Delegated Legislation

Introduction

Delegated legislation (also known as secondary legislation or subordinate legislation) is law made by ministers or other bodies to whom Parliament has delegated legislative authority through a parent Act (or primary legislation). The vast majority of legislative output in the United Kingdom takes the form of delegated legislation: over 3,000 statutory instruments (SIs) are made each year, far exceeding the number of Acts of Parliament. Delegated legislation is essential to the efficient functioning of the modern state, enabling detailed rules to be made without overburdening parliamentary time. It also raises significant constitutional questions about the delegation of legislative power and the adequacy of parliamentary scrutiny.

Statutory Instruments

The Statutory Instruments Act 1946 provides the framework for the making, publication, and operation of statutory instruments, which are the most common form of delegated legislation. A statutory instrument is a form of legislation that is made by a minister or other body under powers conferred by an Act of Parliament. The Act specifies the form and numbering of SIs, their publication requirements, and their commencement. SIs are numbered sequentially and published by the Stationery Office. The Act also provides that where an Act confers a power to make subordinate legislation, the resulting instrument is subject to the procedural requirements set out in the parent Act. The National Assembly for Wales and the Scottish Parliament have their own procedures for making delegated legislation within devolved areas. The Northern Ireland Assembly also has its own statutory rule-making procedures.

Affirmative and Negative Procedure

The parliamentary scrutiny of statutory instruments is governed by the procedural requirements specified in the parent Act. The two main procedures are the affirmative resolution procedure and the negative resolution procedure. Under the affirmative procedure, the instrument cannot become law unless it is specifically approved by a resolution of each House (or, for instruments subject to the unicameral procedure, by the House of Commons alone). The instrument is laid before Parliament, and the government must secure a debate and a vote within a specified period (usually 28 or 40 days). Only about 10–15% of SIs are subject to the affirmative procedure, which is reserved for the most significant instruments. Under the negative procedure, an instrument becomes law automatically unless a motion to annul it (a prayer) is passed by either House within a specified period (usually 40 days). The negative procedure allows Parliament to reject an instrument but does not require positive approval. Most SIs are subject to the negative procedure. A small number of instruments are not subject to any parliamentary procedure, where the parent Act provides that they are made simply by being signed by the minister.

Henry VIII Clauses

Henry VIII clauses are provisions in an Act of Parliament that confer power on a minister to amend primary legislation by secondary legislation. They are named after the Statute of Proclamations 1539, which gave Henry VIII power to legislate by proclamation. Henry VIII clauses are constitutionally controversial because they allow the executive to amend Acts of Parliament without the full legislative process. They are subject to enhanced scrutiny: instruments made under Henry VIII powers are usually subject to the affirmative procedure and are scrutinised by the Delegated Powers and Regulatory Reform Committee in the House of Lords and the European Scrutiny Committee (for EU-related matters) and the Public Administration and Constitutional Affairs Committee. The European Union (Withdrawal) Act 2018 contained extensive Henry VIII powers, enabling ministers to amend primary legislation by statutory instrument to correct deficiencies arising from Brexit. The Retained EU Law (Revocation and Reform) Act 2023 also contained significant Henry VIII provisions. The use of Henry VIII clauses has been criticised by parliamentary committees and constitutional commentators as an excessive delegation of legislative power.

Scrutiny Committees

Parliament has developed a specialised committee system to scrutinise delegated legislation. The Joint Committee on Statutory Instruments (JCSI) is a joint committee of both Houses that examines all statutory instruments laid before Parliament. The JCSI does not consider the merits or policy of instruments; it scrutinises their legal and procedural propriety, including whether they are within the powers conferred by the parent Act, whether they require elucidation, and whether they are drafted with appropriate clarity. The Secondary Legislation Scrutiny Committee (in the House of Lords) examines the policy merits of statutory instruments, drawing the attention of the House to instruments that raise political or legal importance, that are inappropriate in the use of delegated power, or that imperfectly implement policy. The European Statutory Instruments Committee examines instruments made under the European Union (Withdrawal) Act 2018. These committees provide important safeguard functions, but they operate under significant resource constraints and cannot examine every instrument in depth.

Remedies

The validity of delegated legislation can be challenged in the courts on several grounds. The most common ground is ultra vires—that the instrument exceeds the powers conferred by the parent Act. The court may quash an instrument that is ultra vires, either on its face or because of procedural irregularity. Substantive ultra vires arises where the instrument goes beyond the scope of the parent Act. Procedural ultra vires arises where the required procedure (such as consultation or parliamentary approval) has not been properly followed. The courts have also held that delegated legislation may be invalid if it is unreasonable or if it violates fundamental constitutional rights. In R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants (1997) , the Court of Appeal struck down regulations that deprived asylum seekers of benefits. The Human Rights Act 1998 provides that delegated legislation is primary legislation for the purposes of the Act, meaning that courts can quash subordinate legislation that is incompatible with Convention rights.

The Constitutional Implications

Delegated legislation raises significant constitutional questions about the balance between efficient government and parliamentary accountability. The delegation of legislative power is a necessary feature of modern government, enabling detailed technical rules to be made without consuming parliamentary time. However, the growth of delegated legislation has shifted legislative power from Parliament to the executive. The volume of SIs makes comprehensive parliamentary scrutiny impossible. The complexity of many instruments means that even specialist committees struggle to identify all significant issues. The time constraints under which SIs are often made limit the scope for effective scrutiny. The Henry VIII power—the power to amend primary legislation by secondary legislation—is a particular concern, as it enables the executive to alter Acts of Parliament without the full legislative process. The House of Lords Constitution Committee has recommended a range of reforms, including a requirement for all SIs to be subject to a statutory instrument procedure that ensures adequate time for scrutiny.

Conclusion

Delegated legislation is an indispensable part of the UK’s legislative system, enabling the efficient making of detailed rules within the framework set by Parliament. The system of statutory instruments provides a standardised procedure for making secondary legislation. The affirmative and negative procedures provide mechanisms for parliamentary scrutiny, though their effectiveness is constrained by volume and time. Henry VIII clauses raise significant constitutional concerns about executive overreach. The scrutiny committees—particularly the JCSI and the Secondary Legislation Scrutiny Committee—performed an important role in identifying procedural and policy issues. The courts provide a backstop through the ultra vires doctrine and human rights review. The balance between executive efficiency and parliamentary accountability in delegated legislation continues to be a matter of constitutional debate and periodic reform.