Notes · LawUK · A-Levels

Parliamentary Law Making and Delegated Legislation

This topic covers how Parliament makes statute law, the doctrine of parliamentary supremacy, and the influences that shape legislation. It also examines delegated legislation - law made by bodies other than Parliament under authority delegated by a parent Act - and the parliamentary and judicial controls on it.

4 sections~15 min reading time3 competenciesLevel Foundation 1 · Standard 2 · Advanced 1

T·0333 / 16

Exam profile

AO1 · Demonstrate knowledge and understanding of the legislative process, parliamentary supremacy and delegated legislationAO2 · Apply the controls on delegated legislation, including the ultra vires doctrine, to given factsAO3 · Analyse and evaluate the effectiveness of the law-making process and the controls on delegated legislation

Operators:explaindescribeanalyseevaluateapplydiscuss

basic level

AS students should be able to describe the stages by which a Bill becomes an Act and identify the three forms of delegated legislation.

higher level

Full A-Level answers evaluate the democratic legitimacy and scrutiny of both primary and delegated legislation and apply the ultra vires doctrine to a scenario.

Depth

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Contents · 4 sections

Parliamentary Law Making and Delegated Legislation

Parliamentary supremacy#

StandardAQA 7162/1 - Law makingDfE GCE Law subject content

Dicey's doctrine of parliamentary supremacy

Fig. 1Dicey's threefold doctrine explains why the courts must apply, and cannot strike down, statute.

Parliamentary supremacy (or sovereignty) is the constitutional doctrine that Parliament is the supreme law-making body. A.V. Dicey gave the classic threefold statement: Parliament can make or unmake any law whatsoever; no Parliament can bind its successors or be bound by its predecessors; and no other body, including the courts, can override or set aside an Act of Parliament. This is why the courts, however much they may dislike a statute, must apply it: their role is to interpret and enforce legislation, not to question its validity.

The doctrine has important consequences for the whole legal system. Because a later Act impliedly repeals an earlier inconsistent one, Parliament can change any rule of common law or earlier statute. Because no Parliament can bind its successors, entrenchment of laws is problematic in the UK. And because Acts cannot be struck down, the ultimate protection of citizens against oppressive legislation is political - the electorate and parliamentary process - rather than judicial, in contrast with systems that have a codified, higher-law constitution.

Parliamentary supremacy is qualified in practice. Membership of the European Union, while it lasted, required UK courts to give priority to directly effective EU law, as the Factortame litigation dramatically illustrated when the courts disapplied part of the Merchant Shipping Act 1988; this was accommodated as a voluntary and reversible limitation, and the UK's withdrawal has now removed it. The devolution settlements transfer law-making competence to the Scottish Parliament and the Welsh and Northern Ireland legislatures, though Westminster retains legal power to legislate for them. The Human Rights Act 1998 allows the courts to declare an Act incompatible with Convention rights, but the declaration does not affect the Act's validity, precisely so as to preserve supremacy.

Evaluation weighs the strengths and weaknesses of supremacy. Its strengths are democratic legitimacy (laws are made by the elected legislature), certainty (the courts must apply the statute) and flexibility (Parliament can change any law). Its weaknesses are that an elected majority can, in law, pass oppressive or rights-infringing legislation with no judicial check, and that the dominance of the executive over the Commons through party discipline means 'parliamentary' supremacy can look in practice like executive supremacy. A strong answer measures the doctrine against these competing considerations.

Worked example

Model evaluation-essay plan: parliamentary supremacy

Plan an essay evaluating the doctrine of parliamentary supremacy.

Thesis
Argue that supremacy remains the core doctrine but is qualified and democratically double-edged.
Rule / authority
State Dicey's threefold doctrine and its consequence that the courts apply, and cannot strike down, statute.
Application
Analyse the qualifications: EU law (Factortame, now ended), devolution, and the s.4 HRA 1998 declaration of incompatibility that preserves validity.
Evaluation
Weigh democratic legitimacy, certainty and flexibility against the absence of a judicial check and executive dominance of the Commons.
Conclusion
Conclude that supremacy is not outdated but is qualified in practice and depends on political rather than legal safeguards.

Result: The plan states Dicey accurately, treats the qualifications correctly (including the end of EU supremacy), and evaluates the doctrine's legitimacy.

Typical mistakes

Saying the courts can strike down or refuse to apply an Act of Parliament; they can only interpret it and, under the HRA 1998, declare it incompatible.
Treating EU supremacy as still binding on the UK; explain it as an historic and now-ended qualification.

Active revision

'Parliamentary supremacy is an outdated doctrine.' Analyse and evaluate this statement.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

How a Bill becomes an Act#

FoundationAQA 7162/1 - Law makingDfE GCE Law subject content

How a Bill becomes an Act

Fig. 2A Bill must pass every stage in both Houses; the Parliament Acts cap the Lords' power to delay.

Most legislation begins as a government Bill, often preceded by consultation through a Green Paper (a consultative document inviting views) and then a White Paper (a firmer statement of proposals). A Bill may be a Public Bill (affecting the general law, the great majority), a Private Members' Bill (introduced by a backbench MP, for example through the ballot), or a Private Bill (affecting particular individuals or bodies). To become an Act, a Bill must pass through a series of stages in both Houses and receive Royal Assent.

In its first House the Bill passes through: the First Reading, a formal announcement with no debate; the Second Reading, the main debate on the principles of the Bill, followed by a vote; the Committee Stage, where a Public Bill Committee examines the Bill clause by clause and proposes amendments; the Report Stage, where the House considers the committee's amendments; and the Third Reading, a final review and vote on the Bill as amended. The Bill then goes through the same stages in the second House, which may propose further amendments.

If the two Houses disagree, the Bill passes back and forth (often called 'ping-pong') until agreement is reached. The Parliament Acts 1911 and 1949 limit the power of the House of Lords: the Lords can delay a Public Bill but cannot ultimately block one that the Commons is determined to pass, and the Lords cannot delay a Money Bill. Once both Houses agree (or the Parliament Acts are invoked), the Bill receives the Royal Assent - now a formality given under the Royal Assent Act 1967 - and becomes an Act of Parliament, coming into force on a date specified in the Act or fixed later by commencement order.

Evaluation of the process notes both strengths and weaknesses. Its strengths are thorough scrutiny (multiple stages in two Houses), democratic legitimacy, and the revising expertise of the Lords. Its weaknesses are that the process is slow and dominated by the government's legislative programme and Commons majority, that Private Members' Bills rarely succeed for lack of time, and that the unelected Lords' role is constitutionally awkward. Understanding the stages precisely is essential both for description and for evaluating the quality of scrutiny.

Worked example

Model answer plan: the legislative process

Plan an answer describing and evaluating the passage of a Public Bill.

Issue
Identify the need to set out the stages in order and evaluate the quality of scrutiny.
Rule / authority
List the stages: Green/White Paper; First Reading; Second Reading; Committee; Report; Third Reading; the other House; Royal Assent; note the Parliament Acts 1911/1949.
Application
Explain what happens at each stage and how the Lords' revising role and delaying power operate.
Conclusion
Conclude that scrutiny is thorough but slow and executive-dominated, with the Lords' role a constitutional strength and weakness.

Result: A strong answer sets out the stages accurately and evaluates the effectiveness and legitimacy of the scrutiny.

Typical mistakes

Confusing the stages or their order - for example describing the First Reading as the main debate (it is the Second Reading).
Saying the Lords can permanently block legislation; the Parliament Acts reduce their power to one of delay.

Active revision

Describe the process by which a Public Bill becomes an Act of Parliament and evaluate how effectively it is scrutinised.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

Delegated legislation#

StandardAQA 7162/1 - Law makingDfE GCE Law subject content

Types of delegated legislation

Fig. 3Each form is made by a different body under authority delegated by Parliament.

Delegated (or secondary) legislation is law made by a person or body other than Parliament, acting under authority delegated by an Act of Parliament. That Act is the enabling or parent Act; it lays down the framework and confers power to make detailed rules. Delegation is necessary because Parliament has neither the time nor the technical expertise to enact every detail, and because delegated legislation can be made and amended more quickly than an Act - important for technical, local and emergency matters.

There are three principal forms. Orders in Council are made by the Privy Council, in practice by the government, and are used in situations such as transferring functions between departments, giving effect to certain matters, and, under emergency powers legislation, in times of crisis. Statutory instruments are the most common form: made by government ministers within the powers of the parent Act, they fill in the detail of a statutory scheme (for example, updating amounts, setting technical standards, or bringing an Act into force by commencement order); thousands are made each year. Byelaws are made by local authorities and certain public bodies to regulate matters within their area (for example public spaces or transport), and generally require confirmation by the relevant minister.

Delegated legislation has the same legal force as the parent Act, provided it is made within the powers conferred. Its practical advantages are speed, flexibility, the use of expertise, and the ability to deal with local and technical detail and with emergencies. Its disadvantages are the sheer volume (which makes comprehensive scrutiny impossible), the transfer of law-making power to the unelected executive (a democratic deficit and, some argue, a threat to the separation of powers), the risk of sub-delegation, and problems of accessibility and publicity.

Evaluation therefore turns on the trade-off between efficiency and accountability. Delegated legislation is indispensable to modern government, but because it is made with far less scrutiny than primary legislation it must be controlled. This is why the parliamentary and judicial controls examined next are so important, and why 'Henry VIII powers' (delegated powers to amend primary legislation) are especially controversial. A strong answer explains the forms and justifications of delegated legislation before turning to whether the controls on it are adequate.

Worked example

Model answer plan: delegated legislation

Plan an answer explaining delegated legislation and its forms.

Issue
Identify the task as defining delegated legislation and distinguishing its types.
Rule / authority
Define delegated legislation as law made under a parent/enabling Act; identify Orders in Council, statutory instruments and byelaws.
Application
Give an example of each and explain who makes it and why delegation is necessary (time, expertise, detail, emergencies).
Conclusion
Conclude that delegated legislation is essential but, being executive-made and voluminous, requires effective controls.

Result: A strong answer classifies the forms accurately and links the need for delegation to the case for controls.

Typical mistakes

Confusing the three forms - for example describing a byelaw as made by a government minister rather than a local authority.
Forgetting that delegated legislation is valid only within the powers of the parent Act, which is the basis of the ultra vires control.

Active revision

Explain what is meant by delegated legislation and describe the different types, with examples.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

Controls on delegated legislation#

AdvancedAQA 7162/1 - Law makingDfE GCE Law subject content

Controls on delegated legislation

Fig. 4Parliament controls delegated legislation before and after it is made; the courts control it through ultra vires.

Because delegated legislation is made by the executive with limited scrutiny, it is subject to two kinds of control: parliamentary and judicial. Parliamentary controls operate before and after the legislation is made. The parent Act itself limits the delegated power by defining its scope. Some statutory instruments require the affirmative resolution procedure, under which the instrument must be actively approved by Parliament before or shortly after coming into force; most are subject to the negative resolution procedure, under which the instrument becomes law unless Parliament objects within a set period (commonly 40 days). Scrutiny committees assist Parliament: the Joint Committee on Statutory Instruments (the 'Scrutiny Committee') reviews instruments on technical grounds and can draw the attention of both Houses to instruments that, for example, impose charges, have retrospective effect, or are defectively drafted, although it cannot amend or block them.

Judicial control operates through the doctrine of ultra vires - that delegated legislation is invalid if it goes beyond the powers conferred by the parent Act. A person affected may challenge an instrument by judicial review. Procedural ultra vires arises where the procedure required by the parent Act (such as a duty to consult) has not been followed: in Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972) a statutory order was ineffective against the Mushroom Growers' Association because the required consultation had not taken place. Substantive ultra vires arises where the content of the delegated legislation exceeds the powers granted, or is used for an improper purpose, as in R v Secretary of State for the Home Department, ex parte Fire Brigades Union (1995), where a minister's attempt to introduce a scheme inconsistent with the statutory scheme was held unlawful.

Delegated legislation may also be held invalid if it is unreasonable in the Wednesbury sense - so unreasonable that no reasonable authority could have made it - which is a form of substantive ultra vires particularly applied to byelaws (as in Strickland v Hayes (1896), where a byelaw was too widely drawn). The courts will also strike down delegated legislation that conflicts with EU law (historically) or that infringes Convention rights beyond what the parent Act authorises, and there is a presumption that a delegated power does not authorise sub-delegation, the levying of taxes or interference with basic rights unless clearly conferred.

Evaluation asks whether these controls are adequate. Parliamentary controls are weakened by the volume of instruments (thousands each year), the limited time available, the fact that instruments generally cannot be amended, and the dominance of the government. Judicial control through ultra vires is effective but reactive - it depends on someone with standing bringing a challenge, and it operates only after the event and only on legality, not merits. A strong answer applies a control to given facts (identifying the relevant ultra vires ground) and evaluates whether, taken together, the controls adequately compensate for the reduced scrutiny of delegated legislation.

Worked example

Worked problem question: challenging delegated legislation

A parent Act empowers a minister to make regulations 'after consulting representatives of the trade'. The minister makes a statutory instrument that both imposes a levy and omits the consultation. Advise a trader who objects.

Issue
Whether the statutory instrument is valid, or is ultra vires and open to challenge by judicial review.
Rule / authority
Delegated legislation is invalid if ultra vires the parent Act: procedural ultra vires where a required procedure (consultation) is not followed (Aylesbury Mushrooms (1972)); substantive ultra vires where the content exceeds the power or imposes a charge without clear authority (Fire Brigades Union (1995)); and there is a presumption against a delegated power to levy charges.
Application
The failure to consult 'representatives of the trade', as the parent Act required, is procedural ultra vires on the Aylesbury Mushrooms principle. Imposing a levy without clear statutory authority is substantive ultra vires given the presumption against taxation by delegated legislation.
Conclusion
The trader has strong grounds to seek judicial review; the instrument is likely to be declared invalid as ultra vires on both procedural and substantive grounds.

Result: The instrument is ultra vires on both procedural (no consultation) and substantive (unauthorised charge) grounds and can be quashed on judicial review.

Typical mistakes

Confusing procedural ultra vires (a required procedure not followed) with substantive ultra vires (content exceeding the power granted).
Assuming Parliament routinely scrutinises every instrument; in practice most pass under the negative procedure with little examination.

Active revision

A minister makes a statutory instrument imposing a new licensing charge without carrying out the consultation the parent Act requires. Advise a trader who wishes to challenge it.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

References & sources

Sources

Department for Education

GCE AS and A level subject content for law

AQA

AQA A-level Law (7162) specification

Parliamentary Law Making and Delegated Legislation

4 sections~15 min reading time3 competenciesLevel Foundation 1 · Standard 2 · Advanced 1

Parliamentary Law Making and Delegated Legislation

Key points

Model evaluation-essay plan: parliamentary supremacy

Key points

Model answer plan: the legislative process

Key points

Model answer plan: delegated legislation

Key points

Worked problem question: challenging delegated legislation

Sources

Parliamentary Law Making and Delegated Legislation

Key points

Model evaluation-essay plan: parliamentary supremacy

Key points

Model answer plan: the legislative process

Key points

Model answer plan: delegated legislation

Key points

Worked problem question: challenging delegated legislation

Sources