Primary and secondary legislation
In parliamentary systems and presidential systems of government, 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 government. 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 the American system), creating legally enforceable regulations and the procedures for implementing them.
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
Civil law systems are almost universal in Europe, with the exceptions of England, Wales, Northern Ireland and the Republic of Ireland, as well as in Central and South America, much of Africa and Asia.
Each member state of the European Union (EU) has its own laws, and there is also overall EU law. The founding treaty, the 1957 Treaty of Rome, and all subsequent treaties, such as the Maastricht Treaty, Nice Treaty, and Lisbon Treaty, are the main primary legislation. The Treaty of Rome gives powers to make secondary legislation.
Member states must surrender some national jurisdiction powers to the European Union; these delegated powers are exercised by the Commission, Council and European Parliament acting in concert, having consulted the European Economic and Social Committee and the European Committee of the Regions. The powers are exercised via 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 an order to Member States to pass 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 pursue 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.
The Commission may take executive action in pursuance of policy, and may even 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. For example, the Commission may sue Member States for breaches of EU obligations, and Member States may sue Institutions or other Member States for breach of EU law.
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:
- 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.
- 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 the right 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.
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.
A law promulgated by the executive branch agency of the US government as the result of primary legislation is called a regulatory law, as 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 the agency's exercise of rule making and adjudication powers is called "administrative law," primarily the Administrative Procedure Act.
[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."
- "What is subordinate legislation?". Queensland Government. Retrieved 2017-01-24.
- What is secondary legislation?
- Buonomo, Giampiero (2015). "Negoziazione politica e Parlamento... Non solo risate". Avanti Online (in Italian). – via Questia (subscription required)
- "Sources of European Union law". Europa (Web portal). 28 August 2010.
- 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.
- "Secondary Legislation". Parliament of the United Kingdom. Retrieved 9 February 2016.
- "Hybrid instruments". Parliament of the United Kingdom. Retrieved 9 February 2016.
- City of Arlington v. FCC, 569 U.S. 290, 305 n.4 (2013) (emphasis in original).