Definition of delegated legislation
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. It is law made by a person or body other than the legislature but with the legislature's authority.
Delegated legislation in the United Kingdom
In the United Kingdom, delegated legislation is 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 or another person or body. Several thousand pieces of delegated legislation are made each year, compared with only a few dozen Acts of Parliament.
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 public service, e.g. the issue of a passport), to filling in the detail of how an Act setting out broad principles will be implemented in practice.
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 on the advice of the Privy Council (i.e. 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).
- 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 Privy Council exercises a supervisory function.
- Orders are usually made by 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 Acts of Sederunt or Acts of Adjournal.
- Schemes: for example, schemes made by the Charity Commission to amended how a charity is governed.
- Directions are a means by which Ministers give legally binding instructions to a public body about the way it exercises its functions.
- Byelaws are laws of limited application (usually restricted to certain places) made by 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.
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