This essay will explain the concept of subsidiary legislation within the UK's constitutional framework. It is law made by a body other than Parliament, acting under powers given to it by a parent Act of Parliament. This essay will argue that while subsidiary legislation is an indispensable tool for effective modern governance, its use creates a constitutional tension by delegating law-making power away from the democratically elected Parliament. This tension is managed through a variety of control mechanisms, including consultation, publication, and scrutiny by both Parliament and the courts, which aim to ensure the executive does not overstep its authority. The essay will first discuss the importance of subsidiary legislation, before moving on to consider the criticisms of its use and the various control mechanisms designed to mitigate these concerns.
The Importance of Subsidiary Legislation
Subsidiary legislation, also known as delegated or secondary legislation, is crucial for the functioning of the modern state. Parliament, as the supreme legislative body, does not possess the time or the specific technical knowledge to legislate on every single detail required to govern a complex society. The primary importance of subsidiary legislation, therefore, lies in its efficiency. It allows Parliament to pass primary legislation (Acts) that sets out broad principles and objectives, while delegating the power to fill in the detailed rules and regulations to government ministers, departments, or other public bodies (Turpin and Tomkins, 2011). This saves a significant amount of parliamentary time, which can be better used for debating major policy issues and scrutinising government actions.
A second key advantage is the ability to utilise technical expertise. Many areas of modern life, such as environmental protection, financial services, or medicine safety, require highly detailed and technical rules. Members of Parliament are generalists and cannot be expected to have expert knowledge in all these fields. Delegating law-making power to government departments allows them to draw on the knowledge of civil servants, scientists, and other experts to create effective and workable regulations. For example, the detailed regulations governing food safety standards are far better drafted by experts in the Food Standards Agency than by MPs on the floor of the House of Commons.
Furthermore, subsidiary legislation provides essential flexibility. The parliamentary process for passing an Act of Parliament is slow and deliberate. By contrast, subsidiary legislation can be created, amended, or repealed relatively quickly. This speed is vital for responding to rapidly changing situations or emergencies. A clear example was the extensive use of statutory instruments (the most common form of subsidiary legislation) to implement public health measures, such as lockdowns and social distancing rules, during the COVID-19 pandemic (Elliott and Thomas, 2020). Without the ability to make law quickly through delegated powers, the government's response would have been significantly slower and less effective. Finally, some forms of subsidiary legislation, such as by-laws made by local authorities, allow rules to be tailored to the specific needs of a local area, reflecting local knowledge and conditions in a way that national legislation cannot.
Criticisms and the Need for Control
Despite its practical importance, the use of subsidiary legislation is not without significant criticism. The central objection is constitutional and relates to its perceived undemocratic nature. In the UK system, the principle of parliamentary sovereignty dictates that Parliament is the supreme law-making body. Subsidiary legislation is made by the executive branch—unelected civil servants and government ministers—rather than by elected and accountable Members of Parliament. This blurs the lines of the separation of powers and has led to accusations that it gives too much power to the executive. This concern was famously articulated by Lord Hewart in his 1929 book, The New Despotism, where he argued that the growth of delegated legislation represented a dangerous shift of power from the legislature to the executive.
Another major criticism is the sheer volume of subsidiary legislation produced each year, which far outstrips the volume of primary legislation. This makes effective parliamentary scrutiny extremely difficult. Thousands of statutory instruments are made annually, and Parliament simply does not have the capacity to examine each one in detail. This lack of scrutiny can lead to a 'democratic deficit', where significant laws affecting people's lives are passed with little or no debate. This is compounded by the fact that the language of these instruments can be technical and obscure, making them inaccessible to the general public and undermining the rule of law principle that the law should be clear and accessible to all.
A particularly controversial aspect of delegated legislation is the use of 'Henry VIII clauses'. These are provisions in a parent Act that give a minister the power to use subsidiary legislation to amend or even repeal provisions in primary legislation. This directly challenges the idea that an Act of Parliament can only be changed by another Act of Parliament and is seen by many as an unacceptable transfer of power to the executive (Elliott and Thomas, 2020). These criticisms—that subsidiary legislation is undemocratic, lacks scrutiny, and can undermine parliamentary sovereignty—demonstrate why robust control mechanisms are essential. It is because of these dangers that Parliament and the courts have developed systems to supervise the executive's use of delegated powers and ensure they are exercised within proper legal and constitutional limits.
Mechanisms of Control
To counter the risks associated with subsidiary legislation, a range of control mechanisms exist. These controls can be broadly categorised as preliminary controls (consultation and publication), legislative control (by Parliament), and judicial control (by the courts).
Consultation and Publication
Before a piece of subsidiary legislation is made, the parent Act often requires the relevant minister or department to consult with interested parties, expert groups, and those who will be affected by the new rules. Consultation serves to improve the quality of the legislation by gathering different perspectives and identifying potential problems before the law is made. Where a duty to consult is mandatory, a failure to do so can lead to the legislation being challenged in court. In Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushrooms Ltd [1972] 1 All ER 280, the court held that an order creating a training board was invalid in respect of the mushroom growers' association because the minister had failed to consult them as required by the parent Act.
Once made, the law must be accessible to the public. This is a fundamental principle of the rule of law. The Statutory Instruments Act 1946 requires most statutory instruments to be published and numbered. Today, they are readily available online. This ensures that citizens and legal professionals can find out what the law is. The 1946 Act even provides that if an instrument has not been issued (i.e., published) at the time of an alleged offence, it is a defence for a person to prove they did not know of the instrument.
Legislative Control
Parliament retains ultimate control over subsidiary legislation because it grants the power in the first place and can revoke it. It exercises this control primarily through the process of 'laying' instruments before Parliament for scrutiny. The most common procedure is the negative resolution procedure, where an instrument is laid before Parliament and will automatically become law after 40 days unless either House passes a motion to annul it. This is a relatively weak form of control, as it is difficult to find parliamentary time for such debates, and it is very rare for a government with a majority to lose a vote on annulling an instrument.
A stronger form of control is the affirmative resolution procedure. This requires that the instrument be actively approved by both Houses of Parliament before it can become or remain law. This procedure is reserved for more significant or controversial powers, such as those that impose taxes, create new criminal offences, or use Henry VIII powers. To assist in the scrutiny process, Parliament has established specialist committees. The Joint Committee on Statutory Instruments (JCSI) examines technical aspects of most instruments, checking whether they are clearly drafted, impose a tax, or appear to go beyond the powers granted by the parent Act. It reports its findings to Parliament, drawing attention to problematic instruments, but it has no power to amend or reject them itself.
Judicial Control
Perhaps the most effective control over subsidiary legislation is exercised by the courts through the process of judicial review. The courts cannot question the validity of an Act of Parliament, but they can review subsidiary legislation to ensure it was made lawfully. If a court finds that it was not, it can declare the legislation to be ultra vires (beyond the powers) and therefore void and without legal effect.
A piece of subsidiary legislation can be declared ultra vires on several grounds. It may be procedurally ultra vires if the law-maker failed to follow a mandatory procedure laid down in the parent Act, such as the failure to consult in the Aylesbury Mushrooms case. More commonly, it may be substantively ultra vires, meaning its content goes beyond the scope of the power delegated by Parliament. The courts will interpret the parent Act to determine the limits of the power granted and will strike down any regulation that exceeds those limits.
This principle is not unique to UK law and is a cornerstone of the rule of law in many Commonwealth jurisdictions. A clear illustration is found in the Malaysian case of Ramachandram s/o Appalanaidu & Ors v Dato Bandar Kuala Lumpur & Anor [1999] 1 MLJ 506. In this case, a parent Act governing planning in Kuala Lumpur contained a specific procedure for changing land use from residential to commercial. The local authority, the Dato Bandar, created a new set of rules under its delegated powers which set out a different, simpler procedure for this process. A group of residents challenged these new rules. The Federal Court of Malaysia held that the rules were ultra vires and void. The court reasoned that the parent Act had laid down a comprehensive and substantive legal process for such matters, and the local authority could not use its rule-making power to create an alternative process that effectively amended or bypassed the primary legislation. The case provides a powerful example of the judiciary acting as a guardian of the rule of law, ensuring that an executive body does not use its delegated powers to subvert the will of the legislature as expressed in the parent Act. The court's role was to enforce the limits set by the primary legislative body, thus upholding the constitutional hierarchy of laws.
Conclusion
In conclusion, subsidiary legislation is a vital and unavoidable feature of the UK's system of government. It provides the efficiency, expertise, and flexibility needed to regulate a complex modern society, which Parliament alone could not provide. However, its use raises legitimate constitutional concerns about democratic accountability and the separation of powers. The extensive use of delegated powers by the executive creates a risk of government overreach and a lack of proper scrutiny.
To address these dangers, a system of controls has been established. Procedures for consultation and publication provide preliminary safeguards, while parliamentary scrutiny, through negative and affirmative procedures and the work of committees, offers a degree of political oversight. However, these parliamentary controls are often criticised as being insufficient in the face of the sheer volume of legislation. The most robust check is arguably provided by the courts through judicial review, which can strike down legislation that is ultra vires. The Malaysian case of Ramachandram clearly illustrates this judicial function in action. Ultimately, the use of subsidiary legislation involves a continuous balancing act between the need for governmental efficiency and the fundamental constitutional principles of parliamentary sovereignty and the rule of law. While the existing controls are not perfect, they provide an essential framework for holding the executive's law-making power to account.
References
Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushrooms Ltd [1972] 1 All ER 280.
Elliott, M. and Thomas, R. (2020) Public Law. 4th edn. Oxford University Press.
Hewart, G. (1929) The New Despotism. Ernest Benn Limited.
Ramachandram s/o Appalanaidu & Ors v Dato Bandar Kuala Lumpur & Anor [1999] 1 MLJ 506.
Statutory Instruments Act 1946.
Turpin, C. and Tomkins, A. (2011) British Government and the Constitution: Text and Materials. 7th edn. Cambridge University Press.
