Legislation and legislative procedures - Secondary (delegated) legislation

Learning Outcomes

After studying this article, you will be able to explain the constitutional basis for secondary (delegated) legislation, identify its main forms, describe the procedures for its creation and parliamentary scrutiny, and recognise how secondary legislation can be challenged in the courts. You will also be able to apply these principles to realistic SQE1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the legal framework and procedures for secondary legislation. In your revision, focus on:

  • the constitutional basis and rationale for delegated legislation in the UK
  • the main forms of secondary legislation (statutory instruments, Orders in Council, byelaws)
  • the parliamentary procedures for creating and scrutinising secondary legislation (affirmative and negative resolution procedures)
  • the grounds and process for challenging secondary legislation in the courts (judicial review, ultra vires, procedural impropriety)
  • the impact of Brexit on the use and scrutiny of secondary legislation

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. What is the difference between primary and secondary legislation?
  2. Which parliamentary procedures are used to scrutinise statutory instruments?
  3. What does it mean for secondary legislation to be "ultra vires"?
  4. Name two forms of secondary legislation other than statutory instruments.
  5. On what grounds can a court declare secondary legislation invalid?

Introduction

Secondary legislation, also known as delegated legislation, is law made by a person or body other than Parliament, under powers granted by an Act of Parliament (the "enabling" or "parent" Act). This system allows Parliament to focus on major policy decisions while delegating the detail and technical rules to ministers, local authorities, or other bodies. Secondary legislation is essential for the efficient operation of government and the legal system.

Constitutional Basis for Delegated Legislation

The UK constitution is based on the doctrine of parliamentary sovereignty. Parliament is the supreme law-making body, but it may delegate law-making powers to others through enabling Acts. Delegated legislation must remain within the limits set by the enabling Act. If it exceeds those limits, it is said to be "ultra vires" and can be declared invalid by the courts.

Key Term: secondary legislation
Secondary legislation is law made by a person or body other than Parliament, under authority granted by an Act of Parliament.

Key Term: enabling Act
An enabling Act (or parent Act) is a statute passed by Parliament that grants powers to make delegated legislation.

Why Use Secondary Legislation?

Delegated legislation is used to:

  • provide detailed rules and procedures not suitable for inclusion in primary legislation
  • allow for technical updates and rapid responses to changing circumstances
  • implement EU law or international obligations
  • address local or sector-specific issues (e.g., byelaws)

Main Forms of Secondary Legislation

Statutory Instruments (SIs)

Statutory instruments are the most common form of secondary legislation. They are used by government ministers to make regulations, rules, or orders under powers given by an enabling Act. SIs are published and numbered, and most are subject to some form of parliamentary scrutiny.

Key Term: statutory instrument
A statutory instrument is a formal document used by ministers or other authorised bodies to make secondary legislation under an enabling Act.

Orders in Council

Orders in Council are made by the King (or Queen) on the advice of the Privy Council. They are used for matters such as emergencies, constitutional changes, or transferring responsibilities between government departments. Some Orders in Council are made under statutory authority; others use the royal prerogative.

Byelaws

Byelaws are made by local authorities or certain public bodies (such as Transport for London or the Environment Agency) to regulate matters within their area or remit. Byelaws must be approved by the relevant government minister before coming into force.

Parliamentary Procedures for Secondary Legislation

The enabling Act specifies the procedure for making and scrutinising secondary legislation. The two main procedures are:

Affirmative Resolution Procedure

The statutory instrument must be approved by both Houses of Parliament before it can become law. This procedure is used for legislation of greater importance or sensitivity.

Negative Resolution Procedure

The statutory instrument becomes law unless either House objects within a set period (usually 40 days). Most SIs follow this procedure, which is used for routine or technical matters.

Key Term: affirmative resolution procedure
A parliamentary process where secondary legislation must be expressly approved by both Houses before becoming law.

Key Term: negative resolution procedure
A process where secondary legislation becomes law unless annulled by either House within a specified period.

Parliamentary Scrutiny

Parliamentary committees play a key role in reviewing secondary legislation:

  • The Joint Committee on Statutory Instruments (JCSI) examines the technical and legal aspects of SIs.
  • The House of Lords Secondary Legislation Scrutiny Committee considers the policy and public interest implications of SIs.

Committees may draw attention to issues, but cannot amend SIs—Parliament can only approve or reject them.

Secondary legislation must comply with the limits set by the enabling Act. If it exceeds those limits, it is ultra vires and may be challenged in the courts.

Key Term: ultra vires
Ultra vires means "beyond the powers." Secondary legislation is ultra vires if it exceeds the authority granted by the enabling Act.

Courts may also declare secondary legislation invalid if:

  • the correct procedures were not followed (procedural impropriety)
  • it is irrational or unreasonable (Wednesbury unreasonableness)
  • it is incompatible with human rights under the Human Rights Act 1998

Worked Example 1.1

A government minister makes regulations under an enabling Act. The Act states that regulations must be approved by both Houses of Parliament before coming into force. The minister lays the regulations before Parliament, but they are not debated or approved. The minister then brings the regulations into force.

Answer:
The regulations are invalid. The enabling Act required affirmative approval by both Houses. Without this, the regulations are not law and can be challenged as ultra vires.

Worked Example 1.2

A local council makes a byelaw banning dogs from a public park. The enabling Act requires ministerial approval for byelaws. The council enforces the ban before obtaining approval.

Answer:
The byelaw is not legally effective until approved by the minister. Enforcement before approval is unlawful and can be challenged in court.

Worked Example 1.3

A statutory instrument introduces a new fee for a government service. The enabling Act does not mention fees. A person affected by the fee challenges the SI in court.

Answer:
The SI is likely to be ultra vires. The minister cannot introduce fees unless the enabling Act expressly or impliedly authorises this.

Exam Warning

Secondary legislation can only be amended or repealed by Parliament if the enabling Act allows. Parliament cannot amend an SI during the approval process—only accept or reject it.

Revision Tip

For SQE1, focus on the difference between affirmative and negative resolution procedures, and be able to identify when secondary legislation is ultra vires.

Summary

Secondary legislation allows detailed rules to be made efficiently under powers granted by Parliament. Statutory instruments, Orders in Council, and byelaws are the main forms. Parliamentary scrutiny is provided by affirmative and negative resolution procedures and specialist committees. Secondary legislation must remain within the limits of the enabling Act and can be challenged in court if it is ultra vires, procedurally improper, irrational, or incompatible with human rights.

Key Point Checklist

This article has covered the following key knowledge points:

  • Secondary legislation is law made by persons or bodies other than Parliament, under authority granted by an enabling Act.
  • The main forms are statutory instruments, Orders in Council, and byelaws.
  • The enabling Act sets the scope and procedures for making secondary legislation.
  • Affirmative and negative resolution procedures are the main forms of parliamentary scrutiny.
  • Parliamentary committees review secondary legislation but cannot amend it.
  • Secondary legislation can be challenged in court if it is ultra vires, procedurally improper, irrational, or incompatible with human rights.
  • Brexit has increased the use of secondary legislation, especially for amending retained EU law.

Key Terms and Concepts

  • secondary legislation
  • enabling Act
  • statutory instrument
  • affirmative resolution procedure
  • negative resolution procedure
  • ultra vires
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