Understanding Forms of Delegated Legislation in AQA Law
This work has been verified by our teacher: 20.02.2026 at 13:37
Homework type: Essay
Added: 19.02.2026 at 11:45
Summary:
Explore key forms of delegated legislation in AQA Law, including statutory instruments and by-laws, to understand their role and oversight in UK governance.
Forms of Delegated Legislation in the Context of AQA Law
Within the United Kingdom’s constitutional framework, Parliament is regarded as the supreme legislative authority. However, the realities of modern governance, with its increasingly complex and specialised requirements, mean that Parliament cannot possibly legislate on every minute detail affecting society. This is where delegated legislation comes into play. Put simply, delegated legislation refers to laws or regulations crafted by individuals or bodies other than Parliament—such as ministers, local councils, or specialised authorities—who have been granted this power by Parliament through an enabling or parent Act.
Delegated legislation is an essential aspect of the UK’s legal machinery. It provides a means for the swift and expert handling of technical, localised, or rapidly changing issues, thereby preventing Parliament from being overwhelmed by the sheer volume of law necessary for effective governance. In this essay, I will analyse the principal forms of delegated legislation encountered in the AQA Law syllabus: statutory instruments, by-laws, and orders in council. I will also touch upon other relevant forms and comment on the mechanisms for their oversight, drawing on pertinent statutory examples, recent case law, and developments in the UK’s socio-political context.
---
I. The Concept and Legal Basis of Delegated Legislation
The doctrine of parliamentary sovereignty, championed by A.V. Dicey, affirms that only Parliament can make or unmake any law. Nevertheless, practical constraints mean that Parliament routinely delegates law-making powers to others through enabling or parent Acts. The rationale is twofold. Firstly, the sheer quantity of legislative detail required to govern a modern state would be unmanageable if reserved solely for Parliament. Secondly, certain matters require expertise or local knowledge that Parliament may lack; for example, technical environmental rules or regulations governing local transport.Enabling Acts are foundational to this process, setting out the framework within which delegated legislation operates. They stipulate both the matters on which subordinate authorities can make regulations and specify the procedure to be followed. Consider the Health and Safety at Work Act 1974, which empowers the Secretary of State to make regulations protecting employees’ welfare, or the Clean Neighbourhoods and Environment Act 2005, which enables local authorities to address issues such as littering or noise nuisance through specific orders.
Delegation may be to various types of bodies: government ministers (as with statutory instruments), local authorities (by-laws), or even public corporations (such as Transport for London). The democratic underpinning is provided by Parliament itself, which remains the sovereign source from which all subordinate legislative power flows.
---
II. Statutory Instruments
Statutory instruments (SIs) are by far the most common form of delegated legislation in the UK. SIs are formulated by government ministers or departments, within the parameters set by a parent Act. They are frequently used for making detailed changes to the law, particularly in areas which require technical updates or which are subject to frequent change.Unlike primary legislation, SIs do not have to be debated in full by both Houses of Parliament. Instead, scrutiny is achieved through two main parliamentary procedures: affirmative resolution and negative resolution.
- The affirmative resolution procedure requires that the SI must be actively approved by Parliament, typically through a motion in both Houses. - The negative resolution procedure allows the SI to become law unless Parliament objects within a specified period, usually forty days. - Although intended to ensure oversight, these procedures present difficulties in practice. The sheer volume of SIs—often numbering several thousand annually—means that scrutiny is necessarily limited. Concerns have often been raised that significant policy choices can be enacted “by the back door”, without meaningful debate.
SIs are employed in a diverse range of contexts. For instance, amendments to the minimum wage, made under the National Minimum Wage Act 1998, are enacted through SIs. The Minister of Transport might adjust driving regulations, while the Home Secretary issues guidance and rules under the Police and Criminal Evidence Act 1984 (PACE), for example, regarding police interviews or stop-and-search procedures. Recent years have seen statutory instruments play a critical role during the COVID-19 pandemic, allowing the government to introduce, amend, and revoke lockdown restrictions with great expediency—a process not without controversy given the sweeping powers involved.
Scrutiny is undertaken by bodies such as the Joint Committee on Statutory Instruments, which examines SIs for technical correctness, though it does not generally consider the political merits of the measures. While SIs offer flexibility and allow specialist input, critics argue this comes at the cost of democratic oversight, particularly when large-scale policy changes are done with minimal parliamentary engagement.
---
III. By-laws
By-laws present a markedly different form of delegated legislation. These are rules made by local authorities (such as councils) or certain public corporations to address issues relevant to their locality or sphere of operation. By-laws draw their legal validity from specific enabling legislation, such as the Local Government Act 1972 or sector-specific statutes.Their scope is intentionally narrow, enabling responses to issues that are local in nature: for instance, dog control orders in parks, prohibitions on street drinking in certain towns, or rules about cycling in cemeteries. Bodies like Transport for London can issue by-laws to regulate conduct on the Underground.
The procedure for making by-laws may require public consultation and, in most cases, confirmation by the relevant Secretary of State to ensure conformity with national law. Once enacted, by-laws carry legal force; their breaches can be prosecuted in magistrates’ courts, sometimes resulting in fines or other penalties.
By-laws offer an important means for communities to exercise a degree of self-governance, allowing local input into decision-making. However, they can give rise to inconsistencies between different areas, and enforcement may be challenging. A further safeguard is provided by the possibility of judicial review; if a by-law exceeds its authority—by, for example, contradicting primary legislation or infringing upon fundamental rights—courts can declare it ultra vires (beyond powers), and so invalid. The case of *R v Richmond upon Thames LBC, ex parte McCarthy & Stone Ltd* (1992) is instructive, where the council’s attempt to levy charges for planning applications was deemed ultra vires.
---
IV. Orders in Council
Orders in Council represent a somewhat exceptional form of delegated legislation. Technically, these are made by the Queen and the Privy Council, acting on the advice of ministers. Their historical roots lie in the exercise of royal prerogative, but today, Orders in Council are mostly used in situations where speed is essential, or for constitutional and administrative reorganisations.Orders in Council are used to transfer responsibilities between government departments, to grant powers during emergencies (such as under the Civil Contingencies Act 2004), and were previously used to bring aspects of European Union law into domestic effect. During the 2001 foot-and-mouth disease outbreak, Orders in Council enabled measures to be implemented rapidly in an effort to contain the crisis. Their use in times of war has similarly allowed for the swift introduction of legally binding controls on movement, trade, or property.
By their nature, Orders in Council do not receive the same level of parliamentary scrutiny as SIs, which may be contentious given the potential scope of their impact. Judicial review remains available, though challenges are rare and the courts defer to the government in matters of national emergency unless clear overreach can be shown.
---
V. Other Forms and Emerging Trends
Not all delegations of authority fit neatly into the categories outlined above. Codes of practice—such as those issued under PACE—though technically guidance, can assume the force of law when primary legislation stipulates compliance. Similarly, some guidance notes or rules, although not strictly ‘law’, are incorporated by reference into statute or statutory instruments.The UK’s departure from the European Union has sharpened the importance of delegated legislation, with vast tranches of EU law in need of repeal, replacement, or amendment. Delegated powers granted under the European Union (Withdrawal) Act 2018 have been a matter of political contention, with concerns about the extent to which ministers exercise power independently of Parliament.
These developments suggest that the landscape of delegated legislation is fluid and responsive both to domestic needs and wider constitutional change. Calls have been made for reforms strengthening scrutiny, bolstering transparency, and better involving Parliament in key policy changes.
---
VI. Controls and Limitations on Delegated Legislation
Given the potential risks associated with law-making outside Parliament, several controls exist to keep delegated legislation in check.Parliamentary Controls
As noted, SIs are subject to either affirmative or negative resolution procedures, and specialist committees—such as the Joint Committee on Statutory Instruments or the Delegated Powers and Regulatory Reform Committee—scrutinise the technical and procedural aspects of proposed laws. They can draw Parliament’s attention to issues but ultimately lack the power to block measures outright.Judicial Controls
The doctrine of ultra vires is central to judicial oversight. Courts can strike down delegated legislation which goes beyond the powers granted by the enabling Act (substantive ultra vires) or where proper procedures are not followed (procedural ultra vires). The case of *AG v Fulham Corporation* (1921) demonstrated a local authority’s attempt to introduce laundry facilities was ultra vires because the enabling Act permitted only bathing. This judicial check is an important safeguard, though often reactive rather than preventative.Additional Controls
Further measures include public consultation requirements (particularly for by-laws), and impact assessments to evaluate costs and benefits. Openness, transparency, and better parliamentary involvement are being increasingly mooted, particularly given the growing complexity and reach of delegated powers.Despite these mechanisms, the sheer volume, technicality, and pace of delegated legislation still pose dilemmas for effective democratic oversight. While judicial review remains a potent tool, it is limited by the resources and capacity of the courts, and by the fact that not all interested parties may be able to bring a challenge.
---
Conclusion
In summary, the forms of delegated legislation—statutory instruments, by-laws, and orders in council—play a crucial role in keeping the UK’s legal system workable, up-to-date, and relevant to rapidly changing societal needs. Delegated legislation fills the practical gaps that Parliament cannot always address and provides necessary flexibility, expert input, and speed. However, its effectiveness depends upon robust mechanisms of control and oversight to protect constitutional principles and prevent abuse.Looking forward, ongoing constitutional change and the lessons from recent crises (such as Brexit and the pandemic) underline the necessity for continuing reform. Transparency, scrutiny, and a careful balance between efficient governance and democratic legitimacy will remain at the heart of the debate around delegated legislation. For law students, practitioners, and all engaged citizens, an awareness of the role and risks of delegated legislation is essential for understanding the machinery of modern British government.
Rate:
Log in to rate the work.
Log in