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Delegated legislation (also known as secondary legislation or subordinate legislation) is law made by bodies other than Parliament, but with Parliament's authority. Parliament passes a parent Act (also called an enabling Act) that grants a specified body the power to make detailed rules, regulations, or orders within the framework set by that Act.
Delegated legislation is an essential part of the UK legal system. While Parliament passes approximately 20-30 Acts per year, there are typically over 3,000 statutory instruments alone each year, demonstrating the enormous volume of delegated legislation compared to primary legislation.
This lesson examines the three main types of delegated legislation — Orders in Council, statutory instruments, and bye-laws — as well as the reasons why Parliament delegates its law-making power.
Before examining the types, it is important to understand why Parliament delegates its legislative power:
| Reason | Explanation |
|---|---|
| Lack of time | Parliament does not have enough time to debate every detail of every law |
| Technical expertise | Some areas (e.g., health and safety, environmental standards) require specialist knowledge that MPs may lack |
| Speed and flexibility | Delegated legislation can be made quickly without going through the full parliamentary process |
| Local knowledge | Local authorities understand local needs better than central government |
| Emergency situations | Rapid legislative responses are sometimes needed (e.g., during pandemics or national emergencies) |
| Future-proofing | Enables rules to be updated as circumstances change without requiring a new Act |
A parent Act or enabling Act is the Act of Parliament that grants the authority to make delegated legislation. The parent Act:
Example: The Health and Safety at Work etc. Act 1974 is a parent Act that grants the Secretary of State the power to make regulations concerning workplace safety. The Act sets out broad principles, while the detailed regulations (such as the Control of Substances Hazardous to Health Regulations 2002) fill in the specifics.
graph TD
A["Parliament passes Parent/Enabling Act"] --> B["Defines scope and grants power"]
B --> C["Orders in Council"]
B --> D["Statutory Instruments"]
B --> E["Bye-laws"]
C --> F["Made by Privy Council"]
D --> G["Made by Government Ministers"]
E --> H["Made by Local Authorities or Public Bodies"]
style A fill:#3498db,color:#fff
style C fill:#e67e22,color:#fff
style D fill:#e67e22,color:#fff
style E fill:#e67e22,color:#fff
Orders in Council are a form of delegated legislation made by the Privy Council — formally by the monarch "on the advice of" the Privy Council. In practice, Orders in Council are drafted by government departments and approved by the Privy Council.
There are two main types:
These are made under the authority of a parent Act. They are a form of delegated legislation and are subject to the usual controls.
Examples:
These are made under the Royal Prerogative — the residual powers of the Crown. They do not require a parent Act and are not technically delegated legislation.
Example: The Order in Council that was used to establish the British Indian Ocean Territory (challenged in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2008]).
Orders in Council are particularly important in emergency situations. Under the Civil Contingencies Act 2004, the government can make emergency regulations through Orders in Council when:
The Civil Contingencies Act 2004 defines an emergency as:
Safeguards under the 2004 Act:
Orders in Council are relatively few in number compared to statutory instruments but can be highly significant. They are often used for constitutional matters and matters of national importance.
Statutory instruments (SIs) are the most common form of delegated legislation. They are made by government ministers under powers granted by parent Acts. Statutory instruments are sometimes called "ministerial regulations" or simply "regulations".
The volume of SIs is enormous and dwarfs the number of Acts of Parliament:
| Year (approximate) | Acts of Parliament | Statutory Instruments |
|---|---|---|
| Typical year | 20-30 | 3,000-3,500 |
| 2020 (COVID-19 pandemic) | ~40 | ~1,800 (general) + hundreds of COVID SIs |
This disparity illustrates why Parliament must delegate — it simply cannot legislate in sufficient detail on every matter.
Statutory instruments are subject to one of two parliamentary procedures, depending on what the parent Act specifies:
Under the affirmative procedure (also called the affirmative resolution procedure):
The affirmative procedure is typically required for more significant or controversial statutory instruments. The parent Act will specify that the affirmative procedure must be used.
Example: Certain regulations under the Human Rights Act 1998 require the affirmative procedure.
Under the negative procedure (also called the negative resolution procedure):
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