Types of Delegated Legislation (OCR A-Level Law): Revision Notes
Types of delegated legislation
Introduction to delegated legislation
Parliament faces significant time constraints and often lacks specialized expertise in every area where new laws are needed. To address this challenge, Parliament delegates some of its law-making powers to secondary bodies, allowing them to create legislation on Parliament's behalf. Laws made through this process are known as delegated legislation or secondary legislation.
Delegated legislation is law made by a body other than Parliament, acting under authority granted to them by Parliament.
Before Parliament can delegate its power, it must pass an Act of Parliament that grants the secondary body authority to make laws in a specific area. These authorizing statutes are called parent Acts or enabling Acts, and they constitute primary legislation. The parent Act establishes the framework and boundaries within which the secondary body can operate.
Once validly created under a parent Act, delegated legislation is legally binding. These laws carry the same legal force as if Parliament had enacted them directly, meaning all citizens must comply with them.
The three main types of delegated legislation
The UK legal system recognizes three principal forms of delegated legislation, each made by different secondary bodies and serving distinct purposes.
Orders in Council
Orders in Council are delegated legislation made by the Privy Council, a formal advisory body to the monarch composed of senior government ministers and other appointed members.
Why Orders in Council are used:
Orders in Council serve two key functions. First, they conserve Parliament's limited time, allowing MPs to focus on major legislative debates. Second, they enable rapid legal responses during emergency situations when swift action is essential and Parliament may not be sitting.
Example: Constitutional Reform Act 2005
The Constitutional Reform Act 2005 authorizes the Privy Council to adjust the number of judges in the Supreme Court. This allows flexible modification of judicial capacity without requiring full Parliamentary debate for each change.
Example: Civil Contingencies Act 2004
The Civil Contingencies Act 2004 empowers the Privy Council to create emergency legislation when Parliament is not in session. This ensures urgent matters affecting national security or public welfare can be addressed immediately, regardless of Parliamentary timetables.
Statutory instruments
Statutory instruments (also called Ministerial Regulations) represent the most numerous form of delegated legislation. They are made by government ministers who lead various government departments.
Why statutory instruments are used:
Over 3,000 statutory instruments are created each year in the UK. Parliament cannot manage this volume of legislation, nor does it possess the technical expertise required for many specialized areas. Government departments employ subject-matter experts and hold direct responsibility for policy implementation in their sectors, making ministers best positioned to handle detailed, often highly technical, regulations.
Example: Building Regulations 2010
The Building Regulations 2010 demonstrate the complexity that statutory instruments can address. Created by the Department for Communities and Local Government under the Building Act 1984, these regulations contain intricate technical specifications for construction standards that would be impractical for Parliament to debate in detail.
Example: Police and Criminal Evidence Act 1984
Police powers provide another significant example. The Ministry for Justice creates detailed regulations governing police conduct and powers under the Police and Criminal Evidence Act 1984. These regulations require regular updating based on operational experience and technological developments, which ministerial departments are better equipped to manage than Parliament.
By-laws
By-laws are the most localized form of delegated legislation. They are created by local authorities (such as county and district councils) and public corporations (such as the British Airports Authority) for matters within their specific geographical or functional jurisdiction.
Why by-laws are used:
Parliament lacks both the time and detailed local knowledge needed to regulate matters affecting specific communities or locations. Local authorities and public corporations understand the particular needs and challenges of their areas, making them better positioned to create appropriate local regulations.
Example: Designated Public Place Orders
Drinking ban zones, formally known as Designated Public Place Orders, illustrate how by-laws address local concerns. Local councils create these zones under the Criminal Justice and Police Act 2001. Within a designated area, alcohol consumption in any public space (excluding licensed premises) is prohibited. This allows communities to address specific anti-social behavior problems without imposing nationwide restrictions.
Other common by-laws include prohibitions on ball games in certain public spaces, parking restrictions in particular areas, and rules governing the use of local parks and facilities. These regulations address local needs that vary significantly between different communities.
Key exam guidance
Always cite the parent Act!
When answering exam questions on delegated legislation, always reference the parent Act that grants the secondary body its law-making power. Simply naming the delegated legislation without identifying its statutory basis demonstrates incomplete legal understanding.
Be prepared to explain not just what each type of delegated legislation is, but why Parliament uses this delegation system. Understanding the rationale enables you to evaluate the system's strengths and weaknesses effectively.
Remember!
Key Points to Remember:
- Delegated legislation is law made by a body other than Parliament under powers granted by a parent Act
- Parent Acts (enabling Acts) are primary legislation that authorizes secondary bodies to make laws
- Three main types exist: Orders in Council (Privy Council), Statutory Instruments (government ministers), and By-laws (local authorities and public corporations)
- Each type serves specific purposes: Orders in Council for efficiency and emergencies, Statutory Instruments for technical complexity and volume, By-laws for local matters
- Always cite the parent Act when discussing specific examples of delegated legislation in exams
- Delegated legislation has the same legal force as Acts of Parliament—compliance is mandatory