Introduction to Delegated Legislation

In your study of the English Legal System, you’ve already seen how Parliament makes law. However, Parliament is a very busy body and doesn't have the time or the technical knowledge to create every single rule for the whole country. This is where delegated legislation (sometimes called secondary legislation) comes in.

Think of it like this: Parliament is the "boss" who gives a "to-do list" to experts. Parliament passes an Enabling Act (also known as a Parent Act), which is a framework law that gives permission to another person or body to make more detailed laws. In this chapter, we will look at the three main types of delegated legislation you need to know for your exam.

Note: To see how these laws are kept under check, see the next chapter on the "Control of delegated legislation".

1. Orders in Council

Definition: These are laws made by the King (or Queen) acting on the advice of the Privy Council. The Privy Council is a group of senior politicians (past and present) and members of the Royal Family.

When are they used? Orders in Council are often used in "big picture" situations or emergencies. They allow the government to make law without waiting for the full Parliamentary process, which can be very slow.

  • Emergency situations: Under the Emergency Powers Act 1920, they can be used when the nation is in danger.
  • Updating law: They can be used to transfer responsibilities between government departments.
  • Foreign affairs: They are often used to give effect to international treaties.

Advantages:

  • Speed: They can be made very quickly in times of national emergency (like a strike that threatens the food supply).
  • Flexibility: They allow for law-making when Parliament is not sitting (e.g., during a holiday recess).

Disadvantages:

  • Undemocratic: They are made by the Privy Council, not by elected MPs debating in the House of Commons.
  • Lack of Publicity: Because they don't go through the usual public debates, the public might not know the law has changed until it's too late.

2. Statutory Instruments (SIs)

Definition: These are the most common type of delegated legislation. They are laws made by Government Ministers for the areas they are responsible for (their "departments").

Example: The Minister for Transport might make a Statutory Instrument to change the rules about how long truck drivers can work before taking a break. Over 3,000 SIs are made every year!

Advantages:

  • Technical Expertise: Parliamentarians are generalists. A Minister can consult with scientists, doctors, or engineers to ensure the law is technically correct.
  • Saving Parliamentary Time: If Parliament had to debate every tiny change to road safety or health regulations, they would never have time for major laws.

Disadvantages:

  • Volume: There are so many SIs created every year that it is difficult for lawyers, let alone the public, to keep track of them.
  • Complex Language: Because they are often technical, they can be very hard for a non-expert to understand.

3. Bylaws

Definition: These are local laws made by local authorities (councils) or public corporations (like train companies or the Post Office). They only apply to a specific geographical area or a specific type of property.

Example:

  • A local council might pass a bylaw banning dogs from a specific park.
  • A railway company might pass a bylaw banning smoking on their trains or platforms.

Advantages:

  • Local Knowledge: A council in a rural area knows more about local farming issues than a politician in London. Bylaws allow laws to be tailored to local needs.
  • Public Participation: Local people can often get involved or protest at council meetings, making this feel more "connected" to the community.

Disadvantages:

  • Confusion: A behavior that is legal in one town might be a crime in the next town over, which can be confusing for travelers.
  • Limited Power: Bylaws can only be made if the Enabling Act specifically allows it; if the council goes too far, the law can be struck down by a court.

Summary of Advantages and Disadvantages

When you are asked to evaluate delegated legislation in your exam, you can use these general points that apply to almost all types.

General Advantages

  • Saves Time: Frees up Parliament to focus on major policy issues.
  • Expertise: Allows people with specific knowledge to write the details.
  • Flexibility: Laws can be updated easily if scientific knowledge or circumstances change.
  • Emergency Use: Allows for instant law-making when the country is at risk.

General Disadvantages

  • Undemocratic: Most delegated legislation is written by civil servants or unelected people, taking power away from the elected Parliament.
  • Sub-delegation: Sometimes the person given the power passes it on to someone else, which means the "boss" (Parliament) loses even more control.
  • Lack of Publicity: It is much harder for the average person to find and read a Statutory Instrument than a major Act of Parliament.

Quick Review Box:
- Orders in Council: Made by King and Privy Council (National/Emergency).
- Statutory Instruments: Made by Ministers (National/Technical).
- Bylaws: Made by Councils/Corporations (Local/Specific).
- The "Enabling Act": The key document that gives the power to make these laws.

Don't worry if this seems like a lot of categories! Just remember who makes the law and where it applies. If it's a Minister, it's an SI. If it's a Council, it's a Bylaw. If it's the King/Privy Council, it's an Order in Council.