Primary and secondary legislation
Primary legislation and secondary legislation are two forms of law, created respectively by the legislative and executive branches of governments in representative 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, creating legally enforceable regulations and the procedures for implementing them.
Australia
In Australian 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
In Canadian law, primary legislation consists of acts of the Parliament of Canada and the legislatures of the provinces. Secondary legislation 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
In civil 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., the constitutional court.For example in Finland, the practice is to delegate the making of secondary legislation mainly to the Finnish Government as a whole, to individual ministries, or to the President of the Republic. Delegation to government agencies is exceptional and done with extra caution.
In Spain the primary legislation is composed of laws and organic laws. Organic laws are those which expand upon constitutionally-delegated matters, for instance electoral law. The government can also create laws, called decree-law, for urgent matters and are restricted on what they can do. Decree-laws must be approved within a month by the Cortes Generales. The secondary legislation is called a legislative decree ; it can only delegate on the government for a given topic, within a time limit and only once.
European Union
Each member state of the European Union has its own laws, but EU law takes primacy in certain circumstances. The EU Treaties are the EU's primary legislation. These include the founding treaty, the 1957 Treaty of Rome, and all subsequent treaties, such as the Maastricht Treaty, Nice Treaty, and Lisbon 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-binding recommendations and opinions:
- A regulation 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 is 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 in Francovich v Italy.
- A decision is a law that addresses a specific issue. Addressees may challenge a decision via judicial review.
Non-legislative acts include implementing and delegated acts, such as those adopted by the Commission in pursuance of policy, which may involve so-called comitology committees. The Commission may 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 to challenge the validity of secondary legislation under the treaties.
Hong Kong
In Hong Kong, primary legislation includes ordinances of the domestic Legislative Council, and Nationwide Laws of the People's Republic of China extended to Hong Kong by the National People's Congress. Subsidiary legislation in Hong Kong is made by the Executive Council or officials with delegated powers.United Kingdom
Primary legislation
In the United Kingdom, primary legislation can take a number of different forms:- An Act of Parliament.
- An Act of the Scottish Parliament, Measure or Act of the Senedd or Act of the Northern Ireland Assembly
- An Order in Council made under the Royal 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
Forms of secondary legislation in the United Kingdom include:
- Statutory instruments made by the UK government 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.
- Statutory rules and orders, for instruments similar to statutory instruments prior to 1948
- Church instruments, for instruments of the Archbishops of Canterbury and York under the authority of Church Measures
- Scottish statutory instruments made under the authority of legislation from the Scottish Parliament
- Welsh statutory instruments made under the authority of legislation from the Senedd, the National Assembly of Wales or the UK Parliament
- Statutory Rules of Northern Ireland made under the authority of legislation from the Northern Ireland Assembly
EU tertiary legislation
According to the explanatory notes accompanying the Act, this is meant to cover delegated and implementing acts that were not enacted via the European Union legislative procedure.
United States
The British English terminology of primary and secondary legislation is not used in American English, due to the American dislike of the British constitutional concept of the fusion of powers as inherently incompatible with due process and the rule of law. In contrast, the United States Constitution imposes a strict separation of powers. Therefore, the word legislation is typically used to refer only to acts of the legislative branch, and rarely the executive or the judicial branches. A similar relationship exists in state legal systems between laws, which are enacted by state legislatures, and regulations and policies, which are established by governmental bodies at the state and local levels. In a 2013 majority opinion of the US Supreme Court, Associate Justice Antonin Scalia explained:Constitution
The Constitution, which refers to itself as the supreme law of the land is the equivalent to the British concept of primary legislation. Legislation similar to the British Constitutional Reform Act 2005 would require a constitutional amendment in the United States, which imposes a significant higher barrier to passage.Act of Congress
In the United States, an Act of Congress at the federal level is the equivalent to the British concept of secondary legislation. A statute that delegates authority to promulgate regulations to an agency is called an authorizing statute or delegation of rulemaking authority. All Acts of Congress are recorded in the United States Statutes at Large, and the permanent active ones are reorganized and codified into the United States Code.Regulations "with the force of law"
In the United States, a rule or regulation is a directive promulgated by an executive branch agency of the US federal government pursuant to authority delegated by an Act of Congress—often with the qualifier that it is a rule given "the force of law" by the authorizing statute. Most regulations are codified into the Code of Federal Regulations. These are equivalent to tertiary legislation.The body of law that governs agencies' exercise of rulemaking powers is called "administrative law", which derives primarily from the Administrative Procedure Act 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 a court, rather than a legislature.
The APA also mandates a 60-day comment and review period before new rules or regulations can come into effect. In addition, regulations have to be issued by a Senate-confirmed executive branch officer.