# What are the 2 different types of delegated legislation
Delegated legislation, also known as secondary or subordinate legislation, is a form of law made by a person or body other than Parliament, but with the authority of an Act of Parliament. In the UK’s constitutional framework, where Parliament is sovereign, it is Parliament that grants these law-making powers through a piece of primary legislation, often referred to as an enabling or parent Act. This delegation is necessary because Parliament does not have the time or technical expertise to legislate on every detailed matter required for the country to function. This essay will explain the two main types of delegated legislation in England and Wales: Statutory Instruments and By-laws.
## Statutory Instruments
The most common form of delegated legislation is the Statutory Instrument (SI). The vast majority of SIs are made by Government Ministers, giving them the power to create detailed rules and regulations on a national level within the scope defined by the parent Act. The legal framework governing the creation and publication of these instruments is primarily found in the Statutory Instruments Act 1946.
A parent Act will specify the extent of the power granted to a minister. For example, the Health and Safety at Work etc. Act 1974 gives the Secretary of State wide-ranging powers to make regulations to protect the health, safety and welfare of people at work. This has resulted in numerous SIs covering everything from the control of hazardous substances to workplace equipment standards. The purpose of this is to allow the Government to implement and update the law efficiently, responding to new technical developments or social needs without requiring a new Act of Parliament for every change (Elliot and Thomas, 2020).
Once drafted, SIs are usually subject to some form of parliamentary scrutiny. There are two main procedures. Under the ‘negative resolution procedure’, an SI will automatically become law on a set date unless either the House of Commons or the House of Lords passes a motion to reject it within a 40-day period. This is the most common procedure. Under the ‘affirmative resolution procedure’, the SI must be actively approved by both Houses of Parliament before it can become law (UK Parliament, n.d.). This procedure is typically reserved for SIs that are more significant, such as those that might amend primary legislation or impose a tax. A specific type of SI, known as an Order in Council, is made by the King on the advice of the Privy Council and is often used for matters of constitutional significance or in emergencies.
## By-laws
The second main type of delegated legislation is the by-law. Unlike SIs, which are typically national in scope, by-laws are created by local authorities or other public bodies to address issues in their specific geographical area or remit. Section 235 of the Local Government Act 1972 grants local councils the power to create by-laws for the “good rule and government” of their area and for the prevention and suppression of nuisances.
By-laws deal with local concerns that Parliament cannot effectively manage. For instance, a local council might introduce a by-law to prohibit the consumption of alcohol in certain public parks, to control dog fouling, or to regulate activities on public beaches. Other bodies, such as railway companies or public corporations like the National Trust, can also be granted the power to make by-laws that apply to their property or services. For example, a train operating company can make by-laws regarding passenger conduct on its trains and stations.
The process for creating a by-law involves publicity and confirmation. The proposed by-law must be advertised locally to allow residents to comment or object. Crucially, most by-laws do not come into force until they have been confirmed by the relevant central government minister, currently the Secretary of State for Levelling Up, Housing and Communities (gov.uk, 2013). This provides a central government check on the power of local bodies, ensuring that by-laws are not unreasonable or go beyond the powers granted to the authority. This makes them distinct from SIs, which are made by central government itself.
## Conclusion
In conclusion, delegated legislation is a vital component of the UK’s legal system, allowing for the creation of detailed and responsive laws. The two principal types, Statutory Instruments and By-laws, serve different functions and are created by different bodies. Statutory Instruments are the main tool used by central government ministers to enact rules on a national scale, governed by the Statutory Instruments Act 1946 and subject to parliamentary scrutiny. By contrast, by-laws are made by local authorities and other public bodies to manage local or specific issues, providing a tailored legal response that would be impractical for Parliament to legislate on directly. Together, they demonstrate the way Parliament delegates its supreme law-making authority to enable the effective governance of the country at both a national and local level.
## References
- Elliot, M. and Thomas, R. (2020) Public Law. 4th edn. Oxford University Press.
- gov.uk. (2013) Local government legislation: byelaws. [Online] Available at: https://www.gov.uk/guidance/local-government-legislation-byelaws (Accessed: [Date of access]).
- Health and Safety at Work etc. Act 1974. c. 37.
- Local Government Act 1972. c. 70.
- Statutory Instruments Act 1946. c. 36.
- UK Parliament. (n.d.) Secondary legislation. [Online] Available at: https://www.parliament.uk/about/how/laws/secondary-legislation/ (Accessed: [Date of access]).
