March 1998
Throughout the twentieth century the amount of legislation which is enacted by the British Parliament has grown substantially. Increasingly Parliament itself does not have the time or the expertise to consider detailed legislative rules on the administration of matters and has delegated authority for the making of rules and other instruments on such matters to Ministers. The authority is conferred by the Act of Parliament to which the subordinate (delegated) legislation relates. The Act is then referred to as the parent or enabling Act. Such authority is sometimes called the ‘vires’ (the powers). To say that an instrument is ‘ultra vires’ means that the subordinate legislation is outside, or beyond, the powers conferred by the Act and is thus open to challenge.
51.02 Meaning given in Interpretation Act 1978
In most cases where legislation deals with administrative matters, the Act sets out the skeleton of its subject, providing a broad framework. The finer detail of its operation is set out in rules and regulations and other instruments and becomes subordinate legislation made under it. The term ‘subordinate legislation’ is defined in s21(1) of the Interpretation Act 1978 as meaning Orders in Council, orders, rules, regulations, schemes, warrants, bye-laws and other instruments made or to be made under an Act.
Notes: s 21(1)51.03 Delegated/secondary legislation
There is no distinction between the term ‘subordinate legislation’ and that of ‘delegated legislation’ which are used in the alternative by many legal text books and commentaries. ‘Delegated legislation’ is often used to underline the principle that power to make and pass further legislation is delegated from the machinery of Government(with readings in both Houses of Parliament as for the parent Act), to specially appointed committees and other bodies who have expertise in the subject. Subordinate legislation is also referred to as secondary legislation, primary legislation being that which is contained in Acts of Parliament (or statutes).
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