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.

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. [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.

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: [9]

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. [10]

Forms of secondary legislation in the United Kingdom include only:

EU tertiary legislation

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—
    • (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 [13] 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 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".

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]

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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.

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<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

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<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.

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.

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<span class="mw-page-title-main">Administrative law in Mongolia</span>

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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. "Sources of European Union law". Europa (Web portal). 28 August 2010.
  7. "Types of EU law". European Commission - European Commission.
  8. 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.
  9. "Understanding legislation". Government of the United Kingdom . Retrieved 2024-04-02.
  10. "Delegated Legislation". Law Teacher. Archived from the original on Nov 24, 2012. Retrieved 18 September 2012.
  11. 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.
  12. "European Union (Withdrawal) Act 2018, General and final provision, Section 20". Legislation.gov.uk. Archived from the original on Oct 27, 2022.
  13. "European Union (Withdrawal) Act 2018, Explanatory Notes, EU laws and legislation". legislation.gov.uk. Archived from the original on Jul 30, 2023.
  14. 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.