Delegated legislation: Orders in Council, statutory instruments and by-laws, the reasons for delegation, and the controls exercised by Parliament and the courts.

What this dot point is asking

This dot point covers delegated legislation: law made by a person or body other than Parliament, under powers granted by a parent (enabling) Act. You need to identify the three main types, explain why Parliament delegates law-making, and describe the controls that keep delegated power in check, both parliamentary and judicial. The evaluation often asks how effective those controls are.

The answer

Why Parliament delegates

Parliament delegates for practical reasons:

• Time. Parliament lacks time to debate every detailed rule.
• Expertise. Ministers and local bodies have technical and local knowledge Parliament lacks.
• Speed and flexibility. Instruments can be made and amended quickly, including in emergencies, without a full Act.
• Local knowledge. Local authorities can tailor by-laws to their area.

The three types

1. Orders in Council. Made by the Privy Council and the monarch. They are used in emergencies under the Civil Contingencies Act 2004, to transfer responsibilities between departments, and to bring Acts of Parliament into force.
2. Statutory instruments. Rules and regulations made by government ministers within their area of responsibility. They are the most common form and add the detailed content Acts leave out, such as updating the national minimum wage.
3. By-laws. Made by local authorities for their area and by some public corporations. They cover local matters such as parking, dog control or behaviour in public spaces.

Parliamentary controls

Parliament also scrutinises through committees: the Joint Committee on Statutory Instruments (the Scrutiny Committee) reviews instruments on technical grounds and can draw the attention of Parliament to problems, and the Delegated Powers and Regulatory Reform Committee scrutinises whether delegation in a bill is appropriate in the first place.

Judicial controls and the ultra vires doctrine

The courts control delegated legislation through judicial review, declaring an instrument ultra vires (beyond the powers granted) and therefore void. This takes two forms: procedural ultra vires, where the required procedure was not followed (Aylesbury Mushrooms, where a failure to consult invalidated an order), and substantive ultra vires, where the content exceeds the power. An instrument may also be struck down for unreasonableness.

Examples in context

The ultra vires doctrine gives the courts real teeth. In Aylesbury Mushrooms, an order setting up a training board was held invalid against the mushroom growers because the minister had failed to consult their association as the enabling Act required, a clear case of procedural ultra vires. The volume problem is equally important for evaluation: Parliament passes a few dozen Acts a year but thousands of statutory instruments, and the negative resolution procedure means most become law without any debate at all. This is why commentators argue the controls, though real, struggle to keep pace, and why the topic so often carries an evaluative sting in the question.

Try this

Q1. Name the three main types of delegated legislation and who makes each. [3 marks]

• Cue. Orders in Council (Privy Council), statutory instruments (ministers), by-laws (local authorities).

Q2. What is the difference between procedural and substantive ultra vires? [2 marks]

• Cue. Procedural: the correct procedure was not followed; substantive: the content goes beyond the power granted.

Q3. Explain the controls on delegated legislation and assess how effective they are. [12 marks]

• What the marker wants. Parliamentary controls (enabling Act, resolution procedures, scrutiny committees), judicial controls (ultra vires, unreasonableness), and evaluation of their effectiveness given the volume of instruments.