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Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation [1] ) 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 (often by order-in-council in parliamentary systems, or by regulatory agencies in presidential systems), creating legally enforceable regulations and the procedures for implementing them. [2]
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. [3] Secondary legislation amounts to about half of Commonwealth law by volume. [3] 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. [3]
In Canadian law, primary legislation (also called statute law) consists of acts of the Parliament of Canada and the legislatures of the provinces, and of Orders in Council made 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.
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. [lower-alpha 1]
For example in Finland, [5] the practice is to delegate the making of secondary legislation ("decree", Finnish : asetus) mainly to the Finnish 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 the President of the Republic (e.g., where implementing international treaty obligations do not require legislation). Delegation to government agencies is exceptional (e.g., when the need for regulation is technical and may change rapidly) and done with extra caution.
Each member state of the European Union (EU) has its own laws, but EU law takes primacy in certain circumstances. The EU Treaties are the EU's primary legislation. [6] 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, [7] taking various forms and can be either legislative or non-legislative.
The forms include binding regulations, directives, decisions, and non-binding recommendations and opinions:
Legislative acts are enacted via the legislative procedure, initiated by the Commission, and ultimately adopted by the Council and European Parliament acting in concert, which may also involve consultation with the European Economic and Social Committee and the European Committee of the Regions.
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.
Subsidiary legislation in Hong Kong is made with powers delegated by a law enacted by the Legislative Council of Hong Kong.
In the United Kingdom, primary legislation can take a number of different forms: [9]
In the United Kingdom, secondary legislation (also referred to as delegated legislation or subordinate 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. [10]
Forms of secondary legislation in the United Kingdom include only:
The European Union (Withdrawal) Act 2018 defines EU tertiary legislation [11] in retained EU law after Brexit to mean: [12]
- (a) any provision made under—
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
- (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,
- (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 acts [13] that were not enacted via the European Union legislative procedure.
The British English distinction between primary and secondary legislation is not used in American English, due to the American abhorrence of the British constitutional concept of the fusion of powers as inherently incompatible with due process and the rule of law (one of the great divergences between American and British political philosophy which led to the American Revolution). In contrast, the United States Constitution imposes a strict separation of powers. Therefore, the word legislation is used to refer only to acts of the legislative branch, and never the executive or the judicial branches. In a 2013 majority opinion of the US Supreme Court, Associate Justice Antonin Scalia explained: [14]
[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".
In the United States, the equivalent at the federal level to the British concept of primary legislation is an Act of Congress. A statute that delegates authority to promulgate regulations to an agency is called an authorizing statute or delegation of rulemaking authority.
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 a regulation or a rule — 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 the Administrative 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 a court, rather than a legislature.
The politics of Finland take place within the framework of a parliamentary representative democracy. Finland is a republic whose head of state is President Alexander Stubb, who leads the nation's foreign policy and is the supreme commander of the Finnish Defence Forces. Finland's head of government is Prime Minister Petteri Orpo, who leads the nation's executive branch, called the Finnish Government. Legislative power is vested in the Parliament of Finland, and the Government has limited rights to amend or extend legislation. The Constitution of Finland vests power to both the President and Government: the President has veto power over parliamentary decisions, although this power can be overruled by a majority vote in the Parliament.
Legislation is the process or result of enrolling, enacting, or promulgating laws by a legislature, parliament, or analogous governing body. Before an item of legislation becomes law it may be known as a bill, and may be broadly referred to as "legislation" while it remains under consideration to distinguish it from other business. Legislation can have many purposes: to regulate, to authorize, to outlaw, to provide (funds), to sanction, to grant, to declare, or to restrict. It may be contrasted with a non-legislative act by an executive or administrative body under the authority of a legislative act.
The United Kingdom has three distinctly different legal systems, each of which derives from a particular geographical area for a variety of historical reasons: English law, Scots law, Northern Ireland law, and, since 2007, calls for a fourth type that of purely Welsh law as a result of Welsh devolution, with further calls for a Welsh justice system.
A directive is a legal act of the European Union that requires member states to achieve particular goals without dictating how the member states achieve those goals. A directive's goals have to be made the goals of one or more new or changed national laws by the member states before this legislation applies to individuals residing in the member states. Directives normally leave member states with a certain amount of leeway as to the exact rules to be adopted. Directives can be adopted by means of a variety of legislative procedures depending on their subject matter.
A decree is a legal proclamation, usually issued by a head of state such as the president of a republic, or a monarch, according to certain procedures. It has the force of law. The particular term used for this concept may vary from country to country. The executive orders made by the President of the United States, for example, are decrees.
The primary and fundamental statement of laws in the Russian Federation is the Constitution of the Russian Federation. Statutes, like the Russian Civil Code and the Russian Criminal Code, are the predominant legal source of Russian laws.
Comitology in the European Union refers to a process by which EU law is implemented or adjusted by the European Commission working in conjunction with committees of national representatives from the EU member states, colloquially called "comitology committees". These are chaired by the European Commission. The official term for the process is committee procedure. Comitology committees are part of the EU's broader system of committees that assist in the making, adoption, and implementation of EU laws.
A regulation is a legal act of the European Union which becomes immediately enforceable as law in all member states simultaneously. Regulations can be distinguished from directives which, at least in principle, need to be transposed into national law. Regulations can be adopted by means of a variety of legislative procedures depending on their subject matter.
Delegated legislation or secondary legislation in the United Kingdom is law that is not enacted by a legislative assembly such as the UK Parliament, but made by a government minister, a delegated person or an authorised body under powers given to them by an Act of Parliament.
In administrative law, rulemaking is the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.
United States federal administrative law encompasses statutes, regulations, rules, common law rulings, and directives issued by the Office of Information and Regulatory Affairs in the Executive Office of the President, that together define the extent of powers and responsibilities held by administrative agencies of the United States government. The executive, legislative, and judicial branches of the U.S. federal government cannot always directly perform their constitutional responsibilities. Specialized powers are therefore delegated to an agency, board, or commission. These administrative governmental bodies oversee and monitor activities in complex areas, such as commercial aviation, medical device manufacturing, and securities markets.
French law has a dual jurisdictional system comprising private law, also known as judicial law, and public law.
Sources of law are the origins of laws, the binding rules that enable any state to govern its territory.
Thoburn v Sunderland City Council is a UK constitutional and administrative law case, concerning the interaction of EU law and an Act of Parliament. It is important for its recognition of the supremacy of EU law and the basis for that recognition. Though the earlier Factortame had also referred to Parliament's voluntary acceptance of the supremacy of EU law, Thoburn put less stress on the jurisprudence of the ECJ and more on the domestic acceptance of such supremacy; Lord Justice Laws suggested there was a hierarchy of "constitutional statutes" that Parliament could only expressly repeal, and so were immune from implied repeal.
In many countries, a statutory instrument is a form of delegated legislation.
An Act of Parliament in the United Kingdom is primary legislation passed by the UK Parliament in Westminster, London.
Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or governmental actions that are incompatible with a higher authority. For example, an executive decision may be invalidated for being unlawful, or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers—the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.
Administrative law in Mongolia is the body of law that governs the activities of administrative agencies of the Mongolian government. These activities include rulemaking, adjudication, or the enforcement of a specific regulatory agenda.
The politics of France take place with the framework of a semi-presidential system determined by the French Constitution of the French Fifth Republic. The nation declares itself to be an "indivisible, secular, democratic, and social Republic". The constitution provides for a separation of powers and proclaims France's "attachment to the Rights of Man and the principles of National Sovereignty as defined by the Declaration of 1789".
The administrative state is a term used to describe the power that some government agencies have to write, judge, and enforce their own laws. Since it pertains to the structure and function of government, it is a frequent topic in political science, constitutional law, and public administration.
This article incorporates text published under the British Open Government Licence : Parliament of the United Kingdom. "Secondary Legislation" . Retrieved 31 October 2015.