Primary and secondary legislation
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|Grounds for judicial review|
Administrative law in|
common law jurisdictions
Administrative law in|
civil law jurisdictions
Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate 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 outlines and principles, but 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.
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.
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.[a]
For example in Finland, 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. 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.
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:
- 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.
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.
EU tertiary legislation
(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[.]
In the United States, primary legislation is, at the federal level, an Act of Congress, and the statute that delegates authority is called an authorizing statute or delegation of rule making authority.
Regulations "with the force of law"
A law promulgated by an executive branch agency of the US government as the result of 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. In the United States, legislation is used to refer only to acts of the legislative branch, never the executive or the judicial branches.
The body of law that governs agencies' exercise of rule-making 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. In a 2013 majority opinion of the US Supreme Court, Associate Justice Antonin Scalia stated:
[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".
- Executive order (United States)
- Rulemaking – Process by which executive branch agencies create regulations
- Evidence-based legislation – Decisions and practices that use evidence to enact laws
- "What is subordinate legislation?". Queensland Government. Retrieved 2017-01-24.
- "What is secondary legislation?".
- Australian Senate. "15. Delegated legislation, scrutiny and disallowance". Odger's Australian Senate Practice.
- 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.
- 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.
- "Sources of European Union law". Europa (Web portal). 28 August 2010.
- "Types of EU law". European Commission - European Commission.
- 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.
- "Delegated Legislation". lawteacher.net. Retrieved 18 September 2012.
- "Why You Should Care How Tertiary Legislation Is Hidden Within The EU Withdrawal Bill". HuffPost UK. 2017-11-12. Retrieved 2022-07-15.
- "European Union (Withdrawal) Act 2018".
- "European Union (Withdrawal) Act 2018". www.legislation.gov.uk.
- City of Arlington v. FCC, 569 U.S. 290, 305 n.4 (2013) (emphasis in original).