Identifying delegated legislation : a new two-stage test

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Taylor, Robert Brett and Wilson, Adelyn (2026) Identifying delegated legislation : a new two-stage test. The Cambridge Law Journal. pp. 1-29. ISSN 1469-2139 (https://doi.org/10.1017/S0008197326101457)

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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.

ORCID iDs

Taylor, Robert Brett ORCID logoORCID: https://orcid.org/0009-0003-3140-0410 and Wilson, Adelyn ORCID logoORCID: https://orcid.org/0000-0001-5398-6799;
CORE (COnnecting REpositories)