What is delegated legislation, what forms does it take, and how is it controlled?
Delegated legislation: the three types (Orders in Council, statutory instruments and bylaws), the reasons for it, and the parliamentary and judicial controls including the ultra vires doctrine.
An OCR A-Level Law guide to delegated legislation. Explains Orders in Council, statutory instruments and bylaws, the reasons for delegating law-making power, and the parliamentary and judicial controls including the ultra vires doctrine, with worked exam answers and the AO3 evaluation the paper rewards.
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What this dot point is asking
OCR Component 2 Section A requires you to know delegated legislation: law made by a body other than Parliament, but with Parliament's authority. You must know the three types, the reasons Parliament delegates, and the parliamentary and judicial controls on it, including the ultra vires doctrine. The skill is to describe these for AO1 and to evaluate the controls for AO3.
The answer
The three types
Reasons for delegation
Parliament delegates because it lacks the time to pass every detailed rule, because some areas need technical expertise Parliament does not have, because law sometimes must be made quickly (especially in an emergency), because rules need to be updated flexibly without a new Act, and because local bodies know local needs better than Parliament.
Controls on delegated legislation
There are two kinds of control:
- Parliamentary controls. The enabling Act fixes the limits of the power. Some instruments need the affirmative resolution procedure (Parliament must expressly approve them); most use the negative resolution procedure (they become law unless annulled within about 40 days). The Joint Committee on Statutory Instruments scrutinises instruments for technical defects.
- Judicial controls. Through judicial review, the courts can declare delegated legislation ultra vires (beyond the powers granted by the parent Act). This may be substantive ultra vires (the content exceeds the power), procedural ultra vires (a required procedure such as consultation was not followed) or unreasonable (so unreasonable that no reasonable body would have made it, the Wednesbury test).
Examples in context
A strong evaluation weighs each control's effectiveness and concludes on whether scrutiny is adequate.
Try this
Q1. Explain the difference between substantive and procedural ultra vires as judicial controls on delegated legislation. [10 marks]
- What the marker wants. Precise AO1: substantive ultra vires is where the content goes beyond the power in the parent Act; procedural ultra vires is where a required procedure (such as consultation) was not followed. Both make the legislation void.
Q2. Discuss the extent to which the advantages of delegated legislation outweigh its disadvantages. [20 marks]
- Cue. An AO3 evaluation: weigh the advantages (time, expertise, speed, flexibility, local knowledge) against the disadvantages (democratic deficit, weak scrutiny, volume, sub-delegation), and judge whether delegation is justified given the controls.
Exam-style practice questions
Practice questions written in the style of OCR exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
OCR H418/02 2020 (Section A style)15 marksDescribe the three types of delegated legislation and the reasons why Parliament delegates law-making power. [a medium-tariff Section A question; true tariff varies between 10 and 15 on the real paper]Show worked answer →
A Section A knowledge question, mainly AO1, rewarding the three types with examples and the reasons.
The three types. Orders in Council are made by the Privy Council and the monarch, used in emergencies (Civil Contingencies Act 2004) and to transfer powers. Statutory instruments are made by government ministers under an enabling (parent) Act, the most common form, used for detailed regulations such as updating limits. Bylaws are made by local authorities and some public bodies for their area, such as parking or public-space rules.
The reasons. Lack of parliamentary time; the need for technical expertise; speed, especially in emergencies; flexibility to update the law; and local knowledge for bylaws.
A top answer names each type with an example and gives the reasons for delegation.
OCR H418/02 2022 (Section B essay)20 marksDiscuss the extent to which there are effective controls on delegated legislation. [Section B extended-response evaluation, AO3]Show worked answer →
An AO3 evaluation essay marked by levels of response. The top level explains the controls, tests their effectiveness and judges.
Parliamentary controls. The enabling Act sets the limits; the affirmative resolution procedure requires Parliament's express approval; the negative resolution procedure lets Parliament annul within 40 days; and scrutiny committees (the Joint Committee on Statutory Instruments) review instruments.
Judicial controls. Through judicial review the courts can declare delegated legislation ultra vires (beyond the powers of the parent Act), whether substantive (content), procedural (process not followed) or unreasonable (Wednesbury), as in Strickland v Hayes and the DPP v Hutchinson type of case.
Evaluation. The controls exist but are limited: most instruments use the negative procedure and pass with little scrutiny; the sheer volume makes oversight hard; judicial review depends on someone bringing a challenge. Conclude that controls are real but imperfect, so reform of scrutiny is desirable. The top level judges rather than lists.
Related dot points
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- The extended evaluation essay (AO3): building a balanced critical argument with examples, weighing strengths and weaknesses, and reaching a reasoned and supported judgement that answers the question.
An OCR A-Level Law guide to the extended evaluation essay. Explains how to build a balanced critical argument, weigh strengths and weaknesses with examples, and reach a reasoned judgement, with a worked plan and the AO3 evaluation the paper rewards across all three components.
Sources & how we know this
- OCR A Level Law (H418) specification — OCR (2017)