Primary and secondary legislation

Primary legislationandsecondary legislation(the latter also calleddelegated legislationorsubordinate legislation) are two forms oflaw,created respectively by thelegislativeandexecutivebranches of governments inrepresentative democracies.Primary legislation generally consists of statutes, also known as 'acts', that set out broad principles and rules, but may delegate specific authority to an executive branch to make more specific laws under the aegis of the principal act. The executive branch can then issue secondary legislation (often byorder-in-councilinparliamentary systems,or byregulatory agenciesinpresidential systems), creating legally enforceable regulations and the procedures for implementing them.

Australia

InAustralian law,primary legislation includes acts of the Commonwealth Parliament and state or territory parliaments. Secondary legislation, formally called legislative instruments, are regulations made according to law by the executive or judiciary or other specified bodies which have the effect of law.Secondary legislation amounts to about half of Commonwealth law by volume.Although it is made by the executive, secondary legislation is still scrutinised by parliament and can be disallowed by a resolution of either house of parliament.

Canada

InCanadian law,primary legislation (also called statute law) consists of acts of theParliament of Canadaand the legislatures of the provinces, and ofOrders in Councilmade under the Royal Prerogative. Secondary legislation (also called regulation) includes laws made by federal or provincial Order in Council by virtue of an empowering statute previously made by the parliament or legislature.

Civil law jurisdictions

Incivil law systems,a parliament issues primary legislation, with lesser bodies granted powers to issue delegated legislation. Action for judicial review of the validity of secondary legislation may be brought before a court—e.g., theconstitutional court.

For example in Finland,the practice is to delegate the making of secondary legislation ( "decree",Finnish:asetus) mainly to theFinnish Government(the cabinet) as a whole, to individual ministries (made by the minister; e.g., where the change of legal position of persons is limited and technical), or to thePresident of the Republic(e.g., where implementing international treaty obligations do not require legislation). Delegation togovernment agenciesis exceptional (e.g., when the need for regulation is technical and may change rapidly) and done with extra caution.

European Union

Each member state of theEuropean Union(EU) has its own laws, butEU lawtakesprimacyin certain circumstances. TheEU Treatiesare the EU's primary legislation.These include the founding treaty, the 1957Treaty of Rome,and all subsequent treaties, such as theMaastricht Treaty,Nice Treaty,andLisbon Treaty.Secondary legislation is enacted under the Treaties,taking various forms and can be either legislative or non-legislative.

The forms include binding regulations, directives, decisions, and non-bindingrecommendationsand opinions:

• Aregulationis a law which is binding in its entirety and directly applicable in all Member States without needing national implementation. EU citizens may havestandingto pursue breaches of regulations and treaties, as inVan Gend en Loos v Nederlandse Administratie der Belastingen.
• Adirectiveis addressed to the Member States as a framework for their legislation. It is "binding as to the result to be achieved", but Member States can choose their own form of implementation. EU citizens may have standing to challenge failures to implement, as inFrancovich v Italy.
• Adecisionis a law that addresses a specific issue. Addressees may challenge a decision viajudicial review.

Legislative acts are enacted via thelegislative procedure,initiated by theCommission,and ultimately adopted by theCouncilandEuropean Parliamentacting in concert, which may also involve consultation with theEuropean Economic and Social Committeeand theEuropean Committee of the Regions.

Non-legislative acts includeimplementing and delegated acts,such as those adopted by the Commission in pursuance of policy, which may involve so-calledcomitologycommittees. The Commission may act quasi-judicially in matters of EU competition law, a power defined inArticle 101andArticle 102 of the Treaty on the Functioning of the European Union.

Privileged parties, such as Member States,EU institutions,and those with specific standing, may initiate litigation to challenge the validity of secondary legislation under the Treaties.

See also:§ United Kingdom

Hong Kong

Main article:Subsidiary legislation in Hong Kong

Subsidiary legislation in Hong Kong is made with powers delegated by a law enacted by the Legislative Council of Hong Kong.

United Kingdom

Primary legislation

In theUnited Kingdom,primary legislation can take a number of different forms:

• AnAct of Parliament.
• AnAct of the Scottish Parliament,MeasureorAct of the SeneddorAct of the Northern Ireland Assembly
• AnOrder in Councilmade under theRoyal Prerogative
• Church of England Measures– the instruments by which changes are made to legislation relating to the administration and organisation of the Church.

Secondary legislation

Main article:Delegated legislation in the United Kingdom

In the United Kingdom, secondary legislation (also referred to asdelegated legislationorsubordinate legislation) is law made by an executive authority under powers delegated by an enactment of primary legislation, which grants the executive agency power to implement and administer the requirements of that primary legislation.

Forms of secondary legislation in the United Kingdom include only:

• Statutory instruments– made in a variety of forms, most commonlyOrders in Council,regulations, rules and orders. The form to be adopted is usually set out in the enabling Act.

EU tertiary legislation

See also:§ European Union

TheEuropean Union (Withdrawal) Act 2018definesEU tertiary legislationinretained EU lawafterBrexitto mean:

• (a) any provision made under—
  • (i) an EU regulation,
  • (ii) a decision within the meaning of Article 288 of the Treaty on the Functioning of the European Union, or
  • (iii) an EU directive,
  by virtue of Article 290 or 291(2) of the Treaty on the Functioning of the European Union or former Article 202 of the Treaty establishing the European Community, or
• (b) any measure adopted in accordance with former Article 34(2)(c) of the Treaty on European Union to implement decisions under former Article 34(2)(c),

but does not include any such provision or measure which is an EU directive[.]

According to the explanatory notes accompanying the Act, this is meant to cover delegated and implementing actsthat were not enacted via theEuropean Union legislative procedure.

United States

Main article:United States administrative law § Rulemaking

TheBritish Englishdistinction between primary and secondary legislation is not used inAmerican English,due to the American dislike of the British constitutional concept of thefusion of powersas inherently incompatible withdue processand therule of law(one of the great divergences between American and British political philosophy which led to theAmerican Revolution). In contrast, theUnited States Constitution imposes a strict separation of powers.Therefore, the wordlegislationis used to refer only to acts of the legislative branch, and never the executive or the judicial branches. In a 2013 majority opinion of theUS Supreme Court,Associate JusticeAntonin Scaliaexplained:

[Legislative power] isvested exclusivelyin Congress [and judicial power] in the "one supreme Court" and "such inferior Courts as the Congress may from time to time ordain and establish"... Agencies make rules... and conduct adjudications... and have done so since the beginning of the Republic. These activities take "legislative" and "judicial" forms, but they are exercises of—indeed, under our constitutional structure theymust beexercises of—the "executive Power".

Act of Congress

In the United States, the equivalent at the federal level to the British concept of primary legislation is anAct of Congress.A statute that delegates authority to promulgate regulations to an agency is called anauthorizing statuteordelegation of rulemaking authority.

Regulations "with the force of law"

In the United States, a law promulgated by an executive branch agency of the US federal government pursuant to authority delegated by an Act of Congress is called aregulationor arule— often with the qualifier that it is a rule given "the force of law" by the authorizing statute.

The body of law that governs agencies' exercise of rulemaking powers is called "administrative law",which derives primarily from theAdministrative Procedure Act(APA) and decisions interpreting it. In addition to controlling "quasi-legislative" agency action, the APA also controls "quasi-judicial" actions in which an agency acts analogously to acourt,rather than a legislature.

See also

• Executive order (United States)– Federal administrative instruction issued by the president of the United StatesPages displaying short descriptions of redirect targets
• Rulemaking– Process by which executive branch agencies create regulations
• Evidence-based legislation– Legislative approach utilizing empirical evidence to draft laws

References

This article incorporates text published under the BritishOpen Government Licence:Parliament of the United Kingdom."Secondary Legislation".Retrieved31 October2015.

External links

• Public general Acts of the Parliament of the United Kingdom
• Secondary legislationat theParliament of the United Kingdom