Stephanie Pywell challenges a widely held view on the classification of delegated legislation
The nature and classification of delegated legislation features in most introductory-level law courses. For many years, most students have been taught that there are three types of delegated legislation: statutory instruments (SIs), byelaws and Orders in Council. Research using parliamentary papers indicates, however, that this method of classification is misleading, and that it is appropriate to identify two distinct types of delegated legislation: SIs, of which there can be considered to be five forms, and byelaws.
Forms of statutory instrument
SIs were created by the Statutory Instruments Act 1946. Section 1(1) is entitled “Definition of ‘Statutory Instrument’” and provides that there are two ways in which delegated legislation (“orders, rules, regulations or other subordinate legislation”) may be made. If the law-making power is conferred on the Crown, it is exercisable by Order in Council; if it is conferred on a minister, it is exercisable by SI. In either case, the resulting document “shall be known as a ‘statutory instrument’”. By definition, therefore, Orders in Council are a form of SI, rather
