Identifying Delegated Legislation: A New Two-Stage Test

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.