Delegated Legislation: Types Of Delegated Legislation – Orders In Council, Statutory Instruments And Bylaws (Copy)

Introduction

• Delegated legislation refers to laws made by bodies other than Parliament but with Parliament’s authority, usually through a parent (enabling) Act.
• It is essential because Parliament cannot devote time to the detailed regulation needed for modern governance.
• Around three times more delegated legislation is produced each year than primary legislation, making it the main practical form of law-making.

The three main types are Orders in Council, Statutory Instruments, and Bylaws.

Orders In Council

• Definition
  • Laws made by the monarch and the Privy Council, on the advice of government ministers.
  • Used when it is inappropriate for Parliament to legislate directly or where speed is essential.
• Composition Of Privy Council
  • Includes senior politicians, judges, and bishops.
  • In practice, Orders in Council are drafted by government departments and formally approved by the monarch.
• When Used
  1. Emergency Situations
     • Example: Fuel Crisis 2000 – Orders in Council used to deal with petrol shortages.
     • Under the Civil Contingencies Act 2004, Orders in Council can be made during national emergencies.
  2. Transferring Responsibilities Between Government Departments
     • Example: transferring functions from the Home Office to the Ministry of Justice.
  3. Implementing European Union Law (before Brexit)
     • Used to bring EU directives into UK law quickly.
  4. Dissolving Parliament (before Fixed-term Parliaments Act 2011).
• Example Case
  • Civil Contingencies Act 2004: granted power to make Orders in Council to handle emergencies like terrorism or natural disasters.
• Advantages
  • Quick and flexible response to urgent needs.
  • Useful for international obligations and emergencies.
• Disadvantages
  • Lack of parliamentary debate.
  • May allow government to bypass normal legislative scrutiny.

Statutory Instruments (SIs)

• Definition
  • Also known as secondary legislation or regulations.
  • Rules made by government ministers under authority granted by an enabling Act.
  • The most common type of delegated legislation – thousands produced annually.
• Scope
  • Ministers draft detailed rules to give effect to broad principles in Acts of Parliament.
  • Example: Police and Criminal Evidence Act 1984 (PACE) gives Home Secretary power to make Codes of Practice on police powers.
  • Health and Safety Regulations are largely created through statutory instruments.
• Examples
  • Misuse of Drugs Act 1971: Home Secretary can reclassify drugs by SI. E.g., Cannabis was reclassified from Class B to Class C in 2004 and back to Class B in 2009.
  • Coronavirus Act 2020: implemented lockdown rules through SIs without full debate in Parliament.
• Control And Scrutiny
  • Negative Resolution Procedure: SI becomes law unless rejected within 40 days.
  • Affirmative Resolution Procedure: SI must be approved by both Houses.
  • Super-Affirmative Procedure: greater scrutiny, requiring consultation and debate (used under Legislative and Regulatory Reform Act 2006).
• Advantages
  • Efficient way to fill in technical details Parliament lacks time for.
  • Flexible and easily updated (e.g., road traffic regulations).
• Disadvantages
  • Democratic deficit – many SIs are rarely debated.
  • Excessive volume leads to limited oversight (“legislation by stealth”).
  • Example: Henry VIII clauses allow ministers to amend or repeal Acts by SI, criticised as unconstitutional.

Bylaws

• Definition
  • Local laws made by local authorities, public corporations, or certain companies under powers granted by Parliament.
  • They only apply in the specific area or to the specific body that made them.
• Local Authority Bylaws
  • Cover issues such as parking, dog fouling, alcohol consumption in public places, or use of local parks.
  • Example: Local Government Act 1972 grants local councils power to pass bylaws for their area.
  • Example: London Underground bylaws regulate behaviour on trains (e.g., no smoking).
• Public Corporations And Companies
  • Bodies like Transport for London or airports can make bylaws.
  • Example: Heathrow Airport bylaws regulate passenger behaviour and safety.
• Enforcement
  • Bylaws are enforceable in the magistrates’ courts.
  • Breach usually results in a fine.
• Advantages
  • Address local issues efficiently (local democracy).
  • Flexible and responsive to community needs.
• Disadvantages
  • Lack of consistency between different areas.
  • Limited publicity – citizens may be unaware of bylaws.

Evaluation Of Types Of Delegated Legislation

• Strengths
  • Saves parliamentary time by handling technical detail.
  • Allows quick response to emergencies.
  • Provides local control over local matters.
  • Flexible – can be easily amended compared to primary legislation.
• Weaknesses
  • Reduces parliamentary control and accountability.
  • Large volume makes law complex and less accessible.
  • Risk of abuse of power (Henry VIII clauses).
  • Public often unaware of delegated legislation.

Case Law Illustrating Delegated Legislation

• Aylesbury Mushroom Case (1972): SI declared invalid because the Minister failed to follow proper consultation process.
• R v Home Secretary, ex parte Fire Brigades Union (1995): court ruled that delegated legislation cannot override parliamentary intention.
• Customs and Excise Commissioners v Cure & Deeley Ltd (1962): confirmed courts can strike down delegated legislation if it exceeds powers given by the enabling Act (ultra vires).

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course