Delegated legislation is law made by an authority granted power though another piece of legislation. The delegated legislation, also known as secondary legislation, supports the mission of the primary legislation. For example, the government can pass an environmental health and safety law, and the government agency responsible for enforcing that law can pass rules to help it enforce the primary law. This legislation may be challenged in court if the scope appears to go further than is allowed by law. Court challenges to such laws can also include challenges to the primary legislation.
Government entities at numerous levels have the power to pass secondary legislation, depending on how a government is structured. Lawmakers may be able to make such laws if they are granted authority under a piece of primary legislation as part of their work on a committee or task force. Additionally, regional units of governments like councils and county governments can pass legislation to make it possible to enforce primary legislation in their areas. Likewise, government agencies have powers under the law.
In the process of creating delegated legislation, lawmakers conduct research to determine how to structure the law and make decisions about how far it should extend. They may call upon experts to assist them with the rulemaking process, to make sure the law is appropriate for their needs. Once the material is drafted, it can be published and people may begin enforcing it. Lawmakers creating primary legislation take care to draft it appropriately, so the powers delegated under the law are clearly delineated. This can prevent confusion and disputes in the future.
Delegated legislation cannot contravene existing law and the powers it grants are limited. In nations where lawmakers are concerned about contradictory and redundant legislation, people drafting secondary legislation must exercise caution. They cannot create a legal tangle, appropriate powers not granted under the primary legislation, or duplicate an existing piece of law without providing clear justification for these decisions.
People can challenge delegated legislation in court. They may argue that delegated legislation is not appropriate, goes beyond the powers granted by the primary legislation, or violates other laws. In cases where the primary legislation is struck down in a court of law, the authority for the delegated legislation is no longer present and it can be challenged as well. This is a concern for lawmakers when striking down or revising existing legislation if they want to retain delegated legislation.
