Primary and secondary legislation

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In parliamentary systems of government, primary legislation and secondary legislation (also referred to as delegated legislation) are two forms of law, created respectively by the legislative and executive branches of government. Primary legislation may consist of statutes that set out broad outlines and principles, delegating authority to an executive branch. That branch can then issue secondary legislation, specifying substantive regulations, and procedural regulations for implementing them.

United Kingdom[edit]

Primary legislation[edit]

In the United Kingdom, and other Commonwealth nations, primary legislation takes the form of an Act of Parliament.

“primary legislation” means any—

(a) public general Act;
(b) local and personal Act;
(c) private Act;
(d) Measure of the Church Assembly;
(e) Measure of the General Synod of the Church of England;
(f) Order in Council—
(i) made in exercise of Her Majesty’s Royal Prerogative;
(ii) made under section 38(1)(a) of the M3Northern Ireland Constitution Act 1973 or the corresponding provision of the Northern Ireland Act 1998; or
(iii) amending an Act of a kind mentioned in paragraph (a), (b) or (c);

and includes an order or other instrument made under primary legislation (otherwise than by the Welsh Ministers, the First Minister for Wales, the Counsel General to the Welsh Assembly Government, a member of the Scottish Executive, a Northern Ireland Minister or a Northern Ireland department) to the extent to which it operates to bring one or more provisions of that legislation into force or amends any primary legislation...

— Parliament of the United Kingdom, Section 21(1), Human Rights Act 1998[1]

Secondary legislation[edit]

In the United Kingdom, secondary legislation (also referred to as delegated, subordinate, or subsidiary legislation[citation needed]) is law made by an executive authority under powers delegated from by an enactment of primary legislation, which grants the executive agency power to implement and administer the requirements of that primary legislation.[2] The power to create delegated legislation is limited to making regulation that is incidental to administering the primary legislation. Otherwise it will be considered as invalid or ultra vires.[citation needed]

Forms of secondary legislation in the United Kingdom include:

  • 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.
  • Church of England Measures - the instruments by which changes are made to legislation relating to the administration and organisation of the Church.
  • Special Procedure Orders - a form of delegated legislation to which special parliamentary procedure applies. Part of this procedure gives those people or bodies who are especially affected by the order to petition against it to either House.
  • Hybrid instruments - statutory instruments which need to be approved by both Houses and affect some members of a group (whether individuals or bodies) more than others in the same group.

United States[edit]

Primary legislation[edit]

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.

Regulatory law[edit]

Main article: Regulatory law

A law promulgated by the executive branch agency of the United States Government as the result of primary legislation is called a regulatory law, as legislation is used only to refer to acts of the legislative branch, never the executive or the judicial branches. The body of law that governs the agency's exercise of rule making and adjudication powers is called "administrative law," primarily the Administrative Procedure Act.

In a 2013 majority opinion of the Supreme Court of the United States, Associate Justice Antonin Scalia stated that

[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.”[3]

European Union[edit]

In European Union law, the founding treaties are the main primary legislation.[4]


  1. ^ Parliament of the United Kingdom (1998). "Human Rights Act 1998". Retrieved 31 October 2015. 
  2. ^ "Delegated Legislation". Retrieved 18 September 2012. 
  3. ^ City of Arlington v. FCC, 569 U.S. __, __, n.4 (2013) (slip op. at 13) (emphasis in original).
  4. ^ "Sources of European Union law". Europa. 28 August 2010. 

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

External links[edit]

See also[edit]