LibAnswers

Andrew Taylor› Academic Services Librarian Faculty of Business, Law and Criminology

Secondary legislation (also called delegated legislation or subordinate legislation) is law made by a person or body other than Parliament—usually government ministers or other authorised bodies—under powers delegated to them by an Act of Parliament (known as the 'parent Act' or 'enabling Act'). Unlike primary legislation (Acts of Parliament), which is debated and passed directly by Parliament, secondary legislation allows detailed rules, regulations, and orders to be created more quickly and flexibly to fill out the specific provisions of primary legislation.

Statutory Instruments

Secondary legislation typically takes the form of Statutory Instruments (SIs), which include orders, rules, and regulations. Approximately 3,500 Statutory Instruments are made each year in the UK, though only around 1,000 require parliamentary consideration. Once made, these instruments carry the same legal force as Acts of Parliament.

Purpose

Secondary legislation serves three main purposes:​

To fill out the detail of an Act. Many Acts set out only broad policy direction, leaving technical detail to be provided through secondary legislation later, as Parliament does not have sufficient time to include such detail in primary legislation​.

To provide flexibility. Secondary legislation allows for regular updates to the law without requiring a new Act of Parliament each time—for example, uprating benefits annually​.

To respond to changing circumstances. It enables quick responses to unforeseen problems or emergencies​.

The Process

The process for Statutory Instruments is distinct from that of primary legislation. A Minister or authorised official drafts the SI within the scope of authority granted by the enabling Act. The SI is then 'made' (signed) by the Minister, registered, and laid before Parliament according to the procedures stipulated in the enabling Act. The SI may come into force immediately upon being made or on a specified date thereafter. Parliament's role is to scrutinise and sometimes approve or reject the SI (mostly through negative or affirmative resolution procedures), but Parliament does not debate or amend the SI as it would a bill. Parliamentary rejection of SIs is very rare.

In summary, Statutory Instruments are not introduced or discussed as bills in Parliament; they are a delegation of legislative power to Ministers or other bodies to make detailed rules under the authority of an existing Act.

The Enabling Act

The enabling Act specifies who has the power to make the secondary legislation, what it can cover, and usually what parliamentary procedure must be followed. Parliamentary controls include 'affirmative resolution procedures' (where legislation requires approval in both Houses) and 'negative resolution procedures' (where legislation may be vetoed by either House). Unlike primary legislation, secondary legislation can be challenged in courts through judicial review and can be quashed if found to be ultra vires (beyond the powers defined in the enabling Act).

When you view a Statutory Instrument in Westlaw UK, the 'Provision Details' section links to the section(s) of the enabling Act. Similarly, when you view the enabling Act, you can view all Statutory Instruments made under the Act in the 'Provisions' section. These are listed under the heading 'SIs Made Under Act'.

What if the Enabling Act is Repealed?

If an enabling Act is repealed, what happens to the Statutory Instruments made under that Act depends on the terms of the repeal and any transitional or saving provisions included.

In general, if the enabling Act is repealed, the powers to make or maintain SIs under it cease unless the repealing legislation expressly preserves those SIs. Some repeals include specific clauses saving or continuing in force certain SIs despite the repeal of the enabling Act. Otherwise, the repeal of the Act typically means the SIs made under it will also cease to have effect, as their authority is based on the enabling Act. Sometimes replacement legislation will create new powers for similar or related SIs, meaning new secondary legislation must be made under the new Act to continue those rules.

In practice, whether an SI remains in force after repeal depends on the specific wording of the repeal and related transitional provisions in legislation. Without explicit saving clauses, a repeal will usually end the life of associated SIs. Therefore, it is important to check the current status of both Acts and SIs when conducting legal research.

How to Tell if an SI is In Force

When you view an enabling Act in Westlaw UK, you can view all Statutory Instruments made under the Act in the 'Provisions' section. These are listed under the heading 'SIs Made Under Act'. You can then view the SI and see which of its components are currently in force. 

Secondary Legislation in Westlaw UK

You can access secondary legislation using Westlaw UK. 

For a guide on how to do this, please read 'How can I find secondary legislation in Westlaw UK?'

Please contact me if you need any support accessing Statutory Instruments. 

Related questions