Why does Parliament let other bodies make law on its behalf, and how is that power controlled?
Delegated legislation: orders in council, statutory instruments and by-laws, the reasons for delegation, and parliamentary and judicial controls including judicial review.
A focused answer to the AQA A-Level Law delegated-legislation topic, covering orders in council, statutory instruments and by-laws, why Parliament delegates law-making, and the parliamentary and judicial controls including judicial review for ultra vires.
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What this dot point is asking
AQA wants you to identify the three main types of delegated legislation, explain why Parliament delegates law-making power, and describe and evaluate the controls Parliament and the courts use to keep that power in check.
Types of delegated legislation
- Orders in Council are made by the King and the Privy Council. They can be used in emergencies under the Civil Contingencies Act 2004, to transfer powers between departments, or to give legal effect to EU obligations (historically).
- Statutory instruments (SIs) are made by government ministers within their area of responsibility, for example the Minister for Transport updating road traffic rules. Around 3,000 are made each year.
- By-laws are made by local authorities for their area, or by public corporations and companies (such as a railway operator) for their premises and services.
Reasons for delegation
Parliament delegates because it lacks the time to pass every detailed rule, because ministers and local bodies have expert and local knowledge Parliament cannot match, and because delegated legislation can be made and amended quickly to respond to changing circumstances or emergencies.
Controls on delegated legislation
Judicial review challenges fall into two kinds. Procedural ultra vires means the correct procedure was not followed, as in Aylesbury Mushroom (a body not properly consulted before an order was made). Substantive ultra vires means the content goes beyond the power granted, as in R v Home Secretary, ex parte Fire Brigades Union (a minister introducing a scheme inconsistent with the enabling statute). Delegated legislation may also be struck down for unreasonableness in the Wednesbury sense, as in Strickland v Hayes (a by-law banning all singing of obscene songs was too widely drawn).
Evaluating delegated legislation is a common exam demand, so be ready to argue both sides. The advantages are efficiency (Parliament has no time for thousands of technical rules), expertise (ministers and local bodies know their fields), speed and flexibility (rules can be made and amended quickly, vital in emergencies such as a pandemic), and local responsiveness through by-laws. The disadvantages are a democratic deficit (unelected bodies make law), the sheer volume that defeats effective scrutiny (around 3,000 SIs a year against limited committee time), the limited use of the affirmative procedure, the risk of sub-delegation (Henry VIII powers that let ministers amend primary legislation), and obscurity that reduces public awareness of the law. A balanced answer weighs the practical necessity of delegation against the weakness of the controls, concluding on whether oversight is adequate.
How delegated legislation is examined
This topic is examined as combined descriptive and evaluative questions. Examiners reward matching the right example to each type, accurate naming of the parliamentary and judicial controls, and a balanced assessment of whether oversight keeps pace with the volume of delegated law.
Exam-style practice questions
Practice questions written in the style of AQA exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
AQA 201810 marksDescribe the different types of delegated legislation and discuss the controls that exist over their use. [10 marks]Show worked answer →
A combined Describe and Discuss question rewards AO1 detail followed by AO3 evaluation. Describe orders in council (Privy Council, used in emergencies under the Civil Contingencies Act 2004), statutory instruments (made by ministers, around 3,000 a year) and by-laws (local authorities and public bodies).
Then evaluate the controls: parliamentary controls (the enabling Act, affirmative and negative resolution procedures, the Joint Committee on Statutory Instruments) and judicial control through judicial review for procedural or substantive ultra vires (Aylesbury Mushroom) and unreasonableness (Strickland v Hayes). Assess their effectiveness, noting the sheer volume of SIs and limited parliamentary time. Markers reward accurate types, named controls and a balanced judgment on adequacy.
AQA 20204 marksExplain what is meant by judicial review on the ground of ultra vires. [4 marks]Show worked answer →
Ultra vires means acting beyond the powers granted by the parent (enabling) Act. Through judicial review the courts can declare delegated legislation void on this basis. Procedural ultra vires is where the correct procedure, such as a required consultation, was not followed (Aylesbury Mushroom). Substantive ultra vires is where the content of the delegated legislation exceeds the power granted. Markers reward the meaning of ultra vires, the two forms, and the point that judicial review applies to delegated legislation but not to Acts of Parliament.
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Sources & how we know this
- AQA A-level Law (7162) specification — AQA (2017)