What is delegated legislation, what forms does it take, and how is it kept in check?
Delegated legislation: the enabling Act and the types of delegated legislation (Orders in Council, statutory instruments and by-laws), the reasons for it, and the controls by Parliament and the courts.
An Eduqas A-Level Law guide to delegated legislation. Explains the enabling Act, Orders in Council, statutory instruments and by-laws, the reasons for delegation and the parliamentary and judicial controls, with worked exam answers and the AO3 evaluation the paper rewards.
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What this dot point is asking
Eduqas Component 1 requires you to know delegated legislation: the enabling Act, the three types (Orders in Council, statutory instruments and by-laws), the reasons for delegating, and the controls by Parliament and the courts. The skill is to explain the types and controls precisely (AO1) and to evaluate the use of delegated legislation (AO3).
The answer
The enabling Act and the three types
Why Parliament delegates
Parliament delegates because it lacks the time to pass every detailed rule, because some areas need technical expertise (for example road traffic or health and safety detail), because local bodies know local needs, and because delegated legislation can be made and amended quickly and flexibly, including in emergencies.
Parliamentary controls
Judicial controls
The courts control delegated legislation through judicial review. A court can declare an instrument ultra vires (beyond the powers granted) if its content exceeds the power (substantive ultra vires), if the correct procedure was not followed (procedural ultra vires, as in R v Secretary of State for Health, ex parte United States Tobacco, or the consultation failure in the Aylesbury Mushroom case), or if it is unreasonable in the Wednesbury sense.
Examples in context
A strong answer balances the benefits against the democratic deficit and judges the adequacy of the controls.
Try this
Q1. Explain the three types of delegated legislation. [10 marks]
- What the marker wants. Precise AO1: Orders in Council (Privy Council, emergencies and prerogative), statutory instruments (ministers, detail of an Act, the most common) and by-laws (local authorities and public bodies for their area), each with the body that makes it and its use.
Q2. A minister makes a statutory instrument without carrying out the consultation the enabling Act requires. Advise whether the instrument can be challenged. [15 marks]
- Cue. An AO2 application: failing to follow a required procedure (consultation) is procedural ultra vires; through judicial review the courts can declare the instrument invalid (Aylesbury Mushroom), so it can be challenged.
Exam-style practice questions
Practice questions written in the style of WJEC Eduqas exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
Eduqas Component 1 2022 (evaluation)15 marksAnalyse and evaluate the use of delegated legislation. [an analysis/evaluation question in the style of Component 1, AO3]Show worked answer →
A mainly AO3 essay. Explain the types and reasons, then weigh the advantages against the disadvantages and the controls.
Types and reasons. Delegated legislation is law made under an enabling Act by Orders in Council (Privy Council), statutory instruments (ministers) and by-laws (local authorities). It saves parliamentary time, allows expert and local input, and enables quick and flexible updating (and emergency action).
Evaluation. Advantages: speed, expertise, flexibility and the ability to handle detail Parliament has no time for. Disadvantages: it is undemocratic (made by unelected people), there is a huge volume that is hard to scrutinise (thousands of statutory instruments a year), it is sub-delegated, and it can be obscure. Controls: Parliament (the enabling Act, affirmative and negative resolution procedures, the scrutiny committees) and the courts (judicial review for procedural or substantive ultra vires, for example Aylesbury Mushroom).
A top answer evaluates both sides and assesses how effective the controls are, then concludes.
Eduqas Component 1 2021 (explain style)10 marksExplain the controls on delegated legislation. [an explain question in the style of Component 1, AO1]Show worked answer →
A mainly AO1 explain question. Set out the parliamentary and judicial controls.
Parliamentary controls: the enabling Act sets the limits of the power; the affirmative resolution procedure requires Parliament's express approval; the negative resolution procedure lets a statutory instrument become law unless annulled within 40 days; and committees (the Joint Committee on Statutory Instruments and the Delegated Powers and Regulatory Reform Committee) scrutinise instruments and the powers granted.
Judicial controls: through judicial review the courts can declare delegated legislation ultra vires (beyond the powers) on substantive grounds (the content exceeds the power) or procedural grounds (the correct procedure was not followed, for example Aylesbury Mushroom), or where it is unreasonable.
A top answer explains both the parliamentary and judicial controls with an example such as Aylesbury Mushroom.
Related dot points
- Parliamentary law making: the legislative process (Green and White Papers, the types of Bill, the stages of a Bill through the Commons and Lords and the Royal Assent), the influences on Parliament, and the doctrine of parliamentary sovereignty.
An Eduqas A-Level Law guide to parliamentary law making. Explains the legislative process, the stages of a Bill, the influences on Parliament and parliamentary sovereignty, with worked exam answers and the AO3 evaluation the paper rewards.
- Statutory interpretation: the literal, golden and mischief rules and the purposive approach, the rules of language, intrinsic and extrinsic aids (including Pepper v Hart), and the impact of EU law and the Human Rights Act 1998.
An Eduqas A-Level Law guide to statutory interpretation. Explains the literal, golden and mischief rules, the purposive approach, the rules of language and the aids to interpretation, with worked exam answers and the application the paper rewards.
- Judicial precedent: the doctrine of stare decisis, ratio decidendi and obiter dicta, binding and persuasive precedent, the court hierarchy and the Practice Statement, and the ways of avoiding precedent (overruling, reversing and distinguishing).
An Eduqas A-Level Law guide to judicial precedent. Explains stare decisis, ratio and obiter, binding and persuasive precedent, the court hierarchy, the Practice Statement and how judges avoid precedent, with worked exam answers and the AO3 evaluation the paper rewards.
- Law reform: the agencies that influence and propose reform (the Law Commission, Royal Commissions and public inquiries, pressure groups and the media), the processes of repeal, consolidation and codification, and the limits on reform.
An Eduqas A-Level Law guide to law reform. Explains the Law Commission, Royal Commissions and inquiries, pressure groups and the media, the processes of repeal, consolidation and codification, and why many reforms are not enacted, with worked exam answers and the AO3 evaluation the paper rewards.
- The evaluation essay (AO3): structuring a balanced argument, analysing strengths and weaknesses, using examples, cases and reform proposals, and reaching a reasoned conclusion.
An Eduqas A-Level Law guide to the evaluation essay (AO3). Explains how to structure a balanced argument, analyse strengths and weaknesses, use examples and reform proposals and reach a conclusion, with worked examples and the technique the Component 3 paper rewards.
Sources & how we know this
- Eduqas A Level Law (A150) specification — WJEC Eduqas (2017)