical expertise.

The Joint Select Committee on Statutory Instruments, more commonly known as the Scrutiny
Committee, is made up of MPs and peers. Its role is to review statutory instruments and to refer
provisions requiring further consideration to both Houses of Parliament.

The main reasons for referring a statutory instrument back to the Houses of Parliament are:

-it appears to have gone beyond or outside the powers given under the parent/enabling Act it has not
been made according to the method stipulated in the parent Act
-unexpected use has been made of the delegated power
-it is unclear or defective it imposes a tax or charge – only Parliament has the right to do this
-it is retrospective in its effect, and the parent/enabling Act did not allow for this.

This is arguably one of the more effective controls, as many statutory instruments are subject to some
scrutiny. However, it is impossible for the Scrutiny Committee to review all statutory instruments because
over 3000 are created each year.

Furthermore, the powers of the Scrutiny Committee are limited in that it has no powers to amend the
statutory instrument; it merely reports its findings back to either the House of Commons or the House of
Lords.

Research by the Hansard Society, reported in 1992, revealed that many of the Scrutiny Committe’s
findings were ignored. The House of Lords Delegated Powers Scrutiny Committee checks all bills for any
inappropriate enabling provisions. Any such provisions are brought to the attention of the House of Lords
before the bill goes to the Committee stage. This is an effective control because, if the enabling
provisions are made appropriately, it is more likely the law made under the authority of them will also be.

Most statutory instruments must be laid before Parliament. This requires the statutory instruments to be
laid on the table of the House. The parent Act will state whether the statutory instrument must be laid
before Parliament, and which method must be used. There are two methods of laying delegated
legislation before Parliament.

First, there is the positive (or affirmative) resolution procedure. This means that the statutory instrument
must be approved by one or both Houses of Parliament within a specified time, usually between 28 and
40 days, before it can become law. An example is the Human Rights Act 1998. Section 1(4) authorises
the Secretary of State to make amendments to the Act as he thinks fit, to reflect the rights in protocols
that have been ratified or have been signed with a view to ratification by the UK. By virtue of s20 any
such amendments are subject to the affirmative resolution procedure.

Key terms Positive (or affirmative) resolution procedure: the statutory instrument must be approved by a
vote in one or both Houses of Parliament within a specified time limit. Clearly, the affirmative procedure
provides more stringent parliamentary control, since the instrument must receive Parliament’s approval
before it can come into force. This is a strong control since EVERY DL is checked and approved.

The disadvantage of this form of control is that it is time-consuming, defeating one of the main objectives
of delegated legislation, which is to save Parliament time. Furthermore, the statutory instrument cannot
be amended by Parliament, only approved, annulled or withdrawn. The control is also limited in that,
while it exists to control ministerial power, the Government, by virtue of its majority in the House of
Commons, will usually win a vote.

As a result of these disadvantages, the affirmative resolution is not used very often. However, statutory
instruments subject to the affirmative resolution must always be debated by Parliament, and it is
therefore more effective than some of the other controls. For this reason it is used for very important and
potentially controversial issues.

Secondly, most statutory instruments are subject to the negative resolution procedure. The statutory
instrument is laid before Parliament, usually for 40 days, during which time either House of Parliament
can annul the instrument. All members of both Houses can put down a motion, known as a ‘prayer’,
calling for annulment.

There is then a debate and a vote. If either House votes to pass the annulment motion, the statutory
instrument does not become law. More often, however, the statutory instrument is not annulled during
the 40-day period, and so automatically becomes law. It is arguable that this control is of limited effect,
as there is no requirement for MPs to look at the statutory instrument.

Most delegated legislation subject to this method is not challenged, and automatically becomes law after
40 days. However, this method of control does give an opportunity for any member of either House to
raise objections. This in turn may provide for more debate and consideration to be given to the
provisions of the statutory instrument.

Now, before a bill is enacted, the House of Lords Delegated Powers and
Regulatory Reform Committee will consider the extent of legislative powers
proposed to be delegated by Parliament to Government Ministers. The
Committee is required ‘to report whether the provisions of any bill
inappropriately delegate legislative power’ to a Government Minister.

That said, there is no power to amend bills.

After a particular bill is enacted, there are further ‘watchdogs’ on proposed Sis (statutory instruments)
under the particular Act.

The House of Lords Secondary Legislation Scrutiny Committee draws to the

‘special attention of the House’ any proposed SI which it considers may be
flawed or inadequately explained by the Government.

And the Joint Committee on Statutory Instruments, comprising Lords and

Commons Members, consider and, if necessary, report, not with respect to its
merits but only on technical grounds, for example, whether it is badly drafted
or ultra vires i.e. beyond the power authorised by the particular Act.

These Committees have no power to amend an SI and, to this extent, are

toothless. Moreover, there is a constitutional convention (an understanding)
that the House of Lords should not reject SIs.

Lastly, in the matter of Parliamentary control, there is always the point that
Government Ministers - and the Prime Minister at Prime Minister’s Questions
may be questioned on the floor of the House about ‘overweening’ Sis

So, what do we make of delegated legislation? Do we need it? Is it democratic?

Would we all rather be in the South of France? Well, I know the answer to the
last question! Whether or not delegated legislation is democratic depends on
its type. After all, bylaws are usually made directly by elected councillors. If
you don’t like a bylaw, then vote them out at the next election! The main
problem is their use by non-elected people. Further, there is a case that there
is not sufficient Parliamentary control, or even awareness. Take negative
resolutions, for example. Unless picked up by the Opposition parties, it is likely
that they will become law without being questioned.
A real criticism is that statutory instruments pave the way for sub-delegation.

In other words, law-making authority is effectively handed over to civil

servants. More often than not a Minister in a particular department will be
handed a list of statutory instruments to lay before Parliament and will do so
without question. Worse, statutory instruments are not often debated on the
floor of the House of Commons, and consequently there is very little publicity.
Critics also mention that the sheer volume of delegated legislation - 13,000
pages every year - makes it difficult to discover what the present law is on any
particular subject.

Effectiveness of Judicial control on DL

We know that delegated legislation is the law of the land and enforceable in
the courts. However, there is one important difference: delegated legislation is
made by Government Ministers, local authorities or whomsoever but not by
Parliament. So what? So, this legislation, or acts made under it, can be
challenged in the courts. You see, because of our notion of Parliamentary
supremacy, the legitimacy of an Act cannot be challenged by anybody on any
grounds whatsoever. However, a Minister or others can be challenged in the
courts on the basis that they had no power under the parent Act to make the
particular delegated legislation, or act under it in a particular way.

So, for example, an action or a decision taken by a public body (such as a local
council) that is deemed to be outside its powers (the legal term, derived from
Latin, is ‘ultra vires’), that is to say not in accordance with its parent Act, may
be reviewed by the courts in a process known as judicial review. And such
actions or decisions that are held to be ultra vires are void which means that
they are of no effect; they are not lawful.

This is an important check on Ministers and public bodies and establishes the
principle that they are subject to the ordinary law as is everybody else. In other
words, the rule of law is enforced by judicial review.

Effectiveness of judicial control

Although there are quite a broad range of controls, the effectiveness

of judicial control is limited. This is because the courts are dependent
on cases being brought before them. It is quite rare that a person will
question the validity of a law which it is claimed they have contravened.

To do so requires considerable legal knowledge, financial resources and

time. Even when a judge is presented with the opportunity to review a
piece of delegated legislation, he or she cannot amend it, only declare it
void. However, when delegated legislation is challenged in the courts,
a judge is able to ensure that it has been made in accordance with the
instructions set out by the democratically elected House of Commons
within the parent Act. This upholds parliamentary supremacy because
while a judge can declare a piece of delegated legislation to be void, he
or she can only do so if it does not conform to the instructions given
by Parliament.

Disadvantages of DL

A disadvantage that can be spotted immediately is that delegated legislation

through bylaws is often made by unelected bodies such as universities and
public corporations. For example, the British Airports Authority has powers to
make rules and issue fines for non-compliance by virtue of the Civil Aviation
Act 2006.
 The use of delegated
legislation has both
advantages and risks.
Describe the types of
delegated legislation.

Assess whether the

controls on its use are
adequate.

Indicative Content
Responses may include –

Orders in council: created

by Queen & Privy
Council, emergency situations, Civil Contingencies Act 2004, brings acts into force, transfers
responsibilities between government departments. Statutory instruments: made by government
ministers, over 3000 each year, LARRA 2006. Bylaws: local authorities concerning specific areas, also
public corporations. Controlled by Parliament: consultation, repeal, scrutiny committees, affirmative and
negative resolutions. Judicial control: judicial review, locus standi, substantive ultra vires Ex p Fire
Brigades Union 1995, procedural ultra vires Aylesbury Mushrooms 1972, unreasonableness Strickland v
Hayes BC 1896.

Evaluation: Advantages – that the controls exist to prevent misuse of powers. Adequacy of Controls –
consultation may not take place, repeal still leaves law to be made, committees cannot look at all DL,
affirmative resolution rare and takes Parliamentary time, negative resolution allows DL to slip through
unchallenged, judicial review complex and expensive to challenge

Explain the different types of delegated legislation and a reason each type is necessary. Assess
the disadvantages of delegated legislation

Indicative Content Responses may include – Types of DL - Orders in council; created by Queen & Privy
Council, emergency situations Civil Contingencies Act 2004, gives legal effect to European Directives,
brings acts into force, transfers responsibilities between government departments. Statutory instruments;
made by government ministers, over 3000 each year, LARRA 2006. Bylaws; local authorities concerning
specific areas, also public corporations. Reasons for having it – speed of creation and amendment,
detail, locally made laws, expertise, removes burden from parliament.

Evaluation: Takes law-making away from democratically elected MPs, sub delegation, large volume
makes it hard to discover what present law is, can contain obscure technical wording requiring judges to
interpret it, lack of Parliamentary control, Henry VIII clauses, judicial review complex and expensive to
challenge

Delegated legislation can be controlled by both the courts and parliament. Outline the different
types of delegated legislation. Assess the effectiveness of the controls that may be applied to
delegated legislation.

Responses may include – Orders in council; created by Queen & Privy Council, emergency situations
Civil Contingencies Act 2004, gives legal effect to European Directives, brings acts into force, transfers
responsibilities between government departments. Statutory instruments; made by government
ministers, over 3000 each year, LARRA 2006. Bylaws; local authorities concerning specific areas, also
public corporations. Controlled by Parliament: consultation, repeal, scrutiny committees, affirmative and
negative resolutions. Judicial control: judicial review, locus standi, substantive ultra vires, Ex p Fire
Brigades Union 1995, procedural ultra vires Aylesbury Mushrooms 1972, unreasonableness Strickland v
Hayes BC 1896.

Evaluation: Adequacy of Controls – consultation may not take place, repeal still leaves law to be made,
committees cannot look at all DL, affirmative resolution rare and takes Parliamentary time, negative
resolution allows DL to slip through unchallenged, problem of lack of locus standi, judicial review
complex and expensive to challenge.
Describe and illustrate bylaws and two other types of delegated legislation.

Describe the character of a bylaw:

 Explain that they can be made by local authorities to cover local matters and
sometimes by public corporations and certain companies for matters within
their jurisdiction which involve the public;
 Explain that they involve matters of only local concern e.g. parking restrictions
or dogs fouling footpaths, or, in the case of corporations, restrictions on the
behaviour of people who use their services e.g. smoking on the underground.
 Give any example of a bylaw and credit any appropriate reference to the
Source.
Describe the character of a statutory instrument:
 Explain that they are generally introduced by Ministers of government
departments under powers given in enabling Acts;
 Identify that it is a major method of law making – some 3000 are brought into
force each year;
 Explains that they can be introduced by either an ‘affirmative resolution’
(involving some debate) or a ‘negative resolution’ procedure (not involving any
debate);
 Gives an example such as Lord Chancellor’s powers regarding legal aid
schemes.
Describe the character of an Order in Council:
 Explain that they are drafted usually by a government department and
approved by the Queen and the Privy Council;
 Identify that the authority is granted by the Emergency Powers Act 1920 and
used generally in times of emergency, particularly war and when Parliament is
not sitting e.g. the fuel crisis of September 2000 saw Parliament put the Privy
Council on alert had the need to pass emergency legislation arisen.
 Give any example of an Order in Council.

Identify and explain which type of delegated legislation would be most

appropriate to introduce a law relating to each of the following:
1(b)(i) Parking restrictions in a district or town;
1(b)(ii) The implementation of regulations outlined in an Enabling Act relating to
the use of mobile phones in cars;
1(b)(iii) Powers needed to deal with an emergency situation.

In the case of (i) recognise that the use of bylaws would be most suited to this
situation because local authorities can make bylaws for their district or town to
cover local matters which involve the public e.g. parking restrictions.
In the case of (ii) recognise that the use of a statutory instrument is most
appropriate here because statutory instruments are the means through which
government ministers introduce particular regulations under powers delegated to
them by Parliament in enabling legislation.
In the case of (iii) recognise the well-known function of an Order in Council to
enable a prompt reaction to an emergency situation. They are drafted by the
relevant government department, approved by the Privy Council and signed by
the Queen.

Statutory instrument:
 They are generally introduced by Ministers of Government Departments under powers given in enabling Acts
 They are introduced by either an affirmative or a negative resolution procedure
 They come in the form of Orders, Regulations, Rules and Codes;
 They are national in effect
 They allow provisions of an Act of Parliament to be brought into force at a later date
 They provide the detail that would be too complex to include in the broad framework of an Enabling Act
 They amend, update and enforce provisions in existing primary legislation
 They employ the necessary expertise relevant to the area concerned
 Over 3000 are brought into force each year (3,133 in 2011)
 Give any examples eg Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009
No. 871 made under the Access to Justice Act 1999

Regulatory Reform Order:

 Made under the Regulatory Reform Act 2001 through the super-affirmative procedure
 Enable government to amend or repeal a provision in primary legislation which imposes a burden on business
and others
 Can only be used as long as it does not reduce or remove any necessary protection
 Similar provisions exist in the Legislative and Regulatory Reform Act 2006 which gives Ministers powers to make
Legislative Reform Orders that remove burdens directly or indirectly resulting from legislation

 Give a relevant example of an Order: eg the The Local Authorities (Contracting Out of Tax Billing, Collection and
Enforcement Functions) (Amendment) (England) Order 2013 made under the Deregulation and Contracting Out
Act 1994

Bylaw:
 They are made by local authorities to cover local issues or by public corporations to cover the services they
provide
 They are mostly created under the Local Government Act 1972 or the Local Government (Miscellaneous
Provisions) Act 1982
 Bylaws must be ‘confirmed’ (approved by the relevant Secretary of State) before they can come into force
 Notice and publication in local press will be required and copies must be available for inspection at local authority
offices
 Since they are not subject to the affirmative and negative resolution procedures, they may be subject to judicial
review and quashed as ultra vires if they go beyond the limits of the enabling Act
 They are usually based on Home Office guidelines and limited to a specific geographical area
 Use relevant examples of a bylaw: eg bans on outside drinking, skateboarding, fishing from piers and dogs
fouling footpaths or, for public corporations, London Underground banning smoking on the underground or your
local water company banning the use of hose pipes. A specific example is the Motor Cycles (Protective Helmets)
Regulations 1980 made under the Road Traffic Act 1988

Order in Council:
 Some Orders in Council are primary legislation made under the Royal prerogative (see the Northern Ireland Act
1998) but most are secondary legislation
 They are drafted by government departments and approved by the Queen and Privy Council
 They are made under powers given in a parent Act
 They are most commonly used when a SI would not be

appropriate such as transferring power between government departments, extending legislation to Crown
Dependencies such as the Channel islands or the transfer of power to devolved assemblies
 They are often used to grant Charters to hospitals and universities and to provide for the administration and
regulation of professional bodies (Orders of Council)
 OiC can also be used under the Emergency Powers Act 1920 and Civil Contingencies Act 2004 where they are
used in times of emergency, particularly war and when Parliament is not sitting
 OiC are also used to implement some EU law under the European Communities Act 1972

Give any example of an Order in Council: eg The Trading with the Enemy (Revocation) Order in Council 2011

Evaluate the controls on DL

Resolution Procedures:
 Describe the 'negative resolution' procedure that allows any MP to put down a
motion to annul the delegated legislation within a specific time period (usually
40 days)
 Either House (or both) may object (except finance matters which are Commons
only)
 Most common form of control (eg all EU Regulations are passed this way)
 Describe the ‘affirmative resolution’ where Parliament is required to vote its
approval of the delegated legislation when delegated legislation is laid before
one or both Houses, and becomes law only if a motion approving it is passed
within a specified time (usually 28 or 40 days)
 Approval of both Houses normally required so it is a stricter form of control
although less delegated legislation is scrutinised this way
 Describe the ‘super-affirmative resolution’ under the Legislative and
Regulatory Reform Act 2006 which gives Ministers power to make any provision
by order if it will remove or reduce a legislative burden. Such burdens might
include a financial cost, an administrative inconvenience, an obstacle to
efficiency, productivity or profitability or a sanction which affects the carrying on
of any lawful activity. Ministers can even change Acts of Parliament.

Scrutiny Committees
Parliament has a number of committees that scrutinise delegated legislation
 The Joint Committee on Statutory Instruments is the main committee that
scrutinises statutory instruments to ensure that they do not: impose a tax or
charge (as only an elected body has such a right); appear to have retrospective
effect which was not provided for by the enabling Act; appear to have gone
beyond the powers given under the enabling legislation or makes some unusual
or unexpected use of those powers or is unclear or defective in some way
 The House of Lords Delegated Powers Scrutiny Committee - keeps under
constant review the extent to which legislative powers are delegated by
Parliament to government ministers, and examines all Bills with delegating
powers which allow SIs to be made before they begin their passage through the
House
 The House of Lords Merits of Statutory Instruments Committee - examines the
policy merits of any statutory instrument or regulations that are subject to
parliamentary procedure
 Other specialist committees include the Regulatory Reform Committee – who
examine subordinate provisions to amend primary legislation as created under
the Deregulation and Contracting Out Act 1994, amended by the Regulatory
Reform Act 2001 and the LRRA 2006.

Court Controls
The courts can control delegated legislation through the doctrine of judicial review:
 This process takes place in a special Administrative Court within the Queen’s
Bench Divisional Court
 Judicial Review is based on the doctrine of ultra vires which means ‘beyond
their powers’
 The process allows parties to challenge the lawfulness of administrative
decision-making
 The court can determine whether a decision-maker has gone beyond their
powers in four broad categories
 Procedural ultra vires – is where an administrative person/body has failed to
follow a procedure required under the legislation as in Agricultural Training
Board v Aylesbury Mushrooms (1972)
 Substantive ultra vires – is where an administrative person/body has used
powers legitimately given to them for a particular reason for another
unauthorised reason as in R v Secretary of State for Social Security ex parte
Joint Council for the Welfare of Immigrants (1996)
 Unreasonableness – is where an administrative person/body has done
something that no reasonable person/body in the same situation would do as in
Associated Picture Houses v Wednesbury Corporation (1948)
 Inconsistency with the Human Rights Act – is where an administrative
person/body has used their legislative power in a way which is inconsistent with
the Human Rights Act (1998) as in R (Bono) v Harlow DC (2002).
Make relevant reference to the sources

Effectiveness of parliamentary controls:

 Parliament has the ‘ultimate’ control through revocation or amendment of the
Parent Act which is consistent with doctrine of parliamentary supremacy
 The sheer volume (3,500 – 4,000 p.a.) of DL means that Parliamentary powers
are limited as there is little time for proper scrutiny
 Parliamentary controls are affected by the parameters set by the Enabling Act –
ie Parliament only delegates powers to bodies that are accountable to
Parliament and places limitations on the powers delegated
 The affirmative resolution procedure does give Parliament a stronger role (than
the negative procedure) but is very rarely used suggesting it is an ineffective
form of control
 The negative resolution procedure offers little practical control and, in reality, is
little more than a rubber stamping exercise
 The Scrutiny Committees have no power to alter the statutory instrument they
can only refer it back to Parliament on certain technical matters.
Effectiveness of court controls:
 Courts have little control as Judicial Review relies on an individual starting a
claim – ie the courts are powerless unless somebody brings a case and there is
a lack of knowledge issue
 Judicial Review is rarely funded by legal aid and relies on individuals having the
money, will and tenacity to pursue the case
 Claimants wishing to use Judicial Review must pass stringent legal tests (locus
standi and three month time limits) before bringing a case which can exclude
some
 Many Enabling Acts give ministers very wide discretionary powers making it
difficult for the court to reach a finding of ultra vires
 Courts can be reluctant to ‘stand up to government’ due to Supremacy of
Parliament and Separation of Powers doctrines – although the new UK
Supreme Court (where judicial review appeals could be heard) is adopting a
more interventionist role consistent with a constitutional court
 Judicial Review does hold the Executive to account and government usually
accepts the court’s rulings.
Credit references to the sources (though it is not necessary for full marks).

Resolution Procedures:

• Describe the 'negative resolution' procedure that allows any MP to put down a motion to annul the delegated
legislation within a specific time period (usually 40 days)
• Either House (or both) may object (except finance matters which are Commons only)
• Most common form of control (eg all EU Regulations are passed this way)
• Describe the ‘affirmative resolution’ where Parliament is required to vote its approval of the delegated
legislation when delegated legislation is laid before one or both Houses, and becomes law only if a motion
approving it is passed within a specified time (usually 28 or 40 days)
• Approval of both Houses normally required so it is a stricter form of control although less delegated legislation is
scrutinised this way
• Describe the ‘super-affirmative resolution’ under the Legislative and Regulatory Reform Act 2006 which gives
Ministers power to make any provision by order if it will remove or reduce a legislative burden. Such burdens might
include a financial cost, an administrative inconvenience, an obstacle to efficiency, productivity or profitability or a
sanction which affects the carrying on of any lawful activity. Ministers can even change Acts of Parliament

Enabling Acts:
• Enabling Acts lay down the nature and scope of the delegated powers
• Enabling Acts may be repealed, revoked or amended at any time
• Enabling Acts may set down strict procedures and limitations
• Parliament may be required to vote its approval of the enabling legislation
• Publication of all SIs is required under the Statutory Instruments Act 1946

Consultation with Government Ministers, those with relevant expertise (e.g. the police and local authorities) and the
public is often a requirement of the enabling legislation

Substantive Ultra Vires

• The courts can control delegated legislation through the doctrine of judicial review
• This process takes place in a special Administrative Court within the Queen’s Bench Divisional Court
• Judicial Review is based on the doctrine of ultra vires which means ‘beyond their powers’
• The process allows parties to challenge the lawfulness of administrative decision-making
• The court can determine whether a decision-maker has gone beyond their powers in four broad categories

Substantive ultra vires – is where an administrative person/body has acted beyond the remit of the powers granted
to him/her/them in the Enabling Act as seen in R v Secretary of State for Social Security ex parte Joint Council for
the Welfare of Immigrants (1996)
Make relevant reference to the sources.

Explain for each of the following situations the most appropriate delegated legislation control.
Use cases or examples to illustrate your answer where appropriate.
(i) Betty Jones MP is sponsoring the Virtues in Education Bill in Parliament which will
give the Minister of Education the power to issue regulations on matters of character
education. She is keen to see that any such regulations are discussed and approved by
Parliament. [5]
(ii) Betty’s Bill becomes an Act. The Minister of Education later uses powers under the Act
to create regulations requiring all children to achieve a Duke of Edinburgh Gold Award
by the age of eleven in order to improve their character. Mr Smith, a primary school head
teacher, thinks this is ridiculous and wants to take legal action in the High Court. [5]
(iii) Mr Khan is the parent of a child at Mr Smith’s school. He believes the Minister has acted
unlawfully by failing to consult with interested parties such as parents, as required in the
enabling Act. He would like to challenge the Minister in the High Court. [5]
(
Identify that Betty’s concerns would addressed by ensuring that regulations made under the new Act are subject to
the control of an affirmative resolution procedure (CP). This is because there will need to be an approval through a
motion in both Houses of Parliament, with a debate and vote (WHY). Any additional point such as a LTS,
recognition that the Parent Act will dictate the method of approval, such matters are usually considered in Standing
Committee or that few SIs are approved by this method and that it is the stronger form of approval.

Identify that the best control for Mr Smith to rely on would be substantive ultra vires for unreasonableness (CP).
This is because the Minister has made a decision that no reasonable minister in the same circumstances would
make (WHY). Any additional point such as a LTS, a relevant case (Associated Picture Houses v Wednesbury
Corporation (1948)) or speculation on an appropriate remedy.

Identify that the best control for Mr Khan to rely on would be procedural ultra vires (CP). This is because Mr Khan
believes that the Minister has acted beyond his powers by not consulting with interested parties (such as himself) –
a requirement of the enabling Act (WHY). Any additional point such as a LTS, a relevant case (Agricultural
Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972)) or speculation on an
appropriate remedy.

c) (i) Describe the way that resolution procedures, enabling Acts and substantive ultra vires
can be used to control delegated legislation using Source B and your knowledge. [15]
(ii)* Discuss the extent to which Parliamentary controls are more effective than judicial
controls over delegated legislation.

Resolution Procedures:
• Describe the 'negative resolution' procedure that allows any MP to put down a motion to annul the delegated
legislation within a specific time period (usually 40 days)
• Either House (or both) may object (except finance matters which are Commons only)
• Most common form of control (eg all EU Regulations are passed this way)
• Describe the ‘affirmative resolution’ where Parliament is required to vote its approval of the delegated
legislation when delegated legislation is laid before one or both Houses, and becomes law only if a motion
approving it is passed within a specified time (usually 28 or 40 days)
• Approval of both Houses normally required so it is a stricter form of control although less delegated legislation is
scrutinised this way
• Describe the ‘super-affirmative resolution’ under the Legislative and Regulatory Reform Act 2006 which gives
Ministers power to make any provision by order if it will remove or reduce a legislative burden. Such burdens might
include a financial cost, an administrative inconvenience, an obstacle to efficiency, productivity or profitability or a
sanction which affects the carrying on of any lawful activity. Ministers can even change Acts of Parliament

Enabling Acts:
• Enabling Acts lay down the nature and scope of the delegated powers
• Enabling Acts may be repealed, revoked or amended at any time
• Enabling Acts may set down strict procedures and limitations
• Parliament may be required to vote its approval of the enabling legislation
• Publication of all SIs is required under the Statutory Instruments Act 1946

• Consultation with Government Ministers, those with relevant expertise (e.g. the police and local authorities) and
the public is often a requirement of the enabling legislation

Substantive Ultra Vires

• The courts can control delegated legislation through the doctrine of judicial review
• This process takes place in a special Administrative Court within the Queen’s Bench Divisional Court
• Judicial Review is based on the doctrine of ultra vires which means ‘beyond their powers’
• The process allows parties to challenge the lawfulness of administrative decision-making
• The court can determine whether a decision-maker has gone beyond their powers in four broad categories

Substantive ultra vires – is where an administrative person/body has acted beyond the remit of the powers granted
to him/her/them in the Enabling Act as seen in R v Secretary of State for Social Security ex parte Joint Council for
the Welfare of Immigrants (1996)
Make relevant reference to the sources.

PC more effective than JC

Parliament can re-legislate, revoke or amend Enabling Acts to overcome any criticisms from the judiciary making it
more effective
Judicial Review relies on an individual bringing an action in the first place – it cannot ‘choose’ to review a decision
unlike Parliament which has complete discretion making it more effective
Judicial Review has stringent legal tests which must be satisfied before a case can be heard (locus standii) making
Parliamentary controls more effective
Some may argue that judges who respect the doctrine of Separation of Powers are reluctant to ‘go against’ or
criticise the Executive leaving court controls less effective
Some judges may be similarly reluctant where they feel that declaring legislation ultra vires defies the doctrine of
Parliamentary Supremacy or draws them into making overtly ‘political’ declarations making them similarly less
effective
Legal Aid shortages deny many litigants access to the courts and make parliamentary controls more accessible
and effective than court controls
Delegated legislation which gives ministers wide discretionary powers make it hard for the courts to review or find
ultra vires whereas Parliament retains the power to control such ministers making it more effective
PC less effective than JC
As per the source, court controls have the advantage of dealing with detailed problems based on legislation that is
‘in force’ where Parliamentary controls are premised on best estimates of potential future problems
Parliament has limited time and resources to scrutinise delegated legislation which, in combination with the sheer
volume of delegated legislation, limits proper scrutiny whereas the courts are obliged to deal with all viable cases
brought before them making Parliament less effective
The resolution procedures rarely result in actually stopping delegated legislation whereas Parliament will usually
respect the decisions of the courts especially the Supreme Court (see detention for terror suspects) making them
more effective than Parliament
Parliamentary controls such as the various scrutiny committees have little or no real power and can usually only
refer matters whereas decisions made by the courts are generally respected and observed by the executive making
them more effective
The Constitutional Reform Act (2005) gave the Supreme Court (where judicial review appeals are heard) greater
independence and underscored the doctrine of separation of powers. Consequently, the court has been ‘confident’
in using its powers to hold Parliament to account making it more effective. However, some would argue that
conservative judges who respect the doctrine of supremacy of parliament are reluctant to use their powers against
Parliament.
Reach any reasonable and supported conclusion about which is more effective

Identify and explain which type of delegated legislation would be most appropriate to
introduce a law relating to each of the following:
(i) parking restrictions in a district or town; [5]
Start writing your answer to Question 1(b)(i) on page 5.
(ii) the implementation of regulations outlined in an Enabling Act relating to the use of mobile
phones in cars; [5]
Start writing your answer to Question 1(b)(ii) on page 6.
(iii) powers needed to deal with an emergency situation.

In the case of (i) recognise that the use of bylaws would be most suited to this
situation because local authorities can make bylaws for their district or town to
cover local matters which involve the public e.g. parking restrictions.
In the case of (ii) recognise that the use of a statutory instrument is most
appropriate here because statutory instruments are the means through which
government ministers introduce particular regulations under powers delegated to
them by Parliament in enabling legislation.
In the case of (iii) recognise the well-known function of an Order in Council to
enable a prompt reaction to an emergency situation. They are drafted by the
relevant government department, approved by the Privy Council and signed by
the Queen.

Identify a bylaw as the most

appropriate form of delegated
legislation (CP). This is because
local knowledge would be needed
or because a local body would
have the authority to undertake
such a ban under parent Acts
such as the Local Government
(Miscellaneous Provisions) Act 1982 or a local body would have a mandate through being elected (why).
Other relevant factors may include a reference to the Source, another example of a bylaw or a reference
to the body that makes bylaws
5
(ii)
Identify an Order in Council as the most appropriate form of delegated legislation (CP). This is because
the transfer of constitutional powers is conventionally done through an Order in Council or that it involves
the exercise of a prerogative power (why). Other relevant factors may include a reference to the Source,
another example of an Order in Council, a reference to who makes an Order in Council (the Monarch
and Privy Council) or that this may also be achieved through a special type of Order in Council called a
Legislative Competence Order
5
(iii)
Identify a statutory instrument as the most appropriate form of delegated legislation (CP). This is
because the legislation would need to be national in effect or would need the expertise of the appropriate
education minister/experts (why). Other relevant factors may include a reference to the Source, another
example of a statutory instrument or a reference to who makes statutory instruments (Government
Ministers and their departments