Legislation and legislative procedures - Secondary (delegate...

Learning Outcomes

This article explains the constitutional basis for secondary (delegated) legislation, its main forms, the procedures for its creation and parliamentary scrutiny, how secondary legislation can be challenged in the courts, common features and terminology of statutory instruments (including laying requirements and the 40-day rule), the role of parliamentary committees, the operation and control of “Henry VIII” powers, and how human rights compatibility and Brexit have shaped modern delegated legislation, with illustrative SQE1-style applications.

SQE1 Syllabus

For SQE1, you are required to understand the legal framework and procedures for secondary legislation, with a focus on the following syllabus points:

• the constitutional basis and rationale for delegated legislation in the UK
• the main forms of secondary legislation (statutory instruments, Orders in Council, byelaws)
• the parliamentary procedures for creating and scrutinising secondary legislation (affirmative and negative resolution procedures)
• the grounds and process for challenging secondary legislation in the courts (judicial review, ultra vires, procedural impropriety)
• the impact of Brexit on the use and scrutiny of secondary legislation
• the role of parliamentary committees (JCSI and House of Lords Secondary Legislation Scrutiny Committee) in technical and policy review
• the meaning of “laid” and the time limits for parliamentary action (including the 40-day period)
• Henry VIII clauses and remedial orders under the Human Rights Act 1998

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the difference between primary and secondary legislation?
2. Which parliamentary procedures are used to scrutinise statutory instruments?
3. What does it mean for secondary legislation to be "ultra vires"?
4. Name two forms of secondary legislation other than statutory instruments.
5. On what grounds can a court declare secondary legislation invalid?

Introduction

Secondary legislation, also known as delegated legislation, is law made by a person or body other than Parliament, under powers granted by an Act of Parliament (the "enabling" or "parent" Act). This system allows Parliament to focus on major policy decisions while delegating the detail and technical rules to ministers, local authorities, or other bodies. Secondary legislation is essential for the efficient operation of government and the legal system. In a typical year, thousands of statutory instruments (SIs) are made—far exceeding the number of Acts—covering matters from commencement of Acts to complex sectoral regulation.

Key Term: secondary legislation
Secondary legislation is law made by a person or body other than Parliament, under authority granted by an Act of Parliament.

Key Term: enabling Act
An enabling Act (or parent Act) is a statute passed by Parliament that grants powers to make delegated legislation.

Constitutional Basis for Delegated Legislation

The UK constitution is based on the doctrine of parliamentary sovereignty. Parliament is the supreme law-making body, but it may delegate law-making powers to others through enabling Acts. Delegated legislation must remain within the limits set by the enabling Act. If it exceeds those limits, it is said to be "ultra vires" and can be declared invalid by the courts.

Even when a delegated measure has been subject to parliamentary approval under the affirmative procedure, courts may still review its legality and strike it down if it exceeds the power conferred or is otherwise unlawful. By contrast, courts will not question procedural defects in the passage of an Act of Parliament; the correct forum for passing Acts is Parliament itself.

Key Term: ultra vires
Ultra vires means "beyond the powers." Secondary legislation is ultra vires if it exceeds the authority granted by the enabling Act.

Delegation is not an abdication of legislative power; Parliament retains the ability to amend or repeal enabling provisions, recover delegated authority, and specify the degree of scrutiny applied to secondary measures. Sub-delegation (passing powers on again) is not permitted unless expressly authorised by the parent Act.

Key Term: laid
An instrument is “laid” when it is formally presented to Parliament. Laying triggers applicable time periods (e.g., the 40-day negative procedure window) and enables scrutiny.

Why Use Secondary Legislation?

Delegated legislation is used to:

• provide detailed rules and procedures not suitable for inclusion in primary legislation
• allow for technical updates and rapid responses to changing circumstances
• implement EU law or international obligations
• address local or sector-specific issues (e.g., byelaws)
• bring Acts (or parts of Acts) into force via commencement orders and to sequence implementation over time
• adjust operational parameters such as fees, thresholds or schedules efficiently

This flexibility proved important in areas of urgent public policy (for example, public health regulations) and remains central to managing “retained EU law” post-Brexit, where thousands of measures required correction and updating by SI.

Key Term: retained EU law
Retained EU law is the body of EU-derived rules preserved in UK law at the end of the transition period. Ministers have used SIs extensively to correct and modify this law within powers conferred by the EU (Withdrawal) legislation.

Main Forms of Secondary Legislation

Statutory Instruments (SIs)

Statutory instruments are the most common form of secondary legislation. They are used by government ministers to make regulations, rules, or orders under powers given by an enabling Act. SIs are published and numbered, and most are subject to some form of parliamentary scrutiny. The Statutory Instruments Act 1946 provides the framework for SIs, including procedures and numbering (e.g., SI 2024/123).

SIs may be:

• made under the negative resolution procedure (become law unless annulled)
• made under the affirmative resolution procedure (require approval to take or remain in effect)
• laid in draft (before being made) where the parent Act requires approval prior to making
• subject to a “super-affirmative” process for enhanced scrutiny when powers are wide or policy-sensitive

Key Term: statutory instrument
A statutory instrument is a formal document used by ministers or other authorised bodies to make secondary legislation under an enabling Act.

Orders in Council

Orders in Council are made by the King on the advice of the Privy Council. They are used for matters such as emergencies, constitutional changes, or transferring responsibilities between government departments. Some Orders in Council are made under statutory authority; others use the royal prerogative.

Key Term: Orders in Council
An Order in Council is secondary legislation made by the Monarch with the advice of the Privy Council, either under statute or under prerogative powers.

Do not confuse Orders in Council with Orders of Council, which are decisions of the Privy Council made without personal approval by the Monarch (often used for professional regulation) and may derive their force from specific statutory provisions.

Byelaws

Byelaws are made by local authorities or certain public bodies (such as Transport for London or the Environment Agency) to regulate matters within their area or remit. Byelaws must be approved (confirmed) by the relevant government minister before coming into force. They commonly deal with local public spaces, markets, parking, hackney carriages, and nature reserves.

Key Term: byelaw
A byelaw is a locally applicable rule made by a council or public body under statutory authority, typically requiring ministerial confirmation.

Other non-SI delegated measures include court rules (made by rules committees under statutory powers) and the provisional collection of taxes mechanism, where Commons resolutions altering taxes have temporary statutory effect until a Finance Act is enacted.

Parliamentary Procedures for Secondary Legislation

The enabling Act specifies the procedure for making and scrutinising secondary legislation. The two main procedures are:

Affirmative Resolution Procedure

The statutory instrument must be approved by both Houses of Parliament before it can become law (or before it can remain in force if made under “made affirmative” powers). This procedure is used for legislation of greater importance or sensitivity.

In the Commons, affirmative SIs are debated either on the floor or in a Delegated Legislation Committee. No amendments can be made: Parliament votes only to approve or reject. The Parliament Acts do not apply to secondary legislation, so the House of Lords may block an affirmative SI.

Negative Resolution Procedure

The statutory instrument becomes law unless either House objects within a set period (usually 40 days, calculated in accordance with the Statutory Instruments Act 1946). Most SIs follow this procedure, which is used for routine or technical matters. An annulment motion (“prayer”) may be tabled; if passed, the instrument is void from the date of annulment.

Key Term: affirmative resolution procedure
A parliamentary process where secondary legislation must be expressly approved by both Houses before becoming law.

Key Term: negative resolution procedure
A process where secondary legislation becomes law unless annulled by either House within a specified period.

Some enabling Acts provide enhanced scrutiny via “super-affirmative” procedures, requiring consultation, publication of proposals, a minimum period (often 60 days), and consideration of committee recommendations before final laying and approval.

Parliamentary Scrutiny

Parliamentary committees play a key role in reviewing secondary legislation:

• The Joint Committee on Statutory Instruments (JCSI) examines technical and legal aspects of SIs, including defective drafting, doubtful vires, retrospective effect, imposition of charges, and failure to comply with procedural requirements.
• The House of Lords Secondary Legislation Scrutiny Committee considers the policy and public interest implications of SIs, highlighting instruments that give rise to significant concerns or fail to achieve policy objectives.

Committees may draw attention to issues, but cannot amend SIs—Parliament can only approve or reject them. The House of Commons European Statutory Instruments Committee has also scrutinised instruments made to deal with retained EU law following Brexit.

Key Term: Henry VIII clause
A provision in an Act of Parliament that authorises ministers to amend or repeal primary legislation using delegated legislation.

Henry VIII powers are often placed under affirmative or super-affirmative procedures given their constitutional sensitivity. Their use has increased in areas requiring swift technical updates (for example, to correct deficiencies in retained EU law) but remains subject to close parliamentary and judicial scrutiny.

Legal Limits and Judicial Review

Secondary legislation must comply with the limits set by the enabling Act. If it exceeds those limits, it is ultra vires and may be challenged in the courts.

Courts may also declare secondary legislation invalid if:

• the correct procedures were not followed (procedural impropriety), such as failing to consult where consultation is mandated by the parent Act
• it is irrational or unreasonable (Wednesbury unreasonableness)
• it is incompatible with human rights under the Human Rights Act 1998
• it unlawfully restricts fundamental common law rights absent clear statutory authority

Delegated legislation is reviewed under the familiar grounds of illegality, irrationality and procedural impropriety. Illustrative principles include:

• A measure imposing conditions not contemplated by the parent Act (illegality) will be quashed. Courts will scrutinise the wording of the enabling power carefully and not imply broad powers to create new substantive schemes (e.g., adding residence requirements or fees where Parliament did not confer such power).
• Where consultation is required, it must be carried out properly (procedural impropriety); failure to notify a relevant class of consultees may invalidate the instrument.
• If an instrument is so unreasonable that no reasonable rule-maker would have made it, it may be struck down (irrationality).
• Under the Human Rights Act, courts strive to interpret primary and subordinate legislation compatibly with Convention rights. If an SI itself breaches Convention rights and is not compelled by primary legislation, it may be quashed. If the incompatibility arises from the primary Act, courts may issue a declaration of incompatibility.

Key Term: declaration of incompatibility
A court statement that a provision of legislation is incompatible with Convention rights. It does not invalidate the provision; Parliament decides on the response.

Key Term: remedial order
A form of delegated legislation made under s 10 HRA 1998 to amend legislation swiftly to remove human rights incompatibility, usually subject to affirmative or super-affirmative procedure.

Modern case law also emphasises the common law’s protection of access to justice: secondary legislation that effectively prevents reasonable access to the courts will be unlawful unless Parliament has clearly authorised such restriction. Fee regimes or procedural barriers that disproportionately impede access have been struck down.

Worked Example 1.1

A government minister makes regulations under an enabling Act. The Act states that regulations must be approved by both Houses of Parliament before coming into force. The minister lays the regulations before Parliament, but they are not debated or approved. The minister then brings the regulations into force.

Answer:
The regulations are invalid. The enabling Act required affirmative approval by both Houses. Without this, the regulations are not law and can be challenged as ultra vires.

Worked Example 1.2

A local council makes a byelaw banning dogs from a public park. The enabling Act requires ministerial approval for byelaws. The council enforces the ban before obtaining approval.

Answer:
The byelaw is not legally effective until approved by the minister. Enforcement before approval is unlawful and can be challenged in court.

Worked Example 1.3

A statutory instrument introduces a new fee for a government service. The enabling Act does not mention fees. A person affected by the fee challenges the SI in court.

Answer:
The SI is likely to be ultra vires. The minister cannot introduce fees unless the enabling Act expressly or impliedly authorises this.

Worked Example 1.4

An enabling Act requires consultation with “representative bodies of the affected industry” before regulations are made. The minister consults only a small trade association and overlooks the largest sector body. The SI is made under the negative procedure and the 40-day window passes without annulment.

Answer:
The SI can still be quashed for procedural impropriety. Failure to conduct the required consultation renders it unlawful even if Parliament did not annul it within the negative procedure period.

Worked Example 1.5

Under a Henry VIII clause, a minister makes regulations amending a definition in a primary Act that changes who can claim a statutory benefit. The enabling power states the minister may make provision “for the purposes of implementing this Act and consequential matters.”

Answer:
The validity depends on the scope of the clause. If the amendment alters a core policy rather than being truly consequential, it risks being ultra vires. Courts construe Henry VIII clauses narrowly and expect express words to authorise changes of substance to primary rights.

Worked Example 1.6

A “made affirmative” SI is brought into force immediately to address an urgent national security concern. The parent Act requires that it be approved by both Houses within 28 days or it ceases to have effect.

Answer:
If the SI is not approved within the 28-day period, it lapses prospectively. Actions taken while it was in force remain valid unless the parent Act provides otherwise. The minister must consider whether replacement legislation is needed.

Worked Example 1.7

An SI under an enabling Act sets tribunal fees at a level that, in practice, prevents many claimants of modest means from bringing claims. The enabling Act authorises setting “reasonable fees” for administration.

Answer:
The SI is vulnerable. A fee regime that effectively denies access to justice is unlawful unless Parliament clearly authorised such restriction. “Reasonable fees” cannot be interpreted to permit levels that impede constitutional rights of access.

Exam Warning

Secondary legislation can only be amended or repealed by Parliament if the enabling Act allows. Parliament cannot amend an SI during the approval process—only accept or reject it.

Revision Tip

For SQE1, focus on the difference between affirmative and negative resolution procedures, and be able to identify when secondary legislation is ultra vires.

Summary

Secondary legislation allows detailed rules to be made efficiently under powers granted by Parliament. Statutory instruments, Orders in Council, and byelaws are the main forms. Parliamentary scrutiny is provided by affirmative and negative resolution procedures and specialist committees. Secondary legislation must remain within the limits of the enabling Act and can be challenged in court if it is ultra vires, procedurally improper, irrational, or incompatible with human rights. Instruments cannot be amended by Parliament; they stand or fall. The Human Rights Act enables swift correction of human rights incompatibilities via remedial orders, and the Parliament Acts do not apply to SIs. Post-Brexit, ministers have relied heavily on delegated powers (including Henry VIII clauses) to update retained EU law, increasing the importance of scrutiny procedures and judicial review.

Key Point Checklist

This article has covered the following key knowledge points:

• Secondary legislation is law made by persons or bodies other than Parliament, under authority granted by an enabling Act.
• The main forms are statutory instruments, Orders in Council, and byelaws; there are also court rules and other delegated mechanisms.
• The enabling Act sets the scope and procedures for making secondary legislation, including laying requirements and time limits.
• Affirmative and negative resolution procedures are the main forms of parliamentary scrutiny; super-affirmative may be used for enhanced oversight.
• Parliamentary committees (JCSI and House of Lords Secondary Legislation Scrutiny Committee) review secondary legislation and raise technical or policy concerns but cannot amend it.
• Secondary legislation can be challenged in court if it is ultra vires, procedurally improper, irrational, or incompatible with human rights; courts can quash incompatible SIs and issue declarations of incompatibility where the primary Act itself is incompatible.
• Henry VIII clauses allow ministers to amend primary legislation via SIs but are construed strictly and usually subject to stronger parliamentary control.
• Remedial orders under the Human Rights Act 1998 provide a fast-track mechanism to correct human rights incompatibilities.
• Brexit has increased the use of secondary legislation, especially for amending retained EU law, intensifying scrutiny of delegated powers.

Key Terms and Concepts

• secondary legislation
• enabling Act
• statutory instrument
• Orders in Council
• byelaw
• affirmative resolution procedure
• negative resolution procedure
• ultra vires
• laid
• Henry VIII clause
• declaration of incompatibility
• remedial order
• retained EU law