Delegated Legislation: Definition, Types

Introduction

Delegated legislation (also called secondary legislation) is law made by ministers, local authorities, and other bodies using powers granted by Parliament in an Act. It allows detailed, technical, and often time‑sensitive rules to be made without passing a full Act each time. This keeps primary Acts focused on broad policy while letting subject specialists set the fine detail.

The power to make delegated legislation comes from an enabling (parent) Act. That Act defines who may make the rules, on what topics, and by what process. Key safeguards include:

• Parliamentary controls (e.g. affirmative and negative procedures, committee scrutiny)
• Judicial review (to check whether the maker has acted within the powers and followed required steps)
• Political accountability and transparency measures (e.g. Explanatory Memoranda, consultation duties)

Concerns tend to focus on the breadth of powers granted, particularly where “Henry VIII clauses” allow ministers to amend primary legislation by statutory instrument. The balance between speed and accountability sits at the centre of current debates.

What You’ll Learn

• What delegated legislation is and why it is used
• The main forms: statutory instruments, by‑laws, and Orders in Council
• How enabling Acts set limits and procedures
• Parliamentary controls: affirmative, negative, and super‑affirmative procedures
• The role of the Joint Committee on Statutory Instruments and other committees
• How courts review delegated legislation for being ultra vires
• Key cases, including Aylesbury Mushrooms, Boddington, and Public Law Project
• What Henry VIII clauses are, and why they are controversial
• Practical steps for checking whether an instrument is valid and in force

Core Concepts

The Enabling (Parent) Act

• Source of power: Every piece of delegated legislation must point to a specific power in a statute. The scope, purpose, and process all come from the enabling Act.
• Limits: The Act may limit the subject matter, set consultation or publication duties, and require a specific parliamentary procedure (e.g. affirmative).
• Who can act: Powers are given to a named minister, department, regulator, or local authority. Sub‑delegation is generally not allowed unless the Act permits it.
• Consequence of error: If the maker goes beyond the scope or fails to follow mandatory steps, the instrument can be quashed by a court as ultra vires.

Main Forms: Statutory Instruments, By‑laws, Orders in Council

• Statutory Instruments (SIs)

  • The most common form of delegated legislation.
  • Typically made by ministers.
  • Governed procedurally by the Statutory Instruments Act 1946 and the enabling Act.
  • Used for detailed rules in areas such as consumer protection, tax administration, health, and environmental regulation.

• By‑laws

  • Made by local authorities and some public bodies (e.g. transport authorities).
  • Address local matters such as parking, parks, seafronts, or public behaviour in specific places.
  • Usually require confirmation by a minister, plus proper publication and signage to be enforceable.

• Orders in Council

  • Made by the Privy Council under statutory powers (or sometimes under the prerogative).
  • Used for matters such as emergencies (e.g. Civil Contingencies Act 2004), constitutional arrangements, or transfers of functions.

Parliamentary Controls and Procedures

• Negative procedure

  • The SI becomes law unless either House annuls it within a set period (usually 40 sitting days).
  • MPs or peers can “pray” against an SI, but time must be found for a debate and vote.

• Affirmative procedure

  • The SI requires express approval by one or both Houses before it can come into force.
  • Some Acts use a “made affirmative” process for urgency: the SI takes effect immediately but lapses unless approved within a short period.

• Super‑affirmative procedure

  • Used for significant orders, such as some Legislative Reform Orders under the Legislative and Regulatory Reform Act 2006.
  • Involves consultation, draft laying, and extended scrutiny with the possibility of recommendations and modifications before approval.

• Committees

  • Delegated Powers and Regulatory Reform Committee (Lords): scrutinises the appropriateness of powers in Bills before they become law.
  • Joint Committee on Statutory Instruments (JCSI): checks technical quality and vires of SIs (e.g. drafting, clarity, whether powers have been exceeded).
  • Secondary Legislation Scrutiny Committee (Lords): examines the policy merits of SIs and draws those of public interest to the House’s attention.

Judicial Review: Ultra Vires and Procedural Fairness

Courts can quash delegated legislation on grounds including:

• Substantive ultra vires: the maker acted outside the scope or purpose of the enabling Act.
• Procedural ultra vires: the maker failed to follow required steps (e.g. mandatory consultation, publication, or confirmation).
• Irrationality or unfairness: particularly relevant to by‑laws and regulatory decisions affecting rights or legitimate expectations.
• Human rights and equality duties: measures must be compatible with the Human Rights Act 1998, and public authorities must have due regard to the Equality Act 2010 s.149.

Collateral challenge is possible: a person prosecuted under a by‑law may argue in those proceedings that the by‑law is invalid (Boddington).

Henry VIII Clauses

• Definition: Provisions in an Act that allow ministers to amend or repeal primary legislation by secondary legislation.
• Why they matter: They shift more law‑making power to the executive. As a result, they usually attract higher levels of parliamentary scrutiny and political debate.
• Examples of use: Legislative Reform Orders under the 2006 Act; powers used around EU exit under the European Union (Withdrawal) Act 2018.

Key Examples or Case Studies

• Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 All ER 280

  • Context: The Minister failed to consult a representative organisation as required by the parent Act before making an order.
  • Outcome: The order was invalid in relation to the unconsulted group.
  • Point: Failure to follow mandatory consultation renders an instrument ultra vires.

• Boddington v British Transport Police [1999] 2 AC 143

  • Context: Defendant prosecuted for breaching a by‑law sought to challenge the validity of the by‑law in his defence.
  • Outcome: The House of Lords confirmed a defendant may mount a collateral challenge.
  • Point: Validity of delegated legislation can be tested in criminal proceedings.

• R (Public Law Project) v Lord Chancellor [2016] UKSC 39

  • Context: A residence test for civil legal aid was introduced by SI under LASPO 2012.
  • Outcome: The SI was beyond the power granted by LASPO and was quashed.
  • Point: Wide wording in a parent Act still has limits; purpose and scheme of the Act control what can be done.

• R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299

  • Context: Council signals and procedures around taxi licensing changes gave rise to fairness concerns and legitimate expectations.
  • Outcome: The court held the council acted wrongly without a fair hearing.
  • Point: Even when powers exist, fair process matters.

• AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46

  • Context: Challenge to an Act of the Scottish Parliament.
  • Outcome: The UK Supreme Court stressed that devolved legislatures have defined competences set by the UK Parliament.
  • Point: Power depends on the statute that grants it; the same principle applies to bodies making delegated legislation.

• R v Secretary of State for Transport, ex p Factortame (No 2) [1991] 1 AC 603

  • Context: Courts granted relief affecting primary legislation due to EU law supremacy at the time.
  • Point: Historically important for judicial control and interim relief. Post‑Brexit, the statutory framework has changed, but the case remains a touchstone for judicial oversight.

Practical Applications

• Read the enabling section first

  • Identify who can make the instrument, on what subjects, and for what purpose.
  • Note any required procedure (negative, affirmative, super‑affirmative) and any pre‑conditions (consultation, impact assessments, consent from another body).

• Check making and laying formalities

  • For SIs: confirm numbering, laying date, commencement date(s), and whether the correct parliamentary procedure was followed within time limits.
  • For by‑laws: verify that confirmation (if required) was obtained, and that publication and signage meet statutory requirements.

• Verify scope and content

  • Ask whether each provision falls within the power granted. Does the SI try to create offences or charges without clear authority? Does it contradict the parent Act?
  • Look out for Henry VIII clauses: if the SI amends an Act, there must be a specific power to do so and the correct (often stricter) procedure should have been used.

• Consider rights and fairness

  • Has there been proper consultation where required? Were key stakeholders notified?
  • Is the measure compatible with the Human Rights Act 1998? Was the public sector equality duty considered?
  • For local measures, was there a fair process, including genuine consideration of objections?

• Plan challenges and remedies

  • Judicial review must be brought promptly and usually within three months.
  • For by‑laws, consider a collateral challenge if proceedings are brought against your client.
  • Parliamentary options include seeking an annulment of a negative SI or engaging with committee scrutiny for incoming instruments.

• Keep context in mind

  • Some fields (tax, health, immigration, environmental standards) change frequently. Always check whether you have the latest version and whether any sunset or review clauses apply.
  • Post‑Brexit powers under the European Union (Withdrawal) Act 2018 often came with “sifting” procedures—look for committee reports that flag concerns.

Summary Checklist

• Identify the correct enabling Act and the exact power relied upon
• Confirm the maker, subject scope, purpose, and geographic reach
• Check the required parliamentary procedure and whether it was followed
• Verify any mandatory consultation, confirmation, or publication steps
• Assess whether the instrument stays within the purpose and limits of the Act
• Consider human rights and equality duties
• Watch for Henry VIII use and whether a stricter procedure applied
• Note commencement, transitional provisions, and revocations
• If advising on a challenge, act promptly and gather consultation and committee materials
• For local by‑laws, check confirmation, signage, and whether fairness was observed

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