Chapter three:

Delegated legislation
 3.1 - Types of delegated legislation
Delegated legislation is law made by some person or body other than Parliament, but with the authority
of Parliament. That authority is usually laid down in a ‘parent’ Act of Parliament, known as ‘enabling
Act’ which creates the framework of law and then delegates power to others to make more detailed law
in the area.
3.1.1- Orders in council
The Queen and the privy council have the authority to make Orders in Coucil. The privy council is
made up of the prime minister and other leading members of the government. This type ofdelegated
legislation effectively allows the governments to make legislation without it having to be debated or
voted in Parliament. Orders in Council can also be used to make other types of law. There must be an
enabling Act allowing the privy council to make an Order in Coucnil.
3.1.2- Statutory instruments
The term ‘statutory instruments’ refers to rules and regulations made by the government ministers. The
minister incharge of a department can make rules and regulations in aspect of the matters it deals with.
Statutory instruments can be very short, covering one point, such as making the annual change to the
minimum wage or they can be very long, with detailed regulations that were too complex to include in
an Act of Parliament. In 2014, 3481 statutory instruments were made but in 2019, the number was only
1410.
3.1.3- Bylaws
These can be made by local authorites to cover matters within their area; a country council can pass
bylaws affecting a whole country while a disctrict or town council can only make bylaws for its district
or town. Bylaws can also be made by public corporetations and certain companies. This means bodies
such as British Airports Authority and railway companies can enforce rules of public behaviour on or
around their premises.
3.2- The legislative and Regulatory Reform Act 2006
This act gives minsiters power to make any provision by order if it will reduce or remove a ‘burden’
resulting from legislation. A burden can be defined as;
- a financial cost,
- an administrative inconvenience,
- an obstacle to efficiency, productivity or preofitability,
- a sanction that effects the carrying on of any lawful activity.
Any minister making a statutory instrument under the powers of this Act mustl consult various people
and organisations such as:
- organisaations representative of interest substantially affected by the proposals,
- the Welsh Parliament for matters concerning Wales,
- the Law Commission, where appropriate.
Orders under this Act must be laid before parliament to be considered by one of the following
procedures:
- negative resolution procedure,
- affirmative resolution procedure,
- super-affiermative resolution procedure.
The minister must have regard to:
- any representations made,
- any resolution of either house of Parliament,
- any recommendation by a committee of either house asked to report on the draft order.
This procedure gives parliament more control over delegated legislation made under the act. The act
gives minsiters very wide powers to ament the acts of parliament without detailed debates in parliament.
3.3- Parliamentary controls on delegated legislation
Parliament has the initial control on delegated legislation, as the enabling act will set the boundaries
within which the delegated legislation is to be made. Parliament also retains control over the delegated
legislation, as it can repeal the powers enabling Act at any time. If it does this, then the right to make
further regulations will cease. There is a Delegated Powers Scrutiny Committee in the House of Lords,
which considers whether provisions of any Bills delegate legislative power inappropriately. If the
powers of the original enabling Act are appropriate, then any delegated legislation is more likely to be
properly drawn up. In addition ot the powers under the enabling Act, Parliament has the following
ways of checking the actual delegation legislation.
3.3.1- Pre drafting consultation
This is where the government department consults with all interested parties but it is not bound to do so.
3.3.2- Scrutiny Committee
A more effetive check is the existence of a Joint Committee in Statutory instruments, also known as the
scrutiny committee. It has no power to alter any statutory instrument. The review is a technical one and
not based on policy. The main grounds for referring a statutory instrument back to the House of
Parliament are that it:
- imposes a tax or charge,
- appears to have retrospective effect that was not provided by the enabling Act,
- appears to have gone byond the powers given by the Act or make some unusual or unexpected use of
those powers,
- is unclear or defective in some way.
3.3.3- Affirmative resolutions
This means that the statutory instrument will not become law unless specifically approved by
parliament. It will have to be debated in Parliament before it can operate. The need to pass an
affirmative resolution will be included in the enabling Act. One of the disadvantages is that Parliament
cannot ammend the statutory instrument, it can only be approved, annulled or withdrawn by the
government minsiter.
3.3.4- Negative resolutions
The relevant statutory instrument will be law unless rejected by Paeliament within 40 days.
3.3.5- Questioning
Individual ministers may be questioned by MPs in Parliament on the work of their departments.
3.4- Court controls on delegated legislation
Delegated legislation can be challenged in court on the grounds that it is ultra vires [‘beyond the
powers’]
3.4.1- Jusdicial review and locus standi
Any action taken to challenge will be taken in the Queens Bench Division in the High Court. It can
only be taken by a person or body with locus standi or an interest in the proceedings.
Locus standi will be decided as a parliamentary matter before the main issues in the case are considered.
If it is decided that the delegated legislation is ultra vires, it has gone beyond the powers of the
enabling Act. Any delegated legislation ruled to be ultra vires is void and ineffective.
3.4.2- Procedural ultra vires
This is concerned with how the delegated elgislation is made and if any required procedures have been
correctly followed. Any piece of delegated legislation made without following the correct procedure
will be ultra vires and void.
3.4.3- Substantive ultra vires
This is concerned with whether the content of the delegated legislation is within the limits specified in
the parent Act. Any delegated legislation beyond will be ultra vires and considered void.
3.4.4- Unreasonableness
A piece of delegated legislation or a deicision can be declared as Wednesbury inreasonanble following
the decision in Associated Provincial Picture Houses v Wednesbury Coporation (1948). In addition,
the courts will presume that, unless an enabling Act expressly allows it, there is no power to do any of
the following:
- make unreasonable regulations,
- levy taxes,
- allow sub-delegation.