Primary and secondary legislation

In parliamentary systems of government, primary legislation and secondary legislation, also referred to as delegated legislation, are two forms of law, created respectively by the legislative and executive branches of government. Primary legislation may consist of statutes that set out broad outlines and principles, delegating authority to an executive branch. That branch can then issue secondary legislation, specifying substantive regulations, and procedural regulations for implementing them.

United Kingdom

Primary legislation

In the United Kingdom, and other Commonwealth nations, primary legislation takes the form of an Act of Parliament.

“primary legislation” means any—

(a) public general Act;

(b) local and personal Act;

(c) private Act;

(d) Measure of the Church Assembly;

(e) Measure of the General Synod of the Church of England;

(f) Order in Council—

(i) made in exercise of Her Majesty’s Royal Prerogative;

(ii) made under section 38(1)(a) of the M3Northern Ireland Constitution Act 1973 or the corresponding provision of the Northern Ireland Act 1998; or

(iii) amending an Act of a kind mentioned in paragraph (a), (b) or (c);

and includes an order or other instrument made under primary legislation (otherwise than by the Welsh Ministers, the First Minister for Wales, the Counsel General to the Welsh Assembly Government, a member of the Scottish Executive, a Northern Ireland Minister or a Northern Ireland department) to the extent to which it operates to bring one or more provisions of that legislation into force or amends any primary legislation...

— Parliament of the United Kingdom, Section 21(1), Human Rights Act 1998^[1]

Secondary legislation

In the United Kingdom, secondary legislation (also referred to as delegated legislation) is law made by an executive authority under powers delegated from by an enactment of primary legislation, which grants the executive agency power to implement and administer the requirements of that primary legislation.^[2] The power to pass delegated legislation is defined and limited by the primary legislation that delated those powers; if the subordinate authority acts beyond its remit, its acts will be invalid or ultra vires.

Forms of secondary legislation in the United Kingdom include:^[3]

• Statutory instruments – made in a variety of forms, most commonly Orders in Council, regulations, rules and orders. The form to be adopted is usually set out in the enabling Act.
• Special Procedure Orders – a form of delegated legislation to which special parliamentary procedure applies. Part of this procedure gives those people or bodies who are especially affected by the order to petition against it to either House.
• Hybrid instruments – statutory instruments which need to be approved by both Houses and affect some members of a group (whether individuals or bodies) more than others in the same group.^[4]
• Church of England Measures – the instruments by which changes are made to legislation relating to the administration and organisation of the Church.

United States

Primary legislation

In the United States, primary legislation is, at the federal level, an Act of Congress, and the statute that delegates authority is called an authorizing statute or delegation of rule making authority.

Regulatory law

A law promulgated by the executive branch agency of the United States Government as the result of primary legislation is called a regulatory law, as legislation is used only to refer to acts of the legislative branch, never the executive or the judicial branches. The body of law that governs the agency's exercise of rule making and adjudication powers is called "administrative law," primarily the Administrative Procedure Act.

In a 2013 majority opinion of the Supreme Court of the United States, Associate Justice Antonin Scalia stated that

[Legislative power] is vested exclusively in 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 they must be exercises of—the “executive Power.”^[5]

Civil law jurisdictions

Civil law systems are almost universal in Europe, with the exceptions of England, Wales, Northern Ireland and Ireland and in Central and South America.

In all cases a Parliament will issue primary legislation, with lesser bodies granted powers to issue delegated legislation. A judicial review is often provided by Constitutional Courts.^[6]

European Union

In European Union law, the founding treaty, the 1957 Treaty of Rome, and all subsequent treaties, such as the Maastricht Treaty, Nice Treaty, and Lisbon Treaty, are the main primary legislation.^[7] The Treaty of Rome gives powers to make secondary legislation.

Member States must surrender some national jurisdiction powers to the European Union, and these delegated powers are exercised by the Commission, Council and European Parliament acting in concert, having consulted the United Nations Economic and Social Council (ECOSOC) and the European Committee of the Regions. The powers are exercised via Regulations, Directives, Decisions, Recommendations & Opinions, of which the latter two are not binding.

• A Regulation^[8] is a law which is binding in its entirety and directly applicable in all Member States without needing national implementation. EU citizens may have standing to pursue breaches of regulations and treaties, as in Van Gend en Loos v Nederlandse Administratie der Belastingen.
• A Directive^[8] is an order to Member States to pass 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 pursue failures to implement, as in Francovich v Italy.
• A Decision^[8] is a law that addresses a specific issue. Addressees may challenge a decision via Judicial Review.

The Commission may take executive action in pursuance of policy, and may even act quasi-judicially in matters of EU competition law, a power defined in Article 101 and Article 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. For example, the Commission may sue Member States for breaches of EU obligations, and Member States may sue Institutions or other Member States for breach of EU law.

References

1. Parliament of the United Kingdom (1998). "Human Rights Act 1998". legislation.gov.uk. Retrieved 31 October 2015.
2. "Delegated Legislation". lawteacher.net. Retrieved 18 September 2012.
3. "Secondary Legislation". Parliament of the United Kingdom. Retrieved 9 February 2016.
4. "Hybrid instruments". Parliament of the United Kingdom. Retrieved 9 February 2016.
5. City of Arlington v. FCC, 569 U.S. __, __, n.4 (2013) (slip op. at 13) (emphasis in original).
6. In Italy the Constitutional Court entered for the first time in the inner sanctum of parliamentary procedure, with the fundamental judgment n. 32/2014, to protect the balance of powers from the pernicious combined effect between maxi-Amendment and confidence asked by Government upon it: Buonomo, Giampiero (2015). "Negoziazione politica e Parlamento… Non solo risate". Avanti online.  – via Questia (subscription required)
7. "Sources of European Union law". Europa. 28 August 2010.
8. European Union (26 October 2012). "Consolidated version of the Treaty on the Functioning of the European Union, PART SIX - INSTITUTIONAL AND FINANCIAL PROVISIONS, TITLE I - INSTITUTIONAL PROVISIONS, Chapter 2 - Legal acts of the Union, adoption procedures and other provisions, Section 1 - The legal acts of the Union, Article 288". EUR-Lex. Retrieved 9 February 2016.

 This article incorporates text published under the British Open Government Licence: Parliament of the United Kingdom. "Secondary Legislation". Retrieved 31 October 2015.

External links

• Public general Acts of the Parliament of the United Kingdom
• Secondary legislation at the Parliament of the United Kingdom

See also

• Executive order (United States)
• Rulemaking