In the modern administrative state, legislation no longer begins and ends with Parliament. A significant portion of the laws that govern our daily lives are not passed in Parliament at all, but rather created by government ministers, local authorities, or public bodies. This is known as delegated legislation.

Definition of Delegated Legislation

Delegated legislation, also known as subordinate or secondary legislation, refers to rules and regulations made by an individual or body under powers given to them by an Act of Parliament. Parliament, through an enabling or parent Act, delegates the authority to make detailed provisions necessary for the effective implementation of the law.

Simply put, while Parliament sets out the framework or broad principles in an Act, it delegates the power to make more detailed rules to others. These rules carry the same legal force as laws passed directly by Parliament.

Think of the enabling Act as a blueprint or skeleton. Parliament creates the overall structure and guiding principles, while delegated legislation adds the flesh- practical details such as forms, procedures, fees, deadlines, or technical standards. This allows laws to be more adaptable, more efficient, and more practical.

Suppose Parliament passes a Clean Air Act to reduce pollution. The Act itself might set out the goals, principles, and powers. However, it would delegate authority to the Minister for Environment to issue regulations specifying:

  • Which pollutants must be monitored
  • The permitted emission levels
  • The penalties for violating the rules

Why is Delegated Legislation Necessary?

There are several reasons why delegated legislation has become an essential tool of governance:

  • Time-saving: Parliament does not have the time to debate and pass the vast number of detailed and technical rules needed in modern society.
  • Expertise: Many areas of regulation, such as environmental standards, public health, or tax law, require specialized knowledge. Delegated legislation allows experts in specific fields to draft the rules.
  • Flexibility: It enables laws to be updated or amended quickly, without the need to pass a new Act every time. This is particularly useful in emergencies or rapidly changing sectors.
  • Localisation: It permits local authorities to make rules relevant to their particular area or population.

Types of Delegated Legislation

Delegated legislation comes in several forms, the most common being:

1. Statutory Instruments (SIs)

These are the most frequently used form of delegated legislation. Government ministers use SIs to create rules under the authority of an Act. They include regulations, orders, and rules that apply across the country or to specific sectors.

2. Orders in Council

These are made by the Monarch on the advice of the Privy Council, typically in times of emergency or when Parliament is not in session. They are used for both technical and urgent legislative purposes.

3. Bylaws

Bylaws are made by local authorities or public corporations to govern matters within their jurisdiction—such as traffic regulations, public health rules, or local amenities. They only apply in specific geographic areas and often require approval from a central government department.

Advantages of Delegated Legislation

  • Efficiency: Speeds up the legislative process by avoiding the need for Parliament to pass every small detail.
  • Expert Input: Enables those with technical expertise to contribute to rule-making.
  • Responsive Law-making: Allows for quick responses to emergencies or evolving circumstances.
  • Local Relevance: Permits tailored rules to suit regional or sector-specific needs.

Disadvantages of Delegated Legislation

  • Lack of Parliamentary Scrutiny: Most delegated legislation is not debated by Parliament, which raises concerns about accountability and transparency.
  • Democratic Deficit: Laws are made by unelected officials, potentially weakening democratic oversight.
  • Volume and Complexity: The sheer number of rules can make the law inaccessible or difficult to understand.
  • Risk of Abuse: If not carefully controlled, delegated powers can be used in ways that go beyond what Parliament intended.

Judicial and Parliamentary Control

To ensure delegated legislation stays within legal bounds, two main forms of control exist:

Judicial Review: If delegated legislation goes beyond the scope of authority granted by the parent Act, the courts can declare it ultra vires (“beyond the powers”) and strike it down. There are two main forms of ultra vires:

  • Substantive Ultra Vires: This occurs when the content of the delegated legislation exceeds what the enabling Act allows. For example, if a regulation imposes a fine or restriction not authorised by the parent statute, it may be struck down.
  • Procedural Ultra Vires: Even if the content is within legal bounds, a piece of delegated legislation can be invalidated if it was not made following the correct procedures (e.g., consultation requirements or publication rules).

Parliamentary Oversight: Though Parliament delegates law-making powers, it retains the right to supervise and, if necessary, challenge their use. Oversight occurs mainly through statutory procedures laid out in the enabling Act. Statutory instruments may be subject to procedures like the affirmative or negative resolution process, although many pass with minimal scrutiny.

Conclusion

Delegated legislation is a vital component of modern governance. It allows governments to create practical, detailed, and responsive rules within the framework established by Parliament. However, the power to make laws must always be balanced with the need for accountability, transparency, and legal conformity. The judicial and parliamentary controls over delegated legislation serve as essential safeguards to ensure that delegated powers are not abused or extended beyond their legal limits.