Delegated legislation in the United Kingdom

Last updated October 22, 2024

Delegated legislation or secondary legislation in the United Kingdom is law that is not enacted by a legislative assembly such as the UK Parliament, but made by a government minister, a delegated person or an authorised body under powers given to them by an Act of Parliament.

Secondary legislation is used for a wide variety of purposes such as fixing the date on which an Act of Parliament will come into force; setting fees for a public service; or establishing the details of an Act of Parliament. Delegated legislation is dependent on its parent act, which prescribes its parameters and procedures. Although a large volume of delegated legislation is written without close parliamentary scrutiny, there are statutory instruments to prevent its misuse.

Background

Delegated legislation is derived from its parent act, which prescribes its parameters and procedures. Delegated legislation saves parliamentary time by considering matters of technical detail. Such details are prepared by those with relevant expert knowledge.

Through its inherent flexibility, delegated legislation accommodates changing circumstances such as changing fees for public services, developments in science or minor changes in government policy. Delegated legislation allows the rapid drafting of emergency powers. In comparison to acts of Parliament, which may take much time to pass, the flexibility of delegated legislation can be used to solve problems of governance in a timely way.

Delegated legislation is effected by signature of the author or his authorized representative. In the case of the monarch, only his verbal assent is required. A statutory instrument related to the parent act is required to write delegated legislation. It ensures the legislation is catalogued and published by the King's Printer. Exceptions are directions and by-laws where notifications are made to affected entities.

Criticism of delegated legislation may arise because:

it is subject to a lesser degree of parliamentary scrutiny than acts of Parliament.
it may be used to remove from the scrutiny of the parliament matters that are causing difficulty for the government by designating them "matters concerning detail".
within the large volume of delegated legislation there may be little public knowledge of changes being made. However, the statutory instruments are in place to prevent misuse.^{[ clarification needed ]}

Types

Delegated legislation can take a variety of forms, each with different uses. The boundaries between the forms are not fixed. The types used will be determined by the wording of the parent Act.

Orders in Council are made by the King on the advice of the Privy Council (the Government). Orders in Council are used in matters of constitutional significance. An example is bringing into force emergency powers to be exercised by ministers.
Orders of Council are made by the lords of the Privy Council. They are used for regulation of professional bodies and the higher education sector.
Ministerial orders are made by ministers.
Orders exercise executive powers of government ministers. An example is the dissolution of a public body. Commencement orders set the date on which an Act, or part of an Act, comes into force.
Regulations set out how an Act is to be implemented and are usually made by ministers.
Rules set out procedures for operation of a government entity such as the courts or the Patent Office. Rules may be made by ministers or, if specified in the parent Act, a senior judge. In Scotland, rules of court take the form of Scottish statutory instruments. Those regulating civil procedure are enacted by the Court of Session and are called Acts of Sederunt.^[1]^{: Section 103 to 106} Those regulating criminal procedure are enacted by the High Court of Justiciary as Acts of Adjournal. Acts of Adjournal can modify primary legislation where it relates to criminal judicial procedure.^[2]^{: Section 305}
Schemes are made by commissions to proscribe how entities under their remit are governed. An example is the Charity Commission which supervises charitable organizations.
Directions are a means by which ministers give legally binding instructions to a public body about the way it exercises its functions.
By-laws are laws of limited application (usually restricted to certain places) made by local authorities or certain other bodies (for example, train operating companies or the National Trust) to control the activities of the people in public spaces.

Church of England instruments

The secondary legislation of the Church of England is known as "instruments". The procedure for the General Synod approving instruments is set out in the standing orders of the General Synod.^[3]

After approval of the General Synod, the instruments are presented before Parliament, signed by the Archbishop of Canterbury and the Archbishop of York.^[4]

Sometimes they have a different date for when they are "made" and when they come "into force".^[4]

So far they have only been used to commence Church of England measures.

Crown Dependencies

The Isle of Man has a similar system – the diocesan synod takes the place of the General Synod, Tynwald takes the place of Parliament and the Bishop of Sodor and Man takes the place of the Archbishops of Canterbury and York. Similarly to instruments the United Kingdom, in the Isle of Man orders are presented by the Lord Bishop of Sodor and Man to Tynwald so that to particular provisions of measures can be commenced.^[5]

There is no equivalent for the Channel Islands – application of measures to the Channel Islands happens at Parliament. Previously this happened through statutory instruments rather than instruments.^[6] Currently the procedure has been modified through the Channel Islands Measure 2020 so it will occur directly in the measure and therefore the instrument that commences the measure.^[7]

Layout of official documents

A document which records delegated legislation will begin with a preamble. It describes the author of the legislation, the related parent Act and its preconditions and any stakeholders. The terms used in the document are determined by the type of delegated legislation it records. For instance, in orders, clauses are called "articles". Clauses may be grouped under headings and in complex delegated legislation, the document may be divided into parts. The main text is followed by any schedules and explanatory notes.

Controls

Delegated legislation is controlled by Parliament and the judiciary. Parliamentary controls include "affirmative resolution procedures" where the legislation requires approval in both houses of parliament and "negative resolution procedures" where the legislation may be vetoed by either house. By convention, the House of Lords will not veto but rather pass a motion to convey its concerns about the legislation.^[8]

Judicial control of delegated legislation is exercised through judicial review. Delegated legislation can be quashed by a court if it is found to be ultra vires (outside the parameters defined in the parent act). There are two types of ultra vires. In "substantive ultra vires", delegated legislation is deemed void because it goes beyond the powers defined in the parent act. In "procedural ultra vires", delegated legislation is deemed void because of some procedural deficiency. A court may also quash delegated legislation on the basis of unreasonableness.

Related Research Articles

The legislatures of the United Kingdom are derived from a number of different sources. The Parliament of the United Kingdom is the supreme legislative body for the United Kingdom and the British overseas territories with Scotland, Wales and Northern Ireland each having their own devolved legislatures. Each of the three major jurisdictions of the United Kingdom has its own laws and legal system.

An Order in Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom, this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council (King-in-Council), but in other countries the terminology may vary. Orders-in-Council are distinct from Orders of Council, which are made in the name of the Council without sovereign approval.

A statutory instrument (SI) is the principal form in which delegated legislation is made in Great Britain.

Ultra vires is a Latin phrase used in law to describe an act that requires legal authority but is done without it. Its opposite, an act done under proper authority, is intra vires. Acts that are intra vires may equivalently be termed "valid", and those that are ultra vires termed "invalid".

The General Synod is the tricameral deliberative and legislative organ of the Church of England. The synod was instituted in 1970, replacing the Church Assembly, and is the culmination of a process of rediscovering self-government for the Church of England that had started in the 1850s.

The law of Northern Ireland is the legal system of statute and common law operating in Northern Ireland since the partition of Ireland established Northern Ireland as a distinct jurisdiction in 1921. Before 1921, Northern Ireland was part of the same legal system as the rest of Ireland.

Citation of United Kingdom legislation includes the systems used for legislation passed by devolved parliaments and assemblies, for secondary legislation, and for prerogative instruments. It is relatively complex both due to the different sources of legislation in the United Kingdom, and because of the different histories of the constituent countries of the United Kingdom.

A Scottish statutory instrument is subordinate legislation made by the Scottish Ministers, as well as subordinate legislation made by public bodies using powers provided to be exercisable by Scottish statutory instrument. SSIs are the main form of subordinate legislation in Scotland, being used by default to exercise powers delegated to the Scottish Ministers, the Lord Advocate, the High Court of Justiciary, the Court of Session, and the King-in-Council.

The United Nations Act 1946 is an Act of the Parliament of the United Kingdom which enables His Majesty's Government to implement resolutions under Article 41 of the United Nations Charter as Orders in Council. Thus Parliament delegated the power to enact such resolutions without the approval of Parliament. However, the prospective Order must be laid before either Parliament or the Scottish Parliament. A similar mechanism was later used in the European Communities Act 1972 and the Terrorist Asset-Freezing etc. Act 2010.

The Interpretation Act 1978 is an act of the Parliament of the United Kingdom. The Act makes provision for the interpretation of Acts of Parliament, Measures of the General Synod of the Church of England, Measures of the Church Assembly, subordinate legislation, "deeds and other instruments and documents", Acts of the Scottish Parliament and instruments made thereunder, and Measures and Acts of the National Assembly for Wales and instruments made thereunder. The Act makes provision in relation to: the construction of certain words and phrases, words of enactment, amendment or repeal of Acts in the Session they were passed, judicial notice, commencement, statutory powers and duties, the effect of repeals, and duplicated offences.

In many countries, a statutory instrument is a form of delegated legislation.

The statutory rules of Northern Ireland are the principal form in which delegated legislation is made in Northern Ireland.

The Church of England Assembly (Powers) Act 1919 is an act of the Parliament of the United Kingdom that enables the Church of England to submit primary legislation called measures, for passage by Parliament. Measures have the same force and effect as acts of Parliament. The power to pass measures was originally granted to the Church Assembly, which was replaced by the General Synod of the Church of England in 1970 by the Synodical Government Measure 1969.

Local and personal acts are laws in the United Kingdom which apply to a particular individual or group of individuals, or corporate entity. This contrasts with a public general Act of Parliament (statute) which applies to the nation-state. Acts of Parliament can afford relief from another law; grant a unique benefit or, grant powers not available under the general law; or, relieve someone from legal responsibility for some allegedly wrongful act.

An Act of Sederunt is secondary legislation made by the Court of Session, the supreme civil court of Scotland, to regulate the proceedings of Scottish courts and tribunals hearing civil matters. Originally made under an Act of the Parliament of Scotland of 1532, the modern power to make Acts of Sederunt is largely derived from the Courts Reform (Scotland) Act 2014. Since 2013, draft Acts have also been prepared by the Scottish Civil Justice Council and submitted to the Court of Session for approval.

The Statutory Instruments Act 1946 is an Act of the United Kingdom Parliament which governs the making of statutory instruments.

An Act of Adjournal is secondary legislation made by the High Court of Justiciary, the supreme criminal court of Scotland, to regulate the proceedings of Scottish courts hearing criminal matters. Now primarily derived from the Criminal Procedure (Scotland) Act 1995, the original power to create Acts of Adjournal is derived from an Act of the Parliament of Scotland in 1672. Before promulgation, Acts of Adjournal are reviewed and may be commented upon by the Criminal Courts Rules Council.

Primary legislation and secondary legislation are two forms of law, created respectively by the legislative and executive branches of governments in representative democracies. Primary legislation generally consists of statutes, also known as 'acts', that set out broad principles and rules, but may delegate specific authority to an executive branch to make more specific laws under the aegis of the principal act. The executive branch can then issue secondary legislation, creating legally enforceable regulations and the procedures for implementing them.

The Interpretation and Legislative Reform (Scotland) Act 2010 is an Act of the Scottish Parliament that was given royal assent on 29 April 2015; it came into force in April 2016.

A Welsh statutory instrument is subordinate legislation made by the Welsh Ministers, as well as subordinate legislation made by public bodies using powers provided to be exercisable by Welsh statutory instrument. WSIs are the main form of subordinate legislation in Wales, being used by default to exercise powers delegated to the Scottish Ministers, the Counsel General, and the King-in-Council.

References

↑ Scottish Parliament. Courts Reform (Scotland) Act 2014 as amended (see also enacted form ), from legislation.gov.uk .
↑ Scottish Parliament. Criminal Procedure (Scotland) Act 1995 as amended (see also enacted form ), from legislation.gov.uk .
↑ "Standing Orders" (PDF). Church of England. The Archbishops’ Council. 2024. Archived from the original (PDF) on 2024-09-01. Retrieved 2024-09-11.
1 2 "Standing Orders". legislation.gov.uk. The National Archives. 2016. Retrieved 2024-09-11.
↑ "CHURCH (MISCELLANEOUS PROVISIONS) MEASURE (ISLE OF MAN) 2021 (APPOINTED DAY) (NO. 1) ORDER 2021" (PDF). legislation.gov.im. Isle of Man Government. 2021-02-18. Archived from the original (PDF) on 2024-09-13. Retrieved 2024-09-13.
↑ "The Church of England (Worship and Doctrine) Measure 1974 (Channel Islands) Order 1984", legislation.gov.uk , The National Archives, 1984-10-30, SI 1984/1689, retrieved 2024-09-13
↑ "Channel Islands Measure 2020". legislation.gov.uk. National Archives. 2020-07-22. Retrieved 2024-09-13.
↑ "Delegated Legislation" (PDF). House of Commons Information Office. August 2011. pp. 3–4. Archived from the original (PDF) on 2012-10-16.

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[act2014-1] Scottish Parliament. Courts Reform (Scotland) Act 2014 as amended (see also enacted form ), from legislation.gov.uk .

[act1995-2] Scottish Parliament. Criminal Procedure (Scotland) Act 1995 as amended (see also enacted form ), from legislation.gov.uk .

[3] "Standing Orders" (PDF). Church of England. The Archbishops’ Council. 2024. Archived from the original (PDF) on 2024-09-01. Retrieved 2024-09-11.

[example-instrument-1-4] 1 2 "Standing Orders". legislation.gov.uk. The National Archives. 2016. Retrieved 2024-09-11.

[5] "CHURCH (MISCELLANEOUS PROVISIONS) MEASURE (ISLE OF MAN) 2021 (APPOINTED DAY) (NO. 1) ORDER 2021" (PDF). legislation.gov.im. Isle of Man Government. 2021-02-18. Archived from the original (PDF) on 2024-09-13. Retrieved 2024-09-13.

[6] "The Church of England (Worship and Doctrine) Measure 1974 (Channel Islands) Order 1984", legislation.gov.uk , The National Archives, 1984-10-30, SI 1984/1689, retrieved 2024-09-13

[7] "Channel Islands Measure 2020". legislation.gov.uk. National Archives. 2020-07-22. Retrieved 2024-09-13.

[8] "Delegated Legislation" (PDF). House of Commons Information Office. August 2011. pp. 3–4. Archived from the original (PDF) on 2012-10-16.

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