Delegated legislation 831754 225179188 2008-07-12T08:54:48Z Edward 4261 link [[traffic sign]] using [[User:Edward/Find link|Find link]] {{worldwide}} '''Delegated legislation''' (also referred to as '''secondary legislation''' or '''subordinate legislation''') is [[law]] made by an executive authority under powers given to them by [[primary legislation]] in order to implement and administer the requirements of that primary legislation. ==United Kingdom== ===Introduction=== In the United Kingdom, delegated legislation is the name given to legislation or law that is passed otherwise than in an [[Act of Parliament]] (or an [[Act of the Scottish Parliament]], [[Northern Ireland Assembly]] or [[National Assembly for Wales]]). Instead, an enabling Act (also known as the parent Act or empowering Act) confers a power to make delegated legislation on a [[Government]] [[Minister (government)|Minister]] or another person or body. Several thousand pieces of delegated legislation are made each year, compared with only a few dozen Acts of Parliament.<ref>See House of Commons factsheet, page 2 and [[List of Statutory Instruments of the United Kingdom]]</ref> Delegated legislation can be used for a wide variety of purposes, ranging from relatively narrow, technical matters (such as fixing the date on which an Act of Parliament will come into force, or setting the level of fees payable for a service eg the issue of a [[passport]]), to filling in the detail of how an Act setting out broad principles will be implemented in practice. ===Advantages and disadvantages=== The use of delegated legislation has a number of advantages. Firstly, it allows laws to be enacted without using up scarce Parliamentary time on technical matters, for example the fine detail of a public sector pension scheme<ref>See, for example, the [http://www.opsi.gov.uk/si/si2008/uksi_20080653_en_1 National Health Service Pension Scheme Regulations 2008]</ref> or the precise design of [[traffic sign]]s,<ref>See the [http://www.opsi.gov.uk/si/si2006/20062083.htm Traffic Signs (Amendment) Regulations 2006]</ref> thereby freeing Parliament to discuss matters of broad principle and policy. Secondly, it allows laws relating to technical matters to be prepared by those with the relevant expert knowledge.<ref>For example, the [http://www.opsi.gov.uk/si/si2005/20051970.htm Air Navigation Order 1995] contains highly technical rules (including tables, maps, etc) governing the flying of civil aircraft within the United Kingdom</ref> Thirdly, delegated legislation is flexible enough to deal speedily with changing circumstances, for example increasing costs of services, developments in scientific knowledge or minor changes in policy. This also makes it invaluable in emergencies when very swift action is required – delegated legislation made under emergency powers can be drafted, enacted and brought into force in a matter of hours rather than the days, weeks or months that would be required to pass an Act of Parliament.<ref>For example, [http://www.opsi.gov.uk/si/si2007/uksi_20073435_en_1 The Export and Movement Restrictions (Foot-and-Mouth Disease) (No.2) Regulations 2007] were made at 5pm on 5 December 2007 and came into effect at 6pm the same day</ref> Delegated legislation can also be criticised on the grounds that it is subject to less parliamentary scrutiny than primary legislation (but see the article on [[Statutory Instrument (UK)|Statutory Instruments]] for a description of the parliamentary controls which are in place), and thereby may potentially be used by the Government in ways which Parliament had not intended or appreciated when it conferred the power. This is particularly the case where an Act empowers Ministers to use delegated legislation to amend primary legislation (so-called “Henry VIII powers”). For example, the [[Deregulation and Contracting Out Act 1994]] allowed Ministers to change certain Acts of Parliament by way of statutory instrument, without going through the normal parliamentary legislative process. This power was later extended by the [[Regulatory Reform Act 2001]] and the [[Legislative and Regulatory Reform Act 2006]], although more rigorous parliamentary controls were introduced. Similarly, delegated legislation may be viewed as a way of removing controversial matters (for example, immigration rules) from the remit of Parliament and putting them under the control of the Government, because they can be regarded as matters of detail. Another disadvantage is in the sheer volume of laws that are passed as delegated legislation. Because of this bulk, there is normally little publicity or knowledge about the changes that are being made. However there are both parliamentary and judicial controls on delegated legislation which are discussed below. ===Types of delegated legislation=== Delegated legislation can take a variety of forms, each of which are for different purposes. However the boundaries between the different types are not fixed, and which type of delegated legislation is used will be determined by the wording of the parent Act. * [[Orders-in-Council]] are made by the [[Queen of the United Kingdom|Queen]] on the advice of the [[Privy Council of the United Kingdom|Privy Council]] (ie the Government). Orders-in-Council are generally used where it would be inappropriate for the order to be made by a Minister, for example where the matter is of constitutional significance (such as transferring powers and functions from one Minister to another, or bringing into force emergency powers to be exercised by Ministers). * [[Order of Council|Orders of Council]] are made by the Lords of the Privy Council in their own right. These most commonly relate to the regulation of professional bodies and the higher education sector, over which the Pricy Council exercises a supervisory function. * [[Orders]] are usually made by [[Minister (government)|Ministers]]. An Order is an exercise of executive powers, for example to create or dissolve a [[public body]]. Commencement Orders are used to set the date on which an Act, or part of an Act, comes into force. * [[Regulations]] are also usually made by Ministers. Regulations are the means by which substantive and detailed law is made, for example setting out in detail how an Act is to be implemented. Regulations made under the [[European Communities Act 1972]] are the means by which the Government most often implements [[European law]] within the United Kingdom. * [[Rules]] set out procedures, for example rules governing [[court]] procedures, or the way in which the [[Patent Office]] deals with applications. Rules may be made by Ministers or, if specified in the parent Act, a senior [[judge]]. In [[Scotland]], rules of court are called [[Act of Sederunt|Acts of Sederunt]] or [[Act of Adjournal|Acts of Adjournal]]. * Schemes: for example, schemes made by the [[Charity Commission]] to amended how a [[charity]] is governed. * [[Directions (delegated legislation)|Directions]] are a means by which Ministers give legally binding instructions to a public body about the way it exercises its functions. * [[By-laws]] are laws of limited application (usually restricted to certain places) made by [[Local government in England |local authorities]] or certain other bodies (for example, [[train operating companies]] or the [[National Trust for Places of Historic Interest or Natural Beauty]]) to control the activities of the people in public spaces, such as in public [[parks]] or on board [[public transport]]. ===Making of delegated legislation=== Delegated legislation is usually made by being signed by the person making it (or an authorised delegate of that person, for example a Senior Member of the [[British Civil Service|Civil Service]]), although in the case of Orders in Council the verbal assent of the Queen is sufficient (although the fact that this has been given is recorded through the signature of the Clerk to the Privy Council). Most delegated legislation is required (by the parent Act) to be made using a [[Statutory Instrument (UK)|Statutory Instrument]]. This ensures that the legislation is catalogued and (apart from a few exceptions) published by the [[Queen's Printer]], thereby making it available to the public as a whole. However where delegated legislation is of only limited application (for example, most Directions and by-laws), and therefore not of general importance, the parent Act may not require that it be made using a Statutory Instrument. Instead, other provisions may be made for publishing the legislation, for instance a [[Local government in England |local council]] may be required to publish a notice announcing the making of by-laws in local newspapers. ===Layout of delegated legislation=== Most delegated legislation will begin with a [[preamble]] which sets out who is making the legislation, the authority (precisely which sections of which Acts of Parliament) under which it is passed and, where appropriate, confirming that any pre-conditions required by the parent Act (for example, approval of a draft by each House of Parliament, or consultation with specified organisations) have been met. What term is used to refer to the individual clauses of delegated legislation will depend on which type it is: * in Orders, Orders-in-Council and Orders of Council, each clause is called an article. * in Regulations, each clause is a regulation. * in Rules, each clause is a rule. * in Directions, and in the Schedules of Orders, Regulations and Rules, each clause is called a paragraph. Clauses may be grouped under headings and in complex delegated legislation, the document may be divided into Parts. The main body of the delegated legislation may be followed by Schedules setting out even more detailed provisions. There will also usually be an explanatory note describing, in summary form and using non-legal language, the purpose and scope of the legislation. The explanatory note is for convenience only and has no legal effect. === Controls over delegated legislation === There are both parliamentary and judicial controls over delegated legislation. The parliamentary controls, by which delegated legislation made by Statutory Instrument may either need to be approved by a vote of each House of Parliament before it is made, or be subject to a veto by either House within a certain period of time after it is made, are described in detail in the article on [[Statutory Instrument (UK)|Statutory Instruments]]. Judicial control is exercised through the means of [[judicial review]]. Because delegated legislation is made by a person exercising a power conferred by an Act of Parliament for a specified purpose, rather than by Parliament exercising its [[sovereign]] law-making powers, it can be struck down by the [[courts]] if they conclude that it is ''[[ultra vires]]'' (literally, outside the powers conferred by the parent Act). This would be the case if the Government attempts to use delegated legislation for a purpose not envisioned by the parent Act, or if the legislation is an unreasonable use of the power conferred by the Act, or if pre-conditions imposed by the Act (for example, consultation with certain organisations) have not been satisfied. ===Devolution=== [[Acts of the Scottish Parliament]], [[List of Acts of the Northern Ireland Assembly|Acts of the Northern Ireland Assembly]] and [[List of Measures of the National Assembly for Wales|Measures of the Welsh Assembly]] may also confer the power to make delegated legislation. It should be noted that, whilst Scottish or Northern Irish Acts, and Welsh Measures, draw their constitutional legitimacy and legal effect from the enabling Acts of the Westminster Parliament establishing the Parliament and Assembly, they are classified as primary, not delegated, legislation. ==Other countries== *Certain [[decree]]s in [[France]] are secondary legislation, while others are primary. *[[Administrative Procedure Act]] of 1946, statutory authority for the creation of federal regulations ("[[administrative law]]") in the [[United States]], which are then published in the [[Federal Register]]. See also [[rulemaking]]. The Australian Legal System uses delegated legislation as its legal system is largely based on the British legal system since it was established by British Colonies. ==Bibliography== * [http://www.opsi.gov.uk/official-publications/publishing-guidance/si-practice.doc Statutory Instrument Practice], 3rd edition (June 2003), [[Cabinet Office]] and [[Her Majesty’s Stationery Office]] * [http://www.parliament.uk/documents/upload/L07.pdf House of Commons Information Office Factsheet L7 - Statutory Instruments] ==Notes== {{reflist}} [[Category:United Kingdom law]] [[Category:Statutory law]] [[Category:Administrative law]] [[ja:委任立法]] [[zh:委任立法]]