Legislation and legislative procedures - Secondary (delegated) legislation

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Overview

Secondary legislation, also known as delegated legislation, plays a vital role in the UK legal system. It permits Parliament to transfer law-making authority to other bodies, allowing for the development of detailed rules necessary for implementing primary legislation. For SQE1 FLK1 exam candidates, a thorough understanding of secondary legislation is essential, showcasing knowledge of how the UK legal system operates with flexibility. This article explores the forms, creation, oversight, and legal challenges of secondary legislation, equipping you with the insights needed for exam success and your future legal career.

Constitutional Foundations and Theoretical Framework

The Doctrine of Parliamentary Sovereignty and Delegated Powers

Secondary legislation is based on the doctrine of parliamentary sovereignty, a fundamental part of the UK constitution. This principle allows Parliament to delegate its law-making powers to other bodies or individuals, usually government ministers or public authorities. The delegation of legislative power is justified by the need for:

  1. Efficient governance
  2. Expertise in specific areas
  3. Rapid response to changing conditions
  4. Easing the parliamentary workload

However, this delegation creates tension between executive efficiency and parliamentary sovereignty, raising questions about power balance and democratic accountability.

Legal Basis for Secondary Legislation

Secondary legislation derives its authority from primary legislation, known as the 'parent' or 'enabling' Act. The enabling Act specifies:

  • Who may exercise the power
  • The extent of the power
  • Conditions or limitations on its use
  • Procedural requirements for creating secondary legislation

Notably, secondary legislation cannot exceed the powers granted by the enabling Act, a principle known as 'ultra vires'.

Forms of Delegated Legislation

Statutory Instruments (SIs)

Statutory Instruments are the most common form of secondary legislation, governed by the Statutory Instruments Act 1946. They include regulations, orders, rules, and schemes, especially useful for detailed technical measures or frequent legislative updates.

Example: The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 details which financial activities require authorisation, which is too complex for primary legislation.

Orders in Council

Orders in Council are made by the monarch on the advice of the Privy Council. They are used for urgent or exceptional circumstances, often related to national security, foreign affairs, or emergencies.

Example: The European Union (Withdrawal) Act 2018 (Commencement and Transitional Provisions) Regulations 2018 specified the 'exit day' for Brexit.

Byelaws

Byelaws are local regulations made by local authorities or certain public bodies to address specific issues within a geographical area, allowing for tailored responses to localized needs.

Examples:

  • A local council might create byelaws to regulate behavior in public parks
  • Transport for London can make byelaws for conduct on the London Underground

Other Forms

Other forms of delegated legislation include:

  • Directions: Instructions issued by ministers to public bodies
  • Circulars: Guidance documents explaining policy or legal changes
  • Codes of Practice: Detailed guidelines for implementing specific laws

Example: The Code of Practice issued under section 45 of the Freedom of Information Act 2000 provides guidance on records management for public authorities.

Creation and Oversight Mechanisms

The Legislative Process for Secondary Legislation

  1. Drafting: The responsible department prepares the instrument, often with stakeholder consultation.
  2. Laying before Parliament: Most SIs must be 'laid' before Parliament for a specified period.
  3. Parliamentary scrutiny: The level of scrutiny depends on the procedure in the enabling Act.

Parliamentary Procedures

Affirmative Resolution Procedure

Here, both Houses must expressly approve the instrument before it becomes law, typically for more significant or controversial measures.

Example: The Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015, which allowed for 'three-parent babies', required affirmative resolution.

Negative Resolution Procedure

This allows the instrument to become law automatically unless either House passes a motion to annul it within a specified period (usually 40 days). Most SIs follow this procedure.

Example: The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 implemented the first COVID-19 lockdown.

Scrutiny Committees

Several committees oversee secondary legislation:

  1. Joint Committee on Statutory Instruments (JCSI): Examines technical qualities of SIs, focusing on drafting defects or vires.
  2. Secondary Legislation Scrutiny Committee (SLSC): Considers policy merits of SIs subject to parliamentary procedure.
  3. European Statutory Instruments Committee (ESIC): Reviews proposed negative SIs under the European Union (Withdrawal) Act 2018.

These committees can highlight problematic SIs, potentially triggering debates or influencing ministerial decisions.

Legal Challenges and Judicial Review

Secondary legislation is subject to judicial review, allowing courts to scrutinize its legality. Grounds for challenge include:

  1. Ultra Vires: Exceeding the powers granted by the enabling Act.
  2. Procedural Impropriety: Not following correct procedures in making the legislation.
  3. Irrationality: Making decisions unreasonable for any authority.
  4. Incompatibility with Human Rights: Violating rights under the Human Rights Act 1998.

Case Study: R (Public Law Project) v Lord Chancellor [2016] UKSC 39

This case concerned the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014 which introduced a residence test for civil legal aid. The Supreme Court found the Order ultra vires as it exceeded the powers conferred by the enabling Act, showing the courts' role in ensuring delegated legislation stays within legal bounds.

Impact of Brexit on Secondary Legislation

Brexit has had a major impact on secondary legislation:

  1. European Union (Withdrawal) Act 2018: Created 'retained EU law' and gave ministers extensive powers to amend it.
  2. EU Exit Statutory Instruments: Thousands of SIs were made to ensure the UK statute book works post-Brexit.
  3. Henry VIII Powers: These allow ministers to amend primary legislation through secondary legislation, sparking renewed debates.

Conclusion

Secondary legislation is an essential part of the UK's legislative framework, providing flexibility and responsiveness. For SQE1 FLK1 exam candidates, gaining a full understanding of secondary legislation involves exploring:

  1. Its constitutional foundations and theoretical justifications
  2. The various forms and specific uses
  3. The creation process and oversight, including parliamentary procedures and scrutiny committees
  4. Potential legal challenges through judicial review
  5. The effects of events like Brexit on its use and scope

Understanding these concepts prepares you not only for exam success but also equips you with the skills needed to engage with UK law's evolving nature. As future legal professionals, knowing how to assess and critique secondary legislation will be key to ensuring an effective and accountable legal system.