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Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the
legislative A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known ...
and
executive Executive ( exe., exec., execu.) may refer to: Role or title * Executive, a senior management role in an organization ** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators ** Executive di ...
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.


Australia

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.


Canada

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. For example in Finland, the practice is to delegate the making of secondary legislation (“decree”, ) mainly to the
Finnish Government sv, Finlands statsråd , border = , image = File:Finnish Government logo.png , image_size = 250 , caption = , date = , state = Republic of Finland , polity = , coun ...
(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.


European Union

Each member state of the
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...
(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 The Treaty on European Union, commonly known as the Maastricht Treaty, is the foundation treaty of the European Union (EU). Concluded in 1992 between the then-twelve member states of the European Communities, it announced "a new stage in the ...
,
Nice Treaty The Treaty of Nice was signed by European leaders on 26 February 2001 and came into force on 1 February 2003. It amended the Maastricht Treaty (or the Treaty on European Union) and the Treaty of Rome (or the Treaty establishing the European ...
, 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 Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. ...
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 ''Van Gend en Loos v Nederlandse Administratie der Belastingen'' (1963) Case 26/62 was a landmark case of the European Court of Justice which established that provisions of the '' Treaty Establishing the European Economic Community'' were cap ...
''. * 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 Decision may refer to: Law and politics *Judgment (law), as the outcome of a legal case *Landmark decision, the outcome of a case that sets a legal precedent * ''Per curiam'' decision, by a court with multiple judges Books * ''Decision'' (novel ...
is a law that addresses a specific issue. Addressees may challenge a decision via
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
. Legislative acts are enacted via the
legislative procedure A bill is proposed legislation under consideration by a legislature. A bill does not become law until it is passed by the legislature as well as, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an '' ...
, initiated by the Commission, and ultimately adopted by the Council and
European Parliament The European Parliament (EP) is one of the Legislature, legislative bodies of the European Union and one of its seven Institutions of the European Union, institutions. Together with the Council of the European Union (known as the Council and in ...
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.


Hong Kong

Subsidiary legislation in Hong Kong is made with powers delegated by a law enacted by the Legislative Council of Hong Kong.


United Kingdom


Primary legislation

In the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and ...
, primary legislation can take a number of different forms: * An
Act of Parliament Acts of Parliament, sometimes referred to as primary legislation, are texts of law passed by the legislative body of a jurisdiction (often a parliament or council). In most countries with a parliamentary system of government, acts of parliame ...
. * An
Act of the Scottish Parliament An Act of the Scottish Parliament ( gd, Achd Pàrlamaid na h-Alba) is primary legislation made by the Scottish Parliament. The power to create Acts was conferred to the Parliament by section 28 of the Scotland Act 1998 following the success ...
, Measure or
Act of the Senedd An Act of Senedd Cymru ( cy, Deddf gan Senedd Cymru), or informally an Act of the Senedd, is primary legislation that can be made by the Senedd (Welsh Parliament; ) under part 4 of the Government of Wales Act 2006 (as amended by the Wales Act ...
or Act of the Northern Ireland Assembly * An Order in Council made under the
Royal Prerogative The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in th ...
*
Church of England Measures __NOTOC__ This is a list of Church of England Measures, which are the legislation of the Church of England. Some of these measures may have been repealed. Since 1970, Measures have been made by the General Synod; prior to then they were made by ...
– the instruments by which changes are made to legislation relating to the administration and organisation of the Church.


Secondary legislation

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

The European Union (Withdrawal) Act 2018 defines “EU tertiary legislation” in retained EU law after
Brexit Brexit (; a portmanteau of "British exit") was the Withdrawal from the European Union, withdrawal of the United Kingdom (UK) from the European Union (EU) at 23:00 Greenwich Mean Time, GMT on 31 January 2020 (00:00 1 February 2020 Central Eur ...
to mean: According to the explanatory notes accompanying the Act, this is meant to cover delegated and implementing acts that were not enacted via the European Union legislative procedure.


United States

The
British English British English (BrE, en-GB, or BE) is, according to Oxford Dictionaries, "English as used in Great Britain, as distinct from that used elsewhere". More narrowly, it can refer specifically to the English language in England, or, more broadl ...
distinction between primary and secondary legislation is not used in
American English American English, sometimes called United States English or U.S. English, is the set of varieties of the English language native to the United States. English is the most widely spoken language in the United States and in most circumstances ...
, due to the American abhorrence 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 The American Revolution was an ideological and political revolution that occurred in British America between 1765 and 1791. The Americans in the Thirteen Colonies formed independent states that defeated the British in the American Revoluti ...
). In contrast, the
United States Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
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:''City of Arlington v. FCC''
569 U.S. 290, 305 n.4
(2013) (emphasis in original).


Act of Congress

In the United States, the equivalent at the federal level to the British concept of primary legislation is an Act of Congress. A statute that delegates authority to promulgate regulations to an agency is called an ''authorizing statute'' or ''delegation of rulemaking authority''.


Regulations "with the force of law"

In the United States, a law promulgated by an executive branch agency of the US federal government pursuant to authority delegated by 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. The body of law that governs agencies' exercise of rulemaking powers is called "
administrative law Administrative law is the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as " regulations"), ...
", 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 A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...
, rather than a legislature.


See also

* * *


Notes


References


External links


Public general Acts of the Parliament of the United KingdomSecondary legislation
at the
Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprem ...
{{Authority control Law by type