What is delegated legislation? What is Parliament’s role in it? And what is a ‘Henry VIII’ power? We answer your questions
Delegated legislation is a form of law. It is one of two main types of legislation in the UK. The other is primary legislation. Delegated legislation is also referred to as ‘secondary’ or ‘subordinate’ legislation.
In contrast to primary legislation, delegated legislation:
- is made by government Ministers, or sometimes other authorised executive individuals and bodies (not Parliament);
- can only be made if Ministers (or other authorised individual and bodies) have been given a power to do so, usually in an Act of Parliament; and
- is subject to judicial review.
Delegated legislation makes up most of the UK’s general public law.
Statutory Instruments (SIs) are the most common form of delegated legislation.
Modern governance requires a large amount of legislation, which may often be technical and need speedy amendment or regular updating. Parliament does not have the capacity to legislate at the pace, scale or level of technical detail needed. Putting the required level of technical detail into Acts of Parliament would in any case make these much longer and harder to understand. Parliament therefore often establishes the framework of policy in Acts, and delegates the power to make more detailed legislation – within that framework – to government Ministers and other executive individuals and bodies. Delegated legislation is very common and a necessary feature of modern governance. It becomes a problem only when it is used inappropriately.
Statutory Instruments (SIs) are the most common form of delegated legislation.
SIs are made by Ministers or other individuals or bodies who have been given a power to do so, usually in an Act of Parliament.
An SI is a legislative vehicle or ‘container’. It contains, and makes into law, the measures that Ministers or other authorised bodies want. These measures typically comprise Regulations, Orders or Rules.
A ‘Henry VIII power’ is a power in an Act of Parliament that allows Ministers to amend, repeal, or otherwise alter the effect of primary legislation by delegated legislation.
A ‘Henry VIII clause’ is a clause in a Bill that contains a ‘Henry VIII power’.
Some applications of ‘Henry VIII powers’ can be purely technical and anodyne, but others can have serious constitutional implications.
Delegated legislation can only be made by using, and in accordance with, powers granted in an Act of Parliament (known as the ‘parent Act’). These powers specify which person or body can make the delegated legislation, what the legislation may or must do, any parliamentary scrutiny process to which it may be subject, and any other requirements that must be met in its making.
The delegated legislation system therefore has two main stages:
- the delegation of powers in Acts of Parliament; and
- the use of those powers by Ministers and other authorised bodies and individuals to make delegated legislation – most commonly Statutory Instruments (SIs).
Parliament has a role in the first and often also the second stage of the system:
- Parliament passes the Acts that delegate powers; and
- it scrutinises and sometimes must approve many of the SIs that Ministers make using those powers.
There are four main parliamentary scrutiny procedures for Statutory Instruments (SIs):
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Sometimes.
It depends on the scrutiny procedure that the parent Act of Parliament prescribes for the SI in question. If the SI is subject to the ‘negative’ procedure, it does not require active parliamentary approval. If the SI is subject to the ‘affirmative’ procedure, it must be debated and approved by the House of Commons and usually also the House of Lords. In the House of Commons, SIs are usually debated in a Delegated Legislation Committee (DLC), but they may instead be debated in the Chamber. The government decides where the debate takes place. If an ‘affirmative’ SI is debated in a DLC, it must still then be approved by the whole House.
No, with only a very few exceptions.
Parliament cannot amend Statutory Instruments because SIs are made by Ministers or other authorised individuals or executive bodies, not Parliament.
Very rarely.
As of December 2021, only 16 SIs have been rejected since 1950 (11 by the House of Commons, and five by the House of Lords). No SI has been rejected by the House of Commons since 1979.
There are dedicated parliamentary scrutiny committees at both stages of the delegated legislation process:
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1. Statutory Instruments that have already been laid before Parliament before the period of adjournment, progration or dissolution
These do not fall when Parliament is adjourned, prorogued or dissolved. Their scrutiny simply awaits Parliament’s return.
The countdown to the expiry of statutory scrutiny periods is usually suspended when Parliament is prorogued or dissolved, or adjourned for more than four days.
Motions that have been tabled to approve or reject SIs do not fall when Parliament is adjourned, but do fall when Parliament is prorogued or dissolved.
- New SIs that have not been laid before Parliament before the period of adjournment, prorogation or dissolution
When it has a relevant power, the government may make new SIs when Parliament is not sitting.
Whether it can lay new SIs before Parliament depends on the type of SI and the type of non-sitting period:
- When Parliament is adjourned, some ‘made’ SIs may be laid before it; draft SIs may not.
- When Parliament is prorogued, some ‘made’ SIs may be laid before it; draft SIs may not.
- When Parliament is dissolved, no new SIs may be laid.