AS Level Law

Sources of Law

Delegated Legislation
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What you need to know:

• The main types of delegated legislation

• How delegated powers are controlled
What you need to discuss:
• The advantages and disadvantages of delegated
legislation
• The effectiveness of the various forms of control
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Introduction

• Delegated legislation is law made by individuals

and institutions acting under a grant of legislative
authority from Parliament

• Delegated powers are usually granted in an enabling

Act

• This Act will establish a framework of general

principles and grant powers to fill in the details (e.g.
HASAWA’74)
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Types of Delegated Legislation
• statutory instruments - rules, regulations and orders,
issued by ministers, national in effect

• byelaws - issued by local authorities (and some public

corporations), local in effect

• Orders in Council - issued by the Privy Council,

generally only used in emergencies
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Reasons for/Advantages of DL
• to save parliamentary time
• to deal with complex and technical issues (e.g. health
and safety regulations)
• quicker and easier to amend and update than primary
legislation
• able to respond quickly to emergencies

• allows for local variation to meet local need

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Need for controls

• DL results from transferring law-making powers

from the legislature to the executive

therefore
• delegated powers must be subject to effective
checks and controls to ensure accountability and
prevent misuse
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Consultation

• often required by the enabling Act

• acts as a check in two ways:

 directly - by requiring a public exercise of

the power

 indirectly - may form the basis for judicial review

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Parliamentary oversight
• may seem to conflict with need to save parliamentary
time

• however, a responsible Parliament must monitor the

use of powers it has delegated

• two main forms of oversight:

 affirmation process
 scrutiny committee
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Affirmation process
• most SIs must be affirmed before coming into force
• positive affirmation - instrument only comes into force after
approval by positive resolution in Parliament
• negative affirmation - instrument comes into force unless
annulled by a negative resolution in Parliament
• negative more common BUT reliance on this may mean draft
instruments receive inadequate policy scrutiny
• Hansard Society proposed to refer draft SIs to relevant
departmental select committee for policy review before
affirmation - not implemented
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Scrutiny Committee
• reviews technical merits of all draft SIs
• refers to Parliament those giving cause for concern
(e.g. unusual or unexpected use of the power)

therefore
• Committee acts as a filter so that Parliament need
only consider the small number of instruments
referred
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Judicial Review
• limited nature of delegated powers means that courts
can annul DL where it is ultra vires (outside or beyond
the power)
• substantive ultra vires - subject matter outside
scope of power (A-G v Fulham Corp [1921])
• procedural ultra vires - subject matter intra vires
but serious failure to comply with a mandatory
procedural requirement - e.g. failure to consult
(Agricultural Training Board v Aylesbury Mushrooms
[1972])
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Conclusion
• DL inevitable and beneficial

• Executive law-making needs effective checks and

controls

• present controls are largely adequate

• need to improve policy review of draft SIs by
Parliament
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Revision DL - Intro (definition, enabling acts etc)
Headings:
DL - Types of
DL - Reasons for
DL - Need for controls
DL - Consultation
DL - Parliamentary oversight
DL - Judicial review
DL - Conclusion
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Test Questions:
Using your cards, you should now be able to write a short paragraph
in response to each of the following questions:
•Define what is meant by delegated legislation and how
delegated powers are granted.
•Describe the main forms of delegated legislation.
•Identify the main reasons for and advantages of delegated
legislation.
•Explain why checks and controls are needed over the use of
delegated powers.
•Describe the existing check and control mechanisms.
•Evaluate the effectiveness of these mechanisms.
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Useful Websites:

 For more information on delegated legislation generally,

visit www.parliament.uk/works/newlaw.cfm#newdeleg
 For more information on Statutory Instruments and
Orders in Council there is a House of Commons Factsheet
(No.14) available at
www.parliament.uk/commons/lib/fs14.pdf