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Identifying Delegated Legislation: a New Two-stage Test

Year: 2026

Type: article

Abstract: This article considers the adequacy of the tests for identifying delegated legislation and highlights limitations in these tests relating to instruments made under ambiguous powers. This article, accordingly, proposes a new two-stage test for identifying delegated legislation. The long-standing source-based test should be expanded to become a “source-and-form” test as the primary or first-stage test. However, where this fails to identify the nature of the instrument because the powers granted in the enabling Act are ambiguous, this article proposes a new second-stage test: the “legislative-character” test. This article then applies the new test to three types of instruments of an ambiguous nature, revealing that they should be understood as examples of what this article identifies as a new category of “innominate” delegated legislation.

Source: The Cambridge Law Journal

DOI: 10.1017/s0008197326101457

Authors: Robert Brett Taylor, Adelyn L.M. Wilson

Institution: University of Strathclyde

Language: English

Topic: Administrative Law and Governance

Subfield: Political Science and International Relations

Field: Social Sciences

Domain: Social Sciences

SDG: Peace, justice, and strong institutions

Open Access status: hybrid

Estimated APC paid: $3,550