Welcome to Delegated Legislation!
In our previous sessions, we looked at how Parliament makes law (Acts of Parliament). But did you know that Parliament doesn't actually make every single rule in the UK? There are thousands of rules made every year by other people like Government Ministers or local councils. This is called Delegated Legislation.
Don't worry if this seems a bit backward—why would the powerful Parliament give away its job? By the end of these notes, you’ll understand exactly why they do it, how they do it, and how we make sure those people don't abuse their power!
1. What is Delegated Legislation?
Think of Parliament as the "Headteacher" of a school. The Headteacher makes the big rules (like when the school day starts). However, they don't have time to decide what color socks the football team wears or what brand of tea is in the staff room. So, they delegate (hand over) that power to the PE teacher or the office manager.
In Law, Delegated Legislation is law made by a person or body other than Parliament, but with the authority of Parliament. This authority is given in a "starter Act" known as a Parent Act or an Enabling Act.
The Three Types of Delegated Legislation
There are three main types you need to know. A good way to remember them is the mnemonic "S.O.B.":
Statutory Instruments (SIs)
These are made by Government Ministers for the areas they are in charge of (their departments). For example, the Minister for Transport makes rules about e-scooters, and the Minister for Health makes rules about food safety.
Example: The Minister for Health using the Parent Act (The Food Safety Act 1990) to create specific regulations about how milk must be stored.
Orders in Council
These are made by the King and the Privy Council (a group of high-level politicians). These are usually used in emergencies when Parliament isn't sitting or for very quick updates.
Example: During the 2001 Foot and Mouth disease outbreak, Orders in Council were used to quickly restrict the movement of sheep and cows to stop the disease from spreading.
By-laws
These are made by local councils or public corporations (like National Rail) to cover matters in their specific area. Laws that apply in London might not be needed in a small village in Cornwall!
Example: A local council making a rule that dogs must be kept on a lead in a specific public park.
Quick Review: Delegated legislation is law made by others with Parliament’s permission. The three types are Statutory Instruments (Ministers), Orders in Council (King/Privy Council), and By-laws (Local Councils/Corporations).
2. Why do we use Delegated Legislation?
Parliament is very busy. If they had to debate every single tiny rule, the country would grind to a halt! Here are the main reasons we use it:
- Time: Parliament doesn't have time to discuss small details.
- Expertise: MPs are "generalists." They might not know the technical details of building safety or chemical waste. Delegated legislation allows experts in government departments to write the rules.
- Flexibility: It is much faster to change a Statutory Instrument than to pass a whole new Act of Parliament. This is great for keeping the law up-to-date.
- Local Knowledge: Local councils know their towns better than MPs in London do. By-laws allow for "local laws for local people."
- Emergencies: If there is a sudden crisis, Orders in Council can make law almost instantly.
Key Takeaway: We use it because it’s faster, allows for expert input, handles local issues, and saves Parliament’s time for the "big" laws.
3. How is it Controlled? (Parliamentary Controls)
Because these laws aren't made by the full Parliament, we need "watchdogs" to make sure the power isn't being used wrongly. The first watchdog is Parliament itself.
The Parent Act (Enabling Act)
This is the most important control. Parliament sets the boundaries in the original Act. It says exactly who can make the law, what they can make it about, and who they must consult first. If the person goes outside these boundaries, they have broken the rules.
Resolutions
Most Statutory Instruments must be "checked" by Parliament using one of two methods:
- Negative Resolution: The law is published and will automatically become law unless an MP objects within 40 days. This is the most common method because it's fast.
- Affirmative Resolution: The law will not become law unless Parliament specifically votes to approve it. This is used for more important or controversial matters.
Scrutiny Committees
There is a special group of people called the Joint Select Committee on Statutory Instruments. Their job is to read through the SIs and alert Parliament if something is wrong—for example, if the law is confusingly written or if it tries to charge a tax that wasn't allowed.
Did you know? The Scrutiny Committee only looks at the legal technicalities (is it clear? is it legal?). They do not look at whether the law is a "good idea" or not—that’s for the politicians!
4. How is it Controlled? (Judicial Controls)
The second watchdog is the Courts. If a person or organization feels a piece of delegated legislation is unfair or illegal, they can challenge it in the High Court through a process called Judicial Review.
The court can declare the law Ultra Vires. This is a fancy Latin term that means "beyond the powers." If a law is Ultra Vires, it is void (it doesn't exist anymore).
Three Ways a Law can be Ultra Vires:
- Procedural Ultra Vires: The person making the law failed to follow the steps set out in the Parent Act.
Example: If the Parent Act says "You must consult the Mushroom Farmers Association before making this rule" and the Minister forgets to do it, the law is Procedural Ultra Vires. - Substantive Ultra Vires: The person making the law had no right to make that specific rule.
Example: If a Minister is given power to regulate "traffic" but they try to make a law about "education," they have gone beyond their substantive power. - 'Wednesbury' Unreasonableness: This comes from a famous case. It means the law is so unreasonable or "crazy" that no sensible person would have ever made it.
Example: If a local council made a by-law saying that only people with blue hair could use the park on Tuesdays.
Common Mistake to Avoid: Don't confuse the two! Parliamentary controls happen while the law is being made. Judicial controls (the courts) happen after the law is made, usually because someone complained about it.
5. Is Delegated Legislation Good or Bad? (Evaluation)
To do well in your exam, you need to be able to argue both sides. Is this system effective?
Advantages (The Good)
- Expertise: It’s better to have a doctor help write health laws than a politician who knows nothing about medicine.
- Saves Time: It leaves Parliament free to focus on huge issues like the economy or foreign policy.
- Easy to fix: If a Statutory Instrument isn't working, it can be replaced very quickly.
Disadvantages (The Bad)
- Undemocratic: Many Statutory Instruments are written by civil servants (unelected office workers) and just signed by a Minister. This takes law-making away from the people we actually voted for.
- Lack of Publicity: Acts of Parliament are debated on TV and in news. Delegated legislation is often passed "in the dark" without the public knowing.
- Complexity: There are thousands of SIs made every year. It is almost impossible for a normal person (or even a lawyer!) to keep track of them all.
How effective are the controls?
- Effective: The Affirmative Resolution gives Parliament a direct say, and Judicial Review allows the courts to stop "crazy" or "illegal" rules.
- Ineffective: There are so many SIs that Scrutiny Committees can't possibly read them all thoroughly. Also, Judicial Review is very expensive and difficult for a normal person to start.
Final Key Takeaway: Delegated legislation is a "necessary evil." We need it for the country to function, but we must have strong controls to make sure it doesn't become a way for the government to bypass democracy.
Quick Review Box:
1. S.O.B. = Statutory Instruments, Orders in Council, By-laws.
2. Ultra Vires = "Beyond the powers" (Procedural, Substantive, or Unreasonable).
3. Negative vs Affirmative = The two main ways Parliament votes on these laws.