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Primary legislation andsecondary legislation (the latter also calleddelegated legislation orsubordinate legislation[1]) are two forms oflaw, created respectively by thelegislative andexecutive branches of governments inrepresentative 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 byorder-in-council inparliamentary systems, or byregulatory agencies inpresidential systems), creating legally enforceable regulations and the procedures for implementing them.[2]
InAustralian 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]
InCanadian law, primary legislation (also called statute law) consists of acts of theParliament of Canada and the legislatures of the provinces, and ofOrders 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.
Incivil 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., theconstitutional court.[a]
For example in Finland,[5] the practice is to delegate the making of secondary legislation ("decree",Finnish:asetus) mainly to theFinnish 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 thePresident of the Republic (e.g., where implementing international treaty obligations do not require legislation). Delegation togovernment agencies is exceptional (e.g., when the need for regulation is technical and may change rapidly) and done with extra caution.
InSpain the primary legislation is composed of laws andorganic laws. Organic laws are those which expand upon constitutionally-delegated matters, for instance electoral law. Thegovernment can also create laws, calleddecree-law (Decreto-Ley), for urgent matters and are restricted on what they can do. Decree-laws must be approved within a month by theCortes Generales. The secondary legislation is called alegislative 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 theEuropean Union (EU) has its own laws, butEU law takesprimacy in certain circumstances. TheEU Treaties are the EU's primary legislation.[7] These include the founding treaty, the 1957Treaty of Rome, and all subsequent treaties, such as theMaastricht Treaty,Nice Treaty, andLisbon 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-bindingrecommendations and opinions:
Legislative acts are enacted via thelegislative procedure, initiated by theCommission, and ultimately adopted by theCouncil andEuropean Parliament acting in concert, which may also involve consultation with theEuropean Economic and Social Committee and theEuropean Committee of the Regions.
Non-legislative acts includeimplementing and delegated acts, such as those adopted by the Commission in pursuance of policy, which may involve so-calledcomitology committees. The Commission may act quasi-judicially in matters of EU competition law, a power defined inArticle 101 andArticle 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.
In Hong Kong, primary legislation includes ordinances of the domesticLegislative Council, andNationwide Laws of the People's Republic of China extended to Hong Kong by theNational People's Congress. Subsidiary legislation in Hong Kong is made by theExecutive Council or officials with delegated powers.
In theUnited Kingdom, primary legislation can take a number of different forms:[10]
In the United Kingdom, secondary legislation (also referred to asdelegated legislation orsubordinate 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:[12]
TheEuropean Union (Withdrawal) Act 2018 definesEU tertiary legislation[13] inretained EU law afterBrexit to mean:[14]
- (a) any provision made under—
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
- (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,
- (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[15] that were not enacted via theEuropean Union legislative procedure.
TheBritish English terminology of primary and secondary legislation is not used inAmerican English, due to the American dislike of the British constitutional concept of thefusion of powers as inherently incompatible withdue process and therule of law (one of the great divergences between American and British political philosophy which led to theAmerican Revolution). In contrast, theUnited States Constitution imposes a strict separation of powers. Therefore, the wordlegislation is typically used to refer only to acts of the legislative branch, and rarely the executive or the judicial branches. A similar relationship exists instate legal systems between laws, which are enacted by state legislatures, and regulations and policies, which are established by governmental bodies at the state andlocal levels.[16] In a 2013 majority opinion of theUS Supreme Court, Associate JusticeAntonin Scalia explained:[17]
[Legislative power] isvested 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 theymust be exercises of—the "executive Power".
The Constitution, which refers to itself as thesupreme law of the land is the equivalent to the British concept of primary legislation. Legislation similar to the BritishConstitutional Reform Act 2005 would require a constitutional amendment in the United States, which imposes a significant higher barrier to passage.
In the United States, anAct of Congress at the federal level is the equivalent to the British concept of secondary legislation. A statute that delegates authority to promulgate regulations to an agency is called anauthorizing statute ordelegation of rulemaking authority. All Acts of Congress are recorded in theUnited States Statutes at Large, and the permanent active ones are reorganized and codified into theUnited States Code.
In the United States, arule orregulation 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. Most regulations are codified into theCode of Federal Regulations. These are equivalent totertiary legislation.
The body of law that governs agencies' exercise of rulemaking powers is called "administrative law", which derives primarily from theAdministrative 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 acourt, rather than a legislature.
The APA also mandates a 60-day comment and review period before new rules or regulations can come into effect. In addition, regulations have to be issued by a Senate-confirmed executive branch officer (which excludes the President).
Presidential executive orders and memos would constitute a fourth-level of legislation, below tertiary legislation (i.e. the rules and regulations issued in accordance with theAPA by a Senate-confirmed executive branch officer). Memos issued by executive branch officers often have the full force of law. Memos sometimes constitute interpretive guidance of statutes or regulations, and this can have a significant impact on how a law is interpreted and implemented. Memos, unlike regulations, do not go through the 60-dayAPA process of comment and review, and usually go into effect immediately. Executive orders are issued in a manner similar to memos. The scope and authority of Presidentialexecutive orders underArticle Two of the United States Constitution is currently being debated.[18]
This article incorporates text published under the BritishOpen Government Licence:Parliament of the United Kingdom."Secondary Legislation". Retrieved31 October 2015.