Primary and secondary legislation

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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]

Contents

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. [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]

Canada

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.

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. [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.

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 (Decreto-Ley), 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 (Decreto legislativo); it can only delegate on the government for a given topic, within a time limit and only once. [6]

European Union

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. [7] 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, [8] 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.

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 the United Kingdom, primary legislation can take a number of different forms: [10]

Secondary legislation

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. [11]

Forms of secondary legislation in the United Kingdom include only:

EU tertiary legislation

The European Union (Withdrawal) Act 2018 defines EU tertiary legislation [12] in retained EU law after Brexit to mean: [13]

  • (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 acts [14] that were not enacted via the European Union legislative procedure.

United States

The British English distinction between 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 (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: [15]

[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".

Act of Congress

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.

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 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.

See also

Notes

  1. In 2015, Italy's Constitutional Court for the first time involved itself in the core of parliamentary procedure, issuing a judgment (n. 32/2014) protecting the balance of power from the combined effects of maxi-amendments and confidence being asked of it by the government.[ clarification needed ] [4]

Related Research Articles

<span class="mw-page-title-main">Politics of Finland</span>

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.

<span class="mw-page-title-main">Legislation</span> Legislative or parliamentary law

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.

<span class="mw-page-title-main">Law of the United Kingdom</span>

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.

<span class="mw-page-title-main">Directive (European Union)</span> Legislative act of the European Union

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.

<span class="mw-page-title-main">Decree</span> Edict or proclamation usually issued by a head of state

A decree is a legal proclamation, usually issued by a head of state, judge, royal figure, or other relevant authorities, according to certain procedures. These procedures are usually defined by the constitution, Legislative laws, or customary laws of a government.

<span class="mw-page-title-main">Comitology</span> Process by which European Union law is modified or adjusted

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.

<span class="mw-page-title-main">Regulation (European Union)</span> Type of EU legislative act

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. Despite their name, Regulations are primary legislation than regulatory delegated legislation; as such, they are often described as "Acts".

<span class="mw-page-title-main">Separation of powers under the United States Constitution</span>

Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others. This philosophy heavily influenced the drafting of the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. The American form of separation of powers is associated with a system of checks and balances.

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.

<span class="mw-page-title-main">European Union legislative procedure</span> Procedures for the adoption of legislation in the European Union

The European Union adopts legislation through a variety of legislative procedures. The procedure used for a given legislative proposal depends on the policy area in question. Most legislation needs to be proposed by the European Commission and approved by the Council of the European Union and European Parliament to become law.

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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. The terminology was already used in Rome by Cicero as a metaphor referring to the "fountain" of law. Technically, anything that can create, change, or cancel any right or law is considered a source of law.

In many countries, a statutory instrument is a form of delegated legislation.

<span class="mw-page-title-main">Act of Parliament (United Kingdom)</span> Primary legislation in the United Kingdom

An Act of Parliament in the United Kingdom is primary legislation passed by the UK Parliament in Westminster, London.

<span class="mw-page-title-main">Judicial review</span> Ability of courts to review actions by executive and legislatures

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.

<span class="mw-page-title-main">Politics of France</span>

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".

Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies. It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law or by precedent.

In public law, abrogation is the proposing away of a right, power or value, by a public body in delegating power or failing to carry out a responsibility or duty. The abrogation of such a responsibility or duty, unless required by primary legislation would amount to an unconstitutional delegation of power to a foreign government or other sovereign power.

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.

References

  1. "What is subordinate legislation?". Queensland Government. Retrieved 2017-01-24.
  2. "What is secondary legislation?".
  3. 1 2 3 Australian Senate. "15. Delegated legislation, scrutiny and disallowance". Odger's Australian Senate Practice.
  4. Buonomo, Giampiero (2015). "Negoziazione politica e Parlamento... Non solo risate". Avanti Online (in Italian). Archived from the original on 2012-08-01. Retrieved 2016-04-13.
  5. Tuori, Kaarlo (2000). Julkisoikeuden perusteet (The basics of public law). Forum Iuris (in Finnish). Helsinki: Helsingin yliopiston oikeustieteellinen tiedekunta (Law Faculty of the University of Helsinki). 5.3 Lainsäädäntövallan delegoiminen (delegation of legislative power), pages 57–59. ISBN   951-45-9227-1. ISSN   1456-842X.
  6. "Part III, Chapter II" (PDF). Constitución Española (in Spanish). boe.es. 1978. Retrieved 6 September 2020.
  7. "Sources of European Union law". Europa (Web portal). 28 August 2010.
  8. "Types of EU law". European Commission - European Commission.
  9. 1 2 3 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.
  10. "Understanding legislation". Government of the United Kingdom . Retrieved 2024-04-02.
  11. "Delegated Legislation". Law Teacher. Archived from the original on Nov 24, 2012. Retrieved 18 September 2012.
  12. Goldsmith, Paul (2017-11-12). "Why You Should Care How Tertiary Legislation Is Hidden Within The EU Withdrawal Bill". HuffPost UK. Retrieved 2022-07-15.
  13. "European Union (Withdrawal) Act 2018, General and final provision, Section 20". Legislation.gov.uk. Archived from the original on Oct 27, 2022.
  14. "European Union (Withdrawal) Act 2018, Explanatory Notes, EU laws and legislation". legislation.gov.uk. Archived from the original on Jul 30, 2023.
  15. City of Arlington v. FCC, 569 U.S. 290, 305 n.4 (2013) (emphasis in original).

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