In the United Kingdom, delegated legislation is the name given to legislation or law that is passed otherwise than in an Act of Parliament (or an Act of the Scottish Parliament, Northern Ireland Assembly or National Assembly for Wales). Instead, an enabling Act (also known as the parent Act or empowering Act) confers a power to make delegated legislation on a Government Minister or another person or body. Several thousand pieces of delegated legislation are made each year, compared with only a few dozen Acts of Parliament.
Delegated legislation can be used for a wide variety of purposes, ranging from relatively narrow, technical matters (such as fixing the date on which an Act of Parliament will come into force, or setting the level of fees payable for a public service, e.g. the issue of a passport), to filling in the detail of how an Act setting out broad principles will be implemented in practice.
The use of delegated legislation has a number of advantages.
Firstly, it allows laws to be enacted without using up scarce Parliamentary time on technical matters, for example the fine detail of a public sector pension scheme or the precise design of traffic signs, thereby freeing Parliament to discuss matters of broad principle and policy.
Secondly, it allows laws relating to technical matters to be prepared by those with the relevant expert knowledge.
Thirdly, delegated legislation is flexible enough to deal speedily with changing circumstances, for example increasing costs of services, developments in scientific knowledge or minor changes in policy. This also makes it invaluable in emergencies when very swift action is required – delegated legislation made under emergency powers can be drafted, enacted and brought into force in a matter of hours rather than the days, weeks or months that would be required to pass an Act of Parliament.
Delegated legislation can also be criticised on the grounds that it is subject to less parliamentary scrutiny than primary legislation (but see the article on Statutory Instruments for a description of the parliamentary controls which are in place), and thereby may potentially be used by the Government in ways which Parliament had not intended or appreciated when it conferred the power.
This is particularly the case where an Act empowers Ministers to use delegated legislation to amend primary legislation (so-called “Henry VIII powers”). For example, the Deregulation and Contracting Out Act 1994 allowed Ministers to change certain Acts of Parliament by way of statutory instrument, without going through the normal parliamentary legislative process. This power was later extended by the Regulatory Reform Act 2001 and the Legislative and Regulatory Reform Act 2006, although more rigorous parliamentary controls were introduced.
Similarly, delegated legislation may be viewed as a way of removing controversial matters (for example, immigration rules) from the remit of Parliament and putting them under the control of the Government, because they can be regarded as matters of detail.
Another disadvantage is in the sheer volume of laws that are passed as delegated legislation. Because of this bulk, there is normally little publicity or knowledge about the changes that are being made.
However there are both parliamentary and judicial controls on delegated legislation which are discussed below.
Delegated legislation can take a variety of forms, each of which are for different purposes. However the boundaries between the different types are not fixed, and which type of delegated legislation is used will be determined by the wording of the parent Act.
Delegated legislation is usually made by being signed by the person making it (or an authorised delegate of that person, for example a Senior Member of the Civil Service), although in the case of Orders in Council the verbal assent of the Queen is sufficient (however the fact that this has been given is recorded through the signature of the Clerk to the Privy Council).
Most delegated legislation is required (by the parent Act) to be made using a Statutory Instrument. This ensures that the legislation is catalogued and (apart from a few exceptions) published by the Queen's Printer, thereby making it available to the public as a whole.
However where delegated legislation is of only limited application (for example, most Directions and by-laws), and therefore not of general importance, the parent Act may not require that it be made using a Statutory Instrument. Instead, other provisions may be made for publishing the legislation. So, for example, an Order providing for the transfer of contracts from one National Health Service body to another may only be notified to the affected bodies, and by-laws made by a local council may be publicised through an announcement in local newspapers.
Most delegated legislation will begin with a preamble which sets out who is making the legislation, the authority (precisely which sections of which Acts of Parliament) under which it is passed and, where appropriate, confirming that any pre-conditions required by the parent Act (for example, approval of a draft by each House of Parliament, or consultation with specified organisations) have been met.
What term is used to refer to the individual clauses of delegated legislation will depend on which type it is:
Clauses may be grouped under headings and in complex delegated legislation, the document may be divided into Parts. The main body of the delegated legislation may be followed by Schedules setting out even more detailed provisions.
There will also usually be an explanatory note describing, in summary form and using non-legal language, the purpose and scope of the legislation. The explanatory note is for convenience only and has no legal effect.
There are both parliamentary and judicial controls over delegated legislation.
The parliamentary controls, by which delegated legislation made by Statutory Instrument may either need to be approved by a vote of each House of Parliament before it is made, or be subject to a veto by either House within a certain period of time after it is made, are described in detail in the article on Statutory Instruments.
Judicial control is exercised through the means of judicial review. Because delegated legislation is made by a person exercising a power conferred by an Act of Parliament for a specified purpose, rather than by Parliament exercising its sovereign law-making powers, it can be struck down by the courts if they conclude that it is ultra vires (literally, outside the powers conferred by the parent Act). This would be the case if the Government attempts to use delegated legislation for a purpose not envisioned by the parent Act, or if the legislation is an unreasonable use of the power conferred by the Act, or if pre-conditions imposed by the Act (for example, consultation with certain organisations) have not been satisfied.
It should be noted that, whilst Scottish or Northern Irish Acts, and Welsh Measures, draw their constitutional legitimacy and legal effect from the enabling Acts of the Westminster Parliament establishing the Parliament and Assembly, they are classified as primary, not delegated, legislation.
The Australian Legal System uses delegated legislation as its legal system is largely based on the British legal system since it was established by British Colonies.