Sub-delegation

31.7An instrument made under a statute is to be regarded as a second ‘tier’ of legislation, but the statute may also empower the maker of the instrument to create further tiers.1 For example, instruments made under Defence Regulations were exposed to annulment by resolution of either House.2 Departmental directions resulting from sub-delegation have been judicially criticised in circumstances where they have escaped the system of official publicity.3 The Joint Committee on Statutory Instruments has drawn attention to the need for departments to take care not to include in instruments provisions amounting to sub-delegation where the parent statute did not so provide.4

Footnotes

  1. 1. The Emergency Powers (Defence) Act 1939 (c 62), s 1(3) (now repealed) authorised a three-tier system: first the enabling statute, second Orders in Council under that statute in very wide language, and third instruments made under the Orders in Council. The Select Committee on Statutory Rules and Orders commented on instances of five-tier legislation, Third Special Report, HC 187 (1945–46). See also Civil Aviation Act 1982 (c 16), s 60 and sch 13; Air Navigation Order 2016 (SI 2016/765), arts 31, 97, 239 and 249; and regulations made thereunder.
  2. 2. Section 4(1) of the Supplies and Services (Transitional Powers) Act 1945 (c 10) (now repealed).
  3. 3. Per Scott LJ, Blackpool Corpn v Locker [1948] 1 KB 349.
  4. 4. Third Report (HL 13, HC 332-iii (2014–15)), para 5.6.