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]

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.^[a]

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]

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:

• A regulation^[9] 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^[9] 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^[9] is a law that addresses a specific issue. Addressees may challenge a decision via judicial review.

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:^[10]

• 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.

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:

• 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.

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.

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".

In the United States, an Act of Congress at the federal level is the equivalent to the British concept of primary legislation. 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 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.

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.

• Executive order (United States) – Federal administrative instruction issued by the president of the United StatesPages displaying short descriptions of redirect targets
• Rulemaking – Process by which executive branch agencies create regulations
• Evidence-based legislation – Legislative approach utilizing empirical evidence to draft laws

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

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